(The Return of) Ignatz, by Sam Heldman

Monday, January 31, 2005

old-time music blogging
I will get back to more substantive things soon, I promise.

For now, something that struck me as very funny this morning, and would strike you as funny too if you were a lover of traditional banjo-fiddle music of the southeastern United States. A thread in the old-time music usenet group: one person asks for all the chords for guitar back-up to the great old fiddle tune "Raleigh and Spencer," and the answer comes back from a true expert: "D."

(There's a substantive lesson here, too, and it is applicable to the practice of law and to the art of political persuasion: "Less is more.")

posted by sam 8:36 AM 1 comments

Friday, January 28, 2005

Friday night blogging about Dr. Katz
You think that I'm boring b/c I'm blogging on a Friday night, huh? Not boring: this is what happens when you become good friends with the parents of some of your kid's friends; the eating and drinking and carrying on happens early, leaving time for blogging after 9. Still sounds boring, you say? Maybe. Wait til you get older, you'll see.

Anyway, the point is that the funniest tv show ever was Dr. Katz, an animated show about a psychiatrist. You can't see it anymore, so far as I know, which is a drag. I have tasked Tivo with finding it for me, but no luck. And now there is this article about the creator, Jonathan Katz.

posted by sam 9:19 PM 2 comments

the blog

If your blog does not appear on the blogroll and you are thinking, "after all I've done for him, that ungrateful little twerp," please send me an email instead of stewing about it.

posted by sam 8:28 AM 0 comments

Thursday, January 27, 2005

an update on that Sheriff
You remember the Sheriff whose official website pined for the olden days when Sheriffs didn't have to think uncomfortable thoughts about gay sex. Just as an update, the offensive stuff has now been moved off publicly-supported and official space, onto some personal site. But the unseemly thing is that he's whining about it and pretending that his rights have been violated. As for me, I think back on the good old days, when Sheriffs were tough and didn't whine or pretend that they were victims.

posted by sam 7:36 AM 1 comments

Wednesday, January 26, 2005

now that's a good sentence
In the initial installment of what will be (if I remember) a continuing series on Ignatz, I present the first "now that's a good sentence" award to Pandagon for the following:

"In addition to Bush's skillful huggery and head-rubbery of darker-skinned Americans, he's shown a remarkable propensity to accept the shorter lifespans of African-Americans in much the same way you'd accept that all the copies of Elf are rented out at Blockbuster."

posted by sam 9:13 PM 1 comments

labor

Nathan Newman makes (as he usually does) a good point, re labor-blogging today: in paraphrase, 'less blogging about blogging about labor, more blogging about labor disputes.'

I have been feeling badly about not contributing lately to Nathan's Labor Blog, and now that I think about it, the reason I haven't been contributing so much is related to what Nathan is saying. Blogging about the big issues of labor is not a very point-ful exercise. Even blogging about the National Labor Relations Board's recent run of lousy pro-management decisions -- as Nathan does well, in the linked post -- is of limited utility. Sure, it makes me (and sympathetic readers) even more desirous of a Board appointed by a Democratic President, but you know how that goes. I suppose it would be possible to inspire an email-campaign of thousands of people writing to the Board to say, "I can't believe you guys overruled Epilepsy Foundation! What an outrage!" But I don't think that would do any good. Some blogging for a union-member or union-officer audience could, of course, be useful for spreading positive information. But that's not a big part of the blogosphere.

So my motto goes even farther than Nathan's today. It's "less blogging about blogging about labor, less blogging about labor, more doing about labor." Even if I regaled you with stories about the most recent unfair labor practices by X Corp. in Y City, Alabama, what good would it do you or me? Practically none, unless you lived in Y City or were a consumer of goods or services of X Corp. And the chances of that, in any particular fight, are pretty slim. (Do you have a relative at a nursing home in South Alabama run by the Cogburn company? Didn't think so.) It would be different as to labor disputes involving corporations with a major national presence. If there is a labor dispute involving UPS, or Frito-Lay, or something, then maybe a national letter-writing campaign inspired by the blogosphere might be relevant. But in a dispute that big and prominent and nationwide, I think it fair to assume that the blogosphere won't on its own initiative become the hero of the day -- a relevant bit player, maybe, but not a main force in the labor dispute.

So if not to blog about labor or read blogs about labor, what can a human being possibly do????? Here are some off-the-top-of-my-head possibilities, in ascending order of time commitment. (1) If you see a picket line, walk up to the people and smile and see if anybody needs a cup of coffee or something (or if you are in your car, toot your horn and wave). I am serious. This human interaction is a good thing, and can impact management's perception of how much they can get away with. (2) Call up the nearest AFL-CIO office and ask them if there are any strikes or campaigns underway in which an interested member of the public could be of any assistance, by writing a letter of something. They may act befuddled by the question, but try it. (3) If you're bored, go by the nearest office of the National Labor Relations Board, talk nicely to the people there, and find out when they're going to have a trial on some charge that a company has fired workers for attempting to organize a union or something like that. Then attend some or all of the trial, and when the company's people try to figure out who you are, act all cryptic but tell them that you're monitoring the trial for some concerned local citizens. Will this matter? Maybe not, but you can have fun and might learn something.

[Edit: and here is another thing you can do. Go to the AFL-CIO's site and see what employers they are suggesting that you should patronize and which ones they suggest that you boycott. Among the boycotts are R.J. Reynolds and other things that you might otherwise patronize. Check it out. If you follow those recommendations and let the companies know that you are doing so, that's better than blogging.]

posted by sam 8:28 AM 2 comments

gay cartoon characters everywhere!!!!

In the wake of the Spongebob vs. Dobson dust-up comes actual news: your Education Department has lodged a protest, and a successful one at that, against the existence of gay characters on the PBS Kids' show "Arthur"! It seems that, in one episode, there are some minor non-recurring characters who are l.....s. Can you believe it??? So naturally the Secretary of Education herself wrote a letter of protest, and naturally PBS caved in and announced they wouldn't distribute that episode any more.

What a world, what a world.

Disclosure: I think that "Arthur" is very boring, and that the character Buster, who is the one responsible for the introduction of the l......s, is extraordinarily annoying.

Story via the not-usually-this-interesting-but-has-its-moments DCist.

posted by sam 7:06 AM 2 comments

Tuesday, January 25, 2005

get ready!
Get ready -- you, and all other members of the news-consuming public, are about to get hit with lots of outraged but ill-informed commentary about a judicial ruling. It may come from people whose job it is to shout on cable tv, or it may come from people who watch those people. But it's coming.

And here is what you will be able to say: "The decision was only about Federal Rule of Civil Procedure 8, as applied to the element of 'causation' under a New York consumer-protection law. Did you know that? If not, what are you yelling for?"

The U.S. Court of Appeals for the Second Circuit today reversed (pdf) the dismissal of a suit against McDonalds, brought by people alleging that McDonalds deceived them about the nutritional value (or anti-value) of its products, and they ate a lot of McDonalds and it gave them various medical problems. "Reversed the dismissal" means that the lawsuit gets to go forward. You can write the script now, for the cable shouters. You can already hear what they are going to say.

What you will understand, and they will not (or will pretend not to), is that the thing about lawsuits is that there are various stages. They begin with a complaint. Some lawsuits are dismissed -- that is, won by the defendant -- at the "complaint" stage, but very very few. This is because, at the complaint stage, the facts have not been developed. At this stage, it's not time for anybody to put in their evidence, or even to say with any particular specificity what their evidence is. That all comes later, when (through the process known as discovery) each side pokes at the other's witnesses, documents, and evidence, and figures out what cards the other side is holding. After that, comes summary judgment. Many lawsuits are won by defendants on summary judgment, which is the stage at which the judge decides whether there is enough evidence in support of the plaintiff's claim to warrant a trial. This lawsuit might well not survive summary judgment. Nobody knows yet.

This decision today was, again, at the "complaint" stage. The trial court had dismissed the case because the plaintiffs had failed to allege such-and-such particular things about how much McDonalds they ate, what their medical history was, and so forth, with specificity in their complaint, and the appellate court said, "But you can't dismiss a case at the complaint stage for that reason. Under Rule 8, which is the rule that governs what you've got to put in your complaint, you don't have to plead that such-and-such with specificity. Wait for discovery and then for summary judgment and then maybe (or maybe not) a trial."

And you know what? It's good that the rule is that lawsuits generally can't be dismissed at the complaint stage. Would you really want judges ruling on the merits of lawsuits based on their supposition as to what they guess the evidence probably will and won't show, before they've seen any evidence? I wouldn't!

Now you know. And you can watch people on TV pretending that the court did something different from that.

(news of the decision thanks to Howard Bashman).

posted by sam 4:25 PM 0 comments

lawyer talk

As you may have heard, the Supreme Court held yesterday that the Fourth Amendment does not prohibit the police from bringing a drug-sniffing dog to check out your car when you're stopped for a traffic violation. In other words, they don't have to have any basis for suspecting you of drugginess, before bringing the sniffer. This was bad news for Mr. Caballes; the Illinois Supreme Court had reversed his conviction holding the search unlawful, but the U.S. Supreme Court reinstates the conviction.

There's a lesson here for criminal defense lawyers, and it's not just "don't drive around with lots of pot in your trunk."

The lesson -- and it's not a new one, but always a good one -- is, try to nudge the court towards ruling in your favor based on state law, including the state constitution. If you win under the U.S. Constitution, the Supreme Court can take it away. But if the Illinois Supreme Court had said, "We are relying here not on the Fourth Amendment to the U.S. Constitution, but on Art. 1 Sec. 6 of the State Constitution," Mr. Caballes would be a much happier man today.

Why didn't they? Maybe they weren't asked to; it's easy to fall into the habit of just saying "Fourth Amendment" or "Fifth" or "Sixth" instead of citing state constitutional provisions too. Or maybe they had some odd self-denial thing going on, saying in effect, "we think that this is right, but we'd like to make it easier for Justice Scalia to tell us that we're wrong."

posted by sam 10:51 AM 0 comments

this day in history

What a day. The opening of the trial of former Healthsouth CEO Richard Scrushy, a new record from Bonnie 'Prince' Billy, and the "Burn to Shine" music dvd that I mentioned a couple of days ago.

These are enough to make me forego the opportunity to blog at length once again about the epidemic of apparent perjury (or at least of lying) among Bush administration appointees and nominees. The nation's lawyer. Ugh.

posted by sam 7:23 AM 0 comments

Monday, January 24, 2005

Darwin-hating
This article from near York PA is hilarious to me. Not content with the stickers that may seem sufficient to weak-kneed Georgians, the school board there has decreed that students will receive a one-minute prepared statement to the effect that evolution is just a theory, Darwin didn't know everything you know, and you should ask your parents what the origin of life is, and now back to your regularly-scheduled "Standards-based" curriculum. But because the school system's science teachers rebelled against reading the statement, the school board sends its own officials into the classrooms to read the statement and then scurry away before students can ask any questions. It sounds like a Monty Python skit to me. And I love one student's reaction: if they're going to spend a minute teaching us that theory, they should teach every theory, such as Rastafarianism. Heh heh. Rastafarianism. (Link via Howard Bashman)

posted by sam 7:28 AM 3 comments

Friday, January 21, 2005

Ignatz recommends
You will no doubt want to buy, when it comes out on Tuesday (or you could go ahead and order) a music DVD called "Burn to Shine". Here is the short version of what it is, from that site:
Burn to Shine is a film series produced by Fugazi's Brendan Canty and directed by film maker Christoph Green. This is the first installment in the series and is titled Burn to Shine: Washington DC 01.14.04. It features live performances by Bob Mould, Ted Leo, Ian Mackaye's new band The Evens, Weird War (ex-Make Up), Q and Not U (Dischord records), Canty's band Garland of Hours, Medications (ex-Faraquet), and French Toast (featuring James Canty of Make Up, and Jerry Busher of Fugazi).
I have seen it, and it is great. (Namedropping, or disclosure, take your pick: the producer is a friend.)

posted by sam 3:48 PM 0 comments

home

Back home from Philadelphia, having avoided the inauguration. Philadelphia was great, except that I would have thought that it would take more than a power outage to defeat Iron Chef Morimoto. No sushi for us.

posted by sam 1:48 PM 0 comments

Wednesday, January 19, 2005

something different
I just feel like pointing out that I have enjoyed the few posts on the blog altogether now, which are altogether different from the usual fare of law and politics that make up most of my blog reading.

The blogger is a member of the Anomoanon, whose latest records I am loving a lot. How to describe them? (A little risky, lest the blogger check his site stats and see this post and be mortally offended). Imagine mid-period Grateful Dead (Am. Beauty and whatnot), but imagine that they actually cared about some people or things and were not just totally baked. (Have you listened to American Beauty lately? I did, for the first time in many years, the other day. S-L-O-W!).

posted by sam 7:16 AM 3 comments

Tuesday, January 18, 2005

the rule of law, and judicial politics
I have mentioned, a couple of times now, a recent Alabama decision involving a judge who had to rule on a minor's request to bypass the state's parental-notification law in order to have an abortion. I was waiting til the decision came up on the free internet somewhere, but that could take forever and I'm tired of waiting, so here's my description. If you have LEXIS -- or if you want to sign up for the free service of LEXISOne* -- you can see it at 2005 Ala. Civ. App. LEXIS 10, so you can fact-check my ass.

This sort of case gets brought because Alabama's statute, requiring a minor to notify her parents before obtaining an abortion, allows the minor instead to petition a judge for a bypass, which the judge is to issue if "the minor is mature and well-informed enough to make the abortion decision on her own" or if "performance of the abortion would be in the best interest of the minor." This procedure for judicial bypass is, to my understanding, required by the U.S. Constitution. In any event, the procedure is provided by Alabama law.

The undisputed facts here show a minor who is, for her age, quite mature: she has sought out information and advice from various counselors and adults as to what to do, and has decided that a pregnancy at this point would interere with her plans to get a college education and have a career in health care. Again, this is all undisputed. And she could have waited just a few weeks til she was 18, and then gone and had the abortion without asking or telling anyone -- but she decided that it was better to do it in the first trimester, and so needed the judge's approval since her parents had told her that they would cut her off financially if she ever got pregnant. Now, you may think that it would still be best if she told her parents; but that's not the relevant legal inquiry, as you can see from the quoted statutory passages above.

So what did the judge do? He denied the petition. In large part he made up reasons that (as the appellate opinions explain) were entirely unsupported by the evidence, or ignored the relevant law. But he went beyond that. He said that the minor was not mature, in that it is (he said) "not an act of maturity on her part to put the burden of the death of this child upon the conscience of the Court." The trial judge went on, dripping in sarcasm and moral condemnation:
The legislature, in its infinite wisdom, has determined that an unborn child who never has had even the ability to do any wrong, could be put to death so that his mother can play [sports]. ...
"Ah, but this young woman has more ambition than to play [sports]. Her possible ... scholarship is but the means to the end of her becoming a [health--care provider]. But what is the duty of a [health--care provider]? To save lives. Should her child die so that, possibly, she might later save other lives?
"There may be physical complications to an abortion. There may be psychological complications or consequences. She said that she does not believe that abortion is wrong, so, apparently, in spite of her church attendance, there won't be spiritual consequences, at least for the present."
He went on to say, "This is a capital case. It involves the question whether [the minor's] unborn child should live or die."

That just wasn't "law" in any sense. The judge's personal beliefs were driving the decision. The good news is that -- by a vote of 3-2, with the majority by no means made up of raving liberals -- the Court of Civil Appeals reversed. The rule of law still means something.

But this also makes me think about the ongoing conversation between Kevin Drum and Nathan Newman about Nathan's belief that progressive causes suffer electoral backlash when progressive judges do progressive things (and that therefore we shouldn't ask them to). Does anyone expect that the trial judge will suffer political backlash for having elevated his own moral beliefs over an adherence to the statute? I sure don't. I've never seen conservative politics suffer any political backlash from conservative judicial rulings in my lifetime. If progressive are suffering that sort of backlash, I think it's the fault of the political leaders rather than the lawyers or the judges.

* Note: I don't know if, in order to use LEXISOne, you have to be (or be willing to say you are) a lawyer. Maybe so.

posted by sam 2:10 PM 16 comments

comics

Does anybody have a good suggestion as to what "graphic novel" I should read with my almost-5-yr-old, now that we are nearly finished with the Bone series? Is there anything close to that, in terms of its ability to hold his interest and mine at the same time, with that right mix of humor and urgency? We've read a little Akiko, and it's fine as far as it goes, but nothing like the depth of Bone. (Those of you who are snickering, stop. I'm being serious). But on the other hand it shouldn't be significantly scarier than Bone, please -- I still have to tell him about, rather than show him, the pages in Bone where the Hooded One is un-hooded. Please comment or email me with any suggestions.

posted by sam 8:32 AM 11 comments

evolution

There's also this article about the sticker that the Cobb County BOE put on science textbooks, to the effect that evolution is a theory rather than a fact. I think that they should have gone farther, and would have been on firm constitutional as well as pedagogical ground: "STUDENTS: You should approach everything you read in your textbooks, and everything that your teacher tells you, with a reasonable level of skepticism. In fact, that's true of everything that you read anywhere. Think for yourself. This does not, however, give you license to pretend that you know everything or that other people know nothing."

On a more serious note, I can understand why some people who are more-or-less on the "left" think that the anti-sticker suit should never have been brought and that the sticker was no big deal. But they might well think differently if they lived in Alabama or Georgia. This is related, I guess, to the reason why my antennae pricked up at what turns out to have been a too-loose paraphrase of Justice Thomas, in the post below: I don't think it's exaggeration to say that there is a real political fight, at least in the deep South, between theocrats and non-theocrats. I am not talking about the passage of religiously-inspired laws; they've been around forever, which is why it's hard to buy beer on Sunday in many places. I'm talking about elected officials who ignore the rule of law in favor of religious belief. I mentioned, a few days ago, an Alabama judge who issued an outrageous decision on a minor's parental-notification-bypass petition; I'm still trying to find a freely-available internet copy of the opinion of the Ala. Ct. Civ. App. reversing that. The good news for now is that the rule-of-law side generally wins these fights in the end. But it's not obvious that that will continue to be the case, and that's why I can empathize with a Georgia parent who thinks it important to challenge the stupid sticker.

posted by sam 7:26 AM 0 comments

death penalty

You should really read this article, from the American Lawyer, about the long process by which some big-firm lawyers, working pro bono, got a wrongly-convicted man off death row in Texas. "Wrongly-convicted" really is the right word; after a federal district court granted a writ of habeas corpus, the Texas A.G. decided not even to appeal, having been convinced that the evidence was insufficient to allow a proper conviction. But read the article and realize that it took a truly vast number of lawyer hours, as well as law firm out-of-pocket $, to achieve this result. Any system that depends on such fortuities to free a wrongly-convicted death row inmate is seriously messed up.

posted by sam 7:14 AM 0 comments

Saturday, January 15, 2005

I would like to believe that somebody mis-heard
Justice Thomas expressly believes that "a judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution"?

That's what a reporter for the B'ham News (a reporter who is reliable in my experience) says that one of Alabama's new Supreme Court justices said, at his investiture, that Justice Thomas told him personally within the last few days.

Now, if Justice Thomas really said that, that is quite a big deal. At the risk of stating the obvious in too many words, here's some explanation.

I do understand that some people believe that every aspect of their lives should be evaluated by whether they do what they think God wants them to do. I also understand that some people might believe that, if they assume the role of judge, they should conform their decisions to religious doctrine. This does not constitute judicial misconduct, but merely constitutes very bad judging in my view, if the person in question holds the jurisprudential view that laws and constitutions should be interpreted so as to be in conformity with their guess as to what God wants. If that's your jurisprudence, then you are a lousy judge in my view (because I don't believe that this is the overriding canon of interpretation of legal texts) but you are at least trying in some sense to do "law." (I'm bending over backwards to be philosophically generous here -- it should be obvious that such a jurisprudential view is absurd, but some people hold absurd views).

But -- if this quote is accurate -- Justice Thomas does not purport to have such a jurisprudential view, but instead he recognizes that there is a difference between a judge's fidelity to God and his or her fidelity to the constitution; that is the meaning of the assertion that you will be evaluated by your performance as to one rather than the other. Which does he choose? I think it fair to assume that a person who says that God will evaluate you on such-and-such, will try to do what he thinks God wants, right? So -- again if this quote is correct -- Justice Thomas has essentially admitted that he will make rulings based not on any view that they are correct as a legal matter, but because they are what God wants.

(Somebody could also believe that he will be evaluated as a judge based on his fidelity to God, but that God wants him to do straight law without a theocratic interpretive principle. That would make sense to me. But if that's what you believed, again you wouldn't speak in terms of a difference between fidelity to God and fidelity to constitution, in terms of one's evaluation as a judge; the grade would be the same on each, if God wants you to do straight law.).

So what's the deal? Did Alabama's new Supreme Court Justice really think he heard Justice Thomas say that? Did Justice Thomas really say it? It is, of course, impossible for any of us to get Justice Thomas under oath and ask him. We should, at least, create enough of a hubbub about the issue so as to make him feel that it is appropriate to issue a public statement confirming or denying that he really said it.

UPDATE: You can see, at Blue Mass Group, someone's transcription of the remarks by the new Alabama Justice. It is possible to read those remarks as meaning that what Justice Thomas was conveying, is that the oath to uphold the constitution is very important because it's an oath made to God, which would be a less problematic statement than the way the B'ham News paraphrased it. Whether this more generous interpretation is a better account of what Justice Thomas said, I don't know.

UPDATE UPDATE: Thanks to Juan Non-Volokh for the welcome back (and I will note that I have abandoned my theory that he is Miguel Estrada). But I think it's "unfair" and "misconstrues" this post to say (as he does, if I read correctly) that I was "unfair" to Justice Thomas and "misconstrued" his remarks. As you can see, this post was (1) based on the way that a newspaper reporter, whom I have found reliable, reported remarks attributed to him; and (2) explicitly based on the recognition that the attribution might be incorrect (see, e.g., title of post, and the various uses of "if" and like terms); and (3) updated as soon as there was better evidence of what remarks had been attributed to Justice Thomas. If Justice Thomas had in fact said what was originally attributed to him, I don't see how my reaction (which was based on that expressly tentative assumption) could possibly be described as unfair. Debatable, maybe. But given that the very conservative and religous Feddie (see comments to his linked post) agreed with me that the remarks would be troubling if correctly reported, "unfair" and "misconstrues" seem unwarranted to me. If I'm being overly sensitive to J N-V, I will try to chill.

UPDATE, Feb. 3: now, thanks to my sitemeter thingy, I know where Juan Non-Volokh works (or at least the university where he was getting his internet access a little while ago). There is no anonymity on the 'net, when you get right down to it. The secret is safe with me.

posted by sam 9:12 PM 39 comments

Friday, January 14, 2005


posted by sam 11:08 AM 1 comments

hot naked mole rat action

For the fast few days, ever since seeing them at the zoo, I have been thinking a lot about naked mole rats.

You will be, too, after reading this article about them. They are mammals, yet are cold-blooded, and have social systems very much like those of certain bees or ants -- one "queen," who's the only female who gets to breed, and lots of workers. And they are funny looking, and they eat their own poo. Freaky little things.

posted by sam 10:50 AM 2 comments

ok, I'll play that game

Fun game: Blog the first ten songs that play when you press "shuffle". A fine list, even though I would have preferred a somewhat higher concentration of recent stuff and noise, and not as much countryish stuff today. But it's all great anyway.

“Boots and Saddle,” Riley Puckett (blind guitarist of the early era of recorded country/hillbilly music, best known as member of Gid Tanner’s Skillet Lickers)

“Candy Floss,” Wilco (from “Summerteeth”)

“Union Square,” Tom Waits (from “Raindogs”)

“Boots of Spanish Leather,” Nancy Griffith (a little embarrassing, but I like it)

“Down on the Farm,” Little Feat (I make no apologies, however, for liking Little Feat)

“Dreams,” TV on the Radio (really, I buy lots of new records, I swear, this isn't the only one)

“Let the Train Blow the Whistle,” Johnny Cash

“The Soldiering Life,” The Decemberists

“Poison Love,” Doug Sahm

“Close Up the Honkytonks,” Flying Burrito Bros (from a bootleg)

posted by sam 6:44 AM 1 comments

Thursday, January 13, 2005

lawyer radio
Again this afternoon, I'll be on lawyer internet radio -- the Legal Broadcast Network -- opining about the Supreme Court and stuff. Probably between 5:30 and 6, though you can always listen to the archives later on if you'd prefer.

posted by sam 11:37 AM 0 comments

Wednesday, January 12, 2005

Bobo's world.
The official website of the Sheriff of Marshall County, Alabama.

Seems like he should either spend less time thinking about gay sex, or get comfortable with the fact that he thinks about it a lot; as it is, it's making him upset.

posted by sam 2:14 PM 19 comments

Booker/Fanfan 1

Funny times at the Supreme Court this morning. First thing, Justice Stevens (who's in charge, in the Chief Justice's absence) says, "Justice Scalia will now announce the decisions in two cases." All the law nerds hold their breath and get excited, because everybody knows that Scalia's a driving force in the line of cases that will (this term) almost certainly lead to the striking down of the Sentencing Guidelines, the big big criminal law issue that I mentioned the other day. But then Justice Scalia starts droning on about two immigration cases, and everybody slumps in their chairs! Damn! Now we're going to have to wait another week at least for the Sentencing cases?!

After about 15 minutes of immigration law (bottom line: they can deport you to a country with no functioning government, but can't hold you forever if there's no country to send you to), then Justice Stevens with a little twinkle in his eye (he's always got a little twinkle) says, "I've got two opinions too," and proceeds into Booker and Fanfan, the Sentencing Guidelines cases. What a tease.

Bottom line on Booker and Fanfan: Guidelines are now merely advisory in all cases, and no longer actually binding on the sentencing court. Appellate review still exists, to assess the "reasonableness" of the sentence imposed. Question in my mind, which may be answered when I read the opinions: Does this change everything, or nothing? Does it really allow sentencing judges to issue the sentences they think are just, all things considered? Or is it really just a way for appellate courts to strike down every sentence that departs materially from the suggested Guidelines range, by saying, "now we're not saying that the Guidelines are binding, of course, but this sentence is unreasonable."? Time will tell, and maybe the opinions will too.

[UPDATE: I've got lots more thoughts on what Booker and Fanfan really mean. Unfortunately for Ignatz, my duties to my clients come before my duties to my blog, and I think it's probably best that I keep my mouth shut here until I've thought more about how things are going to play out. Sorry, Ignatz.]

posted by sam 1:00 PM 2 comments

Supreme Court

When in doubt about what to say, pontificate about the Supreme Court. That's my blogging motto for the day.

This morning they're having argument in an important securities fraud case, Dura Pharmaceuticals. I am probably going to go down to the Court to watch, assuming I can make the logistics work. But I can pontificate even without having seen it. Especially after having read the summary of the case at Goldstein Howe's SCOTUSblog.

The question is, what sort of "loss causation" does a plaintiff have to prove, in order to win a case? The basic model of such a case is, "I was induced to buy the stock at an inflated price, through misrepresentations (fraud) on the company's part." But the question is, what if anything do you have to allege and prove beyond that, in order to show that you had a loss that was caused by the fraud? The Ninth Circuit said, in paraphrase, that you don't have to prove anything beyond that: it is enough that you have shown that you were induced to pay an inflated price because of the fraud. Other Circuits, however, have said that you can't prevail unless you ALSO show that the stock price later came crashing down because the fraud was disclosed and corrected.

Unless there's some peculiar statutory language that I don't know about, the answer seems obvious to me: that the Ninth Circuit is right. I sell you a car, telling you that it's got a bitchin' V8 engine. But it really has only a little 4-cylinder dinky engine. 8-cylinder cars, all other things being equal, sell for more than 4-cylinder cars. I have thereby defrauded you, and caused you a discernible amount of loss (discernible, at least, within a reasonable approximation). There is absolutely no doubt that you can sue me, and win. The Ninth Circuit rule seems to me to be simply that same rule. This does not mean, in my view, that the plaintiff can recover the entire price he paid for the stock -- the damages would be the amount by which the price was inflated by the fraud. Getting an approximation of that amount, through expert economic testimony, is not more complicated than lots of things that are decided by trials every day of the week.

We'll see if the Supreme Court gets it.

posted by sam 6:53 AM 2 comments

Tuesday, January 11, 2005

Unions
Much discussion within the liberal web the last couple of days about unions, and the fact that they are shrinking, and what a shame it is. Happens to coincide with my beginning work on my small portion of the massive project of writing the annual update to the American Bar Association's treatise on Labor Law; my part is to write about recent changes in the law as to who is an "employee" in the sense of being protected by (and having the right to organize, under) the National Labor Relations Act. Thus giving rise to these thoughts:

1. Yes, the National Labor Relations Board as dominated by Republican Bush appointees ("the Bush Board," in the lingo) is an anti-union Board. Just in the area I'm writing about, there have been various anti-organizing decisions, and there are more to come -- grad students can't organize, disabled people in rehabilitative settings can't organize, fewer taxi drivers and truck drivers can organize, more people are (I predict) going to be held to be supervisors and thus ineligible to organize, etc. All of this matters. I am not saying that it is legally illegitimate in some philosophical sense; it is, after all, what you should expect when you elect a Republican President. This is among the reasons I am so often frustrated when talking to people who say, "I vote for the person, not the party." When you vote for Republicans, you get policies and appointments that (as compared to the policies and appointments you would get if you voted for Democrats) favor owners over workers. Every time.

2. The blogosphere, given the ways in which it is demographically different from the set of all American wage earners, is not particularly well-suited to a useful discussion of why union membership is on the decline, or what can and should be done about it. I don't mean to be snotty, but I'm just saying that there aren't very many grocery store clerks or mine workers in the blogosphere.

3. In my view (and here I give myself license to speak as if I know something that many other members of the liberal blogosphere don't, based on my work experience representing unions and their members), there are two major reasons for the decline in organization: (a) legal, and (b) cultural-ideological. To do something about (a), vote for Democrats.

What I mean by (b), is that we are in an era in which all collective effort has been made culturally suspect. It's perceived as more patriotic, or macho, or cowboyish, to think, "I can take care of myself, and I'm not inclined to take care of anybody else." Working together, especially in the economic side of life, is seen as just a little bit too much like being a commie. This attitude infects employees (who don't gravitate towards unions) and -- when employees do overcome the attitude and do organize -- it infects surrounding communities (making them less likely to support a striking union, more likely to side with the employer). It's the Instapundit-like, Camaro-driving*, style of libertarianism. It is the impulse to say, even when dealing with a boss much richer than yourself, "Because I'm better than the average dude, I can cut my own deal with the boss, and let those other suckers look out for themselves." Now, there is nothing that liberal intellectuals can do directly to convince factory workers in Alabama that this is unproductive thinking. Maybe you can think of ways to nudge the culture more generally towards the understanding that people do more good when they work together. I was talking the other day to a very nice guy who's working on a monument, to be unveiled in DC in the not-too-distant future, to dozens of visionary Americans who created organizations, groups and movements that changed the culture for the better. That will do more for the labor movement than an article in the New Republic.

And let me add, again, that this is not meant to be snottiness towards the liberal blogosphere, especially not towards those who have been discussing unions lately. It's an effort to figure out what to do to improve things, beyond blogging.

* Maybe I am dating myself. Camaros probably don't mean what they used to. Maybe "Hummer-driving"? What I'm trying to get at, is the kind of guy who muses to himself that he probably would have fit in well at a party at Hefner's place back in the day.

posted by sam 8:17 AM 0 comments

Monday, January 10, 2005

the day got away from me
Sorry -- never did get time to get back to those things I mentioned below. Short additional bits: (1) everybody in the criminal law world hopes that, either tomorrow or Wednesday, the Supreme Court will finally tell us whether the U.S. Sentencing Guidlines (which govern criminal sentences in federal courts, making sentencing largely a system of mathematics rather than human discretion) are unconstitutional at least to the extent that they allow judges (not juries) to make findings of fact that end up increasing the sentence. As an example, a jury might convict you of wire fraud; but then, the Guidelines give the judge the power to find that you caused 10 million dollars of loss by that fraud, and so the calcuation of your sentence, under the Guidelines, goes through the roof. The theory of those who attack the Guidelines -- and the Supreme Court will probably agree -- is that this is an unconstitutional intrusion on the right to trial by jury. If that's what they hold, and again I think they will, it will be necessary to re-vamp the federal system of criminal sentencing law, so expect lots of politics/policy debates over criminal sentencing in the near and medium term future. (2) More about the other things later.

On a different note, I have not yet mentioned how much I love the show Mythbusters, a wonderful mix of urban legend, scientific experimentation, and blowing things up. The Mythbusters team, made up of special effects and engineering experts, plan and carry out experiments to figure out whether you can (e.g.) really blow yourself up by talking on the cell phone while you pump gas, or save yourself from dying in a falling elevator by jumping just before you hit the bottom. Loads of fun for anyone interested in physics and especially explosions.

posted by sam 5:16 PM 0 comments

coming attractions

Things to get more discussion when I find time later today ...

a very important new criminal law decision from Supreme Court? is it here yet? is it here yet? is it here yet? ...

a very important securities fraud case to be argued in the Supreme Court this week ... and

an Alabama judge who, when presented with a minor's legally meritorious request to be allowed to bypass the state's parental-notification requirement regarding abortion, refused to grant the petition but instead opined, "this is a capital case" and proceeded to lambaste the 17-year-old petitioner with snarky accusations that she was a selfish baby-killer.


posted by sam 7:47 AM 2 comments

Sunday, January 09, 2005

Music 3
Here are a couple of more records that I liked this year. These fall into the category of, "If you don't know of these records already, you are either (a) not in the 'aging fan of alternative rock music' demographic (and so it is somewhat less likely that you will like them), or (b) too busy to read music magazines and websites." So, will be brief.

3. "Funeral," by The Arcade Fire. Good use of non-guitar instruments. Emotionally rich singing and writing. Listen to streaming audio of one good song, through their booking agent's site, here.

4. You know, of course, about Wilco's "A Ghost is Born." I have gone back and forth on this record, but currently love it. For a while, I was down on it, as it started to seem more manufactured than sincere, and I'm a sincerity guy. But -- having seen them live, and then listened over and over again to tapes of shows from this most recent tour -- I changed my mind and loved it again. You can, for now, hear one such show at their site. Just so nobody thinks I'm pulling an Armstrong Williams here, I will disclose that the band gave me a couple of beers after the show, because one of my friends is infinitely hipper than I am.

posted by sam 7:37 AM 1 comments

Saturday, January 08, 2005

Scrushy trial
The defense in the Scrushy trial has asked for a one-week delay in the start of the trial (so far they've just been picking a jury), saying that the prosecution has just turned over a "deluge" of documents that should have been provided earlier, and that they need time to go through the stuff. Though I don't know whether they're right, I know that it's not unheard-of for prosecutors to do just that -- sometimes, I believe, intentionally in order to swamp the defense, throw them off track and maybe hope they won't find the crucial needle in the haystack. Even if it's not intentional in a particular case, it can still be unfair in its effects. Best oral argument I ever saw was by Leonard Weinglass, who got a criminal conviction reversed by a conservative Eleventh Circuit panel, based on this very argument (that the District Court erred by not granting his motion for a continuance under such circumstances).

posted by sam 10:03 AM 0 comments

Music 2

Returning to the imaginary question about what music I enjoyed during the last year of non-blogging:

2. The Fiery Furnaces' (watch out, that link to their homepage will start playing music if you click it) most recent record, Blueberry Boat. (Second link includes links to streaming audio of some songs). When I used to tell people about their previous record, my line was that they were like the White Stripes except that they were great instead of sucking. Now they have grown even far beyond that. Very complicated (in terms of lyrics, rhythms, instruments and other noises), but never seems like showing off. Everybody says that Blueberry Boat is reminiscent of old Who concept records, but technogically modern. Maybe so. My favorite things about them are (a) they rock, in the sense that their music never leaves me with a ho-hum feeling; and (b) they are not trying to sound like every other, or even any other, band. Now you see why I am not a professional music critic. You should also go see them live -- the show that I saw, like most shows of theirs as I understand it, consisted of an hour-long ad hoc medley of parts of songs all jumbled together, that was musically fascinating as well as an impressive feat of strength.

Eleanor, the singer, is the world's champion at enunciation. She can sing loud and fast, but with perfect precision and clarity.

(Apparently they've got a new EP coming out next week, unless I dreamed that).

posted by sam 7:45 AM 0 comments

Friday, January 07, 2005

Propaganda
What beautiful timing.

Just three days ago, the GAO issued this letter (pdf) finding that the Administration had violated the law against using federal appropriations for "propaganda." It's a very interesting letter, really, and it cites earlier sources such as this GAO letter that had explained what sorts of things are prohibited. As you can see from those letters, one of the prohibited sorts of "propaganda" is paying people to state opinions as their own (rather than admitting that they are being paid by the government to make the statements). This particular prohibition has been clear since at least the mid-80s, as you can see from these letters (for instance, page 7 of the pdf file in the first link above).

And today we learn about this.

posted by sam 1:56 PM 4 comments

blogroll

The blogroll over there is a funny artifact, frozen in time from mid-2003. Lots of dead blogs, and no links to great blogs that were born after then. Will be adding new links as time permits, in case anyone still cares about blogrolls.

posted by sam 11:01 AM 4 comments

Music

So, the imaginary reader asks, what music did you like in 2004? I'm so pleased to be asked. Here is the first answer; more later.

1. Bonnie 'Prince' Billy Sings Greatest Palace Music. Bonnie 'Prince' Billy is one of the personae of Will Oldham, whom you may remember from his role as the young preacher boy in Matewan even if you've never heard his music. Under the name of "Palace" or "Palace Music" or "Palace Brothers," he put out several records of music that is hard for me to describe -- there are folky elements to it, there are noise elements to it, and there is humor and there is darkness. Then his next couple records were under the name of Bonnie, and there was less of the "noise" and a little more polished and jaunty vibe. So then he decided to cover his own songs -- his new persona doing the songs of his old one, thus this record. The songs that had formerly had a lot of roughness and noise now get a pretty slick Nashville production. Some people didn't like it because it was too clean for their taste or because they thought it was a joke that they didn't get. I loved it. You can get a taste by looking at a video of one of the songs, here.

posted by sam 7:17 AM 1 comments

The nation's top lawyer

Nothing to say about the Gonzales-for-AG nomination that hasn't already been said better by others. (Though that's not necessarily a good reason to keep my mouth shut; as I heard somebody say yesterday, attributing the quote to Lincoln, "Yes, everything's been said, but not everybody has said it."). But if I asked you whether you had agreed with the assertion that mistreatement amounted to torture only "if it produced severe pain equivalent to that associated with organ failure or death," would you say, I don’t recall today whether I was in agreement with all of the analysis”? I mean, really -- if you had a belief that most civilized people would find abhorrent, you ought to at least admit it when under oath. He seemed, at least, to say that he doesn't believe that now, but just can't recall whether he believed it back then, before it became a matter of public debate and before he had to try to get confirmed as Attorney General. Maybe I'm just crazy, believing that it is important for an Attorney General to be honest, as well as important that he understands that the President does not have the authority to nullify laws as he sees fit.

posted by sam 6:23 AM 0 comments

Thursday, January 06, 2005

lawyer talk
This afternoon (like most Thursday afternoons) I will be on Lawyer Talk, an internet radio broadcast on the still-new Legal Broadcast Network. The network was started by my friend Jan Schlichtmann, who is the only one of my friends to have been portrayed by John Travolta. The main target audience is plaintiffs' lawyers -- "trial lawyers," as they're often called -- but fun for everyone. My role is to talk, for a few minutes at the end, about what's up at the Supreme Court and other interesting developments in the law. Check it out.

posted by sam 2:24 PM 0 comments

my prize possession

One of the best things about my holiday trip to Alabama was that I received, from the man himself, one of the coveted Tommy Spina bobbleheads. Tommy is a great criminal lawyer. If you find yourself in trouble in the South, find him.

posted by sam 7:41 AM 1 comments

grumpy about judges

Every blogger knows the rule of thumb, “don’t blog when you’re drunk.” (Some violate it well). I think that I will also try, “don’t blog when you’re grumpy,” and so will not post the long rant I just wrote. It was about judges or law clerks who write irrelevant things in opinions, for fun or for other purposes. See, e.g., Knievel v. ESPN (pdf, 9th Circuit the other day); Hunter v. Sec’y, Fla. DOC (pdf, 11th Circuit yesterday). You can fill in the grumpiness yourself. (Why grumpy? Woken up at four.)

posted by sam 7:34 AM 5 comments

Wednesday, January 05, 2005

Scrushy trial
One news item I will be closely following over the next few weeks is the massive accounting-fraud trial of former Healthsouth CEO Richard Scrushy, in which jury selection has just started in federal court in Birmingham. I may post on it, especially since the cast of characters includes two old friends of mine as defense lawyers. I should note, however, that I may be somewhat restrained in my commentary. The reason is that I am currently representing two former Healthsouth executives, who pleaded guilty and cooperated with the government; despite their cooperation, the government has appealed their sentences, claiming that the sentences should have been more severe.

posted by sam 10:21 AM 0 comments

Plans for the return

So here is what I have in mind, as to how to make this re-blogging fun.

There will be more posts on fun things, than there used to be. In Ignatz version 1, I found myself focusing too much on things that pissed me off. There are, of course, still plenty of such things to discuss. But I will also be amusing myself, and maybe others, by writing about things that alleviate the grumpiness.

Such as Bone, my current favorite thing. It is a comic book, printed over the last decade or so, now reprinted in "graphic novel" format, 9 nice softbound volumes and now available in a beautiful 1-volume-complete edition. The easiest way to describe it is, "a cross between Pogo and Lord of the Rings." Fone Bone is a little cute lumpy naked white thing, who finds himself in a strange valley and soon at the center of a fierce battle between good and evil. Totally awesome -- humor and adventure, suitable for my 4 (almost 5) year old son, but so cool that I had to go ahead and read to the end without him because I couldn't wait. He got Bone action figures for Christmas (Fone Bone even comes with his little copy of Moby Dick, which he loves but which he also uses at crucial moments to put other people quickly to sleep by reading to them). He doesn't know that they were mostly for me.

There will also be posts on law and politics, as before. And here is the Ignatz credo on matters of law and politics, and please remind me if I seem to stray from it. I promise that if I say anything or link to anything, it is (unless I say otherwise) because it seems right to me, with no other unspoken agenda -- in fact, with the most obviously inferrable agenda. This may seem obvious, but some prominent bloggers (none of whom are linked over there -->) like to pretend otherwise. In other words, there is no hiding the ball on Ignatz.

Thank you for coming back.

posted by sam 9:46 AM 5 comments

Hello Again

Hello again. Happy New Year. I think I want to blog again. Time to fiddle with the template a little.

posted by sam 7:59 AM 0 comments

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