(The Return of) Ignatz, by Sam Heldman

Tuesday, April 29, 2003

Pryor (what? more?)
Here is a bit more in response to the National Review article discussed below, in which the author supports the nomination of Bill Pryor.

The author claims that Pryor demonstrates "great deference and humility towards other branches of government and higher courts"—a claim that is either a meaningless platitude or a false statement. Just to take a few examples: According to the Washington Post, he ended one speech with a swipe at Justice Souter. His publicly-stated analysis of the Supreme Court's near-unanimous decision in the VMI case was the dismissive and derisive assertion that the Court (including Justice Rehnquist) "somehow" reached its decision, in a fit of "political correctness". He called the Ninth Circuit's Newdow decision "ridiculous and outrageous." (Agree with him if you wish, but it's hard to call that "deference and humility … towards [a] higher court[]"). He sneered at President Clinton and Attorney General Reno in a public speech, calling their pursuit of a lawsuit against the tobacco industry "extortion" among other less than humble and deferential remarks. And his lack of deference to the Congress is the centerpiece of his legal fame (for instance, in his insistence that the Congress had no authority to enact a law that prohibited States from selling personal information about their citizens; fortunately, the Supreme Court unanimously disagreed). If deference and humility towards other branches of government and higher courts are virtues for judicial nominees, they are virtues that Bill Pryor has not demonstrated.

The author of the National Review piece also claims that Pryor was "duty bound" to decry Section 5 of the Voting Rights Act as an unwarranted intrusion into state affairs. Hogwash. First of all, under that reasoning, the Attorneys General of sixteen states (the number of states with jurisdictions that are covered presently under Section 5) would likewise have been obligated to decry Section 5 in equally strong terms; but there is no indication that they have done so. More importantly, if one truly believed that Bill Pryor was "duty bound" to take positions against federal intrusion that would limit States' authority, regardless of whether he believed in those positions, then one would have to conclude that Pryor has shirked that duty in many situations. Consider, for instance, the case decided by the Supreme Court this Term in which a right-wing group was attacking the IOLTA programs by which every State funds legal services for poor people. Alabama's program, like other states', stood to be struck down if this attack had succeeded. And 38 Attorneys General by my count, together with the Conference of Chief Justices, the National League of Cities, and other national establishment groups, rallied to the defense of state laws. But not Bill Pryor.

My point is not that Bill Pryor has done something wrong by failing to advocate vigorously for the constitutionality of every state law. In fact, I applaud him for recognizing that he does not have to do so; he has taken an oath to support the U.S. Constitution as he understands it, even when that may conflict with state law. I hope that he is candid enough to say, for instance, "I have defended Alabama's anti-vibrator law, and its anti-sodomy law, more vigorously than I defended Alabama's IOLTA program because that's what I believed in." My problem is with his beliefs as to what the States have a "right" to do, and what they do not. And my problem also is with those who pretend that his beliefs have not entered into his official actions, and who pretend that they would not continue to do so if he were confirmed as a judge; for every judge's beliefs are manifested in his or her opinions.

posted by sam 11:04 AM 0 comments


I just bought (for 99 cents) and am listening to my first digital purchase from the great new Apple iTunes music store, a heretofore unreleased live recording of Bob Dylan, 1963, "Hero Blues". Get yourself an iMac and check it out.

posted by sam 9:48 AM 0 comments

Monday, April 28, 2003

no really, about that National Review ...
For some reason, this silly blogger won't post what I've been trying to say. I'll try again, without the link; therefore, to read the article that I'm criticizing, you'll have to go down to an earlier post today in which I was discussing it. Anyway, here is what I was trying to say:

I've figured out, I think, precisely what bugs me most about the National Review article in favor of Bill Pryor, that I have already discussed a little bit below. It is that the writer sets the bar for confirmability -- no, indeed for perfect scrupulousness and genius -- mighty mighty low. It consists of not willfully disobeying clear federal law: the author praises Pryor to the skies, for telling State officials that they should obey clear Supreme Court precedent on abortion, and for his decision to comply with Section 5 of the Voting Rights Act even while decrying it as an intrusion into state sovereignty. I agree: those are good things, in the sense that to have done the opposite would have been very very bad. But it takes more than that, in my book, to make someone a good candidate for the federal appellate bench.

posted by sam 9:07 PM 0 comments

Krazy Kat

Got a nice email from the proprietor of the great Krazy Kat site, discussed below. Though I won't purport to speak for him, I will say that I don't think he's trying to impose any copyright restrictions beyond those that are warranted by law, and I've got no bone to pick with him. I had thought wrongly that I might, but now I know that I don't. So, just enjoy the cartoons and commentary!

posted by sam 9:05 PM 0 comments

Why would an article in the National Review bug me?

I've figured out, I think, precisely what bugs me most about the National Review

posted by sam
9:03 PM 0 comments

why would an article in the National Review bug me?

I've figured out, I think, precisely what bugs me most about the National Review

posted by sam
8:57 PM 0 comments

that darn Yglesias

When I was a college senior a few weeks from graduation, I was not spending my days following the intricacies of political debates, nor giving writing assignments to my elders. Perhaps later this week I will have time to do a sustained response to the article in the National Review, to which Matthew links, defending Bill Pryor's nomination. On a first skim, I note some misstatements -- for instance, his opposition to the Voting Rights Act of 1965 was not limited to "one section," as the National Review article says (see here for the speech decrying Section 5 and also calling for unspecified changes to other sections of the Act), and the assertion that Pryor's support for incumbent Justice See over now-CJ Moore (who is more liberal than Justice See on some important issues such as arbitration) was somehow courageous for a Republican -- and at least one bit of praise that was carefully calculated to make him seem reasonable when he was in fact merely declining to be absurd. What I mean by the last bit is the article's reference to his refusal to make an argument that former Governor Fob James wanted him to make; that argument was that the First Amendment should not be applied to the States through incorporation under the Fourteenth. In other words, Gov. James wanted to argue that States are free, under the U.S. Constitution, to establish an official state religion if they darn well want to -- that the First Amendment limits only the Congress, and that the Fourteenth Amendment does not make this prohibition applicable to the States. I hope that we have not come to the point in our constitutional history where the qualification for the federal bench is merely the ability to recognize that this argument would be swiftly rejected by any modern court.

posted by sam 10:36 AM 0 comments

in which I whine about copyright again

The internet's leading site on Krazy Kat has had a nice facelift. Go check it out, I recommend. But while you're there, please notice how authoritatively -- and, to my understanding, how completely falsely -- King Features asserts that every bit of the art there is under a currently-enforceable copyright, in that you're not allowed to copy or transmit it without their permission. Even the stuff on this page, for instance, which is admitted to be from 1919 and thus (to my understanding) in the public domain now. And indeed they claim that all the characters are (c) 2003, thus suggesting (if anyone really believes that) that Krazy and Ignatz wouldn't be in the public domain til the 22nd century I suppose.

If anybody who knows more about copyright than I do (and there are plenty of such people) can tell me that there is a plausible basis for asserting that a drawing done in (and published in newspapers in) 1919 can still fall within copyright protection, or for asserting that characters who have existed in published works since then can be said to be copyrighted anew this year -- please let me know. If I didn't have too much to do already, I'd think about filing a declaratory judgment action. [And if you are reading this on behalf of King Features and are thinking of squashing me like a bug, please see the ends of these prior posts.]

posted by sam 7:15 AM 0 comments

Sunday, April 27, 2003

If you happen to have arrived here as a result of the mention in the Birmingham News this morning, and are looking for my posts so far on Bill Pryor, welcome. Please look here, here and here, and follow the links in those posts to earlier installments. And, if you are unfamiliar with the concept of a "blog" (which is what this is), here's a brief explanation: it's the CB radio of the 21st century, a community of people with varying interests and perspectives who offer opinions and insight, usually pretty informally, about everything under the sun. This blog is of the subspecies "law and politics/left-liberal." On the right hand side of this page you will find links to other blogs that you might find more interesting than this one.

posted by sam 12:44 PM 0 comments

Friday, April 25, 2003

Atrios has a quote from one of Bill Pryor's briefs, urging that it is rational for a state to decide that orgasms achieved with the help of a device are contrary to the public good. This is, of course, the case involving the Alabama law prohibiting the importation of devices intended for the stimulation of genitals; the law has once again been struck down by the District Court after the Eleventh Circuit decision from which that quote comes, and is presumably up on appeal again. My purpose in writing this was not just to get to write "devices intended for the stimulation of genitals." It was to say that I hope that somebody -- on a Senate staff, or in advocacy groups -- is doing the legwork necessary to catalog the legally and culturally divisive things that Pryor has said in his briefs to the Eleventh Circuit. His briefs to the Supreme Court are largely -- though not entirely -- available online, thus allowing us (for instance) to see (p. 25 of the brief, which is p. 33 of the pdf file) that he out-Santorumed Santorum, and included necrophilia in his list of things that must be constitutionally protected if gay sex is. But there are surely some equally notable things in the Eleventh Circuit briefs, which are available as public records but not in a convenient electronic way. Again, I just hope that somebody is reading them with an eye towards Judiciary Committee hearings.
(By the way, I think that the Liquid List pointed out the necrophilia quote the other day.)

posted by sam 4:17 PM 0 comments

free offer!!

If you happen to be interested in an introduction to the National Labor Relations Act, with special emphasis on the rights that the Act confers on employees who don't have a union, click here to download a paper that some colleagues and I just prepared for a couple of seminars. I like to think that it might be useful for many lawyers even if they don't think of themselves as ever practicing labor law; and I also like to think that it might be of interest to people who aren't lawyers.

posted by sam 3:00 PM 0 comments

the end of the S.Ct. predictions, at last

Thank goodness there are only 6 more Supreme Court cases this Term; I have tired of this prediction contest that I created. But at least I persevered through it, which is more than I can say for myself about some things. Here, in one mad burst, are predictions for the final six cases. (Please keep reading after the first two, below; it gets somewhat more interesting after those).

First case next week is Black & Decker Disability Plan v. Nord. What could be more exciting than a case about the nuances of the "abuse of discretion" standard for review of the denial of a disability claim under an ERISA plan in which the eligibility-decisionmaker is also the plan funder and thus has a conflict of interest? The Ninth Circuit, in a roundabout way, arrived at the conclusion, more or less kinda sorta (pdf), that when you're dealing with a plan that has that sort of a conflict of interest, there's a presumption that the plan has to award benefits if the claimant's own treating physician says that the claimant is disabled – even if some other doc or docs disagree. I don't really think that the case presents any nice clear well-defined issue of law, so cert probably shouldn't have been granted – but having granted, the Court will (I predict) REVERSE. Bottom line: If I'm predicting correctly, then it will be somewhat easier for employers to deny you the health insurance, disability insurance, etc., benefits to which you think you're entitled.

Second case for Monday is Entergy Lousiana v. Louisiana Pub. Serv. Comm'n, some horribly arcane thing about the extent of state jurisdiction over power rates, under some complex federal statutory scheme. The U.S., as amicus, says "REVERSE" and so I do too.

First case for Tuesday is Georgia v. Ashcroft, which presents the question "Hey, has litigation under Section 5 of the Voting Rights Act become just a tool of partisan struggle between the two major parties, or what?" As you may know, under Section 5 of the Voting Rights Act of 1965, a "covered jurisdiction" – which includes various places with a history of voting-rights discrimination, including much if not all of the Deep South – is prohibited from making any change to voting practices and procedures unless it gets a certification from the U.S. Attorney General or from the U.S. District Court for the District of Columbia that the change has neither the purpose nor effect of "retrogression" – i.e., that it won't make minority voters worse off than they were under the prior scheme. This applies to redistricting as well as to other sorts of voting changes. So, whenever there is redistricting, you get partisan battles in the legislature to see which party can gain some advantage – and then you get partisan battles over Section 5 litigation or administrative clearance as well. Sometimes – as in this case – this leads to odd bedfellowship. The Georgia Attorney General, a Democrat, is making some pretty far-reaching attacks on Section 5. The Georgia Governor, a Republican, wants the AG to drop the attack. U.S. AG Ashcroft is enforcing the Voting Rights Act; he is allied with the ACLU, the NAACP LDF, and other liberal groups, and with Black intervenors who are represented by a prominent Republican lawyer. Get the picture? The U.S. Dist. Ct. for DC struck down Georga's legislative redistricting plan, holding that it was retrogressive. Republicans like that, because that plan was bad for Republicans. Democrats don't like that, because that plan was good for Democrats. So Republicans hug the Voting Rights Act, even though (for instance) Ala. AG Bill Pryor has called it an affront to federalism; and Democrats question the constitutionality of the law as it was interpreted by the District Court. Alice in Wonderland? No, just politics. Anyway, as nearly as I can tell, the Supreme Court will AFFIRM. Why? Go ask Ed Still and Rick Hasen if you want real exegesis; I just think it comes down to deference to the District Court's factual findings, and adherence to precedent. There's ultimately less to this case than the Georgia A.G. likes to pretend, I think; perhaps this is because, in this multi-sided Voting Rights Act suits, my sympathies tend to lie with the minority voters who favor the Democratic Party, rather than with the Democratic Party apparatus itself much less the Republican Party apparatus. But if you want links to pdfs of all major rulings and all major filings by the parties, go to this site courtesy of your friends in the Georgia Republican party.

Second case for Tuesday is Fitzgerald v. Racing Ass'n of Central Iowa. Does the Equal Protection clause prohibit Iowa from taxing slot machines at dog tracks at higher rates than it taxes gambling on riverboats? The Iowa Supreme Court said "yes, that's an equal protection violation" but the U.S. Supreme Court will REVERSE rather easily because the Court won't want to get involved in the minutiae of state tax policies. If you are even more cynical than I am, and think that the Iowa Court's rather-clearly-wrong decision was merely a result-oriented gift to the racetrack industry, consider this: if the Iowa Court had wanted to give a gift to the racetrack industry they would have written this decision in such a way that it would not be subject to review by the U.S. Supreme Court (by basing the decision on the State Constitution rather than the federal one). But they didn't, and that indicates to me that they were doing their best to decide the case correctly rather than reaching for a particular result. Good for them, even though they'll get reversed.

The first case for Wednesday is Virginia v. Hicks. Hicks was convicted of trespass in Virginia state court, for walking on a sidewalk alongside a street within a public housing project in Richmond. The housing authority had adopted a rule that barred people from being within the boundaries of the project if they didn't live there and had no "legitimate" purpose for being there – and if you were told to leave once, and came back on a later occasion after having once been barred, you would be arrested for trespass. So Hicks was convicted, but the Supreme Court of Virginia held that this conviction was unconstitutional because the restrictions on who could be within the boundaries of the project violated the First and Fourteenth Amendments. Mostly, the Court's reasoning was that the rule was "overbroad" and could allow the prohibition of constitutionally-protected free speech (e.g., passing out leaflets, and so forth). In the U.S. Supreme Court, Virginia makes two arguments: its first argument is about the scope of the "overbreadth" doctrine (a confusing area of constitutional law that sometimes allows people to challenge laws on the grounds that they might, in other circumstances, result in the trampling of First Amendment rights) and its second argument amounting to an assertion that the State has a lot more leeway under the First Amendment when it's acting as a landlord than when it's acting as a regulator of the public. All I've got is a hunch here, but my hunch is that the Court will REVERSE, probably on the basis of the "overbreadth" issue – that is, that the Court will say that the policy may or may not be unconstitutional as applied to expressive conduct, but that Hicks can't make that argument because he wasn't involved in any expression.

I am eagerly awaiting the outcome of the Term's last argued case: we will finally find out whether there is any federal statute that gives rise to "complete preemption" removability aside from § 301 of the LMRA and § 502 of ERISA. You may think I'm joking about being excited, but I'm not. The case is Beneficial Nat'l Bank v. Anderson. There is a relatively obscure federal statute, 12 U.S.C. § 86, prohibiting usury by national banks. Apparently that statute, when it is applicable, preempts (i.e., displaces) any state law claims that might otherwise apply. The question here is whether, when a plaintiff brings a state law claim for usury against a national bank, the bank can say "Hey, whether you know it or not, and whether you want it to be or not, that’s really a federal law claim, and so we're removing this case to federal court." The Eleventh Circuit said "no, the bank can't do that." As the Eleventh Circuit recognized, "complete preemption" of the sort that gives rise to removability is a very rare bird. Thus far the Supreme Court has only recognized it as to the two statutes above. And it exists only when there is really reason to believe NOT ONLY that the Congress wanted to preempt state law, BUT MOREOVER that Congress wanted to allow removability (as contrasted with the ordinary rule, which is that preemption does not usually give rise to removability). I think that the Eleventh Circuit got it right, and that the Supreme Court will AFFIRM, notwithstanding the invitation by the Solicitor General (here) to substantially expand the doctrine of complete preemption removal. (The SG essentially says that ANY federal statute that provides a cause of action and preempts the field ought to give rise to complete preemption removal; but that would be a drastic change, and should be up to the Congress rather than to the Court).

That's it. All done.

posted by sam 7:27 AM 0 comments

Thursday, April 24, 2003

two short items
* Don't wear a bandana over your nose in Huntsville AL. You'll get arrested. Strike that -- you'll get arrested if you're an antiwar protestor whom the police don't like.. Article here.

* The big topic in some corners of the blogworld these days is, "so why would gay sex be constitutionally protected, but not consensual adult incest?" (e.g., here, here, and here). It's hard even to take the question seriously, because it is usually posed -- as by Sen. Santorum -- with the implication that gay sex is like incest in some way that hetero sex is not. But if you do want to take the question seriously (though I don't, particularly), get yourself to a law library or fire up your LEXIS account and read Jed Rubenfeld's "The Right of Privacy," 102 Harv. L. Rev. 737 (1989), which lays out a brilliant account of the constitutional right to privacy. Along the way, it happens to answer the "incest" question, at p. 801 n.223. Long story short, the theory of privacy in Rubenfeld's article is an anti-totalitarian one: the right in question is not the right to perform any particular sex act, but the right not to have the government invasively mold the citizenry's life along a particular narrow path. Good reading for those interested in law and philosophy. (And I helped edit the article, back in the day, though I can't claim that I did anything to make it better).

posted by sam 7:01 AM 0 comments

Wednesday, April 23, 2003

There has always been a silver lining to the cloud of practicing labor law in the "right to work" South: it has been unnecessary to learn all the ins and outs of Beck. Not Beck, but Beck (Supreme Court decision holding that people represented by unions have the right not to pay some portion of union dues if they don't want to). In the "right to work" South, there is a right under most states' laws to be a total freeloader, not just the federal law Beck right to be a partial freeloader, so I happily never had to learn all the intricacies of substance and procedure under Beck and its progeny. Nonetheless, I do know enough to know that the recent decision of the U.S. Court of Appeals for the D.C. Circuit, upholding a Bush Executive Order that requires government contractors to notify employees of their Beck partial-freeloader rights, is bad news and is wrong. Maybe next year -- after going this entire Term without hearing a single case under the labor laws (as distinct from employment laws) -- the Supreme Court will step in and (a) bring some needed clarity to "Garmon preemption" and (b) reverse this decision. Unfortunately, the Supreme Court will not be in a position to make snarky comments like, "Well, Mr. President, as long as you're requiring employers to post notices telling employees of their rights, why not require them to post notices telling employees of the rights they have, under the federal labor laws, to stand up to their employers? Or does that not fit into your vision?"

posted by sam 11:50 AM 0 comments

Tuesday, April 22, 2003

S.Ct. predictions
The last case to be argued this week is Nike v. Kasky. There has been a boatload of press coverage of the case, so you probably know the deal already if you're interested. If you want the briefs, go to the Goldstein Howe site here; they're representing Nike along with some lesser-known cocounsel.

Long story short, California consumers brought suit under California's consumer protection laws, claiming that Nike had made misleading public statements about the treatment of the people who make its shoes in overseas manufacturing plants. The California Supreme Court held that the First Amendment did not shield Nike from such a suit, because the statements at issue constituted "commercial speech." "Commercial speech" gets less First Amendment protection than does speech on important matters of public concern, under the present view; but some people want to abolish or at least dilute that distinction.

If you were interested in my own views, I would tell you that I can't see how Nike can reasonably win this Constitutional issue, not because I think that the "commercial speech" doctrine is so sacrosanct, but because I can't see how the First Amendment could reasonably be construed as giving somebody a right to be less than careful about what he (she or it) says about him(her, it)self. I'm all in favor of breathing room for criticism of public figures, under NYT v. Sullivan, and that means a constitutional right to be less than perfectly careful about what you say about public figures. But how that translates into a right to be sloppy about telling the truth about one's self, I can't see.

But enough about me. What will the Court do? I'm guessing REVERSE in one of two ways: either (less likely, I am betting) that the Court will say that the suit is completely foreclosed by the First Amendment, or that the Court will vacate the Cal. S.Ct.'s decision, say something about how this was not classic "commercial speech," make some new standards as to how such a case can perhaps proceed without tramping on the Constitution, and remand for further proceedings. In other words, I'm guessing that if they do anything other than say "righto, it's commercial speech just as the Cal. S.Ct. said, so full steam ahead with your lawsuit," they'll call themselves "vacating" or "reversing" rather than "affirming". Thankfully, only 6 more of these predictions to go.

posted by sam 11:45 AM 0 comments

Once more re Bill Pryor

The Supreme Court today issued its unanimous decision in Jinks v. Richland County, upholding the constitutionality of 28 U.S.C. § 1367(d) and holding that the statute does apply to municipalities as well as to other types of defendants. An obscure little case, with a unanimous decision by Justice Scalia reaffirming (among other things) the age-old rule that municipalities have no "State Sovereignty" right to be exempted from federal laws. Hardly worth a mention, except for one thing: that, showing once again how far outside the mainstream he is in his aggressive "state's rights" activism, Attorney General Bill Pryor spearheaded an amicus brief arguing doggedly in favor of the losing side. (It's available on LEXIS, but not available on the free internet so far as I can tell). Pryor used the resources and clout of the State of Alabama, in a case to which neither the State nor any Alabama municipality was a party, to work towards the radical goal of exempting municipalities from the obligations of federal law. Fortunately, today's decision gives comfort that none of our current Supreme Court Justices is as far out as that.
[earlier posts re nomination of Pryor to 11th Cir. here]

posted by sam 11:27 AM 0 comments

Monday, April 21, 2003

The first case to be argued Wednesday, American Insurance Ass'n v. Garamendi, could be interesting. It's about a California law that requires all insurance companies doing business in that State to submit records of all policies issued by itself or its affiliates that were in effect in Europe between 1920 and 1945. The purpose is to help the survivors of Holocaust victims recover any insurance proceeds to which they may be entitled. The question is (a) whether this state statute is invalid under the Constitution because it interferes with the federal government's authority over international relations; and (b) whether the state statute is invalid under the Due Process Clause or the Commerce Clause, on the grounds that it seeks to legislate about matters outside the State's own borders. The Ninth Circuit upheld (pdf) the law. The insurance industry, supported by the federal government (amicus brief), wants the Supreme Court to reverse. I have no particular insights into how the Court will approach this, other than to say (a) they'll again take the views of the Solicitor General quite seriously on the international-relations angle, and (b) as exemplified by the recent punitive damages case (State Farm v. Campbell), the Court is currently in love with the rule that a state can't legislate outside its own borders, so on one basis or another I predict that the Court will REVERSE. A legally dry case about a very serious and important subject.

posted by sam 12:31 PM 0 comments


Tuesday's second case, Hillside Dairy v. Lyons, is about the price of milk, and the Commerce Clause. It's definitely more information about milk pricing law, an apparently very complicated field, than I care to understand. I hate milk. I haven't had a glass of milk in decades. I don't even like to think about milk. I say "REVERSE" the decision (pdf) of the Ninth Circuit, because that's what the Solicitor General says in his amicus brief and they'll take the federal government's views quite seriously in a case like this. If you have a deep interest in milk law, go to the Goldstein Howe blog for more substance as always.

By the way, the Court will presumably issue some opinions tomorrow, and it's high time for Justice Thomas to issue the decision in Chavez, much discussed in the blog world several months ago when it was argued, the case that either does or does not stand to make a mockery of the "right to remain silent". Stay tuned.

posted by sam 7:49 AM 0 comments

Saturday, April 19, 2003

S.Ct. prediction
Tuesday's first case Green Tree Financial v. Bazzle, is a very interesting one about class actions and arbitration. As you have seen if you remember Pacificare v. Book (discussed here earlier, and decided by the Supreme Court shortly thereafter as discussed here), companies that impose arbitration agreements on their customers (or "freely negotiate arbitration agreements with their customers" if you actually believe that version of the story) aren't generally satisfied merely with getting their disputes resolved by arbitrators as opposed to by judges. More than that, the companies are eager to get to arbitration and to make the arbitration more friendly to their interests than litigation would be – by, for instance, limiting the remedies that are available or (as in this case) precluding class actions. This case won't necessarily resolve every issue that arises out of this effort to preclude class actions in arbitrations – this case, as I understand it, does not involve the bottom-line question whether an arbitration agreement is enforceable if it flat-out precludes arbitral class actions by clear language to that effect – but it will clear up some of the confusion in the area.

This case before the Supreme Court actually includes two cases coming up from the lower courts. Both involve consumer claims against Green Tree for violating aspects of South Carolina law. In both instances, the consumers who brought the claims – the Bazzles in one, and Lackey et al. in the other – sought to bring their claims not only on behalf of themselves, but also on behalf of all other consumers who were subjected to the same wrongdoing. (I am inferring, most likely, that the other consumers similarly affected were also subject to arbitration "agreements"). The arbitration "agreements" didn't explicitly rule out class proceedings. In the Lackey case, the arbitrator ruled that the arbitration would proceed on a class basis, and ended up ruling against Green Tree on the merits and awarding relief to the class. In the Bazzle case, before the case went to arbitration a court certified a class, and then sent the class's claims to arbitration, and then the arbitrator ruled in favor of the class. The South Carolina Supreme Court upheld both decisions.

It would be relatively easy to write volumes about this case – particularly if you knew more than I do, which is a pretty good bit but far from everything – so I'll try to keep it short. As for the case where it was the arbitrator who decided that a class action was appropriate, I think that it would be very hard for the Court to hold that this was improper where the arbitration "agreement" did not explicitly rule out class-wide arbitrations. Two big hurdles stand in the way of such a ruling: (1) the Court's usual deference to arbitrators in making the procedural rulings that apply in an arbitration proceeding; and (2) the fact that, according to the South Carolina Supreme Court, Green Tree waived the argument that would be most useful in defeating the arbitrator's ruling, that argument being that the class-wide arbitration somehow deprived absent class members of some portion of their due process rights. But it would be relatively easier for the Court to say, in the Bazzle case, that the court should not have taken upon itself the authority to certify a class – that the Court should have left that up to the arbitrator. That's the easy, and less controversial, way to reverse (in part) in this case. There's some chance, of course, that the Court could reverse both parts of the case and make some ruling that arbitrations should never proceed on a class basis (at least where the "agreement" doesn't explicitly allow it); that would strike me as a very bad ruling, but it's possible. In any event, whether in whole or in part, I'm saying REVERSE.

posted by sam 7:19 AM 0 comments

Friday, April 18, 2003

Very cool Rube Goldberg-ish ad for Honda here, if you have a high-speed connection. It is, apparently, for real. Yes, I'm a geek; I look at Metafilter.

posted by sam 1:43 PM 0 comments

S.Ct. prediction

The second case to be argued Monday is an employment discrimination case, Caesar's Palace v. Costa. You should go to Caesar's Palace someday if you haven't been; it's the pinnacle of something.

If you just read the basic provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. -- the main federal statute banning employment discrimination on the basis of race, sex, national origin, and religion -- you would find it hard to imagine the doctrinal complexities that have developed through judicial interpretation, like barnacles (or flowers, depending on your point of view I suppose) on the relatively simple rule prohibiting employment discrimination. There are buzzwords like "prima facie case," "direct evidence" vs. "circumstantial evidence," "mixed motive", "pretext plus", and so forth.

This case presents a contention, by the employer Caesar's Palace, that I have a hard time even getting my head around in order to state it simply. It seems that what Caesar's Palace is saying is that, in a case without "direct evidence" of discrimination, it should be harder for an employee to prevail in a "mixed motive" case than it is when there is direct evidence.

It is settled that, at least in a case with direct evidence, if the employee proves that a prohibited discriminatory animus was a substantial part of the reason for the adverse employment action, then the employer bears the burden of proving that it would have made the same decision even if it hadn't relied in part on that unlawful factor. "Huh?" you're saying. Let me try again. One conceivable rule is that an employee would have to prove not only that (e.g.) race was a factor in the employer's thinking, but moreover that it was the dispositive factor -- in other words, that the employer would not have taken the adverse action had it not been for that factor. But that rule has been rejected, by the Congress, in § 2000e-5(g)(2)(B): if an employee proves that (e.g.) race was a factor, then the employer has the burden of proving that it would have made the same decision even without that factor. Under this rule, the employee does not have to prove that (e.g.) race was dispositive in the employer's decisionmaking. All of this is what's known as the "mixed motive" issue.

Let me give a practical take on this for a minute. There is always an arguably legitimate reason to fire or discipline any employee. Nobody's perfect. Everbody does something wrong from time to time. So, whenever anybody is fired or disciplined, it's nearly impossible to prove that the employer's mind was totally lacking any legitimate rationale. The real crux of it is the question whether the employer was also being more harshly, less generously, disposed towards the employee's failings because of the employee's race, sex, or what have you. So, as I see it, nearly every case is really a mixed motive case at its core.

Back to this case. Caesar's claims – and some courts have agreed – that the burden in "mixed motive" cases shifts to the employer only in those cases where the plaintiff has "direct" evidence – something like smoking-gun proof -- of discriminatory animus. In cases involving circumstantial evidence, on the other hand – e.g., cases where the plaintiff has no smoking gun but seeks to prove discrimination in some other way that is recognized as legitimately probative under applicable caselaw – Caesar's says that a different, more pro-employer, rule should apply. This argument seems to have its roots in Justice O'Connor's concurrence in Price Waterhouse, a case from 1989. The Ninth Circuit, though, rejected (pdf file) Caesar's argument.

Why will the Supreme Court affirm despite the curse of the Ninth Circuit? Because, for one thing, the Ninth Circuit was plainly right; whatever one thinks of Justice O'Connor's focus on direct-evidence cases in her Price Waterhouse concurrence, that's really irrelevant because the Congress thereafter responded to Price Waterhouse with the statutory language I linked above, and that language makes no distinction between direct evidence and circumstantial evidence cases. Those terms aren't even mentioned in the statute, so the Court should not make an employer's liability depend on some difference between those judicially-created concepts. Moreover, when push comes to shove, this Supreme Court can sometimes make a quite reasonable decision in Title VII cases – see, for instance, this case from last year on the "continuing violation" doctrine. I put my faith in Justice Thomas and maybe even everybody to join the "liberal" Justices here, and so I say "AFFIRM" There is, by the way, a real possibility that the Court will dismiss the case without a decision, because it's not even clear that Caesar's effectively preserved this legal issue at trial.

posted by sam 8:03 AM 0 comments

Thursday, April 17, 2003

Did you know that you can buy the Harvard Law Review on Amazon? And that if you hurry, you can be the first person to give it a review?

posted by sam 2:55 PM 0 comments

S.Ct. predictions

Back for the last round of this (getting old, but there's no one to blame but myself) Supreme Court prediction thing; the last two weeks of April bring the last 12 cases to be argued this Term. The first case to be argued on Monday is yet another habeas corpus case, Price v. Vincent. The Sixth Circuit granted the writ of habeas corpus, finding that Vincent's rights under the Double Jeopardy clause had been violated. In a nutshell, what happened is that when the prosecution (in Michigan state court) had concluded, the defense moved for a directed verdict of acquittal on one count – essentially, a motion asking the trial court to declare that the prosecution had not introduced sufficient evidence to allow the jury to convict on that count, even if the jury believed all the prosecution's evidence and drew every allowable inference from that evidence. The trial court indicated that it was granting that motion, i.e., that it would remove the most serious charge from the case and let the case proceed on the other reduced charges. Whether the trial court was ambiguous about this, or not, is a big question here. Then the next morning, the trial court said that it had changed its mind, and was not granting a directed verdict on any part of the case. The jury had never been informed about the prior "ruling" or "quasi-ruling", whichever it was. And now the question is, did this really amount to an acquittal, such that it would violate the Double Jeopardy clause to "undo" the acquittal? And was the error (if any) so clear that a federal court can grant habeas corpus relief? (We've talked before about the stringent standards applicable to federal habeas relief in state court convictions.)

Why do I think that the Court will REVERSE and reinstate the conviction despite what strikes me as a convincing brief (pdf) for the Respondent? Because the United States has filed an amicus brief in support of the state (here), and because there's something odd about the many times that the Court "relisted" the case (see docket sheet here) before setting it for argument. Maybe they were even considering a summary reversal without full briefing or argument, but decided in the end that there were some questions that needed to be cleared up? Anyway, REVERSE it is.

posted by sam 10:23 AM 0 comments

Wednesday, April 16, 2003

The Pryor nomination (cont'd): his too-loose treatment of precedential caselaw
The supporters of Bill Pryor's nomination will say – just as the supporters of any judicial nomination say – that he will avoid deciding cases according to his own personal views, but will instead adhere faithfully to existing precedent whenever that precedent points towards the answer in a case that comes before him. This is wrapped up in the talking point that many conservatives use these days, now that they are the ones picking the appellate judges: that nearly all questions of law coming before the federal appellate bench have one correct answer that can be divined from existing precedent (and other authoritative legal sources) by a smart person working in good faith. So, they say, our concern about the ideologies of judicial nominees is overblown and misplaced; we should only be focusing on competence and honesty.

To test their hypothesis, and to see how it fits the record of 11th Circuit nominee Bill Pryor, let's look at the recent Supreme Court case of Hope v. Pelzer, in which prison guards had been sued for violating the constitutional rights of a prisoner. The guards handcuffed him to a "hitching post" outdoors, with his arms raised above his shoulders, for hours on end. Now, because of the peculiar legal doctrine of "qualified immunity," in order to prevail the plaintiff had to show not only that this violated his constitutional rights, but also that the violation was so crystal-clear that it would have been obvious to any reasonable government official.

Fortunately for the plaintiff, there was a precedent right on point: a case decided by the Fifth Circuit Court of Appeals (the predecessor to the Eleventh, the Court to which Pryor has been nominated). The Supreme Court cited and quoted that opinion as follows:
Gates v. Collier 501 F. 2d 1291. That opinion squarely held that several of those "forms of corporal punishment run afoul of the Eighth Amendment [and] offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess." Id., at 1306. Among those forms of punishment were "handcuffing inmates to the fence and to cells for long periods of time, ... and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods." Ibid.
And so, said the Supreme Court (with a majority that included Justices O'Connor and Kennedy), this was one of those cases where the right legal answer should have been obvious not only to every person who is learned in the art of legal reasoning, but also even to every non-lawyer prison guard: it was just that obvious, under that clear precedent. (Indeed, said the Supreme Court, it was perhaps obvious even if you looked only at the Supreme Court's own precedents, even leaving aside that Fifth Circuit case). While the Eleventh Circuit had wrongly held that the guards were entitled to immunity (based on the Circuit's too-strict qualified immunity doctrine), the Circuit got the obviously correct answer to the underlying legal question: this was a violation of the prisoner's constitutional rights.

Where does Bill Pryor fit in? It's that, when he and lawyers under his direction were representing the guards in the Supreme Court in this case, he doggedly argued that the Constitution allowed the conduct that the Supreme Court held that any reasonable person should know that it prohibited. Not only did he argue (wrongly) that the guards were entitled to immunity; further than that, he argued vigorously that the Fifth Circuit precedent didn't really mean what it said, and that this sort of thing was perfectly lawful. This was one of those cases where precedent points with absolute certainty towards one correct answer, and Bill Pryor avoided that answer with all his strength. The Supreme Court recognized that Fifth Circuit precedent (and other law) was so clear, that every reasonable public official in Alabama – even one with no law degree – would have known that this behavior was unconstitutional. But Bill Pryor placed himself outside the bounds of "reasonable," in his attempts to evade the force of that precedent.

As I've noted before, you can't write off Bill Pryor's legal arguments in this sort of case as being merely "he was a lawyer, representing a client." As Pryor emphasized himself in his amicus brief to the Fifth Circuit in the gun advocates' favorite cause celebre, U.S. v. Emerson, he has very wide discretion in deciding on his own what legal positions he thinks are deserving of his advocacy, based on his view of what is best for the State and its citizens. And he thought it best to advocate for this cruel and unusual punishment, despite the crystal-clear precedent forbidding it. Had he not thought this barbaric practice deserved to be defended with the clout of the State of Alabama, he could easily have helped the guards find some brilliant private lawyer who would have taken the case pro bono for the glory of arguing in the Supreme Court; but he wanted to pursue his vision of the State's Right to handcuff prisoners to the hitching post, even though there was crystal-clear precedent forbidding it.

Did he know how tenuous his arguments were, in the face of clear precedent against him? Or does he just see precedents that way – as being quite narrow, not really having the full power of what their words say, and therefore subject to revision according to his own views of what's legally right? I don’t think it's that important to choose between those two possible descriptions, to decide whether his arguments were knowingly disingenuous or whether he simply harbors an unreasonable view of how strongly he is bound by precedent; in either event, Hope v. Pelzer is a warning of how Bill Pryor would likely treat the accumulated wisdom of precedents if he were confirmed to the federal bench.

This will be the last post on Pryor for at least a few days, as I return to other topics; I hope that this series has been informative. For earlier installments, see here and work backwards.

UPDATE: If you're interested in a response to this post from a self-described "Southern Federalist" and my response to him, see here and the comments to that post.

posted by sam 10:53 AM 0 comments

Tuesday, April 15, 2003

The Pryor nomination (cont'd)
Just time for a short entry this morning in the continuing series on 11th Circuit nominee Bill Pryor. This one comes from a speech. His speeches are a treasure trove of extremist ideas. Here are his remarks made on a panel at a Federalist Society gathering, commenting on the Supreme Court's decision in U.S. v. Virginia, in which the Court (by a vote of 7-1) struck down the all-male policy of the Virginia Military Institute:
In some contexts the Court has been both anti-democratic and insensitive to federalism. ... [In 1996], the Court ruled that the people of Virginia were somehow prohibited by the 14th Amendment from maintaining an all-male military academy. Even the Chief Justice concurred, never mind that for more than a century after the 14th Amendment was enacted both the federal government and many state governments maintained all-male military academies. Never mind the fact that the people of the United States did not ratify the Equal Rights Amendment. We now have new rules of political correctness for decision making in the equal protection arena.
In the constitutional vision of Bill Pryor, even Chief Justice Rehnquist -- not to mention Justices Kennedy and O'Connor -- is in the thrall of political correctness. In the constitutional vision of Bill Pryor, the Equal Protection clause of the 14th Amendment would logically include no protection against gender-based governmental discrimination. After all, the brand of "originalism" that allows him to conclude that the 19th century historical practice of sex discrimination in military academies is dispositive of the Constitutional question, would also yield the conclusion that exclusion of women from owning property, from voting, from serving on juries ... all such things are perfectly consistent with the Equal Protection clause, to an "originalist" looking to historical practice. If Chief Justice Rehnquist does not strike you as the embodiment of liberal politically correct judicial activism, then please ask your Senator to oppose Pryor's nomination.

posted by sam 9:58 AM 0 comments

Monday, April 14, 2003

The Pryor nomination, cont'd: the so-called "federalism" cases
Thanks very much to other bloggers who have noticed, and linked to, my pieces about 11th Circuit nominee Bill Pryor. For the Pryor-related post before this one (and links to previous ones on this site), see here.

Before talking again about Bill Pryor, let's talk about Sixth Circuit nominee Jeff Sutton. Sutton has been at the forefront of the war for what's called "federalism" by its proponents these days – a new legal formulation of "states' rights" doctrine that is an effort to limit the range of topics on which the democratic process can work through legislation at the national level. Sutton's work on this war has nearly derailed his nomination. Among the things that Sutton has argued, often seeing his arguments upheld by the narrowest of margins at the Rehnquist Court: that a substantial part of the Americans with Disabilities Act, regarding State employment, is unconstitutional (Garrett); that the same is true of the Age Discrimination in Employment Act (Kimel); that the federal Violence against Women Act is unconstitutional (Morrison, amicus brief); that racial and ethnic minority groups cannot sue under federal regulations prohibiting disparate impact discrimination (Sandoval); and that the federal authority to protect the environment must also be restricted by the Supreme Court (Solid Waste Agency, amicus brief).

Sutton's supporters have rallied around him despite his hard work on these issues, based on the assertion that Sutton was merely doing what lawyers do: representing a client. His clients' views and goals, said Sutton's supporters, could not be imputed to Sutton. Among the people explicitly making this argument on Sutton's behalf was Senator Hatch, e.g. here.

What does this have to do with Bill Pryor? It is that in each and every one of the cases cited above, the client was Bill Pryor. It was Bill Pryor who decided that the State of Alabama would aggressively make the arguments that have led to a radical rollback of the legislative authority of the nation. In the State of Alabama, the Attorney General has the sole power to decide what legal action will be taken by the State and its agencies. If a State agency, or State officials, want to take a certain stance in court, but the Attorney General disagrees as a matter of law or policy, the Attorney General prevails. This is the law in Alabama under such cases as Ex parte Weaver, 570 So.2d 674 (Ala. 1990). The positions from which even Senator Hatch tried to distance Sutton – those are the positions that Bill Pryor himself has decided to use the resources and clout of the State of Alabama to pursue.

Some will probably say in his defense that he was merely pursuing arguments that were in the litigation interest of the State – to defend the State Treasury, or to extend the State's authority, through any legitimate argument – rather than advocating positions in which he personally believes. That won't wash, for at least these reasons: (1) he has made it clear in many speeches (available at the AG Office's official website, here and in such documents as his year-end reports here) that his advocacy of these positions is a matter of personal pride and belief, not merely a matter of the litigation interests of the State; (2) he has (as mentioned in yesterday's post) decided in some instances to take legal positions that detract from the State's authority (see, for instance, Bush v. Gore and related cases; and see also his amicus brief in at least one Supreme Court case, Norfolk Southern v. Shanklin, advocating federal preemption of state law); (3) he has outspokenly and vigorously opposed certain other litigation positions that would have been in the State's pecuniary interest – most notably, the tobacco litigation – thus likewise proving that his legal decisions are not simply governed by a calculus of what is in the State's litigation interest; and (4) his advocacy of so-called "federalism" arguments has gone well beyond those cases in which the State's pecuniary interest was at stake (Kimel, Garrett) and has included cases in which a disemboweling of federal power did not confer any such benefit on the State (Morrison, Solid Waste Agency v. Army Corps of Engineers).

In the end, there is no way around it: Bill Pryor has used his authority as the State's highest legal officer to advance a vision of states' rights that results in the abridgement of federal protections for women, older people, disabled people, racial and ethnic minorities, the environment … the list grows continuously. He has done this based on his own personal views of constitutional law and his belief in the particular policies that he is advocating; and his views about "federalism" are by no means abstract across-the-board principle but instead are situationally variable depending on the particular policies and issues at stake. Having ridden the wave of a slim majority on the Rehnquist Court to advance his particular constitutional vision, he would be quite likely to push this vision even further if placed on the federal bench.

posted by sam 12:15 PM 0 comments

Sunday, April 13, 2003

the Pryor nomination, cont'd: Bush v. Gore
Continuing with the activist and partisan record of 11th Circuit nominee Bill Pryor (see earlier posts here and here), today's topic is his interjection of himself into the Bush v. Gore battle. (For further reading on this nomination, see the Washington Post's editorial, called "Unfit to Judge").

The main documents to peruse here are two amicus briefs that Pryor filed -- one with the Eleventh Circuit, and the other with the Supreme Court (both pdfs: here and here, respectively).

As you probably recall, the Eleventh Circuit case was an appeal from a federal district court's refusal to issue a preliminary injunction against the manual recounts; the Circuit held that the district court had acted properly in refusing to issue such an injunction. Now, one might think that a true believer in what is now called "federalism" -- and particularly the highest legal officer of a State -- would likely take the position that election-law matters should be left up to the States rather than to federal judges. Surely, at least, the highest legal officer of a State would be likely to argue that the state courts should at least have the first opportunity to rule on such matters, with review if necessary in the U.S. Supreme Court to decide any federal questions. And surely, one would think, that would be the position of someone who, like Pryor, is particularly known for opposing federal intervention into state and local governance (including a history of decrying federal authority under the Voting Rights Act). But Pryor's unsolicited amicus brief in the Eleventh Circuit case dashed any such expectation; he urged the Court to reverse the district court's denial of an injunction against the recounts. And his brief included some arguments which were so truly shaky and novel (to put it charitably) that one can hardly imagine a State Attorney General advocating them -- such as his argument that interpreting ballots to determine voter intent would somehow violate the First Amendment. Although such an argument might conceivably have passed the laugh test for a private lawyer representing partisan interests and scratching around for any semi-plausible argument to raise, it was hardly the sort of mainstream stable argument that one has a right to expect from any government's highest legal official; and it is hard to imagine that Pryor would have made the same sort of argument, in the name of the State of Alabama, had the recounts been sought by Bush rather than Gore. The Eleventh Circuit, fortunately, declined to follow Pryor's urging. The majority, by the way, included three Republican appointees, including Judge Cox (a very conservative judge himself, who occupied the seat to which Pryor has now been nominated), Judge Edmondson and Judge Black.

Having been unsuccessful before the Eleventh Circuit, Pryor continued to inject himself into the Bush v. Gore matter, still using the resources and clout of the State of Alabama, by filing the above-linked amicus brief in the Supreme Court. Particularly notable in this regard is that, at least so far as LEXIS discloses, Pryor was the only Attorney General outside of Florida to file an amicus brief in the case. Other Attorneys General presumably understood the crucial necessity of not adding to the public perception that partisan manouevering was at work in the Supreme Court litigation; the sight of Attorneys General filing briefs galore in the Supreme Court, depending on their own preferences for the outcome of the Presidential election, would have been too much to bear. Pryor was, it seems, the only Attorney General who did not feel it appropriate to sit this one out in the Supreme Court.

I submit that the lesson here -- even for those of you who do not feel (as I do) that the Supreme Court's Bush v. Gore decision was a monumental disgrace -- includes at least the following points, all of which will be seen again and again in the continuing scrutiny of Pryor's nomination:
(1) His commitment to "federalism" -- to minimal federal intrusion into matters that are traditionally the subject of state governance -- is situationally variable. Sometimes it is strong; other times, it is abandoned in favor of some other belief or pursuit. This in itself is not necessarily a bad thing; but it will allow us to understand that when (for instance) he advocates "federalism" doctrines in opposition to the rights of women, or disabled people, or racial or ethnic minorities, or others, he is doing so not because he believes in "states' rights" as a neutral principle to be pursued in all cases, but because he believes in the results he advocates in those particular cases.
(2) His sense of the boundary separating appropriate official action from inappropriate partisan warfare is different from, is less strict than, that of most other officials in similar positions. As he created an explicitly partisan divide between Republican and Democratic State Attorneys General despite the tradition of relative non-partisanship among holders of that office (as explained at length here), so he gave free rein to his beliefs in the Bush v. Gore battle in the Supreme Court where other State Attorneys General deemed it more proper to let the parties to that case make their own arguments. It is, I think, fair to wonder whether he could truly be trusted to dampen his own enthusiasms more successfully if he were a judge, and to stick to a more settled and mainstream judicial role.

Here, finally, is a short autobiographical point, so that no one will think that I am hiding my own viewpoint here behind a mask of objectivity. The "hook" for Pryor's amicus briefs in the Bush v. Gore cases was his argument that the battle there was legally similar to a case that had been litigated a few years earlier, about the counting of absentee ballots in a close race for the Chief Justice of the Alabama Supreme Court. As the assistant to then-AG (now Senator) Jeff Sessions, Pryor had litigated that case for the State, arguing against the State Supreme Court's resolution of the dispute; I was one of the lawyers on the other side. His side won in the Eleventh Circuit, with a panel that included two of the judges who later dissented from the Circuit's refusal to intervene in the presidential election. That was one of two big election-law matters that we litigated against each other, back in our younger days.

UPDATE: The blogger at Southern Appeal thinks that I was being misleading by not being more precise that Pryor was the only state AG who filed an amicus brief in Bush v. Gore not Bush v. Palm Beach. It is true that in Palm Beach -- the lame little non-decision that preceded Bush v. Gore -- Pryor was not the only AG who filed a brief. Others, like him, also weighed in, lining up on partisan grounds. But when push came to shove -- when the Supreme Court was poised to be the body that actually decided who would be the next President in Bush v. Gore -- only Pryor filed a brief. That's what I said, that's what I meant, and that's an important point, I think.

posted by sam 2:48 PM 0 comments

Saturday, April 12, 2003

no blog
Sorry -- no blogging time or inspiration today -- too nice outside, and we were getting our garden planted, etc.

posted by sam 9:19 PM 0 comments

Friday, April 11, 2003

the Pryor nomination, cont'd
Law.com has an article this morning about the immediate outpouring of opposition to Alabama AG Bill Pryor's nomination to the Eleventh Circuit. While I work on a longer explanation of why you should oppose him even if your politics are much more centrist than mine, you can begin by reading the amicus brief (pdf file) that he filed (along with the AGs of Utah and S.C.) in Lawrence v. Texas, including his vigorous defense of the proposition that gay oral sex has detrimental "spiritual" effects in addition to emotional and psychological ones. The prohibition of gay sex acts was so important to him that not only did he inject himself into the case by filing an amicus brief, but even asked the Supreme Court for permission to have someone argue on behalf of Alabama when it became clear that Texas's lawyer wasn't going to do a very good job. This is the sort of aggressive activism that is his hallmark.

posted by sam 8:41 AM 0 comments

Thursday, April 10, 2003

lucky me
I just found that I have an oral argument set before the Eleventh Circuit in early June, on the same day (and same panel) as Glassroth v. Moore, the Alabama Ten Commandments in the Courthouse case. Should be fun to see.

posted by sam 1:22 PM 0 comments

Wednesday, April 09, 2003

Alabama A.G. Bill Pryor, nominee to the Eleventh Circuit: links to prior posts
So now the pressure is on, now that Matthew Yglesias has said he expects me to say something about Bill Pryor. With the universal understanding that everything that I've ever said on this blog is attributable only to me and not to any employer or friend -- and that this will continue to be true -- I have just enough time right now to link to what I've said about him and about his potential nomination already. Then I'll try to add to this over the next few days. Here are Ignatz's greatest hits re Alabama AG Bill Pryor, nominated today by President Bush to the U.S. Court of Appeals for the Eleventh Circuit:

February 22, reporting what I said when the Justice Department called

March 14, linking to an op-ed that had discussed Pryor along with nominee Sutton in connection with their advocacy against disability rights

Jan. 6, when his nomination was first floated publicly

Jan 14, linking to an article about him at law.com (and in which I offered a lovely quote about his views on the Senatorial role in judicial confirmations)

Oct. 31 (about his defense of Alabama's law against the importation of vibrators)

Sept. 13 regarding the remarkable collection of links at his official government site

This nomination battle will have everything: sex, religion, race, disability, environmental issues, executions, guns (even John Lott!), tobacco, Bush v. Gore, you name it. As I've said before, he's a bright guy. He was when I knew him, and probably still is, a personally pleasant guy in most situations. But he's way out there.

posted by sam 3:26 PM 0 comments

judicial nominations

On a day when it seems the Democrats are about to filibuster a second appellate court nominee (Owen), President Bush just set up the third filibuster -- Alabama A.G. Bill Pryor, previously discussed at length here at Ignatz. I'll have more time to blog this more fully later. I'm busy today, but not too busy to say that I expect that Bill is smart enough to believe, as I do (and as somebody pointed out in Atrios's comments), that this is more about the 2004 elections than about a realistic prospect of his confirmation at any time before January 2005.

posted by sam 2:23 PM 0 comments


sorry, not much time for blogging here today -- I'm trying to finish up a brief to the Eleventh Circuit.

posted by sam 11:29 AM 0 comments

Tuesday, April 08, 2003

blogging about blogging
I just found myself having lunch with lots of law-bloggers -- Fred the Bureaucrat by Day, Jason Rylander, Steph from Blue Blanket Blog, and apparently even Gary from the Statutory Construction Zone was there though I didn't meet him (or at least didn't make the connection). The event -- a talk by Ruth Harlow on Lawrence v. Texas, put on by the DC Lawyers' chapter of the American Constitution Society -- was fantastic (leaving aside the food, which is sitting heavy).

posted by sam 2:27 PM 0 comments


I still can't get over the Supreme Court's blatantly greater solicitude for corporations than for people, comparing yesterday's punitive damages case (State Farm v. Campbell) with the Three Strikes cases (Ewing and Andrade). As I posted yesterday, it strikes me as a major outrage. I know that one of the duties of lawyers is to help the public see beyond negative sound-byte portrayals of judicial decisions, and to understand that there are sometimes good legal reasons for results that seem intuitively wrong at first glance. So I have thought, and thought, about whether there was a way that I could explain these decisions in such a way that they would make sense even to somebody who disagreed with them -- say, for instance, that there was some widely-recognized difference between the governing standard of the 8th Amendment and the 14th that made sense of the apparently unfair results. But I cannot come up with any explanation that is even halfway convincing in my eyes. The unfairness -- and lack of any coherent legal basis for the unfairness -- seems to me as stark as it was when I first saw yesterday's result. Nathan Newman is thinking along these same lines, and has more thoughts.

posted by sam 9:57 AM 0 comments

Monday, April 07, 2003

Supreme Court
Three decisions from the Supreme Court today:

(1) Pacificare v. Book. I said, before the argument, that the Court would reverse either on outrageous grounds (that the company was allowed to insulate itself from punitive/treble damages by "contract") or on not-outrageous grounds (that the meaning of the contract was unclear and so should be interpreted by an arbitrator in the first instance). The Court picked the not-outrageous grounds, and that's good.

(2) Virginia v. Black, the cross-burning case, in which the Court seems to have held that a state can ban cross-burning when it's done with an intent to intimidate, and that such a law doesn't violate the First Amendment, but that the Virginia statute might or might not go too far in saying that there doesn't need to be any evidence of such intent beyond the cross-burning itself. I'm not even sure I've got that right; the decision is a mess.

(3) State Farm v. Campbell, which strikes me as a true outrage when compared to the Court's decisions a few weeks ago on the California three strikes cases. We know now that, according to this Court, putting someone in jail for 25-to-life for stealing a few golf clubs is JUST PEACHY, but that punishing a company with a $145 million penalty for a $ 1 million tort is WAY TOO DRACONIAN AND THEREFORE UNCONSTITUTIONAL!!! [updated insert: indeed, the majority even says that in nearly all cases, a punishment that was even just more than 10 times the compensatory award would be unconstitutional. Try squaring that with 25-to-life for some golf clubs worth about $1000 dollars!] Give credit, at least, to Justices Thomas and Scalia, who are consistent in their view that in neither sort of case does the severity of the punishment amount to a constitutional issue. And, though I recognize the argument that the criminal cases are different because there the punishments were set by statute rather than by a jury, I don't accept that distinction as a good enough basis for such a major difference in treatment; after all, if juries are allowed to decide whether people should be put to death for their crimes, aren't they also qualified to decide whether companies should be popped with big punitive damage awards? [update: I had predicted that the Court would not embarrass itself by reaching such different and irreconcilable results in the State Farm case and the Three Strikes cases. I was wrong.]

posted by sam 11:08 AM 0 comments

Sunday, April 06, 2003

Why, and in what precise way, do the White Stripes suck so badly? Jon Pareles explains (though he seems unaware of another factor: the fact that Robert Plant's voice, and therefore also the voice of anyone trying to sound like Robert Plant, is the most grating sound in the universe):
Yet it's all primitivist, not primitive. The White Stripes' problem is that the effort and allusions show; all the self-consciousness is still on the surface. And more often than not, Jack's skills end up sounding like stunts rather than songs. What comes across are the gestures — the sudden chomp of a distortion pedal, the outlandish vocal vibrato — rather than the feelings they once signaled. The heat of the old styles becomes a badge of cool.
. Article here

posted by sam 7:21 AM 0 comments

Saturday, April 05, 2003

2 short items
I don't think that I saw Prof. Volokh or even pseudo-Prof. Reynolds make any attempt at answering Tim Noah's penetrating question in Slate: if popular access to guns is such a great bulwark against tyranny, as gun supporters often tell us, then how did Iraq (with ready popular access to guns) get such a tyrannical government? Noah has a follow-up column on the question today.

My old friend Donald Watkins -- already in the Alabama news yesterday for having been hired to defend Richard Scrushy in the Healthsouth mess -- makes the news again this morning because Jackie Robinson's daughter has joined as a partner in his effort to buy a major league baseball team.

posted by sam 7:15 AM 0 comments

Friday, April 04, 2003

I spend very little of my energy on this blog pointing out things that "liberal" people and organizations do wrong. That's just not my bag, I suppose. But I can't help noting today's decision from the National Labor Relations Board, finding ACORN guilty of some very serious unfair labor practices. When ACORN's poorly-paid and overworked community-organizer employees sought to form a union in order to better their working conditions, ACORN responded with various unlawful tactics to bust the organizing drive, including discriminatorily laying off some union activists and threatening others. Too often I see, or hear of, progressive organizations that are lousy lousy lousy employers. I hate it. (Note: the html and pdf links to the specific opinion, from the NLRB summary page to which I linked above, might or might not be working when you read this. They're funny sometimes.)

posted by sam 1:03 PM 0 comments

Thursday, April 03, 2003

test (my apologies to anyone who tries to rely on the blogger rss feed -- it doesn't seem to be working reliably, does it?)

posted by sam 8:25 AM 0 comments

Wednesday, April 02, 2003

S.Ct. prediction
The second case to be argued this morning, and the last one for almost 3 weeks, is Dastar v. 20th Century Fox. All you people who were up in arms about Eldred v. Ashcroft, thinking that the Sonny Bono Creeping Copyright Extensions for Mickey Act was the end of the public domain – you should be keeping a close eye on this case, because it touches on that concern as well. It's about trademark law (the Lanham Act), as applied to creative works. Unfortunately, I'm no expert on the subject; I've just got a sense that this case is important.

But I can tell you something useful, even if you are an intellectual property expert: if you want to download the briefs from Findlaw, you'll have to work around an html typo. When you click the links (from that page I just linked to), to get the pdf files of the briefs, you won't get them. Instead, you have to insert, into the URLs for those briefs, the characters " /briefs " right between "supreme_court" and the docket number. You'll see what I mean if you try it.

Here's a quick and dirty summary of the facts. General Eisenhower wrote a WWII memoir. Fox got the television rights to it, and produced a tv miniseries from it in 1948. But, either because they were dumb or because they were not psychic about the future of home entertainment, Fox didn't renew the copyright in that tv series when it expired some years later. So, as a matter of copyright law, the tv miniseries was in the public domain. Once the VCR age was upon us, Fox realized its mistake; in an effort to minimize the effects of the mistake, Fox renewed its television/video rights in the book, restored the old tv miniseries, and put it out on videocassette.

But meanwhile Dastar, figuring that the miniseries was now in the public domain (because the copyright hadn't been renewed), copied it, changed it a little bit, took the old credits off, put new credits on, and sold videocassettes of it cheap – cheaper than Fox's version.

Naturally, Fox sued – with both a copyright claim (based on the copyright in the original book, not the expired copyright in the tv series) and a Lanham Act claim, based on 15 U.S.C. § 1125(a)(1). The crux of the Lanham Act claim, as I understand it, is that by taking off the old credits and putting in new credits (crediting only its own people, rather than the original creators), Dastar was making misleading statements within the scope of that statutory section.

Stop for a minute, and get cynical with me: do you really believe that Fox wouldn't have sued, if Dastar had put a note on the outside of the videocassette box that said: "note: we cribbed this good stuff from those clever folks at Fox, who deserve all the credit for its creation but aren't getting any of the $ because they messed up and didn't renew the copyright"? Of course not. They would have cooked up some other theory. This is an effort to scare people away from copying works that Fox originally created and that are now in the public domain. But does that cynicism matter to the outcome of the case? Well, it might, in ineffable ways.

Anyway, the Ninth Circuit (in an unpublished opinion) ruled for Fox on the Lanham Act claim, and affirmed the trial court's ruling that Dastar had to pay double its profits to Fox. So the case, as it comes to the Supreme Court, has questions about the merits (did Dastar even violate this section of the Act?) and about remedies (even if so, was the double profits award allowable?).

Now, as I say, I'm no expert. But having read the briefs – and having previously opined here at Ignatz that the trouble with copyrights is not their length but the lack of clarity as to which ones are still extant, and what you can do with things once their copyright has expired – I'm strongly of the opinion that the Court should reverse, either on broad grounds or on narrow grounds at least. We need to have the fundamental understanding that when a work's copyright lapses, the former owner can't go scaring people off from using the work.

And I guess that the Court will do what it should, in this instance, so I say "REVERSE." Just in case they don't, read this loud and clear: REGARDLESS OF THE TITLE AND THE PICTURE ABOVE, THIS BLOG IS NOT AFFILIATED IN ANY WAY WITH GEO. HERRIMAN, CREATOR OF THE AWESOME OLD STRIP "KRAZY KAT," OR WITH ANYBODY WHO OWNS ANY RIGHTS THERETO. THEY'RE NOT GETTING ANY MONEY FROM THIS BLOG. NOR AM I, FOR THAT MATTER. IT'S JUST A SILLY BLOG, NOT AUTHORIZED BY GEO. HARRIMAN, CREATOR OF THE AWESOME OLD STRIP "KRAZY KAT", OR BY ANYBODY WHO OWNS ANY RIGHTS THERETO. THIS BLOG IS JUST ME, SAM HELDMAN. BUT THE PICTURE ABOVE IS BY GEO. HERRIMAN, NOT BY ME, AND I'M PRETTY SURE IT'S IN THE PUBLIC DOMAIN. Unless you want to see lots of litigation anxiety and longwinded cover-your-ass disclaimers like that on everything that is inspired by preexisting artistic/literary creations, you should probably hope for a reversal too.

posted by sam 6:27 AM 0 comments

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