(The Return of) Ignatz, by Sam Heldman
Wednesday, November 23, 2005
nessataviteI hope that if there is anyone who thinks that I said (pdf) the word " nessatavite " to Justice Ginsburg and is wondering what it means, that he or she will google the word and land here. " Nessatavite " is not a word, at least so far as I know. It was "less satellite," which make sense in context but maybe I mumbled.
posted by sam 9:29 AM0 comments
Friday, November 11, 2005
emusicHey, here's something new: Dischord records now available for download on emusic. At least I think it's new, and it's good. Emusic is a good deal for people with eclectic taste in music: $x per month for y number of downloads of mp3s, with a wide-ranging catalog of "indie" rock, jazz, Yazoo and Document records for those of us who love reissues of 78 rpm recordings, and all sorts of good stuff.
posted by sam 3:24 PM
hello out there
Might even start blogging again. Just finishing up a very busy several months, busy because in addition to all the other normal sorts of things on my plate, I had briefing and oral argument in one case before the U.S. Supreme Court and another before the en banc Eleventh Circuit. Now I am catching my breath, with at least one big new project coming up soon.
If you, like me, have a little time to kill, then check out the Digital Library of Appalachia, which includes (inter alia) a huge number of field recordings of great fiddlers and banjo players.
posted by sam 12:46 PM
Wednesday, July 13, 2005
musicIf you are at all a fan of traditional southern American fiddle music, or are open to being one, you should check out the debut record of Brittany Haas, which my friend Bruce Molsky just sent me. It will blow your mind -- just the right mix of technique, adventure, tradition, and taste. And then there's the fact that apparently Ms. Haas is still a teenager, which is even more mind-blowing.
posted by sam 8:02 PM
Tuesday, July 12, 2005
Supreme Court and Justice O'ConnorWith characteristic bluntness as compared to my characteristic whateveritisness, Nathan Newman compellingly discusses Justice O'Connor's voting record on labor and employment matters.
posted by sam 9:35 AM
Monday, July 11, 2005
criminal law strategiesInteresting article in the Bham News about the Scrushy trial. It discusses a long pre-indictment memo that my old friend Donald Watkins, Scrushy's lead counsel, presented to the prosecutors laying out exactly how and why any trial would lead to an acquittal. His predictions turned out to be exactly right, and the prosecutors walked the unsuccessful path laid out before them. Of course, it's not always the best strategy to tell the other side exactly how you will beat them ...
posted by sam 7:33 AM
Cooper, Time, Miller and Rove
This article about Matt Cooper's near-jail experience to protect his "source," Karl Rove, makes the whole thing seem extremely odd to me. If I'm reading correctly, Rove really had (as we were all led to believe) signed a document waiving any confidentiality privilege and giving his permission for any reporters to testify about conversations they had with him. And so first odd thing is that Cooper -- perhaps along with many others in journalism -- thinks that morality or professionalism or something requires a journalist to refuse to testify EVEN IF there is such a waiver, unless the source ALSO tells the particular journalist "yes, and that includes you"? I do understand the notion that some waivers, in some contexts, are coerced. But the only "coercion" that could have existed here was Rove's own mental calculus about what was better as a political matter and what was better for his own job prospects. But Cooper thought that morality required him to keep Rove's statements to him a secret, even though Rove had balanced his own interests and decided to the contrary? This really does sound to me as though journalists think that they are super-human, more wise than the rest of us and bound by their own non-legal moral code that trumps everything else.
The second odd thing is -- ok then, is Judith Miller even more so? Or is her source someone else, someone who either hasn't given a blanket waiver or wasn't willing to have his lawyer tell hers, "yes that means you too."?
posted by sam 7:14 AM
Sunday, July 10, 2005
random predictionA random and pessimistic prediction. If Chief Justice Rehnquist does retire soon, then President Bush will nominate two people whom his spinners can portray as a compromise of the sort I mentioned below (i.e., one Rehnquist-like, one O'Connor-like), but whom they actually think and hope will be further right than that. In other words, one truly far-out and extremely divisive (e.g., Brown or Owen) and then someone such as Luttig or Garza whom they will present as very workmanlike and middle-of-the-road (and who will seem m-o-t-r ONLY by comparison with the more extremely divisive nominee).
posted by sam 4:40 PM
something entirely trivial
Have you seen the new version of the nickel, with a new picture of Jefferson and the word "liberty" in his handwriting on the front, and a buffalo on the back? Very cool.
posted by sam 8:15 AM
Friday, July 08, 2005
musicOn Monday, go see French Toast* at Fort Reno if you are in or near DC.
* link plays music.
posted by sam 11:59 AM
Supreme Court
I am hereby on record as saying that, if the Chief Justice retires in the next few days as widely expected, it will be a good thing. This has nothing to do with the Chief Justice himself, but is instead about the process. Two vacancies right now would be better than one not only because (as many have pointed out) it creates at least the greater possibility of some compromise (with one nominee more in the Rehnquist mold and another more in the O'Connor mold). I am not especially hopeful that the President will move towards compromise in that way. But even then, two vacancies would be better than one because of the impact in case of meltdown or prolonged stalemate -- if the Term is to start with fewer than 9 on the bench (which wouldn't be good but is a possibility if the President avoids compromise), it would be better to have 7 instead of 8. Why? Because 4-4 ties are a total bummer and a waste of time in the Supreme Court.
posted by sam 9:33 AM
Wednesday, July 06, 2005
question of the dayIs President Bush really annoyed with the right wing of his party for pressuring him about the Supreme Court nomination? Or is he acting annoyed for some political reason?
If he is really annoyed, that will be fun to see. It will have its roots in the Terri Schiavo circus, and his recognition that he was taken too far out on a limb that time.
But I am not so naive as to think that anything coming out of any White House is perfectly genuine.
posted by sam 7:56 PM
Monday, July 04, 2005
a refresher course on some judicial confirmation bsWe've all been over these things before, but as a quick refresher:
Republicans will say, in regard to the confirmation hearings for a Supreme Court nominee, that it is improper for Senators to ask, and for the nominee to answer, questions about the nominee's legal views on specific topics.
In part, the assertion always is that a nominee cannot ethically answer such questions because, if he or she did so, it would then be inappropriate for him or her (if confirmed) to hear cases raising the issue. This is demonstrably wrong. Nobody suggests that a law professor who has published an article arguing that Roe v Wade was wrongly decided is, if he or she becomes a judge, thereby precluded from hearing a case raising the question whether Roe ought to be overturned. There is no such ethical rule, period. So, since it is ok for a future judge to express an opinion in a law review, there is likewise no ethical prohibition against a judge deciding such cases after having talked about the issue in a different forum. On this point, see the Supreme Court (per Justice Scalia) in White v. Republican Party. (Note that I am not talking about questions of the form "how would you vote in such-and-such case which is going to be on the Supreme Court's docket this Term?").
Another part of the assertion is that, if Senators ask such questions, this amounts to extracting promises from judges that they will rule in a certain way, as the price of confirmation. This, too, is simply false. Nobody is asking a nominee to lie about his or her beliefs, or to promise to make judicial votes that he or she disagrees with. These questions are information-seeking, not promise-extracting. They can be, and should be, answered honestly as such.
The other part of the assertion is that it is inappropriate for Senators to want to know such things or to take them into account when voting to confirm or not. On this, again, see Justice Scalia in White, supra; and see Eleventh Circuit Judge Bill Pryor, who stated before he became a judge that it was vitally important that the Senate question nominees about their views, and that the Senate exercise its constitutional authority to block judges if they did not have the proper judicial philosophy. Now, it is conceivable that some Republicans disagree honestly with this, and think that the process should be different; but they cannot legitimately claim that Democrats are doing something bad by taking the role that Justice Scalia and Judge Pryor have recognized as proper.
posted by sam 3:05 PM
Saturday, July 02, 2005
Why is Boyden Gray biased against a potential Hispanic nominee???When Miguel Estrada was being blocked from confirmation to the federal bench, a group led by Boyden Gray and others created a television ad portraying this as discrimination based on national origin. You probably remember that; it was discussed here. Now Boyden Gray has been part of a delegation to the President telling him not to nominate Attorney General Gonzales. What a shameless twit.
posted by sam 3:23 PM
the unsexy cases in the Supreme Court
So much of the analysis of Justice O'Connor's retirement, in the news outlets as well as the legal punditry, has to do with the hot-button constitutional cases, and how Justice O'Connor's replacement might well be further to the right than she has been on some such cases. There is, of course, the issue of Roe's future, and the Ten Commandments (on which Justice O'Connor was in the 5-4 majority striking down the Kentucky display, here), and the diversity in higher ed cases of two terms ago -- as well as some others that you can find discussed all over the place.
My frustration with the way that this fight may play out is that those issues may draw too much of the attention -- "too much," I admit, being a value judgment, based on my view that those hot-button cases, important as they are, are not the only important thing that a Supreme Court Justice does, and in many ways are not even the most important thing. Equally or more important, I think, is a Justice's votes on the unsexy cases -- the interpretation of federal statutes and the procedural rules that govern litigation. I am pleased that there has been at least some attention in the news media to the fact that, on many such issues, Justice O'Connor was quite likely to vote in favor of "business" interests -- and that the views of aa nominee on this sort of issue are important as well. See, e.g., here and here.
These unsexy issues -- in particular, issues about a nominee's tendency to vote in one way or the other in cases involving consumer rights, statutory employment rights, and so forth -- could yet end up being quite important if the President nominates Priscilla Owen as Tom Goldstein predicts, or if he nominates Judge Jones from the Fifth Circuit, or former Justice Brown from California. I hope that the President departs from his normal practice of picking fights and nominates someone more moderate than those; but if one of them gets the nod, I do hope that there will be at least as much attention to their patterns of voting in run-of-the-mill statutory cases as to their views on hot-button issues such as abortion.
posted by sam 3:09 PM
too bad a blog can't become pseudonymous mid-stream
I am, I admit, uncertain about how vigorously to blog about Justice O'Connor's retirement -- about my feelings on her legacy, and about the pros and cons of possible nominees.
On the one hand there is the good and obvious reason to keep my damn mouth shut: the slight possibility that some Justice or Judge would be aware of what I say here, be displeased by it, and therefore be less well-disposed towards me. And the reason to blog is pretty weak, given that it is fanciful to think that I would have any impact by blogging about such things. I do not flatter myself with thoughts that I would be an important part of any movement, in regard to the upcoming confirmation battle. The battle will be principally fought on terrain where I will have little to add. If the nominee has issued opinions reflecting a hostility to privacy rights, or equality, or other high-profile easily-defined issues, I won't be the first to find those opinions on LEXIS.
But, with some reasonable level of self-editing, I will try to have interesting things to say anyway. Part of the reason is that, paradoxically perhaps, I have more respect for high-level federal judges with whom I disagree vehemently, than many people do. Here is an example. If you've read Ignatz before, you know that I spent a good bit of energy writing words in opposition to Bill Pryor's nomination to the Eleventh Circuit. And I strongly believe that he knows this, because among other things it was in the Alabama newspapers. So it was with some irony that, mere days after the "compromise" that led to his confirmation, I appeared before a panel of the Eleventh Circuit that included him. I knew that he would be on the panel, and my client had the option of calling in a substitute for me. But I believed, and told my friends who raised their eyebrows at me, that this history would not make a difference to the case. I still believe that he will, quite often, issue decisions with which I disagree vehemently. Some of them will be in cases that I brief and argue. But I don't believe that it will be about me. And the oral argument before him gave me no reason to change my mind on that.
So, if there is any judge who may happen to become aware of some criticism I have made, take this as a compliment if you will: the reason I am willing to be a small part of public discourse is that I trust your integrity, even when I strongly disagree with your views.
posted by sam 10:54 AM
Friday, July 01, 2005
Ignatz 2 1/2, or is it 3?Today seems like an auspicious day to get back into this thing, which I've been meaning to do. There is, of course, Justice O'Connor's retirement. And then the fact that it's the second half of the year. And also I have some time.
The recent hiatus has mostly been work-related. Much interesting stuff on my plate these days. Filed my opening brief in the Supreme Court in Martin v Franklin Capital, available here (pdf). As you may recall, it deals with the fascinating question of what legal standard governs the decision whether to award attorneys' fees under 28 USC 1447(c) upon remanding a removed case. I like the issue because it allows me to say "Piggie Park" a lot. Never mind -- it's funny to me. Probably will be argued in November.
Also have a brief due in the Eleventh Circuit sitting "en banc" (i.e., all twelve judges, plus in this instance one senior judge, making lucky 13), on a good question of constitutional law in the criminal context -- the Confrontation Clause, and whether it allows prosecutors to have their witnesses testify by two-way videoconference from overseas. (See here, pdf file from Court re issues). That brief's almost done. To be argued in October.
Then there are various other things too. But enough about that.
On the music front, check out the clip of Ted Leo playing for the locally-produced rock and roll kids' tv show "Pancake Mountain." That kid with the glasses who says "we sing that at school" sure is cute. Ted Leo is a nice fellow and a great songwriter/singer/fast-right-hand guitar player.
More to come later, including the burning question: "Will President Bush absurdly claim that gender had nothing to do with it when he nominates a woman to replace Justice O'Connor, just as his father absurdly claimed that race had nothing to do with it when he nominated Justice Thomas?"
posted by sam 6:53 PM
Friday, May 06, 2005
now that's a good sentence.One sentence, from an open letter that is definitely worth reading:[Ann Coulter is] famous for having an ass that stores so many lies it makes clown-car designers envious.
posted by sam 11:54 AM
the majesty of the law
It would boggle your mind to read this article about the fees that big-time corporate bankruptcy lawyers get. More than 800 per hour for some; 240 per hour for people who (at best) have graduated from law school but have not yet passed any bar exam; millions upon millions for some firms, per case. Read it and weep, or yell, or whatever you feel inclined to do.
posted by sam 7:11 AM
Wednesday, May 04, 2005
Gummie SinsIf you have not already seen the photos of the seven deadly sins acted out by gummy bears, you really should.
posted by sam 8:03 AM
The return of the return of Ignatz
Gearing up for a return any hour now. If you look at the post immediately below this, you will have a good sense of why I have not been blogging because my brain has been occupied round-the-clock with law-related program activities for the last several days.
posted by sam 7:53 AM
Monday, April 25, 2005
holy cowThe Supreme Court granted cert this morning in my case about the standard for awarding fees upon a successful motion to remand. Previously discussed here.
posted by sam 10:47 AM
Sunday, April 24, 2005
still not deadA mystery: why is it that, unlike last year when Manischewitz matzoh-ball soup mix was widely available in a low sodium variety, this year it has been completely unavailable even though I've looked in several grocery stores several times over the last month? I blame Tom DeLay.
posted by sam 11:58 AM
Wednesday, April 20, 2005
Ignatz not deadNot dead, just busy with the actual practice of law and a 40th birthday.
In exciting news, my 5-yr-old was one of the artists contributing to the high-level visual art project associated with the indie-rock festival Coachella. His work is not online yet at the relevant page, but I hope it will be before long.
And, today is the debut of the online left law journal discussed in the post immediately below this one.
posted by sam 10:34 AM
Thursday, April 14, 2005
new law journalI learned today of a new online law journal, a journal "of the legal left," created by some students at Harvard Law. It will debut next Wednesday, and is called "Unbound". The name, I gather from the mission statement, is not just a joke about the lack of printing and binding, but also is a reference to the creators' desire to make a journal that is truly "left," not just establishment-liberal, and that therefore is not constrained by the need to seem palatable to middle-of-the-roaders. Should definitely be worth checking out. Again, next Wednesday, Unbound.
posted by sam 11:50 AM
Wednesday, April 13, 2005
music benefitIf you live in or near DC and like Afrobeat music, or just like to have fun, you should go to the Afrobeat Against Autism benefit on April 30 at Cada Vez on U Street. The music will be great, there will be food and drink, and you will be doing good with your $.
posted by sam 2:04 PM
Tuesday, April 12, 2005
man datesThat article in the NYT the other day, about how some men feel odd about going places with other men, was either (a) the stupidest article ever about a made-up thing, or (b) an article about a pathetic aspect of many men's psyches. Not sure which, but Ezra Klein does a good job of responding, and says what I would say if I weren't being curmudgeonly about it.
I can add this: my friend Hank Bates and I went to see Gatemouth Brown and Vassar Clements play, in a bar in Cambridge about 20 years ago. An old blues guitarist-fiddler and an old bluegrass fiddler, respectively. I think it was the aging-jazzy-fiddlers-on-cocaine tour of 1985. Anyway, Gatemouth was so wired on whatever that powder around his nose was, that instead of playing he decided to make jokes based on his perception that Hank and I must be gay because there we were sitting at a table together.
So, the "man date" problem is Gatemouth's problem, not mine.
posted by sam 8:31 PM
good advice
From a lawyer friend in Alabama, words to live by:
REDNECK TIP OF THE WEEK:
Next time you are too drunk to drive, walk to the nearest pizza shop,
place an order, and when they go to deliver it, catch a ride home with
them
posted by sam 7:45 PM
Saturday, April 09, 2005
Now that's a good bunch of sentences.In honor of the Powerline nuts' attempt to erase their subconsciously-homoerotic nicknames, and by general acclaim, the NTAGS award goes to Ezra Klein for this post, which has a bunch of great sentences. Such asArguments are created on the fly, accuracy is unimportant so long as the product accuses the "MSM" or Democrats of some cardinal sin that'll leave Powerline's sycophantic readers moaning with the exquisite pleasure that comes only from having one's biases expertly stroked.
posted by sam 2:54 PM
still here
sorry for the radio silence. have been busy. back soon.
posted by sam 7:31 AM
Wednesday, April 06, 2005
copyrightI am no expert in copyright law, but it seems to me that the recent decision from New York's highest court, described here and available here, is mighty big and bad news from the point of view of those of us who love CD reissues of great old 78 rpm recordings. It seems to say -- if I am reading it right -- that under New York law all "sound recordings" are in copyright until 2067. Will this shut down all the little labels that reissue the great old stuff? Or just the ones based in New York? Please reassure me that this is not the end of such reissues.
posted by sam 8:04 AM
advantage blogo ... whatever
You read it here Friday, now you can read from the Washington Post about the Archives' (now abandoned) attempt to shut down a forum on Social Security at the FDR Library.
UPDATE: Be sure to read this Kos diary for more information and related fun.
posted by sam 7:49 AM
Tuesday, April 05, 2005
Gogol BordelloHow often have you said to yourself, "The thing that would make my life complete would be if I could find a band that sounds like an Eastern European version of the Pogues"?
A friend of mine who has seen every band, ever, told me that one of the best live shows he had ever seen was Gogol Bordello. Unfortunately, every time they have come to DC since then, my alter ego of Asthma Boy has taken over, so I haven't been able to confirm. But yesterday I downloaded from EMusic a live show. And it is wicked awesome.
posted by sam 2:56 PM
Cornyn
You have heard about Senator Cornyn's outrageous remarks on the Senate floor, drawing a connection between anger at so-called liberal judicial activism (an anger that he vociferously shares) and murderous violence against judges. You can get the text of his speech from Howard Bashman here, and it really is as bad as reported. It's appalling.
And no one should be under the illusion that a standard political "clarification," or even a political "apology," would be enough to undo the damage here. That's the thing about murderous behavior by insane people; it's reasonable to believe that many of them take encouragement from remarks of this sort, and I know of no reason then to believe that any such person would say to himself, upon reading some political "clairification" or "apology," "gee, I guess on second thought, now that I understand his remarks better, it would be wrong ..."
posted by sam 10:27 AM
Monday, April 04, 2005
Howell Heflin and Roy MooreVery busy day today, but I do have time to bring this report from one of Ignatz's Alabama-based correspondents, who attended Judge Heflin's funeral:
"it was amusing that roy moore came and then snuck out before speaking
to anyone. as if there was anyone there who would have."
posted by sam 4:26 PM
Friday, April 01, 2005
Can't talk about Social Security at the FDR LibraryI have heard from a friend in New York state, and it is confirmed here, that the National Archives has required the cancellation of a forum on Social Security sponsored by the League of Women Voters and similar groups. The forum was to take place, fittingly enough, at the FDR library; if you can't talk about Social Security at the FDR library, where can you talk about it? But the Archives says it can't be allowed to take place, because it's a partisan event. Partisan? Well, maybe in the sense that no Republican elected official can be found who has anything to say in support of the President's pseudo-plan, although all local Republican members of Congress were invited ...
Loyalty oaths soon to follow.
BELATED UPDATE: Related thoughts here.
posted by sam 9:32 PM
April Fools brush with greatness
See this NYT article about the 1985 Sports Illustrated April Fool's article about a (fictional) pitcher named Sidd Finch. The SI article was written by George Plimpton. The Times says that only a few people were "even slightly aware of what the magazine was up to" before the issue was published.
This makes me very important indeed, because one of the pictures accompanying the SI article was taken in my college dorm room, and I knew all about it.
Also, I was once in an elevator with George Plimpton and a chimpanzee.
posted by sam 7:19 AM
Thursday, March 31, 2005
musicSometimes it seems that life is full of disappointments. Among them is the new Beck record.
posted by sam 11:51 AM
feelings about constitutional law
The newspapers are abuzz about the fact that Eleventh Circuit Judge Birch -- appointed by the first Pres. Bush -- wrote an opinion (for himself alone) in the Schiavo matter, saying that the Schiavo-specific law was unconstitutional. He really laid into them, "them" being the Congress and President, saying that the statute went against the very basic priniciples of our constitutional democracy. You can get the opinion from here.
What's interesting to me, the more I think about it, is that Judge Birch's view of the unconstitutionality of the law was so different from mine. His view was all about separation of powers, and (not that I necessarily think that there's anything wrong with this) was more about the rights of courts than about the rights of individuals. Now, I understand that he might say that preserving the rights of courts is a way to preserve the rights of individuals, and he would be right. But if I were writing an opinion asserting that the Schiavo law was unconstitutional -- and I probably, but not certainly, would have done so if I were in his shoes -- I would have talked about Equal Protection, the rights of individuals, as much as about separation of powers. The Congress enacted a law creating the right to bring a lawsuit against a handful of people -- Michael Schiavo, and the hospice, and maybe a few others. Other than the carefully created media- and political-circus, there is no rational basis to single them out, out of all other people and institutions who are involved in this sort of dispute every week.
Now maybe Judge Birch (whom I respect a lot, by the way, even though his views often differ from mine) knows some reason I don't, as to why precedent would have foreclosed such an Equal Protection argument. But I think that the argument would have been at least as strong as his separation of powers argument, and I'm very surprised that he didn't invoke it as well. Whether this marks some greater difference between liberal visions of constitutional law and conservative ones is an interesting question; my tentative answer is, "not as much as you might think."
posted by sam 9:07 AM
Wednesday, March 30, 2005
law bloggingTwo good employment-related decisions from the Supreme Court in the last couple of days.
In Jackson v. B'ham Bd. of Ed., the Court held that a coach may sue if he suffers retaliation by his employer for complaining about unequal treatment of girls' sports teams. More generally (and more technically), there is such a thing as a claim for retaliation under Title IX. This had been a question, because the statute only speaks in terms of outlawing "discrimination," whereas some other statutes specifically outlaw retaliation as well. However, the Court held that the word "discrimination" in Title IX encompasses retaliation, especially because not long before the enactment of Title IX the Supreme Court had interpreted the word "discrimination" in another civil rights statute as encompassing retaliation. If Congress didn't mean to adopt that interpretation when enacting Title IX, says the Court, they would have said so. This just goes to show that the impact of Supreme Court Justices can live on, in direct and indirect ways, long after they are gone.
In Smith v. City of Jackson, the Court held that employees may bring suit under the Age Discrimination in Employment Act not only for intentional discrimination (where the boss is in fact motivated by the employee's age) but also for disparate impact discrimination (where the employee is subjected to some test, standard, rule, etc., that impacts older workers more heavily than younger workers). In so ruling, the Court did make some qualifications and "but"s and "still"s, and so such cases will not be easy (for instance, the Court said that the particular claim in this case would fail) -- but they can be brought. Blogger and Supreme Court expert advocate Tom Goldstein handled the case for the employees and did a great job.
posted by sam 11:49 AM
word to the wise
If you think that you may ever become the defendant in a prosecution for murder, you should not adopt any variant on the word "Murder" as your stage name.
posted by sam 8:45 AM
Howell Heflin
Not to take anything away from Johnnie Cochran, a great criminal defense lawyer, but here's to former Alabama Chief Justice and U.S. Senator Howell Heflin, who died yesterday.
Senator Heflin was, for his time and place, a real progressive on many issues. He had a real sense of fairness. He brought the Alabama Supreme Court into the 20th century. He had such an accent. Every Alabama lawyer, in the heat of the moment during argument or trial, sometimes subconsciously exaggerates his or her own accent. I have done it myself, embarrassingly enough. I think that maybe we're trying to be Howell Heflin.
He also stole a very lame joke from me once. One summer when I was about 18, I was an intern at the Birmingham public radio station, and the one-person news department sent me off with a microphone and a cassette record to cover the groundbreaking for some new building. Before it started, I found myself standing next to Senator Heflin, in front of a huge hole in the ground with backhoes and bulldozers in it. I said, "Gee Senator, we're here for a groundbreaking but it looks like they've broken quite a bit of ground already." Then the ceremony starts, and he stole my joke, and everybody laughed.
posted by sam 7:26 AM
fun with Scarborough
Atrios is right, this transcript of a physician with no patience for Joe Scarborough's antics is priceless.
Now it can be told: I rode on a 4-seater airplane once with Joe Scarborough, from Alabama to DC, before he was a tv guy.
posted by sam 6:54 AM
Tuesday, March 29, 2005
blogging about my bloggingYes, I know that the post immediately below this one is of a sort that is so common in politico-blogging that it is almost (almost?) a cliche. A bit too easy, maybe. Nonetheless, it is instructive about the infinite capacity of humans to do bad things, to delude themselves, and just to be jerks when you get right down to it.
posted by sam 5:05 PM
Thank you for your expert opinion, Mr. Smith
Here, six months ago, is the Boy Scouts' "National Director of Program" Douglas S. Smith, Jr., writing forcefully in support of the Boy Scouts' belief that exclusion of gay people is fundamentally necessary to that organization's purpose and values. The basis for this exclusion is the Scouts' putative belief that gay sex is immoral.
Here, today, is an article stating that Boy Scouts' former National Director of Program Douglas S. Smith, Jr., has been charged with, and is expected to plead guilty to, receipt and distribution of images of child pornography.
[UPDATE, the following day: The Boy Scouts are too busy with homophobia to understand how things work on the internet -- they thought they could make this go away by taking down the page in the first link above. But here, via Red State Diaries, is the google cache. Wankers.]
posted by sam 4:08 PM
Sunday, March 27, 2005
old-fashionedI am old fashioned.
Had an old friend over last night, who started telling me how the wave of the future, and the best thing since sliced bread, was the Rhaspody "huge music collection in the sky" service. For some number of dollars a month you can stream from an enormous record collection, and you never have to buy new cds ever again in your life. I resisted, and he proseltyzed, and I still resisted.
Then he asked if he could rummage through my cds and put on some music. I agreed, and he emerged a while later raving about how it was just like bein in a candy store and there were all these great things to listen to.
My guess is that most of what caught his eye in my record collection was probably stuff that he could have heard on Rhapsody; apparently the collection is huge. But flipping through the cases, even though not as satisfactory as flipping through LPs (among other things, how do people who smoke dope clean their dope anymore, if they can't use double album covers?), is a great pleasure and adventure.
So today, instead of downloading the new Decemberists and Iron & Wine records from iTunes, I went to an actual record store and paid green dollars for them.
posted by sam 4:04 PM
Saturday, March 26, 2005
gmailnothing interesting on my mind today, but I do have more gmail account invitations to give away if you want one. if so, send me an email -- first name at last name, dot net.
posted by sam 2:48 PM
Thursday, March 24, 2005
now that's a good bunch of sentences.Was going to try to give the NTAGS sentence award to The Poor Man tonight, but couldn't decide on the best sentence. Is it:It’s funny that this stupid Schiavo case should be a defining moment - that matters of state and billions of dollars and millions of lives should take a back seat to this “my baby fell down a well!” human interest crap, but ain’t it America? - but I suppose, scale aside, it’s an illustrative enough example, thanks to the fractal self-similarity of the Wingnut Function.Or is it:Asking oneself “why do they keep playing me for a chump?” is a question that chumps are always asking themselves, a question which answers itself, chumps.Or is it the sentence immediately following:Yes, the Republican Party is primarily concerned with A) diminishing the government’s power over large corporations and the very rich, and B) pandering to a sizeable constituency who want to increase the government’s power over every other facet of American life, and over the rest of the world, in accordance with God’s Holy Bible, a book they have not read.Or is it:However, one must note, in the interest of Kristofian non-partisan fairness, that none of this makes Michael Moore any slimmer.Every other funny-political blogger is, tonight, the poor man's The Poor Man.
posted by sam 7:45 PM
ways in which I am different from Bob Dylan
I am different from Bob Dylan.
If I were like Bob Dylan in having (a) an unquenchable desire to tour constantly, (b) money enough to keep great musicians well-paid all year round, to practice more songs for our repertoire during those months we weren't playing, (c) hundreds of recorded songs as well as encyclopedic knowledge of the American music tradition, and (d) fans in whose eyes I could do no wrong, I would still be different from Bob Dylan.
That is, I would play different songs every night. I would certainly not play 5 of the same songs nearly every night of the 13 dates so far this tour, nor would I play some songs two and three hundred times in concert during the last four years.
This is better than talking about Schiavo.
posted by sam 3:45 PM
that damn case
I really hate the fact that it's taking up so much of the news, but if everybody's talking about it we might as well help them know what they're talking about.
As it's panning out (in the dissents in the 11th Circuit, and now in the application to the Supreme Court), the disputed issue is whether the Congress told the courts to, and whether (for that reason or some other reason) the courts should, issue an emergency order keeping Ms. Schiavo alive pending some further proceedings in the case.
There are two sub-parts of this issue, technically.
One is whether the courts can/should use the authority of the old old All Writs Act to issue such an order, without regard to the standard that governs issuance of temporary restraining orders and preliminary injunctions. To get a preliminary injunction or temporary restraining order, you've got to show (among other things) that you have a substantial likelihood of ultimately succeeding in the merits of the case. No federal judge, not even the dissenters in the 11th Circuit, has said anything substantive about any putative merit in the Schindlers' federal claims. The federal district court judge, and the panel majority, explicitly said that those claims have no substantial likelihood of success. Some people -- including the dissenters -- say that the standard should be different under the All Writs Act. But why? Why would a federal court issue an emergency order, forcing people to do things, in a case that seems clearly to have no merit whatsoever? Just so that the case can drag on for a while before ultimately being dismissed? That makes no sense to me.
The other is whether the Congress instructed the courts, in the Schiavo-specific statute, to issue such an order. Clearly, they did not. In an earlier version of the bill they were going to, but that was removed before final passage and signing. Now, the people who say that Congress did give that instruction are relying on the statutory instruction that the federal review of the claims should be "de novo." But the phrase "de novo" does not mean that there must be a trial, or anything of the sort. The phrase "de novo" means only "without deference to what another tribunal has done". In other words, a court reviewing something de novo doesn't assume that the other court's factual findings are correct, or that its view of the law was correct. But this is entirely separate from the question of whether there is a viable federal claim in the Schindlers' case. If there was a viable federal claim, and if one element of such a claim required a factual finding as to Ms. Schiavo's medical condition, then sure enough the federal court would have to decide that matter "de novo" if this statute is constitutional. But if there is no such viable federal claim -- and there isn't, as the courts have said -- then there is no need for any federal finding of that sort, "de novo" or otherwise.
That ends the law lesson for today.
posted by sam 7:13 AM
Wednesday, March 23, 2005
more lawEleventh Circuit decision here, affirming the District Court's decision in the Schiavo case. I said last night that they ought to keep it one sentence long. This opinion actually does better than that -- in terms of the merits of the legal claims, they do exactly that, but in response to a dissent they also add other discussion about the applicable procedural law and the Schiavo-specific statute that make it quite plain that the decision is correct. Good for them.
posted by sam 7:06 AM
Tuesday, March 22, 2005
lawI am disgusted by the Terri Schiavo political spectacle, although I have some empathy for all the family members on the various sides. I will emerge from my disgustedness just long enough to say this: that the Eleventh Circuit ought (if they are going to affirm the District Court's denial of preliminary injunctive relief, which I believe they should under the law) simply say, "We affirm for the reasons stated by the District Court." Anything weirder or more complex than that would simply invite more political yickety-yacking.
posted by sam 7:59 PM
Friday, March 18, 2005
now that's a good sentence.This one gets the "NTAGS" award more for content than for style.
From the Associated Press:
Among virgins, boys who have pledged abstinence were four times more likely to have had anal sex [than those who made no abstinence pledge], according to the study.
posted by sam 5:59 PM
the rule of law
Note to House Speaker and to DeLay:
In this country, subpoenas are pieces of paper requiring witnesses to appear for testimony, and sometimes requiring them to bring certain things with them. The word "subpoena" does not mean "a piece of paper created by a few members of one house of the legislature, having the legal effect of requiring people to do or refrain from doing something, for instance a medical procedure." The way that our legislature requires people to do or refrain from doing something is to pass a bill, which (if also passed by the other chamber) can become a law if signed by the President.
UPDATE: Oh, this is even more sick. In the few minutes it took to post this, the linked NYT article was updated to say also that the theory -- at least according to Frist -- is that they are going to ask Terry Schiavo to come to a hearing as a "witness," and that nobody better mess with her ability to come.
posted by sam 10:24 AM
Thursday, March 17, 2005
things that freak me outSometimes I think, despite the bad things in the newspaper, that in a big-picture sense human behavior and government are getting better and will continue to do so -- and that our country has some shared basic principles that will continue to push it in the right direction.
Other days, I read things that really make me believe that our country is in a pitched battle between people of reasonable moral sense and people without, and that the outcome is far from certain.
Today is one of those worse days. Eugene Volokh, putatively the blogosphere's most pleasant and erudite right-wing lawyer, says that he is in favor of -- and would, if he were the family member of a victim, would like to participate in -- the execution of mass murderers in long, drawn-out, excruciating public-participation ceremonies. And, as Marty Lederman explains, Harvard Law professor Alan Dershowitz -- putatively a smart guy -- absurdly professes to be unsure whether the intentional infliction of "excruciating" pain for fifteen minutes constitutes "torture" under the relevant legal definition.
Volokh says, in a nutshell, "that's my moral intuition and you can't prove it's wrong." Sure can't, you moral relativist you. But my moral intuition is that it's outrageously hideously wrong. Dershowitz, by contrast, is wrong as a legal matter as well as a moral matter.
posted by sam 12:15 PM
more music
This is a good way to waste some time: Band to Band, which allows you to click any two bands from a long list, and then it compiles a sort of "six degrees of Kevin Bacon" thing linking them through other bands, based on shared members of the various bands. Did you know that you can get from Kansas to Rites of Spring in only 11 steps?
UPDATE: Funkadelic to Fairport Convention in 7.
FURTHER UPDATE: Foghat to the Pixies takes only 13. Furthermore, Ginger Baker is the center of the universe.
posted by sam 9:45 AM
Wednesday, March 16, 2005
musicGotta blog about something, just so my blogging muscles don't atrophy as a result of the near-total lack of inspiration. So ...
Every decade brings its own example of an old-time banjo-fiddle band with a rock or punk edge. You had Earl Johnson and his various bands in the 30s, the Correctones and Fat Meat Boys in the 70s, the Horse Flies starting in the 80s (and to the present), the Hix in the 90s (and don't say Bad Livers or I will scream -- they were the worst band ever). The 00s have The Old Crow Medicine Show, whom I am going to see tonight at the 930 Club. How do you like that -- an old time band at the 930. There are some downloads on the band's site that you might like.
The other night I saw the premiere of the second installment in the Burn to Shine series of indy-music documentaries. In each installment, you take one city, document a snapshot of a slice of its music scene by having all the bands come to a building on one day and take turns recording live -- then you burn down, or otherwise destroy, the house. Sweet. First was DC, which I mentioned here a few weeks ago. This new one was Chicago, and let me tell you -- you need to see it when it becomes available for purchase, even if only to see Nels Cline's guitar playing on Wilco's performance of Muzzle of Bees. Trust me on this. Also to see a house torn down very loudly by a big backhoe. Cool!
[UPDATE, the following day. Unsurprising fact learned last night: the sound people at the 930 Club don't really know how to mix an old-time band. Could hardly hear the fiddle, or the lower four strings of the banjos. However, the fun made up for the muddiness of the sound.]
posted by sam 7:44 AM
Saturday, March 12, 2005
good thing to rememberThis morning's David Brooks column should be posted over every blogger's and every pundit's desk, as a constant reminder: if you don't have anything interesting to say, just keep quiet. I think it is the stupidest thing I ever read.
posted by sam 11:21 AM
states I've been to
Does this make me one of them "coastal elites" you're always hearing about?
create your own personalized map of the USA
posted by sam 10:03 AM
Thursday, March 10, 2005
politics bloggingYou may have noticed that blogging inspiration has been limited here lately, and that in particular there has been very little about the big legislative issues (bankruptcy changes, failure to raise minimum wage, etc.) that have been in the news. Here is the reason: the only thing that I can think of to say, these days, about any action by the legislative or executive branches is: that's what you get when you vote for Republicans. I don't mean to be flippant about it. When you vote for Republicans, you get legislative and executive actions that favor the interests of the rich and corporate over the interests of the non-rich, more so than when you vote for Democrats.
Well, you can see what kind of mood I'm in.
posted by sam 4:47 PM
York PA and its widespread confusion about the relationship between man and other animals
Surely there is a connection here. About six weeks ago I noted that a school board near York PA was telling kids not to believe so much in evolution. Now, I learn via Atrios that there is something of a bestiality problem in the area. I think that this is probably what you get when you make people wig out about their relationship to non-human animals: they act out in odd ways.
posted by sam 12:25 PM
Wednesday, March 09, 2005
D-I-V-O-R-C-EThis is interesting to me -- a judge in New York has issued a ruling that is hailed as a breakthrough decision, a courageous decision, a novel and creative decision: he allowed a wife to seek a divorce on the grounds that her husband has (among other things) refused to talk with her, sleep in the same room as her, eat with her, or even eat food prepared by her for twelve years. It took creative and courageous thinking to reach that result? Apparently New York is the only state where the legislature has refused to adopt no-fault divorce.
posted by sam 7:24 AM
Tuesday, March 08, 2005
Bill MitchI just found out that my old friend Bill Mitch, who was one of the senior partners in the first lawfirm I worked for, died over the weekend at the age of 89. He was one of the first generation of real union lawyers in the South. He had great stories and real wisdom, and was a hell of a lot of fun to talk with. He taught me a lot, and he had a soft heart under a crusty facade.
Too many people dying lately.
posted by sam 11:56 AM
Monday, March 07, 2005
sorrySorry, no thoughts worth blogging today. Please try again later.
posted by sam 4:31 PM
Friday, March 04, 2005
the majesty of the lawI try very hard to have faith in the Supreme Court. But then I just got my stamped-filed copies of another little cert petition that I filed yesterday, and they bear the official stamp of the Supreme Court reflecting that they were received at the Court on February 31, 2005.
posted by sam 2:07 PM
phishing
I get so many emails these days purporting to be from Washington Mutual bank asking me to input my personal data on some website in order to "update" my account -- I'm thinking of doing it, just so that maybe the fraudsters will stop sending me so many emails. I wonder if that will work.
Alternatively, I may embark on a new career as a proofreader for phishing emails. They certainly need one. I wonder where I would apply.
posted by sam 10:49 AM
Wednesday, March 02, 2005
Ten CommandmentsAs I mentioned earlier in the week, today was Ten Commandments day at the Supreme Court. How much does I personally care about the issue? Some, but not a whole whole lot. But I come closer to caring a whole whole lot -- to seeing this as an important battle in the effort to make sure that government remains distinct from religion -- when I read about what Justice Scalia said at the argument. I see it reported the same way in two different places, and so I trust the reporting: that his take on the big Texas 10 Commandments monument was that it was "a symbol of the fact that government derives its authority from God," and that this is a good thing (or at least a constitutionally-acceptable thing). Here I was thinking that people didn't necessarily agree on whether the existence of God is a "fact," and that the Government wasn't supposed to take sides in that debate.
But there is, at least, this: that having staked out that position, Justice Scalia can't very well sign on to an opinion saying that the posting of the Commandments or the construction of a Commandments monument is merely some sort of secular historical blah blah blah. I have more intellectual respect for arguments in favor of some far-out minority view of the meaning of the Establishment Clause, than for arguments that try to pave the way for public displays of religious symbolism by pretending that it isn't really religious symbolism.
posted by sam 4:06 PM
important lesson for today
If you are a super-secret spy, and make a super-secret deal with the CIA that they will give you $ in exchange for your super-secret spying -- don't be under the illusion that you can sue the CIA if it refuses to pay the $ as promised. You can't, because that's the thing about super-secret spy deals: they're too super-secret to talk about in court. So says (pdf) the Supreme Court today. As if you didn't already know one of the basic rules of life, which is don't ever assume that you're the person to whom a deceptive person is being honest.
posted by sam 1:24 PM
Tuesday, March 01, 2005
death penaltyAs you may know, the Supreme Court held (pdf) today that the Constitution forbids the execution of people for crimes that they committed when they were younger than 18. A wonderful result as a matter of policy. Whether it was a proper constitutional holding -- something that the Supreme Court can and should remove from the legislative realm -- is a hotly debated question, of course, and is a fascinating example of this sort of question if you're into that kind of debate. I am comfortable with it being a judicial question. I am freaked out that it had to become one.
posted by sam 4:35 PM
Monday, February 28, 2005
but seriously folksOn a more serious note, the Supreme Court announced today that it will decide a case that could end up being very important -- good or bad -- regarding the First Amendment rights of public employees. As Lyle Denniston explains at SCOTUSblog, the case involves a deputy D.A. who alleges that he was fired "for protesting in an internal memorandum that a deputy sheriff had lied in an affidavit to support a search warrant." The D.A. -- Gil Garcetti of L.A. -- apparently wants to argue to the effect that the First Amendment doesn't protect you, even if you are speaking about matters of such major public importance, if your speech takes place in the context of your job duties. I haven't seen his petition, but that seems to be the gist of it. I cannot bring myself to believe that the Supreme Court would say something that crazy in this area of law.
[A few minutes later:]
Having researched a bit, it really does seem that this is Garcetti's contention: that the speech, even though admittedly vitally important to the public, is not constitutionally protected because it took place pursuant to the employee's job duties. Here is why that is crazy. The Supreme Court has told us, as recently as just a few months ago, that it is vitally important that public employees be able to speak about about matters of governmental policy and functions, because they are so particularly knowledgeable about those issues and because those issues are so important. E.g., San Diego v. Roe. This, in fact, is what the Supreme Court said in San Diego v. Roe along the way towards limiting First Amendment protections when public employees speak about other topics. So now, if the Supreme Court were to hold, "yes but that speech is not protected when it is done pursuant to the employee's job duties," then every employee -- if he or she wanted to remedy governmental malfeasance and not get fired for it -- would have to run to the newspapers rather than speaking about it through internal channels. (If you went through channels, the employer would just fire you and then say you had no First Amendment claim because going through channels was part of your job duties.). But of course if the assistant D.A. had run to the newspaper with his whistle-blowing, rather than reporting it through appropriate channels, the D.A. would have fired him for having violated his job duty of reporting such things internally.
Do public employers really want more employees to run directly to the newspapers when they know of impropriety? Does Gil Garcetti really want to have his name attached to the argument that it's constitutional to fire an assistant for disclosing police perjury? Why has this case been taken to the Supreme Court? Why did the Court agree to hear it? These questions and more will be answered several months from now.
posted by sam 12:34 PM
progress
Some things you read about silly laws are entirely true, and the great thing is that you can verify them yourself online. For instance, I am now informed that Mississippi has a statute that makes it a crime to keep a "stallion or jack[ass]" within 100 yards of a church, or in public view in an enclosure bordering on a public highway. Mares and jennies, no such prohibition. By the way, this is not a supposed matter of public safety (fear of distracted drivers causing wrecks, or whatever mishaps might befall distracted churchgoers); it is in the part of the code devoted to "crimes against public morals and decency." If you have trouble figuring out why such a law would only apply to the males of the species, let me know and I will email you privately.
posted by sam 12:10 PM
Sunday, February 27, 2005
silly lawsYesterday Boing Boing had a post about a couple of people who have embarked on an effort to violate lots of silly laws. Now, much of what you read about silly laws is itself silly. If somebody tells you, for instance, "It's illegal to tie an elephant to a parking meter in Provo!" my bet would be that what the Provo ordinance really says is that you can't tie an animal to a parking meter.
In Alabama, it is unlawful to sell dildos while wearing bowling shoes. I feel silly for not having thought to blog about this, when the Supreme Court declined to hear the case challenging the law; Bitch PhD was funny about it.
posted by sam 5:14 PM
Saturday, February 26, 2005
that elusive thing called 'truth'In high school I had a physics and calculus teacher who taught us to ask ourselves, upon working out what we thought was the answer to a math problem, whether that putative answer had "the ring of truth." Does the number you came up with seem to be of about the right order of magnitude? Is it a messy number when you expected a neat one? That sort of thing. Some people had an ear for the ring, and others didn't; I did, it turned out.
I was thinking about this earlier today when pondering, once again, the sperm-gift case discussed below. I keep thinking that you could do a whole semester in law school about various angles on the sperm-gift case; everything that you need to know about how to be a lawyer can be gained through meditation on, and vigorous discussion of, the sperm-gift case. I am not joking, in case you are wondering.
I was going to say that one of the lessons is a very important one for nearly every lawsuit and for public discussion of nearly every lawsuit: nobody, except maybe the parties to the case, can claim to know what the facts are until the case is over. Then, while it may be fun for people to criticize the fact-findings of the designated fact-finder (judge or jury), there's really not much point; it was somebody's job to find what the facts were, and that "somebody" wasn't you or me. So, even though my "ring of truth" detector suggests to me that the allegations of the plaintiff (male) are probably false -- i.e., I would bet that the pregnancy happened the old-fashioned way, as the defendant says -- I don't know and neither do you. And it is very very important that lawsuits not be dismissed based on what a judge's "ring of truth" detector says before hearing the evidence.
Then I was going to point out that so very many commenters and pundits ignore this important point, for fun or profit. You will be hearing a lot of this in the upcoming week, I bet, when the federal government (probably) files its petition asking the Supreme Court to hear the case about whether law schools have a constitutional right to exclude military recruiters in protest of the military's anti-gay policy. You will hear people say that such action by law schools is horribly detrimental to the national defense, and impairs the ability of the military to attract top lawyers, and burdens students, and so forth ... and they will not tell you that in the case at issue there is absolutely no evidence of those things at all. That was, in fact, a large part of the point of the appellate court's decision, which the Supreme Court will likely be asked to review.*
So I was all ready to post something to that effect, when I read the lower court decision in one of the Ten Commandments cases that the Supreme Court will be hearing next week. You can find it on this page; it's the Texas case, involving a big stone Ten Commandments monument on the grounds of the Texas Capitol and State Supreme Court. And the Fifth Circuit, upholding the display and rejecting the constitutional (establishment clause) challenge, says: (a) the State's purpose in putting up the display wasn't to promote religion -- it was to thank the Fraternal Order of Eagles for all their good work on behalf of kids!!!, and (b) a reasonable observer would not infer an official endorsement of religious belief, but would think, "oh, this is just in reflection of the impact that the story of the Ten Commandments has had on our secular legal tradition!"
And my ring-of-truth detector went haywire and started smoking.
* I wrote an amicus brief in support of the plaintiffs in the case, which you can download from this site.
posted by sam 11:40 AM
now that's a good sentence
From Hunter at Kos:
"Hell, [Howard] Dean should just go up to them and say something like 'Timmy from my fourth grade class told me that if you lick a unicorn, you can see through time.'"
posted by sam 10:02 AM
don't give up
Am beginning to feel better and so may even have something mildly interesting to say in the next day or so. Please don't give up on me.
posted by sam 7:43 AM
Thursday, February 24, 2005
other bloggingThis is your periodic reminder that, if you prefer your blogging to be of professional interest only, you can read my almost daily updates of Eleventh Circuit decisions at the group effort Appellate Law and Practice.
In a related vein, note that I will be updating the blogroll sometime soon, to link to some more interesting blogs.
posted by sam 8:18 PM
sex law
I am sorry to report that I cannot find, for you, a linkable copy of the Illinois Appellate Court decision discussed in this article from the AP. Plaintiff alleges that Defendant tricked him by keeping his semen, obtained through oral sex, and then impregnating herself with it after they broke up. According to the article, the appellate court reverses the dismissal of the case (i.e., more or less, holds that the case can proceed so that the disputed facts can be resolved), on the "infliction of emotional distress" claim -- but upholds the dismissal of the fraud and theft claims, holding that (how to put this ...) ejaculating in someone's mouth is a "gift." Must remember that.
Sounds like a pretty reasonable decision to me, actually, but it is hard for me to avoid finding humor in the "gift" thing.
posted by sam 3:14 PM
apologies
Apologies to everyone for my even-higher-than-usual level of boringness today, which is particulary bad timing since Dwight was nice enough to mention this blog yesterday in the post at Wampum announcing the Koufax winners. The reason is that I feel very lousy, having apparently caught Dwight's flu-ish thing by reading a post where he mentioned it. Maybe more interesting stuff later or tomorrow. Please keep coming.
UPDATE: But I will say that this, re the dubbing of "Ashcroft" over the word "asshole" in the edited-for-air-travel version of a recent movie, should start a trend.
posted by sam 11:55 AM
Wednesday, February 23, 2005
for law nerdsToday I will be filing a cert petition with the U.S. Supreme Court on a question that I think is very interesting, but then again I'm a law nerd: the governing standard as to when a District Court should award attorney fees under 28 USC 1447(c) upon remanding a wrongly-removed case to state court. It's a good question for the Court to resolve, I think, and there really is a split in the lower courts. If this fascinates you as it does me, let's chat.
Also, I hereby give a strong plug to Wilson-Epes Printing Co., here in Washington, which is a great printer of Supreme Court briefs and other legal materials. If you are ever filing a cert petition, or have some brief in a lower court that you want to make look really good (which is sometimes a useful strategy to make your case stick out from the pile), use them. Fantastic people and fantastic work.
[UPDATE: Based on overwhelming interest (i.e., 2 people, in comments) I have made the petition available for download from heldman.net. Accolades and constructive criticism will be appreciated.]
posted by sam 7:25 AM
gmail
Maybe everybody who reads blogs already has a gmail account. But if you want one, let me know, by email to sam@[my last name, see top of blog].net, because I've got lots to give away.
posted by sam 6:43 AM
Tuesday, February 22, 2005
subliminal messages from the Supreme CourtSo I'm reading an opinion that the Supreme Court put out today, about whether somebody injured on a dredge in Boston Harbor is covered by this specific federal legislation, and it's all about the meaning of the word "vessel." So the Reporter of Decisions -- the person at the Court who writes the executive summary of the decision, which appears at the beginning -- writes that the Court holds that certain precedents did not change the "definition of vesselhood." Vesselhood? Who ever heard of a word such as "vesselhood"? And googling it, I find that the word only seems to pop up in religious and mystical contexts, computer gaming, and discussion of the Vagina Monologues. So I'm wondering, is the subliminal message here about religion or vaginas?
posted by sam 10:51 AM
sugar daddy or mommy wanted, for nutty articles
Rightwing eggheads have it all figured out: they get paid (directly or indirectly) to write crazy-ass articles like this (arguing that the recent class action "reform" bill "doesn't go nearly far enough" and proposing various other changes to make it even less likely that corporations will be called to the carpet when they cheat lots of people for a little bit each). What a sweet deal. And here I am writing this silly blog for free. If I had a patron, I would write an article proposing a new legal cause of action called "fraudulent time-wasting" that would allow lawyers to sue on behalf of a class, whenever some company sends out a mass mailing that says "IMPORTANT MESSAGE INSIDE ABOUT YOUR HEALTH BENEFITS" or "PRIORITY MAILGRAM TO: Sam Heldman" or other stuff designed to get you to think it's important to open a piece of mail but then you find out that it's really just junk. The damages would be $1 per recipient, as a reasonable approximation of the value of the time wasted, plus attorneys' fees. That way, Democratic elected officials could demonstrate reasonableness, and gain whatever pro-business cred they think they need, by opposing my proposal rather than by signing on here and there to absurd Republican stuff.
posted by sam 7:05 AM
Sunday, February 20, 2005
music and funnyBeautiful cover of "Straight Outta Compton" by Nina Gordon, at this link. Adult language advisory, needless to say.
posted by sam 7:54 AM
Friday, February 18, 2005
now that's a good sentence.from a British paper, via the New York Times:
Boring Old Gits to Wed.
posted by sam 10:13 AM
Thursday, February 17, 2005
chutzpahFor a variety of reasons, I think that Lawrence Small is and has been a horrible head of the Smithsonian. But what more can you possibly say about a person who, when convicted of a federal crime and sentenced to community service, suggests to the judge that the community service should consist of reading books and trying to get Congress to change the law he was convicted of breaking, on the grounds that the law is old and crazy?
(link via HB)
posted by sam 8:20 AM
Wednesday, February 16, 2005
funnycartoon in Post today on judicial re-nominations, via HB.
posted by sam 1:01 PM
Tuesday, February 15, 2005
Novak, Plame, et al.The U.S. Court of Appeals for the D.C. Circuit today held that Judith Miller, Time magazine and a Time reporter have no privilege against revealing their "confidential source(s)" in the Novak-Plame investigation. Opinion is here. The highlights depend on your point of view:
If you are a lawyer who ever practices in this area, the whole thing is the highlight. No First Amendment privilege at all, says the Court -- but then the three judges split three ways as to whether there is any common law privilege. They all converge on the conclusion that even if there is such a common law privilege, it is not absolute and is overcome in this case given the importance of the grand jury's investigation.
If you are most interested in the substance of the investigation itself, you will be intrigued to note that there are several pages of redacted passages where Judge Tatel -- who is, in this, speaking for all three judges -- explains (but not to us!) the particular facts about Miller and Cooper and their connection to the disclosure of Plame's identity with the CIA. Read Judge Tatel's opinion, pp. 73-80 of the pdf file, and wish wish wish that you could see the words that used to be in that blank space. And then read his conclusion -- again remembering that he is speaking for all three judges on this particular point -- as he saysWere the leak at issue in this case less harmful to national security, ... I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.Maybe some Right-partisan bloggers who pretended that there was nothing to this investigation, or that the whole thing was ridiculous partisanship on the part of Bush-haters, will understand now?
If you love it when people outside of the blog world recognize the existence of the blog world, you will be thrilled by a portion of Judge Sentelle's concurring opinion, as I explain and quote here at Appellate Law and Practice.
posted by sam 1:53 PM
more values
So the Governor of Arkansas got himself a "covenant marriage.". If my wife told me that she wanted to enter into a new legal status by which the government forbade her from making the decision to leave me, I would be mighty offended. I can understand throwing away the last piece of pie, in order to keep one's future self from eating it -- the reason being that the piece of pie sure will be tempting. But is it really going to be so very tempting for her future self to leave me, so tempting that ordinary self-control and judgment won't stop it, so tempting that she would need a law against it? Bummer. But then again, for similar reasons I ordinarily go to some lengths to avoid saying or writing "my wife," so I recognize I'm not the average American on this issue.
posted by sam 10:16 AM
values
Because I am one of those bleeding-heart liberals you always hear about, I am trying to feel some sympathy for this guy: the tough-on-crime, especially-tough-on-drug-crime Texas District Attorney who was -- you don't need me to tell you, you can see it coming -- a meth addict.
Yesterday sex, today drugs. Tomorrow: someone who has intentionally made himself a public figure on the side of those who want to ban rock and roll turns out to be living a secret life as a member of a Kiss cover band.
posted by sam 7:23 AM
slow
You can see that there has been little inspiration here lately.
It is not that I am afraid of drawing attention to myself lest somebody start digging into my past. Just don't have much to say. But I do have friends who sat next to Bill and Hillary Clinton at a nice restaurant last night for Valentine's Day.
posted by sam 6:47 AM
Monday, February 14, 2005
now that's a good sentence.The Editors (at The Poor Man), writing about the revelations about media whore Jeff Gannon, plus the poetic/theological implications thereof:It's like if you found someone pirating CDs, and it turns out he actually had a peg leg and a parrot on his shoulder and sailed around the Caribbean saying "arrrrrr!" and plundering booty.
posted by sam 8:29 PM
Saturday, February 12, 2005
musicSaw Bill Frisell play with his 858 Quartet last night at the Library of Congress -- more challenging than some of his other stuff, and great. And I was thinking all night, who is this incredible cellist, who varies between playing it straight, and banging on it to create a groove? It was Hank Roberts, and the funny thing is it turns out he also plays in a group with my old friend, old-time banjo player Richie Stearns. From avant garde string quartet music, to old-time string band, in one simple step.
posted by sam 7:53 AM
Friday, February 11, 2005
TVIn my capacity as a parent in a Nielsen TV-ratings family this week, I will not allow my child to watch those awful Berenstain Bears, even if he says he likes them. Some people are offended when Buster meets lesbians? I'm offended by stupid bears whose conception of gender roles is stuck in the 1950s.
posted by sam 8:03 AM
class action bill
So the damn thing passed yesterday, and as I woke up this morning I started wondering another thing:
When a case is filed as a class action and removed to federal court, and the federal judge declines to certify the class, can/should/must the judge remand the case to state court? The statute is hopelessly unclear about this, to my eye, and in any event it's arguable that in some situations a remand would be constitutionally required. So think of the possibilities: removal, denial of certification, remand -- then the state court (using the different state-law standard for class certification, or using its discretion differently) certifies the class -- so the case is removed again, and the federal judge decertifies the class, and remands it again -- and then the state court certifies again ... a perpetual motion machine. Do I really think this will happen? I don't know; it might. But it's one more bit of proof that the authors of this bill weren't even trying to write a law that makes sense. More here and here and here, (UPDATE: and if you're really interested, comments by me at Kevin Drum's and James Joyner's blogs.)
But as I said on the lawyer radio yesterday, there will come a time when the corporations will regret this bill. Nothing is forever -- not even the current preference of corporations for federal courts over state courts. And, as long as cases are going to be in federal court, Plaintiffs' lawyers will make the most of federal laws. Magnuson-Moss Act, anyone?
posted by sam 6:30 AM
Pryor
You will find, if you look through the archives of Ignatz I (before the hiatus), that I spent a lot of time talking about why I oppose the nomination of former Ala. Atty. Gen. Bill Pryor to the U.S. Court of Appeals. After that, of course, he got filibustered and got a "recess appointment" (though whether it was actually a constitutionally legitimate "recess" appointment is one of the big questions). The questions now are two: (1) whether the Supreme Court is going to agree to decide whether his temporary appointment was valid, and (2) whether the Republicans in the Senate will change the rules to do away with the filibuster in order to get him confirmed to a lifetime appointment.
I am not here to re-say all that I said about why I oppose his nomination; you can use that little search box above, look for "Pryor," and you'll find it all.
Instead, what I am here to say is that I find it disturbing that some of his supporters -- and even some Senators -- think it appropriate to say, "he ought to be confirmed because looky here, he hasn't been an extremist during the few months he's been putting out opinions by virtue of his temporary appointement." The reason that disturbs me, is that it highlights the whole reason that "recess" appointments to the federal judiciary are such a horrible idea and are (in my view) unconstitutional. Do you really like the idea of a judge sitting there deciding cases, while he knows in the back of his mind that whether he's confirmed to a lifetime appointment may depend on how he decides those cases? I don't like it, and it's contrary to the whole purpose and concept of lifetime appointments to the federal judiciary. Any Senator who takes this line does not really understand the concept of judicial independence.
posted by sam 6:11 AM
Thursday, February 10, 2005
AlabamaAfter -- but of course not necessarily because of -- my harsh words the other day, the Alabama Democratic Party's blog is moving in the right direction. Good for them.
posted by sam 3:47 PM
highly recommended reading
David Van Os is a long-time union lawyer who just finished a strong though non-winning campaign for a position on the Texas Supreme Court. I highly recommend that you read the first installment on his something-like-a-blog called "A Fighting Democrat". Here is an excerpt:In 2004 I ran for the Texas Supreme Court in a statewide race as the Democratic nominee. I went all over my state openly challenging corporate power and openly challenging the radical rightist Republican assault on Constitutional liberties and Constitutional checks and balances. Every major newspaper editorially blasted me as a populist liberal Democrat in unflattering terms. I responded to every such editorial by publicly saying hell yes I am a populist, a liberal, a progressive and proud of it, and I thanked each newspaper for telling the truth about me. On the stump in rural West Texas, the harder I attacked the runaway corporate control of my state's highest court the louder people cheered. I carried 17 rural counties that Kerry-Edwards lost, and ran ahead of the ticket statewide and in every region. Upon analyzing the election returns in the metropolitan areas, I found that the more the daily newspaper had attacked me for being a liberal, a populist, or a progressive, the better my results were.I agree fully. Is it a winning electoral strategy in the short term? Hell if I know. Is it a winning electoral strategy in the middle and long term? I bet it is. Is it more right and moral and fulfilling and fun and important than quibbling over the particulars of how much to tilt the tables further in favor of the powerful? Yep.
Democrats cannot restore America to a government of the people by nibbling at the edges looking for a pickup of a few votes here and there to eke out narrow victories with defeatist play-it-safe strategies. In order to reclaim government on behalf of the people, Democrats have got to attack the essence of the Republicans' radical rightist drive for totalitarian power. Democrats have got to call out the radical rightists' drive to wipe out the Constitutional checks and balances for what it is, and attack them over it. Democrats have got to call out the radical rightists' drive to wipe out the people's Constitutional liberties for what it is, and attack them over it. Democrats have got to call out the radical rightists' drive for corporate aristocracy for what it is, and attack them over it.
posted by sam 2:52 PM
class action bill
Remember how the class action bill was being sold as a way of allowing corporations to get out of "judicial hellholes" -- getting cases out of certain putatively horrible state courts and into the lovely lovely federal courts where cases can be heard fairly? That's inoperative now. The purpose is now overtly to make sure that corporations win class actions. That's why, in beating down an amendment designed to make sure that federal courts don't just dismiss class actions willy-nilly because they're too hard to handle, but instead hear them on their merits, Sen. Grassley (the bill's main sponsor) said that would "defeat the purpose" of the bill. Right.
You can hear me rant about this and other aspects of the bill this afternoon on the Legal Broadcast Network, internet radio for plaintiffs' lawyers and other lovers of justice, from 430 to 530.
posted by sam 7:15 AM
Wednesday, February 09, 2005
Wal-Mart sux.That is all.
posted by sam 3:24 PM
something short and pithy to read ...
Something short and pithy to read, from Nathan Newman. Nathan's post will not surprise you, given what you know about the Bush administration's attitudes towards laws that constrain it, but will inform you.
posted by sam 9:58 AM
Tuesday, February 08, 2005
TVThis week I am the recipient of a great honor: we are a Nielsen TV ratings family. Sweet.
You may notice in the entertainment section of the newspapers soon that the ratings for Teen Titans Go, Mythbusters, and every disgusting true-life-surgery program are through the roof.
posted by sam 11:23 AM
The class action bill is crazy.
The Senate will, today, be debating the class action "reform" bill. And the more times I read the bill, the more clear it is to me that it is a monstrosity, and that many of the people who speak in support of it are spouting falsehoods.
The bill, as I mentioned before, is largely about whether class actions will be litigated in state court (where plaintiffs' lawyers tend to prefer to file some types of class actions) or federal court (where defendants tend to prefer to litigate them). Some people on each side argue that this is some grand philosophical issue of the proper balance of federalism. Not me. I'm candid about the fact that my view of this issue is based purely on a practical assessment of the likely impact on the real world of litigation. I am quite sure that industry's support for this bill is similarly based on practical reality rather than some reading of the Federalist Papers. And I guarantee you that if the bill passes, defendants will remove class actions to federal court not based on a philosophical principle as to the proper scope of federal authority, but based on the perception that they will be more likely to win in federal court. Duh.
So why do I oppose putting more class actions in federal courts? In part, it's because in some places these days, federal judges are in general less favorably disposed towards class actions than are state court judges. So, if more class actions go to federal court, fewer of the cases will be allowed to proceed as a class action, and so there will be more unremedied corporate misconduct, and so there will be more corporate misconduct. And second, it's because if more class actions go to federal court, the federal courts will be swamped. They're already swamped, frankly, with criminal cases that could perfectly well be prosecuted in state courts. But this bill will make them swamped swamped swamped. The federal judiciary's own assessment is that class actions take about five times as much judicial work as regular civil cases. Pretty soon, the federal courts won't have time to do anything but put people in jail and hear class actions. All other cases will sit on the back burner. Too bad for everybody else, like employees who have been discriminated against, etc.
Now, some people who support this bill will tell you that it is more limited than I am making it out to be -- that it is meant to allow "removal" to federal court only of a limited set of class actions. They want you to think that it is only for those class actions in which the class is nationwide or at least multi-state; they want you to think that it's crazy for one state's court to be able to rule on matters involving plaintiffs all around the country, and they want you to think that it's very hard for a court to apply the laws of various different states. And that's what you see being argued about in the Washington Post article linked above and again here. The Post even falls for it: "The bill would send cases with plaintiffs in multiple states into the federal system."
But that's not what the bill says. The bill's Section 4 allows for federal court jurisdiction of a class action even if the class is defined to include only residents of the state in which it is filed, so long as at least one defendant is headquartered in (and incorporated in) another state. The bill goes on to say that a federal court should decline to exercise jurisdiction over a class action where more than 2/3 of the plaintiff class live in the state where the case was filed, but only if (among other things) "no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons." (The rule is a little different if the class lives in the same state as the "primary defendants," but that will be relatively more rare). So, even if you file a Texas-only class action against Ford, you'll get removed to the over-burdened and therefore grumpy federal court -- because I guarantee you that somebody will have filed a similar class action, on a state-only basis, in some other state too. [UPDATE: This is my best guess as to what the legislation means, but there is the additional problem that it is written so poorly. If you read the provision I'm talking about, you'll see what I mean. It doesn't make grammatical sense in crucial ways.]
This bill is designed to do much more than solve the so-called "problem" of multi-state class actions. This bill is designed to swamp the federal courts so severely, that the federal judges will look for every conceivable reason to quickly rule for the defendants in every class case so that they can get back to working on other cases.
posted by sam 6:44 AM
now that's a good sentence.
From Juan Cole:
"Cranky rich people hire sharp-tongued and relatively uninformed young people all the time and put them on the mass media to badmouth the poor, spread bigotry, exalt mindless militarism, promote anti-intellectualism, and ensure generally that rightwing views come to predominate even among people who are harmed by such policies."
posted by sam 6:24 AM
Monday, February 07, 2005
the problem with bloggingTwo recent quotes that sum up the roots of my recurring blogger's-block. First, via (but not written by) M. Yglesias:Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic.The second by Atrios:I hate when I make a mistake. I hate when I get things wrong - it makes me feel like a fool and I feel responsible for making others who might not see the correction look like fools too if they pass it on.Hence the lack of blogging here about the great issues of the day (Social Security, etc.) in favor of blogging about Jimmy Buffet license plates.
posted by sam 7:35 AM
odd
Did you know that the State of Virginia will sell you an official license plate for your car that demonstrates your status as devoted Jimmy Buffet fan? And there is at least one of them on the road; I saw it. I know, I know, to each his own, and I would defend to the death your right to like Jimmy Buffet, but really. I call for stricter separation of cheesy music and state.
posted by sam 6:47 AM
Sunday, February 06, 2005
Ignatz and his siblingsAfter a long period of no blogging at all, I suddenly find myself blogging all over the place.
Ignatz here is still #1 in my heart, of course.
But there is also the Labor Blog, a group blog headed by Nathan Newman, where from time to time I post things like this which probably make Nathan think that I am a bourgeois dude rather than a true believer in the movement. I am a true believer in the movement, though I suppose that I have to admit that anybody with a bichon frise in his lap probably is at some level a bourgeois dude when you get right down to it.
And also, starting today or sometime soon, I will be adding some words to the site Appellate Law and Practice, a site that will not be interesting to you unless you're a lawyer, but if you're a lawyer you may find it to be a very useful thing. It is, essentially, a way of keeping current as to the opinions that are issued by the various federal circuit courts. My beat will be the Eleventh. In the old days if you wanted to stay current on appellate developments you had to grab the softbound orange volumes of the F.2d and then F.3d when they came into the office, and flip through the cases or the topical index to see what cases had been decided a month or so previously. Now all you have to do is skim through a website once in a while. Sweet. Check it out.
posted by sam 3:23 PM
Saturday, February 05, 2005
continued ...I will just add this, about the post immediately below this one, about the Ala. Dem. Party's blog. I have some sympathy for the position that I suppose the blog authors are probably in; they have, I speculate, been given leave to start such a thing, but have not been given leave to say anything on it that has any vigor. If my speculations are true, then this is a bad spot for a blogger to be in -- and it's worse for the Party to have that sort of blog, than no blog at all. I hope that the authors do get the internal go-ahead to let the spirit of blogging move them. The problem lies not in the bloggers but in the Party, if the Party is too afraid to stand up for the difference between Democrats and Republicans even in Alabama. And this, by the way, is one reason I hate the phrase and concept of "yellow-dog Democrats," which the state party embraces. The reason I hate it is that it implies that the reason to vote for Democrats is because they're Democrats and you always vote for Democrats. That's a lousy reason to vote for Democrats. The reason to vote for Democrats is because in the current state of the world the Democratic Party is the party that favors liberty and equality, more so than does the other major party, and favors the little guy over the big guy. And if the Alabama Democratic Party can't see that the issue of gay marriage is one in which they should (as in other issues) favor liberty and equality, then they could at least be more vociferous about the issues on which they are on the side of the angels.
posted by sam 11:37 AM
Friday, February 04, 2005
this is what a whipped (yellow) dog looks likeI am, really, very fond of some people who are powerful within the Democratic Party of the State of Alabama. Some of them are my friends, some are clients, some are both. And I do understand the necessity of not getting too far away from "average" political opinion if you want to win elections.
But looking at this post on the new blog of the state party, I say, "this is what a whipped (yellow) dog looks like." The post in question has to do with an article from the Birmingham News, in which a defeated Democratic candidate, and a Party official, cry foul at a Republican flyer that had suggested that the Democratic candidate was in favor of, or at least was soft on, gay marriage; she had refused to sign a pledge to support an amendment to the state constitution. The candidate is quoted as feeling embarrassed at her friends' inference that she might actually hold the abhorrent view that was attributed to her; and the Party official is quoted as calling the flyer "slanderous." Yes, that's right: it's defamatory even to suggest that somebody supports gay marriage.
Now, I'm not saying that the candidate and the local official should have said "damn straight (ha ha ha) we're for gay marriage," though I wish they would have. At least, though, the blog on the Party's own site could have done something other than implicitly adopt the whining about the unfairness of the accusation. I can even write the blog post for them:
"I'll tell you what. Democratic state legislators will glad to debate whether to add that amendment to the monstrosity of a state constitution we've got here in Alabama -- an amendment that (by the way) wouldn't change one damn thing in state law, but would just satisfy the Republican Party's desire to stir up its base -- just as soon as we finish taking care of real business, like ensuring that there are no hungry kids in this state and that corporations pay their fair share of taxes so that our schoolkids can have decent supplies. Now, if the Republican legislators would step out of our way and let us pass that kind of law, then it'll just be that much sooner that they can have their fun talking about sex."
A party that can't even put that kind of language on its own blog -- or at least something other than whining about the unfairness of being accused of supporting gay marriage -- needs to take a long hard look at itself, I tell you what. I mean, I'm about the least rugged Alabamian you'll ever meet, and even I'm turned off by that level of wimpiness.
posted by sam 4:56 PM
now that's a good sentence!
Two posts constitute a series, so with this second installment of "now that's a good sentence" we are really underway.
From John Holbo at Crooked Timber, making fun of an Instapundit attack on "the left": "Doesn't that prove that the left are bankrupt Euro-slave Symbionese Liberation Army remnant look-alike dead-enders, plus Wavy Gravy if he's still alive?"
Now that's a good sentence. In fact, I would venture to say that most sentences ending with "plus Wavy Gravy if he's still alive" would be good sentences.
First installment in this series was here.
posted by sam 8:47 AM
Thursday, February 03, 2005
I understand that most people's jobs are hard, but ...I try not to make fun of how people do their jobs, really. For instance, you can't imagine how tempted I have been to blog about how bad a certain newspaper's courtroom sketch artist is, and to post some horrific examples. But I haven't, because it's probably not an easy job and for all I know the artist is very nice. And I know that it's hard to write legislation, too.
But given the corporate/Republican desire to dick with trial lawyers, protect corporations, and swamp the federal courts in this new class action bill, wouldn't you think that they could at least write a bill that lawyers and judges would be able to interpret without scratching their heads and wondering what the hell they were thinking? The text of the bill is now available from this page of the Senate's site, having previously been somewhat hard to track down.
So, among other things, the bill would give the federal courts jurisdiction over most large-scale class actions -- those in which the amount in controversy exceeds $5 million (assuming, as will be true in nearly all such cases, that at least one plaintiff lives in a state different from at least one defendant). Fair enough -- I mean, lousy and stupid, but at least comprehensible. So what this means, in the scheme of Title 28 of the U.S. Code, is that plaintiffs can file such a case in federal court when they want.
Now, there's a separate part of Title 28 that sets out the rules on when defendants can "remove" (colloquially, think "transfer") cases from state court to federal court. And so this bill includes a section 5, that will put a new section into that part of Title 28, and it says that class actions are removable to federal court. Now, you know and I know what we think that they meant by this ("they" being whoever wrote this monstrosity) -- that class actions are removable if and only if the amount in controversy exceeds $5 million, and the other things set out in the other section that I just talked about. But you know what? The bill doesn't say that. And I just know that if this bill gets passed, next time I file some less-than-$5million class action that is purely Alabama plaintiffs vs. some Alabama company, some defense lawyer is going to try to press the envelope and dick with us by removing the case, and claim that he's just following the "plain language" of the statute.
And then when I get the federal judge to "remand" the case (send it back to state court), the defendant will take advantage of the provision of this bill that allows the defendant to appeal such a ruling -- and then we'll all scratch our heads and try to figure out what the hell that part of the bill means when it talks about "accept[ing]" an appeal or "den[ying]" an appeal, because those are phrases that lawyers and courts rarely if ever use and nobody can really be sure what they're really supposed to mean.
I mean really, if you're going to try to hose the good guys, at least do it in a way that makes sense.
posted by sam 4:34 PM
