(The Return of) Ignatz, by Sam Heldman

Friday, February 28, 2003

Another reason I love Eschaton
See this, nicely demonstrating that George Will is not worth listening to.

posted by sam 2:13 PM 0 comments

S.Ct. prediction

An admittedly lame entry in the S.Ct. prediction thingy:

The first case to be argued Tues. 3/4 is Nat'l Parks Hospitality Ass'n v. Dep't of Interior. The question is whether a contract allowing somebody to provide a concession in a national park – e.g., being the official cotton-candy and slushee vendor at Yellowstone – is a contract within the scope of the "Contract Disputes Act of 1978". The Department of the Interior issued a regulation saying "no, these concession agreements aren't covered by that statute" but the concession lobby is mad about that. I don't feel like delving into why the concession lobby wants to be covered by the statute; it would presumably give them some entitlement to something that they want. If you're interested in this, read the DC Circuit's opinion ruling in the government's favor, and the government's brief to the Supreme Court. I'll take a shot in the dark and say "AFFIRM" because the government's brief looks reasonable on a quick skim and the government wins more often than not. Apologies to those who care about the Contract Disputes Act of 1978 and its impact on concession agreements.

The second case for Tuesday, a Freedom of Information Act case brought by the City of Chicago seeking gun-purchase records, has been taken off the docket, because it might have been made moot by recent legislation. See this explanation from Howard Bashman. Good thing I had dawdled about formulating any thoughts on this one.

posted by sam 7:14 AM 0 comments

Thursday, February 27, 2003

scary times indeed
Those who read this silly blog regularly have surely noticed that I don't post about every "what liberal media?" outrage that comes along, nor do I even post often about the growing effort (from elected officials and highly-paid media stars) to paint dissent as treason. On these topics, I don't blog much because others (e.g., Atrios, TalkLeft) do a better job than I could; I figure that you must be reading them, and you have better things to do than to spend your time hearing that I agree.

But I'm about to decide that, in fact, posting "Count me in, as one outraged by this" is becoming not a redundant annoyance but a necessity, as it becomes clearer that we are in scary times. The latest thing to send me in this direction (thanks, Atrios, for getting me so riled up) is to find out that MSNBC's newest highly-paid opinion-spouter, Michael Savage, is urging that anti-war leaders should be arrested for opposing the "war" (at least once the "war" starts). He may be pretending that he is leaving enough ambiguity on his site so that he can later say, if pressed, that he didn't really mean this; but that would be unconvincing.

I don't know what else to say that hasn't been said better by others; but if anybody's counting, count me as one who believes that dissent is honorable. It's hard to believe that there's even a debate on this.

(UPDATE: And just to make it clear, I'm not just standing up for the right to dissent. I am also dissenting; I don't think that a "war" against Iraq is a good plan).

posted by sam 6:19 PM 0 comments

Mr. Rogers

See Jurist on the impact of Mr. Rogers on an important Supreme Court decision.

posted by sam 12:25 PM 0 comments


Be sure to read this article, from The American Prospect, about the Bush Administration's multi-pronged attack on labor organizations and their members.

posted by sam 12:18 PM 0 comments

Supreme Court predictions

The second case to be argued Monday is Ryan v. Telemarketing Assoc., about the First Amendment rights of charity telemarketers. You know, those people who call you and say "we're soliciting money for such-and-such a worthy cause," but you sort of have the sneaking suspicion that it's a scam and most of the money is going to wind up in the telemarketer's pocket? There oughta be a law requiring them to tell you how much money actually goes to charity, right? And it's pretty fraudulent if they tell you that they're raising money for charity, but really the great majority of the money is going to the telemarketing firm that's doing the calling, right?

That's what the Illinois Attorney General thought, too, so he brought a fraud suit against the company that was raising money for a veterans' organization but was (pursuant to its contract with the charity) really keeping about 85% of the amount collected. But the Illinois Supreme Court said that, given the First Amendment right to free speech, such a fraud suit cannot proceed. The Illinois Supreme Court relied on a series of U.S. Supreme Court decisions striking down various states' attempts to regulate charitable fundraising. Most on point was a case called Riley, which struck down a law requiring charitable solicitors to disclose what percentage of the amount collected was actually going to charity (rather than to the solicitors).

Eugene Volokh, who certainly knows his stuff, predicts with "high" confidence that the Supreme Court will affirm based on those earlier cases. Where do I get off disagreeing with Prof. Volokh, you may ask? Good question. The differences in our predictions may have to do with the differing perspectives between academics and practicing lawyers. In any event, I think that the case is likely to come down to what the facts are, and more precisely what we have to take the facts as being, at this procedural step of the case.

Go with me here. Fraud is quite obviously not protected by the First Amendment. Everyone on the Supreme Court, I trust, would agree that if a charitable solicitor says "100% of your donation will go those lovely veterans," but really the true figure is 15%, then that's actionable fraud and is not protected by the First Amendment. And the Supreme Court in Riley even said, in paraphrase, "instead of passing a law like this, a state ought to just vigorously enforce its fraud and deceptive-practices laws against any fundraisers that engage in misleading activities."

But without such a blatant lie as in my hypothetical above, is there any real difference between this lawsuit and a law requiring the fundraiser to disclose that it's keeping 85% of the money? If there's no difference, then the telemarketers will win; and my inference is that Prof. Volokh thinks that the Court won't see a material difference. But I think that the Court will believe that there is at least possibly a difference between those two things, that there is at least an arguable difference between this case and Riley, because the Illinois Attorney General apparently wants to prove deceptive practices going well beyond "they should have volunteered that they were keeping 85% of the money." The AG wants to prove that there was an intent to mislead, and that there were at least some misleading statements beyond the "mere" failure to volunteer the percentage of money being pocketed. My bet is that the Court will say that the AG ought to get a chance to prove those things, in order to prove that this was real fraud and not just a Riley regulation in the guise of a lawsuit. At least, I bet, the Court will explain that there is a difference, and will remand the case to the state court to let it figure out whether the AG has adequately alleged that sort of facts under the state's procedural rules. In any event, my bottom line is "REVERSE".

posted by sam 6:58 AM 0 comments

Wednesday, February 26, 2003

Supreme Court decision
As I mentioned in my prediction some months ago, in order to appreciate the issues before the Supreme Court in the case decided today you have to put out of your mind the fact that the petitioner was Operation Rescue and its operatives. The Court today reversed NOW's victory against Operation Rescue, based on the conclusion that the Hobbs Act's prohibition of "extortion" -- which is the thing that Operation Rescue was being accused of violating -- doesn't apply to attempts to shut down a business as contrasted with attempts to take the business over. (This is a summary and a paraphrase; if you're thinking of skirting the line on extortion, be sure to read the opinion for yourself rather than relying on this summary). The good news is that (a) my prediction of a reversal was correct; and (b) the court could have reversed in either of two ways (see my prediction, linked above) and they chose the one with which I happen to agree.

posted by sam 1:22 PM 0 comments

Supreme Court prediction

The first case for next week is Sell v. U.S., a criminal case presenting the very interesting question whether the government can forcibly medicate a mentally ill defendant, who is incompetent to stand trial, for the sole and express purpose of making him competent to stand trial. The Eighth Circuit said (pdf) "yes, the government can do that."

The initial thing that you have to understand is that it is unconstitutional to make someone stand trial if he is incompetent to assist in his own defense. In many cases involving defendants who are incompetent because of mental illness, the government can say with at least a semi-straight face "we aren't trying to medicate the defendant in order to make him competent to stand trial; we want to medicate him in order to stop him from being a danger to himself and/or others, and the fact that we can put his ass on trial in his medicated state is just a happy side effect from our point of view." But this particular case does not involve that alternative reason/excuse; the lower court found as a matter of fact that the guy wasn't dangerous and that making him competent to stand trial was the sole justification for the forced medication, and that's the way the Supreme Court agreed to view the case. So the question is presented here in a factually pure form. And actually it's even a little narrower than that: can the government forcibly medicate you in order to make you competent to stand trial on charges of non-violent crimes? (You may wonder how conspiracy to commit murder could be a "non-violent" crime, but that's the way the Supreme Court has framed the question.) The argument in favor of forced medication would be a bit stronger for violent crimes, on the view that society's interest in punishing violent crimes is even weightier than its interest in punishing non-violent ones. But again, this case is presented as involving non-violent crimes. So if anybody can ever win a case challenging forced medication, it's Dr. Sell (a psychotic dentist). By the way, the argument against forced medication is not just an argument about personal autonomy (through the "liberty" aspect of the Fifth Amendment, mostly); there is also, among other things, the contention that the side effects of anti-psychotic medication would themselves affect the defendant's ability to receive a fair trial.

What will the Court do? Well, we know from an earlier case (Riggins) that a majority of the Court has said that the governmental interest in making someone competent to stand trial "might" justify forced medication. But that "might" is unhelpful; this case asks, "well does it or doesn't it??" Justice Kennedy, speaking only for himself in that case, said "I don't think it does, except maybe in really rare cases"; this suggests that he'll vote to reverse, unless he's changed his mind. My guess is that if Justice Kennedy votes to reverse, so will the four quasi-liberal Justices and maybe Justice O'Connor too; so I say "REVERSE".

posted by sam 6:42 AM 0 comments

short items

(1) Nathan Newman has a post about a group that is organizing a pro-affirmative action march in Washington this spring. With a good bit of detailed support, Nathan says that the group organizing this action is a horrible one; and his piece is convincing to me.

(2) The Jurist law site, which has had some remodeling lately, is on a roll as frequently-updated info source about interesting cases, legal scholarship, blogs, history, and just about everything else having to do with law. Definitely check it out if you're interested in such things.

posted by sam 6:24 AM 0 comments

Tuesday, February 25, 2003

wrong (re Supreme Court predictions)
It is healthy to admit error. So, while noting that I was correct in my essentially random prediction on the Keffeler case, decided today (about social security benefits for kids in foster care -- see opinion here), I was wrong in my too-cynical prediction about Miller-El v. Cockrell. Though the decision is not a blockbuster (it won't get Miller-El a new trial, but instead only tells the Fifth Circuit that they must hear his appeal from the denial of habeas corpus relief, and tells them that the appeal has at least arguable merit), it is a near-unanimous victory for a criminal defendant, who contends that the prosecutors intentionally (and therefore unlawfully) struck black people from his jury.

posted by sam 1:32 PM 0 comments


I just bought Cat Power's new record, "You are Free," and am liking it a lot on first listen. You can listen too, to a stream of the whole album, at her site. UPDATE: yes, I was self-indulgent today; I also bought Mark O'Connor's new tribute to Stephane Grappelli, called "Hot Swing Trio," and it's fantastic too. (Follow the link to hear clips; it's jazz violin/guitar/bass, plus guests, in a Django-Grappelli hot club vein).

posted by sam 12:18 PM 0 comments

Where's Ken Starr when you need him?

It's hard to read this article and not come away with the understanding that Karl Rove committed perjury. Can we look forward to a multi-million dollar criminal investigation, headed by a zealous and single-minded Democrat, that spreads and morphs and grows for years?

posted by sam 6:58 AM 0 comments

judicial nominations

Be sure to read this NYT op-ed about President Bush's judicial nominations.

posted by sam 6:45 AM 0 comments

Monday, February 24, 2003

I'm in agreeance
I have never knowingly heard Limp Bizkit, but I do love the fact that its lead singer used the word "agreeance" -- as in, "we're all in agreeance that ..." -- at the Grammys last night. It's been one of my favorite words for years. I don't understand why my partner gets mildly upset when I use it in front of our 3-year old.

posted by sam 12:10 PM 0 comments

Supreme Court predictions

The last case to be argued this week, Dow Chemical v. Stephenson, presents fascinating questions of class action law and constitutional law. It's about Agent Orange. As you may know, there was a huge amount of Agent Orange litigation, and it ultimately led to a class action settlement in 1984. The settlement purported to wrap up all Agent Orange cases forever and ever, even for those people who weren't sick yet (and therefore who had no claim yet, or at the very least didn't know that they had a claim yet). But there was a limited amount of money in the "fund" that the settlement created; and that fund ran dry, but still people who turn up sick now are barred from bringing law suits against Dow et al. Question, in non-legal terms: "that's not fair, is it – the settlement gives us nothing but bars us from suing? how can we get so hosed?" Question, in legal terms: "can current plaintiffs collaterally attack the settlement in a new lawsuit, and does the settlement violate their constitutional rights under the Due Process clause, such that they should be allowed to sue even though the settlement says they can't?" The Second Circuit, agreeing with the plaintiffs, said that the settlement could not bar their suits (even though the same court had, years earlier, upheld the settlement itself when the settlement was first agreed). Dow, trying to uphold the finality of the settlement and to bar these suits, wants to overturn that decision.

There have recently been a couple of Supreme Court cases that have, in part, been about the problem of whether class action settlements can bar suits by people who don't have claims yet but will have claims in the future. Those cases (Amchem and Ortiz) have been generally negative towards such settlements. If the Agent Orange settlement was being presented for judicial approval now, Amchem and Ortiz would probably doom it. So the Second Circuit's view certainly has some appeal.

On the other hand, Amchem and Ortiz don't answer the question presented here. There are two big differences: (a) this is a "collateral attack" – i.e., another suit years later – and Dow argues that class action settlements, once they are judicially approved upon being negotiated, can't be attacked later in another suit; and (b) Ortiz and Amchem were mostly just about interpreting the Federal Rules of Civil Procedure, and this case by contrast probably requires the plaintiffs to establish a grand constitutional principle in order to win.

This is a very hard one to call, but there is one fact that tilts me towards an answer: Justice Stevens has recused. Based on his votes Amchem and Ortiz, it seems that Justice Stevens is less troubled in general by class action settlements' impact on future claimants than most other Justices are. But with him out, Dow will have to get 5 of the remaining 8 Justices in order to win. (As you may remember, a 4-4 tie results in an affirmance without opinion). It would be pretty big news for the class action world if they affirm in this case, as it would seriously curtail class settlements in mass tort cases; but I think that I'm going to have to say "AFFIRM." (Technically, if I'm reading the Second Circuit's decision correctly, the decision as to one of the plaintiffs' cases should be "vacated" for lack of federal jurisdiction because his case (we know now, under the recent decision in Syngenta v. Henson) was wrongly removed to federal court; but the Court should reach the merits on the other plaintiff's case).

posted by sam 6:48 AM 0 comments

Sunday, February 23, 2003

if there's anybody out there on this rainy Sunday morning who sometimes checks me through an RSS reader, can you please tell me whether my "feed" is updating properly (e.g., does it show this post?). Most blogspot RSS things I read (Atrios, How Appealing, Volokh) aren't updating in my NetNewsWire Lite, but mine is, but there are reports that others see mine as not working also ... Please advise. Thanks.

posted by sam 11:03 AM 0 comments

blogging about blogging

That Jim Capozzola is a great writer. You can tell, because he can even keep my attention when writing about classical music, and that's a near-impossible task given my personal-history-and-psychology-based aversion to that large and important category of music. He is also correct about the necessity of supporting local cultural institutions, of whichever kinds float your boat.

posted by sam 6:59 AM 0 comments

Supreme Court predictions

The first case to be argued on Wed. 2/26, Roell v. Withrow, offers a quirky but occasionally important question about procedure in federal courts. The federal trial-level courts, the District Courts, have District Judges. But they also have Magistrates, who – unlike District Judges, Circuit Judges, and Supreme Court Justices – don't have life tenure; they are not "Article III" judges under the Constitution. Magistrates generally help out with the District Courts' work, handling pre-trial skirmishes, making recommendations to District Judges about how they should decide cases, and (when the parties all consent, see 28 U.S.C. § 636(c)) handling trials. This case is about that tricky word "consent" in the last clause of that sentence you just read.

Here, the plaintiff filed a written consent to having the magistrate handle the trial. Some defendants didn't, but everybody sort of overlooked that apparently, and the case went to trial in front of the magistrate. Defendants won, and were happy. Plaintiff, on appeal, says "hey, they never consented! The Magistrate never had jurisdiction to handle the trial! Do-over! Do-over!" Defendants say "no, we consent! Really, we consent!" Fifth Circuit says "because all defendants didn't consent before trial, got to have a do-over."

The fear, here, is that people will be sneaky: that they will intentionally not explicitly consent but will lay low about it, then if they win they'll say "I consent! I consent!" but if they lose they'll say "I never consented!" There are two ways to read the statute that would avoid this opportunity for gaming: (A) the Fifth Circuit's way (which would mean 'affirm'); or (B) by saying "if you go to trial before the Magistrate without screaming 'no! no! no! I don't consent!' then you've consented" (which would mean 'reverse'). The Supreme Court could pick one of those, or could instead say (c) "we're not so worried about that sort of gaming, and so we think that consent has to be explicit but after-the-fact explicit consent is OK" (which would also mean 'reverse'.)

Which way will they go? It could easily go either way. Frankly, if all you were doing was looking at the words of the statute, you'd probably agree with the Fifth Circuit (because the statute's words do seem to contemplate that the consent must precede the trial, and 'consent' usually means something more affirmative than 'not scream about'.) But the federal statutes about jurisdiction often tend not to be interpreted in a strict "plain language" way; they tend to be interpreted in ways that seem more "sensible" to the judges doing the interpreting. Without calling my shot as between option B and option C above, I'm saying "REVERSE."

posted by sam 6:54 AM 0 comments

Saturday, February 22, 2003

politics and judging
Three inter-related things about politics and judging this morning:

(1) I've talked earlier about Republican Party v. White, the recent Supreme Court decision about the First Amendment rights of prospective judges, the decision recognizing that judges (even those not on a supreme court) have the power to make law and therefore that lawyers' views on disputed legal topics are an important thing to consider when deciding whether to make them judges. The legal world is all in a dither now, since this principle has been taken further in a federal trial court ruling in New York. It is poetically beautiful that this decision -- essentially recognizing that there is no way to draw a dividing line between judges and politics -- comes at the behest of a Republican New York state court judge who had been disciplined for taking part in the Florida Republican "bourgeois riot" during the Bush v. Gore nightmare. The real question now is whether Democratic and progressive judicial candidates will have the sense to use the First Amendment rights that the Republicans have so strenuously pushed for, in future state-court judicial contests.

(2) A must-read article by eminent law professor Cass Sunstein, in The American Prospect, about the far-right takeover of the federal bench.

(3) I got a call from a Justice Department person the other day, asking my opinion (as one who has litigated against him in the past) of Alabama Attorney General Bill Pryor as a prospective 11th Circuit nominee. I told that person what I have previously said here (a view that is, by the way, published here entirely as my own view, not to be attributed to anyone other than myself): that although he is an honest and smart and personally pleasant person, he is very much an ideologue and an extremist. It will be interesting to see if the White House actually does nominate him. If it does so, then all of the excuses that are now so much in vogue as to the nominations of people like Sutton and Estrada -- "I don't really have any views on that", or "I was only representing my client" -- simply will not wash. As Attorney General, Pryor has been the client as well as the lawyer. When the State of Alabama has taken positions in the Supreme Court, as a party or as amicus, it has been because Pryor believed those positions and decided that the funds and prestige of the State of Alabama should be used to advance those positions. When the State of Alabama has taken positions in the Eleventh Circuit, it has been because Pryor believed those positions and believed that the Eleventh Circuit was free to agree with him, given the current landscape of Supreme Court precedents -- which is to say that it can reasonably be inferred that everything the State of Alabama said in a brief to the Eleventh Circuit, is how Pryor would have voted had he been a judge on that court. If this nomination does in fact occur, there is an undeniable paper trial miles long and yards wide; and Pryor is on public record as believing that Senators have the duty to scrutinize, and vote based upon, a judicial nominee's ideology. Hold on to your hats, if this nomination comes to pass.

posted by sam 10:30 AM 0 comments

S.Ct. predictions

Trudging on through the Supreme Court predictions, despite my fear that nobody's interested and that every one of my predictions for the coming week may well be wrong ...

The second case for Tues 2/25, Clackamas Gastroenterology v. Wells, is about what employers are covered by the Americans with Disabilities Act. Like many federal employment laws, the ADA covers only employers that are at least of a certain size, as defined by the number of "employees". The question here is whether the doctors in this practice group are to be counted among the "employees"; if they are counted, then the employer is big enough to be bound by the ADA. The docs say "we're not really employees of this entity; we are the bosses/owners, and are really like partners (and partners aren't employees, in the eyes of the law)." The Ninth Circuit held (pdf) "yes, you are employees. You can't be 'partners' because you formed your business entity as a corporation, not a partnership. And everybody who works for a corporation is an employee." As the Ninth Circuit recognized, there is a split in the Circuits on this point, with the Seventh Circuit saying that shareholders of a professional corporation (almost always, this means medical practice groups and lawfirms) are to be treated as partners for this purpose even though the entity's not really a partnership. And the Solicitor General tries to stake out a middle ground (pdf), saying in essence that some shareholders in professional corporations are employees and some aren't, and that it really depends on the extent of control they have over the business.

The SG's position, apparently also adopted by the EEOC, would make an arguably-plausible middle ground as a matter of public policy, if the Congress decided to write the statute that way: it might have the pro-employer effect of making some smallish lawfirms and some physicians' groups exempt from the ADA and other federal laws, but on the other hand it would (if also applied on the flip side) offer some protection to low-level "partners" at lawfirms who don't really have any real management control, by treating them as employees who are protected by the federal employment laws. I don't think that this position, however, makes sense as an interpretation of the statute's language in light of traditional understandings of what "employee" means in the corporate context, and in light of the Court's preference for easy-to-follow rules about the coverage of the anti-discrimination statutes (so as to avoid lots of litigation about which employers are covered and which are not). Hard to call, but I'm going to say AFFIRM because I think that the Court will go for simplicity and a traditional interpretation of the word "employee".

posted by sam 6:46 AM 0 comments

Friday, February 21, 2003

Supreme Court prediction
The first case for Tues Feb. 25 is Massaro v. US. Here's the setup. You know about post-conviction relief (aka habeas corpus): if you're convicted of a crime and your conviction is affirmed on appeal, you can thereafter try again, filing another petition (the post-conviction/habeas petition), arguing that your conviction was unconstitutional for one reason or another. Ok, you know that.

You also know, if you have watched tv, that you are entitled to a lawyer if you're charged with a non-petty crime. And you probably know that you have a constitutional right to effective assistance of counsel, which is to say that a conviction is unconstitutional (and there must be a retrial) if your lawyer was a COMPLETE incompetent and this may have made the difference between conviction and acquittal. So, many habeas corpus petitions allege ineffective assistance of counsel, as one of the grounds for relief.

Ineffective assistance claims are generally NOT raised on direct appeal (i.e., in the first round of appeals immediately upon the conviction); you wait til your habeas petition, so that you can have an appropriate opportunity to present the evidence about how lousy your trial lawyer was. In this case, Massaro took the ordinary route, not raising ineffective assistance as an issue on direct appeal, but raising it in his post-conviction petition. But the Second Circuit said that this was too late because under the particular circumstances here, he could have raised the issue on direct appeal, so he should be hosed because he did not. Under this decision, Massaro will never get a chance to argue that his constitutional right to a competent defense was violated -- simply because his first appellate lawyer didn't have the clairvoyance to divine that the Second Circuit would think, years later, that he ought to do the unusual step of raising "ineffective assistance" on appeal.

The government's brief sounds pretty half-hearted about defending the Second Circuit's decision. Maybe I should not violate the cardinal rule of the Term so far (which is that the government wins, and the criminal defendant loses), but I have to say "REVERSE" here. The Second Circuit's rule would do nothing but create huge headaches and messy litigation as to whether, in each individual case, an ineffective assistance claim should or should not be raised on direct appeal. This is pretty clearly an area where a bright line rule is warranted (so that people don't get hosed by making what turns out to be the wrong procedural choice in a tricky situation), and that rule should be what most of us have always believed it to be: "it's ok to save your ineffective assistance claim for a post-conviction petition." If the Court decides to the contrary, I will consider it an awful decision.

posted by sam 7:20 AM 0 comments

Thursday, February 20, 2003

lots of new Eleventh Circuit case summaries in the sub-blog for law nerds. beware: many of them are monumentally dull.

posted by sam 2:16 PM 0 comments

Supreme Court prediction

The second case for Mon. Feb. 24 is Franchise Tax Bd. v. Hyatt. Hyatt used to live in California, til he moved to Nevada. The California tax authorities – the Franchise Tax Board, they call it there – followed him and kept at him for back taxes, auditing him and hitting him with penalties and so forth. Hyatt then sued the Franchise Tax Board in Nevada state court, contending that it had committed various intentional torts (and also the tort of negligence). The Franchise Tax Board, naturally, says "hey, but a California statute gives us complete immunity from lawsuits like this!" And the Nevada Supreme Court says, "sorry, Toto, you're not in California anymore. You're in Nevada, and you're not immune from suits for intentional torts in our courts. Negligence, you can be immune from – but not the intentional mean stuff."

Is it possible that Nevada still holds a grudge from the last time a somewhat similar issue was before the Supreme Court? That was Nevada v. Hall (1979), where the Court held that California state courts could pop the State of Nevada – without regard to Nevada's statute limiting its liability – for a car accident involving a Nevada state employee driving in California. Maybe Nevada thinks that turnabout is fair play.

But Nevada will lose, I think, and the Court will REVERSE. I think that the Court will either say "we were wrong in Nevada v. Hall (note that Chief Justice Rehnquist dissented there, and his old dissents on federalism issues have the habit of becoming majority opinions these days) or at least say "tax is not like car wrecks – this statutory immunity for California's tax authorities is so integral to California's sovereignty that Nevada must not be allowed to override it."

posted by sam 6:46 AM 0 comments

short things

A few weeks ago, Dwight Meredith wrote a great post about the Washington Legal Foundation and its ideologically-motivated attack on legal funding for poor people through bar assocation "IOLTA" programs. If you want to read more about this issue, including an extensive account of the Supreme Court oral argument on the case that will decide this issue, here is a very good article by Tony Mauro at law.com.

And here is an article about the flood of amicus briefs that have been filed with the Supreme Court on the U. Mich. admissions cases.

posted by sam 6:45 AM 0 comments

Wednesday, February 19, 2003

Supreme Court
The Supreme Court gets back into gear on Monday, and will presumably issue a bunch of decisions next week. There are also two weeks of oral arguments starting on Monday, with a few very interesting ones in the mix. The first is Pacificare Health Systems v. Book. This case will either turn out to be VERY important, or not. (How's that for a prediction?) The big question lurking here is whether companies can simply declare themselves immune from punitive damages in many sorts of cases, by foisting upon their employees and customers an "arbitration agreement" that prohibits the awarding of punitive damages. But it's quite possible the case will end with a fact-specific whimper rather than a bang.

The case is brought by doctors against various HMOs, raising lots of claims, including a federal RICO claim. RICO, you recall, is the federal statute that was supposedly drafted to cover organized crime but whose language covers a lot of wrongdoers besides the Sopranos. It provides for tripled damages, which are in some ways a lot like punitive damages. Some of the docs had arbitration agreements with some of the HMOs (i.e., agreements that if they had a dispute, they would resolve it before an arbitrator rather than file a lawsuit in court). Some of the arbitration agreements said that the arbitrator couldn't award punitive damages, and one had an arbitration agreement prohibiting the awarding of any non-contractual damages. The question here is whether these limitations on remedies make the arbitration agreements unenforceable as to the RICO claim – that is, whether the limitations on arbitrator-awardable damages so undermine the purposes of the federal statute, that the plaintiffs can bypass arbitration and file a lawsuit instead. Slightly more precisely, the question is whether a court in the first instance can declare the arbitration agreement unenforceable and allow the plaintiff to sue in court instead – or whether the plaintiff must first go to arbitration and argue to the arbitrator about the meaning and effect of the arbitration agreement, with the possibility of judicial review after the arbitration is over.

The Eleventh Circuit ruled for the doctors, holding that yes indeed they could bypass arbitration because the arbitrator wouldn’t be allowed to award the statutorily-mandated relief. The Circuit basically said, "see our earlier opinion in Paladino," and Paladino suggests that an arbitration agreement is unenforceable if it prohibits the arbitrator from awarding the full relief that is available under a federal statute.

There are four most-plausible outcomes here, I think:

(1) that the Court says that these arbitration agreements are ambiguous as to whether they would preclude the arbitrator from awarding the relief that Congress provided for in the RICO statute, and that the claims ought to go to arbitration in the first instance so that the arbitrator can interpret the agreements in that regard;

(2) that the Court says that the relief-limiting provisions are unambiguous and invalid, but the claims ought to go to the arbitrator in the first instance so that the arbitrator can interpret the contracts to see whether the relief-limiting provisions can be severed from the remainder (leaving the duty to arbitrate intact, but striking down the limitations on relief);

(3) that the Court says that the relief-limiting provisions are invalid and therefore there is no duty to arbitrate because the invalid provisions can't be severed from the rest of the arbitration agreement, leaving the whole agreement null and void; or

(4) – the REALLY EXTREMELY BAD possible outcome – the Court could declare that the relief-limiting provisions really do preclude the awarding of full statutory relief but are perfectly ok, legal, and enforceable nonetheless.

I think that the plaintiff-respondents would win only under #3, and the combined likelihood of 1, 2 and 4 about 51 percent. So I shakily say "REVERSE." I am NOT predicting #4, and will wail and gnash my teeth if it turns out to be the horrible holding of the case. I should also note that the plaintiff-respondents are represented by my former colleague Joe Whatley, and I wish him the best of luck. My own personal view, for what it's worth, is that the Court should affirm.

posted by sam 1:05 PM 0 comments

Tuesday, February 18, 2003

more short pieces
Sustained thinking (and a fortiori sustained writing) is difficult when you have a stir-crazy snowed-in 3 yr old in the house. So more short pieces this morning:

(1) Check out Rex Morgan again today.

(2) It's not only major corporate America that disagrees with President Bush about race-conscious higher ed admissions; it's also high-level retired U.S. military leaders, and a whole slew of other people and groups who will be filing amicus briefs in the Supreme Court.

posted by sam 8:29 AM 0 comments

Monday, February 17, 2003

short pieces
(1) this is fun. (type the letters as they appear, before they zoom across to safety.) UPDATE: don't try to compare your scores to those of friends who may be using different browsers. I found that I could do about 10 times as well in Mozilla as in Safari, because the letters dawdled in Mozilla. I am not an expert in such things, but this might be something of a test of browser speed?

(2) I have a friend who reads Rex Morgan, MD. Really, I do. And she let me know that the good doctor is spending a great deal of time crusading for universal healthcare coverage. This must mean something for electoral politics 2004.

(3) I don't really think (see CalPundit and Yglesias) that President Bush is the slightest bit a "uniter not a divider." I don't think he'll take my good advice. I think he's always more interested in playing tough than in getting things done. But I do think that it would be good for the Senate's Democratic leadership to point this fact out -- to explain that they will be satisfied with treatment as respectful as President Clinton gave to the Senate Republicans, and that President Bush has no mode other than "screw you if you don't agree with me."

posted by sam 2:58 PM 0 comments

what happens next

Next week will bring an answer to this question, on the Estrada nomination: do President Bush and Senator Frist understand the art of political compromise? President Clinton understood it on judgeships, though I have to admit that it infuriated me at the time; this is among the many reasons I am not an elected official. In order to break a logjam over judicial nominations, President Clinton agreed to a deal.

President Bush should do the same, and here are the outlines of how it should go: that the Senate should proceed to a vote on the nomination of John Roberts to the DC Circuit along with a nominee selected by the Democratic Senate leadership, with the promise of the Senate Republican leadership to support that nomination, and the passage of a bill to reduce the number of active judgeships on the DC Circuit to 10 (from the current 12). Then the Senate can move on to other business. This will put the long-running DC Circuit wars behind us for a while, and create a valuable precedent for "advice and consent" in future conflicts. President "uniter not a divider" Bush should actively work for such a deal.

posted by sam 8:18 AM 0 comments

Sunday, February 16, 2003

a random law note
The Alabama Supreme Court has held that when one talk-radio sports commentator, in disparaging the interviewing style of a rival talk-radio sports commentator, says "I thought that they [the rival commentator and his interviewee] were going to start performing oral sex on one another", this does not constitute actionable defamation. Duh. (Someday, the reasoning behind such a holding might be that an allegation that one man is likely to perform oral sex on another does not constitute saying something bad about somebody. That, however, was not the basis for the Alabama Supreme Court's holding. Instead, it was essentially the also-correct "come on, it was talk radio for pete's sake -- nobody expects literal truth on talk radio!")

posted by sam 11:26 AM 0 comments

news flash

Those filthy terrorists have covered DC with several inches of a cold white substance.

posted by sam 7:50 AM 0 comments

Friday, February 14, 2003

It appears that the Senate has gone to recess for a week, and the filibuster has held so far. This is not the end, of course, but is a very good start.

posted by sam 3:51 PM 0 comments


No decisions of substance from the National Labor Relations Board this week, if you were wondering.

posted by sam 1:27 PM 0 comments

Thursday, February 13, 2003

Oh, and let me just add in self-congratulatory and puny fashion that I love the little "favicon" I made for myself, and if you can't see it in your browser (right next to the "http: ...") then you're really missing something. It's a brick. Get it? Ignatz's brick. I find myself hilarious sometimes.

posted by sam 8:22 PM 0 comments

my last little bit of blogging for the day is a comment over at Atrios's site, more about Estrada and Republican Party v. White, the decision by Justice Scalia and the 5 most conservative members of the Supreme Court that establishes the legal principle that the people have an important interest in knowing what prospective judges think about important and disputed legal issues. Thanks again to Marty Lederman for tickling my memory about the White decision a few weeks ago, in connection with Justice Scalia's little speech about religious-establishment cases, even before Estrada was at the top of the confirmation agenda.

posted by sam 8:10 PM 0 comments

Ted Barlow has various things about Estrada and other things that are worth your time, and links to lots more. Unfortunately I'm too busy right now to stay in the thick of the discussion.

posted by sam 4:02 PM 0 comments

Interesting article here, from Corpus Christi, in which a Clinton judicial nominee points out the absurdity and offensiveness of current blindly-partisan Republican claims of racism in the opposition to Estrada. Thanks to Howard Bashman for the link.

posted by sam 11:28 AM 0 comments

more Estrada

Wow, yesterday was a huge traffic day at Ignatz, about 4 times the norm. Interesting to me is that by far most of it came from links from sites that are not law-centric (though of course I appreciate the links from the law blogs greatly, too); this issue has clearly become an important one even outside the confines of the narrow law-nerd world, which is fantastic. Here are a couple of follow-ups based on emails received overnight:

* I mentioned the filibuster of Abe Fortas as precedent for this action. True, that was a Supreme Court nominee; but no one has yet explained any theory of political, legal, or moral fairness by which it is ok to filibuster a Supreme Court nominee yet is not ok to filibuster a Court of Appeals nominee. And thanks to the blog "the wyeth wire," I now know that the reference to the Fortas filibuster is even more apt; as you can see at this post, the filibuster of Fortas was (just as with Estrada) based on his refusal to provide information to the Senate in considering his nomination!

* One correspondent asked me, point blank, whether I thought that -- aside from being precedented -- filibusters are a fair tool in this sort of thing, or whether all nominees should just receive an up or down vote. Fair question. My answer is that filibusters are a fair tool in this sort of thing, for one and only one reason: that the Rules of the Senate allow them, and have allowed them in the past. The Rules are the rules. That's how we keep things procedurally fair, in law and in politics: by following the rules, doing what the rules allow and not doing what the rules don't allow. (Some rules, of course, can be called "unfair" if they systematically tilt in favor of one set of interests and disadvantage another; but the filibuster rule is viewpoint- and interest-neutral and so can't be criticized on such grounds). If you think that a filibuster is unfair as demonstrated by some neutral philosophical principle because it allows a minority to thwart the wishes of a majority, then I've got two things to say: (a) the Senate (which, by giving two Senators to Mississippi and two to California, for instance, is a departure from plain majoritarianism too) and (b) the President, the Electoral College, and the Supreme Court.

What's less than fair, in my view, is taking advantage of the Rules when they suit you, and then changing them when the shoes are on the other feet -- see, e.g., Senator Hatch's apparent announcement yesterday (reported by Howard Bashman) that, having blocked many of President Clinton's nominees for years and in many cases forever by the traditional blue slip rule, he has now decided that he will now no longer allow Democrats to do the same. Applaud Senator Hatch for being a great hardball player and a zealous partisan advocate, if that's where your bread is buttered, but please let's all drop any talk that he's a man of lovely fair principles.

posted by sam 6:48 AM 0 comments

Wednesday, February 12, 2003

beware the untruths about the Estrada nomination
There are three major untruths being passed around about the Estrada nomination. (More than that, really, but these are the three biggies I believe). Some who pass these untruths around are surely doing so with knowledge of their falsehood; others maybe don't know, but should.

(1) The filibuster of Estrada is "unprecedented". Wrong. See President Johnson's nomination of Fortas, discussed here on the Senate's own website. (Is this perhaps the first filibuster of an appellate court nominee, as distinct from a Supreme Court nominee? Maybe so -- but that distinction is immaterial to the implication, which drives the Estrada-supporters' rhetoric here, that a filibuster is inherently undemocratic as applied to a judicial confirmation vote.)

(2) The opposition to Estrada is an instance of national-origin discrimination. You know, those horrible Democrats hate Hispanics. Wrong, despite the charges by such folks as noted civil rights leaders Haley Barbour and Boyden Gray. The evidence? He is Hispanic, and many Democrats oppose him. That's it; and that kind of evidence doesn't prove a causal connection -- a discriminatory motive -- as any honest lawyer could tell you. The opposition to Estrada is quite obviously political/ideological (and, for some opponents, based on his lack of judicial or academic experience), not based on national origin; there is literally no evidence to the contrary. And don't forget about Clinton nominee Richard Paez, who was subjected to several years of delay before finally being confirmed over the objection of many Republicans, having been held up for all those years by Senator Hatch and his colleagues in committee. Was he the victim of discrimination too? Where were Barbour and Gray (and the other Republican operatives making this "discrimination" charge) on that one?

(3) It's inappropriate for Senate Democrats to ask tough questions about what Estrada believes about various substantive issues of law. Wrong. See Justice Scalia's opinion for the Supreme Court in Republican Party v. White, pointing out (correctly, in my view) that judges have the capacity to make law in serious ways, and that a prospective judge's views on substantive issues are an important part of the person's qualification for judicial office, and that citizens have a wholly legitimate interest in knowing these things when deciding whether to accept the person as a judge.

posted by sam 10:16 AM 0 comments

Tuesday, February 11, 2003

Estrada nomination
This seems an appropriate time to link to what I said a few months ago about my reason for opposing Estrada's nomination to the DC Circuit. Please read it, and call your Senator if you've got one.

posted by sam 8:54 PM 0 comments

It occurs to me that it might be useful to point out that my implied reference, in the post below, to the existence of less sensible law prof blogger(s) was not meant as a poke at Eugene Volokh, who was the second-level subject of a post earlier today. I like the Volokh site (you can tell, because I have it in my links), even when I disagree with their politics and/or conclusions; they almost always talk logically, and often have something interesting to say.

posted by sam 8:49 PM 0 comments

Jeff Cooper is back, and at a new home. Very good news for those of us who like our law prof bloggers sensible.

Between Jeff's move and Kieran's, I am feeling as though I've been left in the dust, culturally and technologically. To alleviate this feeling, I have added a picture of Ignatz himself. And if you want the illusion that I am not just another blogspot baby, type in www.heldman.net, which will just send you right back here but with a momentary sense of uniqueness.

UPDATE: a wise reader cautions that I may be incurring the wrath of King Features, which apparently doggedly claims copyright in old Krazy Kat stuff. To them or anyone else who claims to own the copyright in the above image, I honestly say: if you can demonstrate to me that the image above is still legitimately copyrighted (though I think that it's probably not, because I think it's probably an early image, now fallen into the public domain), I will gladly take it down.

posted by sam 11:29 AM 0 comments

Surely you've already done it, or are planning to -- but go read CalPundit's interview with Alterman.

posted by sam 6:50 AM 0 comments

Mark Kleiman explains perfectly why Left Blogtown didn't get all in an uproar about a particular recent episode of fabrication by the right-wing press.

posted by sam 6:27 AM 0 comments

Monday, February 10, 2003

It might mean that I am horribly uncool, but I must admit that I like Moby's music and his website, which contains an amusing personal journal, as well as pro-vegan factoids such as "80% of u.s.d.a. chicken inspectors no longer eat chicken". (I stopped eating chicken after interviewing some people who worked in a chicken plant, for a potential FLSA case. I was an earnest baby lawyer, and with legal pad and pen in hand I asked one man what his job title was. He said "butthole cutter," and told me what that consisted of doing, day in and day out, dozens of times per minute all day long. He did say, though, that he thought his job was better than that of the next person along the conveyor belt.)

posted by sam 3:06 PM 0 comments

fuzzy math

Because I am in a grumpy mood today, I am self-helpfully doing things to make my mood worse. Such as reading "The Corner", the right-wing group blog. And such as sending them the following email, in response to this post.
your post about the DC Circuit -- suggesting that the confirmation of Roberts and Estrada would simply return the DC Circuit to a 6-4 split -- is, among other things, just plain factually wrong. The "restore the status quo ante" spin would make sense as math -- and then be subject only to political debate over whether a 6-4 split constitutes an appropriate balance -- if and only if taking senior status meant not hearing cases anymore. But of course it doesn't mean that. As you can see by looking at the DC Circuit's website (www.cadc.uscourts.gov), Judges Silberman and Williams are still actively hearing cases. So confirming two more right-wing judges would make an 8-4 split. Confirming four more, which seems to be the plan now that the Clinton-era Republican talking point "they don't need a full complement of judges" has gone out the window, would mean a 10-4 split. This is a change, a tilt, by any truthful definition. Does Estrada's confirmation really require fuzzy math????
By the way, this was all started by a column by Chris Mooney (with which The Corner sought to take issue, in the post to which I responded); and Mooney has also done a good job on his blog of responding to Slate's sloppy assertion that the DC Circuit is no big deal.

posted by sam 1:08 PM 0 comments

Balkin on electronic voting

Be sure to read Prof. Balkin's new post on electronic voting machines, Equal Protection, etc.

posted by sam 10:43 AM 0 comments

war on drugs

A high school student in Alabama, 18 years old, sells four ounces of marijuana. Pleads guilty. It's his first offense; he has no criminal record. No guns, no violence, no nothing but the sale of marijuana to a classmate who turned out to be an undercover agent. Sentence? 26 years. This makes sense?

posted by sam 6:42 AM 0 comments

Saturday, February 08, 2003

Kieran Healy's blog has moved to a new url, in case you didn't know.

posted by sam 8:34 PM 0 comments

Friday, February 07, 2003

The Man in Black
You can see a video of Johnny Cash doing a cover of what is apparently a Nine Inch Nails song here. The site will ask you for personal information, but I think it's worth it in order to see the video because (a) it's a great sound; and (b) the video is moving (by which I don't mean just that it is a motion picture); and (c) it's Johnny Cash.

posted by sam 4:57 PM 0 comments

Consistent with my New Year's resolution (and it's already February!) there are 11th Circuit and NLRB updates in the sub-blog.

posted by sam 3:07 PM 0 comments

Thursday, February 06, 2003

Other bloggers seem to like Buffy, 24, Law and Order, that sort of thing. I like George Shrinks a lot. Maybe I should not admit that.

posted by sam 2:42 PM 0 comments

employment law

The President has nominated a new General Counsel to the Equal Employment Opportunity Commission, the top lawyer in the agency charged with enforcing such laws as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the employment provisions of the Americans with Disabilities Act. His qualifications seem to be that, before a recent stint in the Bush Administration's Department of Labor, he spent a few years representing employers in discrimination suits (with no published appellate decisions in employment law cases to his credit, as near as I can tell from Lexis) and was -- did you even have to ask? -- part of the Ken Starr investigatory team. I don't know the guy personally, but my reasonable inference, until and unless different information comes to my attention, is that this is simply one more instance of non-compassionate conservatism from the Bush Administration, and one more nomination of a young aggressive ideologue. (Jumping to conclusions, I hear my friendly conservative readers say. But do you know of any non-ideologues who left nice jobs to go work for Starr's Clinton investigation???)

posted by sam 2:15 PM 0 comments

my archives have temporarily disappeared. maybe they will return.

posted by sam 11:53 AM 0 comments

more 11 Cir. updates, from yesterday, in the sub-blog, including interesting things about lay opinion testimony, timeliness of EEOC charges, and fair procedures for preliminary injunction hearings.

posted by sam 11:22 AM 0 comments


The federal government gave a grant to the State of Alabama, to restore the Confederate Monument at the State Capitol?! Your tax dollars at work.

posted by sam 6:36 AM 0 comments

Wednesday, February 05, 2003

Eleventh Circuit updates
Three recent Eleventh Circuit cases are summarized in the sub-blog.

posted by sam 2:19 PM 0 comments

Tuesday, February 04, 2003

can you believe it? somebody filed a lawsuit!!!
Big big news -- big enough that Lou Dobbs was laughing about it on CNN a little while ago, expressing incredulity. Big big news -- big enough that even though the suit was filed in Florida, it made the newspapers in New York, Kansas City, and other places. Those darn plaintiff's lawyers with their crazy new theories are out of control! Somebody actually sued a McDonalds franchise for selling them a bagel that was so hard that it broke their teeth! Ho ho ho, ha ha ha, tort reform. The only problem, of course, is that (as anybody who's passed the first year of law school can tell you), such lawsuits have been a recognized and settled part of basic law for decades if not centuries. If you sell somebody food to eat, you are giving an implied promise that it's fit for the purpose it's sold for -- i.e., eating -- and you are liable if that promise is not kept. In nearly every state, this is in fact a matter of statute, under the Uniform Commercial Code. Ho ho ho, ha ha ha. Can you imagine, that somebody actually filed a lawsuit to enforce their rights against a corporation that injured them? Ho ho ho, ha ha ha. Next up, after this commercial: somebody actuallly had the gall to call the police when their car was stolen! What will those darn lawyers think of next? Ho ho ho, ha ha ha. Liberal media, ho ho ho, ha ha ha.

posted by sam 8:35 PM 0 comments

Monday, February 03, 2003

The new color scheme is not a statement, or even much of an aesthetic judgment, but a quickie attempt to make it readable after I somehow messed up something in the template and it all went purple everywhere. I think I might like this look, though.

posted by sam 6:45 AM 0 comments

Saturday, February 01, 2003

corporate recividism, etc.
Sometimes it is possible to get so caught up in the internal processes of labor law, that it is hard to step outside of those processes to see how odd they are. Here is an example of what I mean, and (because that's where my mind is at these days) it all comes back to judicial nominations and confirmations.

Yesterday the U.S. Court of Appeals for the DC Circuit issued a labor law decision, mostly upholding a decision of the National Labor Relations Board against Beverly Enterprises. Beverly is a major nationwide nursing home chain. It is a frequent violator of the nation's labor law. Here is the DC Circuit's decision. There are, to my eye, two striking things about this decision in itself:

1) A substantial issue before the DC Circuit was whether the NLRB had gone too far, had issued a too-draconian remedy against Beverly, on account of its multiple violations of the National Labor Relations Act. This issue was considered serious enough to warrant significant discussion by the Court; it is a remedy that is extraordinarily rare in labor law, and is reserved by the NLRB for the few most serious cases. What was the draconian remedy? Maybe something like the corporate equivalent of at least 50 years' imprisonment for petty theft (the punishment that the U.S. Supreme Court will likely uphold, this spring)? Not really. It was just an order that Beverly post a piece of paper in each of its facilities noting that it had been found to have violated the NLRA and shouldn't do so again. That's it. Really. That's considered a severe remedy against a company in labor law. No wonder companies scoff at the law.

2) Even more important -- but somewhat more complicated -- is that the DC Circuit overruled the Board's decision on the one point that actually had a substantial impact on people's lives. The Court held that 450 Beverly employees forfeited their jobs by going on strike. The law, in a nutshell, is that you don't forfeit your job by going on strike. But the Court said that because of a particular rule regarding the necessity of giving notice of a strike in the health care industry, these employees had violated the law and forfeited their jobs. Why was this unfair? Because even the Court admitted that there was a long line of law from the Board that said that the particular thing that the employees did in this case was perfectly lawful; the employees were doing what the Board had upheld before. Nonetheless, the Court said "tough luck, the Board was wrong, you screwed up by relying on that settled understanding of what the law was, you lose your job, byebye."

This in itself is bad enough. But compare it to what the same Court, the DC Circuit, said in another recent case about a change in labor law: that a company that had relied on the then-current state of the law, in firing two employees, couldn't be forced to reinstate those employees when the Board's understanding of the law had changed. So the practical upshot is this: if the law changes in a direction to favor the company and it disadvantages employees who relied on the old law, the company wins. if the laws changes in a direction to favor the employee and it disadvantages a company who relied on the old law, the company wins.

So what does this have to do with judicial nominations and confirmations? It's the DC Circuit. Why do companies so often take their big labor law cases to the DC Circuit, to review NLRB decisions, rather than going to the Circuit where the case arose? Because they can, and because they, like me, think that it matters a whole lot who's on the court you're arguing to. Company lawyers, like me and like every member of the Senate Judiciary Committee, are cynical realists: they know that some courts are more likely to reverse NLRB decisions, and some less so. And the one they think is most likely to do so, is the DC Circuit. That's the Circuit that the Republicans refused even to consider letting President Clinton put anybody on; vacancies languished for years in the Clinton era and were never filled. That's the Circuit that, now that they hold the cards, they're eager to fill the vacancies on, with people like eager beaver and Ann Coulter-helper Miguel Estrada.

This is the life of labor law.

UPDATE: Thanks very much, TAPPED. For more on Estrada, see my other posts (e.g.) here and here.

posted by sam 7:31 AM 0 comments

Atty Gen. Ashcroft is out of control

Via TalkLeft, two pieces about separate facets of Mr. Ashcroft's demonstrated unsuitability for the job of Attorney General. In this piece, a federal government lawyer (a courageous one, too!) lays out the facts and law showing that the AG has violated ethical rules in his public statements about various defendants. In this piece, the New York Times reports on the AG's unprecedented demand that the U.S. Attorney's Office seek execution of a particular defendant, even though the defendant had already agreed to give useful testimony against others in order to obtain a life sentence. Nearly every experienced prosecutor could tell you that this is nuts.

posted by sam 7:02 AM 0 comments

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