(The Return of) Ignatz, by Sam Heldman

Saturday, August 31, 2002

Unfortunately almost all of my kid's naptime, which usually is prime blog-reading and -writing time on weekends, has been taken up by installation of the new Jaguar OS on my iMac. Oh well -- it seems to be worth it. In any event, this leaves me only enough time to blog one thing, which I recognize may strike some people as quite bourgeois but it matters to me. (And after all, I do live in what Leadbelly called the "bourgeois town"). The topic is salmon.

For some time, I had been assuming (and you know what they say about what happens when you assume) that farm-raised salmon was a socially responsible thing to eat, because it let all the rugged wild salmon do their rugged wild salmon thing without interference from me. But then I read the article in the new Gourmet (the text isn't online, but here's the table of contents, for those who don't believe it's not real unless you see it on the web), which says that farm-raised salmon has a number of seriously bad side-effects -- pollution of nearby waters, overfishing of the oceans in order to feed the farm salmon, hyper-antibiotic-use, and so on -- as compared with a pretty well-regulated and sustainable wild salmon business in Alaska.

So now, unless somebody who's not a fish-industry stooge tells me that Gourmet is wrong, it's wild salmon (and farm-raised catfish and tilapia) for me.

posted by sam 3:30 PM 0 comments

The first blog I ever got in the habit of reading, even before I knew the word "blog", was Chuck Taggart's "Looka", a good human blend of food, left-leaning politics, Apple computers, and American roots music. And, looking back over the entries from while I was out of town, I find an item that will be important to you if, like me, you care about working conditions and alcohol. In a nutshell, avoid Jim Beam until they get right with their employees.

posted by sam 7:36 AM 0 comments

Friday, August 30, 2002

I have returned I didn't even realize that I hadn't been asked the two stupid questions as I checked my luggage today, until -- as part of my re-immersion into the blog world -- Talkleft pointed it out. More importantly, Talkleft is also talking about the proposed Innocence Protection Act, and links to this good op-ed by an Alabama lawyer about the issue. The basic concept is that people shouldn't be in jail for crimes that they demonstrably didn't commit. Pretty good idea, no?

Speaking of people going to jail, Howard Bashman (whose vacation is lasting a day or so longer than mine) points out that former Lousiana Gov. Edwin Edwards' conviction was affirmed. My inside scoop is only this: I spent the night with Gov. Edwards once, when he called a union (USWA, my client at the time) and a company to the Governor's mansion for an all-night bargaining session to resolve a strike. He was warm, and fair, and he got the job done. And, perhaps most importantly for his present situation, he was good to his kitchen and dining room staff, who were serving time in the Louisiana prisons for various serious offenses and were on work detail in the mansion. (Good food -- and I do think that they made better snacks for us union-side negotiators than for the company.) I hope that he in turn is treated well if he actually serves time.

The baseball players got a contract, which is good news for those who care. I don't know what the terms are, because I haven't read the stories. But I am sure that the terms would have been substantially worse for the players if they hadn't made a real and credible strike threat. Proof again that collective action works.

I see that while I was gone I got lots of hits from Who Stole the Tarts, re the Supreme Court contest. Thanks! I will admit that, despite everyone's paeans to that site, I hadn't been reading it because it didn't work in my Omniweb browser. I finally went and looked through it in the monopolistic browser, and it's as good as they say. Also lots of hits from, and thanks to, Kyle Still on the same topic. Unfortunately, this means more blogs to add to my reading list.

Now I have to go read all my non-law-blogs.

posted by sam 8:44 PM 0 comments

Saturday, August 24, 2002

There will be no blogging here for a few days. I'm sure that you'll be just fine. PLEASE check back on Sat Aug 31, when blogging will resume. In the meantime, consult your magic eightball or other implement of choice, to come up with your first set of guesses in the Supreme Court contest. To see the first few cases that are ready for your predictions, go (e.g.) here.

posted by sam 6:57 AM 0 comments

Friday, August 23, 2002

NLRB I keep jumping the gun in announcing the end of former Chairman Hurtgen's output; this week's weekly update brings three cases, including one in which Chairman Hurtgen participated (it's the last one, I'm sure of it this time). I swear I'll get back to giving summaries of NLRB decisions soon, but I've been working too much and have been saving my blogging time for more important pontificating. For now, just know that the two recess appointees aren't being wallflowers (they're outvoting Member Liebman, opining about more cases that ought to be overruled, and generally acting like they run the place. Which they do, I suppose, but not for much longer, because they're recess appointees.).

posted by sam 3:17 PM 0 comments

Just a few more words on the Ninth Circuit and its reversal rate.

Those who think that the Ninth Circuit is out of control tend to focus on the cases in which that Court is reversed by a unanimous Supreme Court. Some focus even more narrowly on unanimous reversals of opinions written by Judge Reinhardt, as though this proves that he is a radical. Though this takes me perilously close to opining about the psychology of the Supreme Court justices -- which is perilous, first, because it's always dangerous to opine about the psychology of people you've never met, and second, because these are people whom (on the very unlikely chance they'll ever be aware of anything I write here) I don't want to piss off. But here goes.

The first point to realize about unanimous reversals by the Supreme Court is that they're not so rare at all, as to the Ninth Circuit or any other Circuit. Someday I will write a long article, offering a taxonomy of the types of cases that tend to result in unanimous reversals by the Supreme Court. For now, it's enough to point out that all of the Circuits are reversed unanimously often enough that someone intent on embarrassing any given Circuit could make a big deal out of it. This is true not only of unanimous reversals after full briefing and argument (see, e.g., this 2001 Term opinion [pdf file, like all the links to follow] unanimously reversing the Second Circuit and this one as to the Fourth), but also of decisions that seem so obviously wrong to the Supreme Court that they don't even require oral argument. (See, e.g., this 2001 Term opinion unanimously reversing the Fifth, this 2001 Term opinion unanimously reversing the Sixth, and this 2001 Term opinion unanimously reversing the Third). So, don't let anybody tell you that the Ninth Circuit is crazy as "proven" by the fact that they sometimes get unanimously reversed.

Second -- and here goes the psychology -- it is quite possible that the Ninth Circuit gets reversed more because the Supreme Court has subconsciously been swayed by the common rhetoric about that Circuit. On this view, the Ninth Circuit would be reversed more, not because it is wrong more, but because the Supreme Court is keeping a closer eye on it. And it is, in the same vein, quite possible that, in general, the Supreme Court is somewhat more likely to take and unanimously reverse a clearly-wrong opinion that is "liberal" than a clearly-wrong opinion that is "conservative". After all, the Supreme Court has almost complete discretion in what cases it takes, and the Court is regularly presented with cert petitions from decisions that are pretty clearly wrong. This is not to criticize the Courts of Appeals too much; everybody gets things wrong sometimes, if they're human, and the Judges on the Courts of Appeals are human. The Supreme Court can't take every case just because the decision below is wrong; there's not time for that. So the Supreme Court picks and chooses which cases to take, even among the ones where the lower court was pretty clearly wrong. It generally won't take a case even where the lower court is wrong, unless there's some good reason beyond the wrongness. And it would not be psychologically surprising if, when exercising that discretion in picking and choosing, the Justices (and their Clerks) were more likely to pay attention to "liberal" decisions of the Ninth Circuit. This wouldn't mean that that Court is wrong more often than others, just that its mistakes get "cert granted" more often.

Take, for instance, the Rucker case about people getting kicked out of public housing when their relatives are drug dealers; even if the Ninth Circuit got that case wrong (as the Court unanimously said it did), the Court's opinion doesn't mention any Circuit-split or any of the other usual reasons for granting cert. Yet the Court decided to take that case, and to let lots of other cases, that were equally-wrongly-decided below, slide. This pattern seemed pretty clear-cut to me in the 2000 Term, when the Supreme Court decided to unanimously and summarily reverse the Ninth Circuit in two cases in quick succession here [updated note to self: not quite unanimously, but almost, and summarily] and here; though those Ninth Circuit decisions may have been wrong, they were run-of-the-mill wrong, with no real interesting legal issues or any other facet to differentiate them from the routine wrong decisions that lower courts (again, because they are human institutions) issue with some frequency.

It's sort of like blogging: if Mickey Kaus gets on a roll of pointing out factual errors in the NYT -- even if he's right (which he's not always, but pretend that he is) -- that doesn't mean that the NYT makes more mistakes than other papers. It just means that, for whatever psychological reasons, he's paying more attention to finding mistakes in the NYT.

Am I saying that the Supreme Court is doing something nefarious as to the Ninth Circuit? No. All I'm saying is that I've never yet seen a human institution where subconscious patterns of thinking didn't affect decisions and outcomes; and so it wouldn't surprise me if that's true of the Supreme Court too, and it wouldn't surprise me if among their subconscious patterns is a tendency to notice and to point out the Ninth Circuit's errors more often and more vigorously than they notice and point out other Courts'.

UPDATE: Oops, I guess that was more than "a few more words". And I've noticed that Howard was not only briefer, but funnier.

posted by sam 1:46 PM 0 comments

There are two two-word phrases that make many conservatives reflexively giggle or fume these days: "Cornel West" and "Ninth Circuit". Rather than making me giggle or fume, those phrases both make me feel good about our nation. Anyway, I digress. The point is that there is an article by a Stanford Law professor debunking the cherished conservative myth that the Ninth Circuit is crazy liberal and that that's why the Supreme Court reverses a number of its decisions. The real deal, says the professor, is that the Ninth Circuit is doing what a lower court is supposed to do (i.e., follow the existing law) but the Supreme Court, when it reverses the Ninth Circuit, is changing the law. I will admit that I haven't gone back and checked the decisions to see if I can independently confirm this pattern, but it sounds about right to me.

posted by sam 7:02 AM 0 comments

Thursday, August 22, 2002

Labor Edward Lazarus has an article in Findlaw/Writ about why the players are right in the baseball negotiations, and thus why a work stoppage would be the owners' fault.

UPDATE: More labor news here. Did you know that the Radio City Rockettes are organized? Read this article and you'll see that collective action definitely worked for them; if they had no union, they'd have been SOL (which, in this context, does not mean "statute of limitations").

posted by sam 12:00 PM 0 comments

Eleventh Circuit One new case, about water rights and intervention, in the sub-blog.

posted by sam 11:34 AM 0 comments

I wouldn't expect the folks at Disney to understand the distinction between Cajun and "hillbilly"/Appalachian. I wouldn't even necessarily expect a Delawarian (if that's the word?) -- not even one with an interesting blog -- to be aurally sensitive to the distinction between the accents. But to my ear and cultural interests, putting James Carville in a Disney animated film about "hillbillies", (and saying in a humorous vein that he'd be good as the voice of Foghorn Leghorn) is sort of like saying that Montreal and New York City are pretty much the same, and that people from both of those cities sound like JFK.

posted by sam 10:37 AM 0 comments

copyright I am pleased to have become aware of the blog "Alas a Blog" not only because it nicely linked to me once, but because of things like this hilariously funny cartoon on Mickey and the perpetual-copyright issue (see Eldred v. Ashcroft, coming to a Supreme Court near you on October 9). There are also some perceptive comments about the real-world fact that in many creative fields, the creator doesn't wind up owning the copyright. This is true, and is it is good to bear it in mind when discussing copyright law and policy. However -- following up on my mention of Fugazi in this context the other day -- it doesn't have to be that way, and I think that the internet holds the promise of independent distribution by creators, such that they will not be beholden to syndicates/record companies/whatever unless they choose to be. I wish that internet anti-copyright activists were working on the creation of those new alternative distribution schemes (such as new business models for independent distribution of music/cartooning/etc), and convincing teenagers that it's cool to pay a few dollars over paypal to your favorite band or cartoonist, rather than importing their "information wants to be free" ideology from the software world into other creative fields.

posted by sam 7:23 AM 0 comments

Baseball For those following the baseball thing, the Times has an article on Donald Fehr, head of the players' union. It describes him as being seen by many players as "part Yoda, part Samuel Gompers," which is something to aspire to I suppose.

UDPATE: I think I'd prefer to be "part Albus Dumbledore, part John L. Lewis" maybe? Or "Spiderman/A. Philip Randolph"?

posted by sam 6:59 AM 0 comments

Howard Bashman's article at Slate is quite good and worth reading. One point that Howard makes well (though he makes it in different words than I'm using right now, I think that this is a fair paraphrase of part of his point) is that devotees of a "right" (or better yet, would-be right) would be wiser in many instances to pursue their goal through political/legislative activity rather than through judicial decree, because -- in some cases at least -- this political mobilization will make the right less subject to the tides of change in the future. That view certainly has something to be said for it, in some instances; it's fun to find Howard sounding much like some of Roberto Unger's old classroom comments in this regard. (And let me mention here that Unger, as well as being brilliant, is an even snappier dresser than Cornel West.). Still, neither of them has me 100% convinced.

posted by sam 6:43 AM 0 comments

Progress At least it's better than lost children who were actually found years ago, and embarrassing pictures of complete strangers: this morning's email brings the first ever mass-forwarded email chain among Southern progressive lawyers, pointing out the fun "money" videos at blah3. I won't tell them I knew it already, thanks to Atrios.

posted by sam 6:28 AM 0 comments

Wednesday, August 21, 2002

I admit to feeling somewhat sheepish the last day or so, for not having expressed enough political opinions about things. Yes, I have thoughts about Bob Barr, Cynthia McKinney, war in Iraq, you name it. Will it improve the world if I share them with you? Will I lose my place on the links-lists of various left bloggers if I don't pipe up with something interesting or at least vigorous to say?

I worry about these things, and then I see that Eric Alterman has made time to say two things that I feel deeply as well: (1)"Is [Bob Dylan] the weirdest guy on the planet or what?" (I'll still buy his records and see him every time he comes to town, but he's in another dimension I'm afraid); and (2) the NYT wedding pages are great (he's not being sarcastic, is he? I'm not), and they'll just be that much better when same-sex couples are included. This, by the way, is one of the main problems with living in Alabama (or at least it was when I was there): the Sunday Times didn't contain the wedding pages. That's what you get for living in one of the blue states (or was it red?).

So: bye-bye and good riddance Barr, I'm ambivalent about McKinney's loss, I don't like war and certainly don't like rushing into war, Ann Coulter's still a nut, some bloggers worry too much about the 2d Amendment ... and if Bob Dylan marries Beck and it's in the NYT then I'll be happy.

posted by sam 8:44 PM 0 comments

Labor The NLRB has announced a more than $6.4 million dollar settlement with Alwin Mfg., relating to a series of massive unfair labor practices against the USWA and its members; according to the NLRB, the company will also be paying back the USWA for its strike and litigation expenses. Now just imagine if the NLRB were adequately funded so that it could enforce the Act with complete resources ... or if unions and employees could bring lawsuits under the NLRA themselves, without relying on the Board to enforce the Act for them ... or if EMPLOYERS WOULD JUST OBEY THE LAW, MAYBE? (That was the angry leftist speaking, I guess -- but is it really so leftist to wish that EMPLOYERS WOULD JUST OBEY THE LAW, MAYBE?)

posted by sam 2:49 PM 0 comments

Ala. Supreme Court Last Friday's decisions are summarized in the sub-blog. Good old common-law stuff -- torts, contracts, and fraud -- and an employer that* deducts money from your paycheck for insurance premiums, but pockets the dough.

* with the facts taken in the light most favorable to the non-moving party

posted by sam 2:22 PM 0 comments

Legal terminology The Washington Post story on the guilty plea of Enron's Kopper notes that this could spell trouble for other Enron execs such as Fastow, whom Kopper can likely implicate. I mention it mainly because I would like it if someday I could give a quote to the Post that is as funny as this:

"In my estimation, Fastow is what we call in the law 'dead meat,' " said David Berg, a Houston defense lawyer who is not involved in the case.

I actually was quoted once in the Post some years ago, but it was only because a former babysitter of mine, who had become a reporter, was looking for an Alabama lawyer to spout off on something and I happened to be the first person to return her call. Fame is fleeting. And I was entirely too serious, thinking in my youth that this was required. Now I know better.

posted by sam 12:10 PM 0 comments

Eleventh Circuit In the sub-blog Decisions, there are new updates of Eleventh Circuit decisions about drugs, guns, beer, and motorcycle gangs. Plus, taxation of costs!

posted by sam 7:14 AM 0 comments

Tuesday, August 20, 2002

shouldn't I be working? Howard Bashman asks for a picture of a Supreme Court Justice wearing a skullcap. Here you go (click on the thumbnail pic) -- courtesy of the Library of Congress's American Memory project, which (much more importantly) has such things as Henry Reed fiddle tunes. Yes, I know, I should be working on that Brief in Support of Motion to Remand ...

UPDATE: Victory! In consideration of Howard's fairness in judging and his other good qualities, I will try hard to maintain my sweet leftist persona in all matters having to do with him, saving my angry leftist persona for other situations. Thanks Howard!

posted by sam 4:43 PM 0 comments

DNA evidence, and the death penalty The Post reports this afternoon that a Virginia man has been pardoned after serving 15 years for a rape that he did not commit. DNA evidence, and the good hard work of such groups as the Innocence Project, are responsible for this and other similar stories.

As the story notes, a dozen people who were on death row have been exonerated by DNA evidence. This shows -- as if we needed more proof -- that capital trials sometimes result in wrongful convictions. As a simple matter of logic, then, any reasonable person would have to conclude that there are some other people on death row who are in fact not guilty, but who will not be lucky enough to be exonerated because there's no physical evidence to test for DNA. This means that some innocent people have been executed, and that others will be. I don't see how anyone can reasonably avoid this conclusion.

Even if this doesn't turn you solidly against the death penalty, it certainly ought to count as a very good reason not to create stringent rules of procedural default, successive petitions, deference to state courts, etc., that get in the way of full and fair federal review of death penalty cases.

posted by sam 3:41 PM 0 comments

Surely everybody who's reading this already reads the NYT. But in case there's just one person who hasn't already read it, please read Paul Krugman's column this morning, pointing out various ways in which the Administration's "we love those blue collar Americans, really we do" photo ops are a thin disguise for budgetary and policy choices which directly hurt working people including veterans, firefighters, and others.

posted by sam 6:50 AM 0 comments

Monday, August 19, 2002

If you are reading this, you probably also read these folks regularly without my reminding you ... but if not, check out Nathan Newman's latest labor news roundup, and Max's and Atrios's insights into whether (as a certain biased-and-not-in-a-liberal-way newspaper and some bloggers would have us believe) the NEA is anti-American on the topic of Sept. 11. Please read the information to which they link, to see for yourself, before buying into the anti-NEA spin!

posted by sam 9:11 PM 0 comments

More on churches, political speech, and tax exemptions I am pleased to find myself, as regards this issue that I was spouting off on the other day, apparently in basic agreement with both Jeff Cooper and Eugene Volokh, insofar as I think that we all agree that a "partisan politics" privilege should not be extended to churches alone, among all tax-exempt groups. When I said in my earlier post that I thought that one of the Volokhs had written something about this bill recently, I was apparently clairvoyant rather than remembering. Thanks again to Ann Salisbury for calling the issue to our attention.

posted by sam 6:17 PM 0 comments

Let me be very clear about what I'm saying and what I'm not saying Instapundit quotes somebody else whom I've never read (Oliver Willis) who describes Farrakhan's behavior as "shuck and jive".

Here are some of the things I'm not saying: (a) that I like Farrakhan; or (b) that Instapundit or Willis is a racist.

What I am saying is this: that those who use the phrase "shuck and jive" should be aware (and maybe these guys are, I don't know, but I think that a lot of people aren't, which is why I mention it) that the phrase has a racially-charged etymology. Says who? Well, for instance, the U.S. Court of Appeals for the Eleventh Circuit, just last month. So one would be well-advised to use the phrase, if at all, only if he means to invoke those connotations and associations. Again, it's not my intention to cast aspersions on the folks discussed above, only to give information that might be useful in everyone's future endeavors.

posted by sam 2:05 PM 0 comments

Labor blogging Now this is the kind of post that warms my heart -- from the Joe Kenehan Center, explaining that blogging there will be light for a while, because the blogger will be helping out with a strike. I love collective activity by employees, even when it temporarily detracts from my obsessive web-reading.

posted by sam 10:50 AM 0 comments

Sunday, August 18, 2002

a little friendly competition? I hereby propose an open webloggers' competition, based on the U.S. Supreme Court's term that will begin in early October. The basic deal is this: Whoever ends up with the best record of predicting outcomes in all of the Term's argued cases, will win. There is plenty of information freely available on the web to allow an educated guess as to each case, I think. The prize is universal acclaim, as if you need more than that. Specific rules will be determined collectively if anybody emails me to tell me that he or she is playing. I think that the basic rules ought to be: (1) you've got to make a guess as to every argued case, and post it on your blog no later than the day before argument; and (2) the possible guesses and possible outcomes are limited to (a) affirmed; (b) reversed or vacated (even if only because of some weird procedural problem or lack of jurisdiction); (c) cert dismissed as improvidently granted; and (d) affirmed w/o opinion by an equally-divided court. If you're in, please send me an email -- first name at last name, dot net. Thanks. This offer, by the way, is not open to Justices or their law clerks. And if you want to play but don't have a blog yet, then by all means start one -- even if only for this purpose and pseudonymously if you want -- and get cracking.

posted by sam 2:02 PM 0 comments

Death penalty At the end of its most recent term, the Supreme Court decided two important death penalty cases: Atkins v. Virginia (holding that a state cannot, under the Eighth Amendment of the Constitution, execute a retarded person) and Ring v. Arizona (holding that the Constitution requires that the findings of aggravating circumstances, in a death penalty case, must be made by a jury rather than a judge).

Critics of decisions like these often say that they will result in the overturning of a vast number of death sentences. That's not really the case, as this news item from Alabama shows. Ring, for example, clearly means that many, and I believe all, of Alabama's existing death sentences are unconstitutional. Yet the State AG is trying hard to get the executions underway nonetheless.

There are a whole array of procedural traps and hurdles, as well as substantive rules of law, that a convicted defendant must prevail on, before getting the benefit of such a ruling -- even though his death sentence was very clearly imposed in violation of the U.S. Constitution under one of these rulings. This means that, when one of those defendants fails one of those procedural hurdles (and it happens quite often), we have an execution that is carried out despite the fact that it violated the Constitution in a substantive sense. This does not make me feel good.

posted by sam 7:28 AM 0 comments

Saturday, August 17, 2002

Baseball Hesiod points out a disturbing ranking of Presidential priorities -- while "furious" about the possibility of a baseball strike, the President was only "distressed" about the deaths of four American citizens from a terrorist act (before quickly returning to golf: "now watch this drive"). Please understand that I am not simply making a joke about the President's linguistic skills (nor was Hesiod, clearly) or commenting on his priorities; I am repeating Hesiod's point in order to make a point more specific to my blog, which is "When the President of the United States was, through the lottery of life, lucky enough to make money as a baseball owner -- then isn't it (a) unsurprising, but (b) nonetheless beyond ridiculous, that he uses the bully pulpit to pressure the players into giving up their federal statutory rights under the National Labor Relations Act?"

(Yes, I should have better things to do on Saturday night than blog, I agree. Fortunately for me, I am doing several of them even as I am writing this.)

posted by sam 8:33 PM 0 comments

now I'm an expert on copyright? Brad DeLong, upon quoting Lessig and thinking about the issues raised in the upcoming Supreme Court case Elred v. Ashcroft, says "it's hard to think of a reason why [the term of copyright] should be more than 14 years." I've got one such reason, at least: it would make me very very sad (as a proud though disenfranchised resident of DC) to turn on the TV one day and find Fugazi's oldest songs being coopted by corporate America as the background to commercials. It's bad enough when Iggy Pop (I assume it was he, wasn't it) willingly licenses "Lust for Life" to a cruise line -- but that would be a step way too far.

To be (once again) less glib, I think that there is a substantial argument for a period of copyright longer than 14 years, if you think of the creators other than Disney -- the real creative humans who earn a living independently at art or music or writing or whatnot (rather than having signed away all their rights to a record company), and deserve (a) to have some say over what's done with their work during their lives at least; and (b) to earn a living from their back catalog. But I agree that the present creeping-towards-forever copyright trend is bad policy and probably unconstitutional (though the Supreme Court will say otherwise, I wager).

posted by sam 3:33 PM 0 comments

Supreme Court If I told you that a Ninth Circuit judge has written a scathing book showing that the Supreme Court's "state sovereignty" jurisprudence is both legally wrong and fundamentally unjust, would you guess that it was written by a Democrat-appointee? It wasn't -- it was a conservative Reagan appointee, as Linda Greenhouse explains in this review. Let's hope that this keeps the calls for impeachment of the author to a minimum.

The basic deal -- at least one part of it -- is that the Supreme Court has decided, by a series of 5-4 decisions, that (with a few exceptions as to a rather narrow class of laws) States can't be sued in federal court when they violate their citizens' federal rights, even when a federal statute says that the States can be sued. And what's more, say the 5, the States don't even have to let you sue the State in its own courts for violations of federal statutes -- again, even if the Congress says that states can be sued.

As the review explains, Judge Noonan's book points out that this state sovereign immunity doctrine has no roots in the text of the Constitution. Indeed -- I don't know if Judge Noonan says this explicitly, he probably does, but anyway I do -- the text of the Constitution proves that the Court has gone too far. The Constitution (the Eleventh Amendment) provides one and only one protection for States against lawsuits: they can't be sued in federal court by a citizen of another state. The Constitution says that a Georgian can't sue Alabama in federal court. If it meant that a Georgian can't sue Georgia in state or federal court, wouldn't it say that? And aren't the 5 -- at least some of them -- nominally sticklers for close text-based interpretation? The answers, I think, are "yes" and "yes." Yet we're at a point where, when the State violates your rights under the Age Discrimination Act, or the Fair Labor Standards Act, or a variety of other statutes, you can't get the damages that Congress says you're entitled to, unless (good luck!) you can get the federal government to sue on your behalf. This, from Justices who are held up as models of judicial restraint (not that dreaded activism) by our President.

So, read Judge Noonan's book and either get outraged (like me) or -- if that's where your mind and politics take you -- develop a nuanced understanding that convinces you that he and I are wrong. In any event, don't think it's unimportant; it is the major legal issue of the present time.

UPDATE: Howard, at How Appealing, has pointed out that it would probably be better if, instead of following my link above to the review, you read the first page first. And, though I will probably be excommunicated by my co-conspirators at Transnational Progressivism, Inc. (?), for admitting it, I do read Stuart Buck, but hadn't read it this morning to see that he too reads the NYT.

posted by sam 7:22 AM 0 comments

Friday, August 16, 2002

NLRB Though I said the other day that we'd probably seen the last of Chairman Hurtgen's output, I was wrong. (I find it relatively easy to say that; now maybe Instapundit can admit he was wrong about DC voting rights?) Today's NLRB weekly update includes more than 20 cases issued Aug 1, with lots of concurrences and dissents and general foment but -- so far as a VERY quick glance discloses -- nothing earth-shattering. If you've got more time today than I do, check them out yourself; it's going to take me a while to get to summarizing them all.

posted by sam 3:43 PM 0 comments

Churches and political speech (You can see that today I am breaking my semi-vow to steer clear of general law punditry). Two Tears has a post about pending legislation that would -- according to its proponents and its opponents alike, viewing by the web pamphleteering that I can find by googling -- allow churches to engage in partisan politics, where they are now prohibited by law from doing so.

This is a point on which lawyers can be either useful or pedantic, depending on your point of view. Though I'm not a church lawyer or a tax lawyer, I will bet dollars to donuts that churches are NOT prohibited by current law from doing any political activity they want to do, no matter how partisan. Any church that wants to, could start endorsing candidates tomorrow. What they are prohibited from, is doing certain political activity while maintaining tax-exempt status. This is a major distinction. Tax-exempt status is a benefit that the government chooses to bestow on some sorts of entities, if they meet certain conditions including refraining from politics. But churches -- like other eleemosynary institutions (good word, huh? did I spell it right?) -- could forego that status and get political if they wanted.

Should we abolish the rule that "you can't do politics and be tax-exempt" for all tax-exempt organizations? Hard question, but I don't think so. Should we do it for only some? Easier question, to my eye: no (because the government shouldn't be favoring some advocacy groups over others). Would it be an establishment of religion, in violation of the First Amendment, to do it only for the churches? Hard question, but there's a good argument that it would. I seem to remember that one of the Volokhs had something tangentially or maybe directly along these lines the other day, either pro or con, but can't find it.

posted by sam 3:32 PM 0 comments

Baseball The players have set a strike date, it seems. If I'm remembering and reading correctly, the last baseball strike ended when the players succeeded in getting a 10(j) injunction against the owners -- which makes my post immediately below, and the cited memo from the NLRB GC, all the more timely and good news for the players if the owners overplay their hand again.

posted by sam 3:09 PM 0 comments

NLRB General Counsel Last week, the NLRB's General Counsel, Arthur Rosenfeld, put out this memo advising regional offices not to slack off in utilization of section 10(j) of the Act (which gives the Board the authority to seek interim relief in federal court against unfair labor practices). This is, as Martha Stewart would have said, a good thing.

posted by sam 10:51 AM 0 comments

Judicial activism Howard, over at How Appealing -- no, wait, first let me give Howard credit for linking to Tapped's views on the politics of judicial confirmation as well as to more conservative ones -- has urged that we should "restore federal judges to the traditional role of judging rather than forcing them to be arbiters of the most difficult social/legislative issues of the day". Cooped-up has some good response, but I think that I can add two useful points:

1) Asking to return to a time when judges (even federal judges) weren't arbiters of social issues or issues of public policy (to call public policy issues "legislative" of course begs the question) is like asking to return to a golden age when kids obeyed their parents -- there really has never been such an age. I think that it's universally understood among legal historians that the process of judicial development of the common law has always been policy-driven, with judges changing the doctrines to meet the perceived public-policy needs of each age. (A commonly-cited, and only rarely disputed I think, example is the judicial work on the common law of property and torts to aid the growth of railroads in the 19th century). Judges haven't always been upfront about the fact that this what they were doing. But at least ever since O.W. Holmes' "The Common Law" (1901? Help me out here, Cooped), the honest ones have. And, by the way, this wasn't just state-court judges. Until 1938 (all together now, first year law students: "Erie v. Tompkins"), federal judges took it upon themselves to mold the common law in ways that they thought best -- i.e., among other things, best from a public policy standpoint -- even when it was different from what the state court thought. So, put these two insights together, and you have federal judges throughout the history of the republic doing "public policy" lawmaking -- and they're doing less of it now, in this sense, than ever before.

2) Beyond Cooped's good points about legislative behavior being one reason for a more-involved judiciary, here's another one: More than 130 years ago, in a statute that's still on the books, the Congress explicitly instructed the judiciary that it is supposed to hear and decide the cases raising the most difficult social/public policy issues of the day. The statute is 42 U.S.C. sec. 1983, passed shortly after the Civil War. It says (paraphrasing only to put it in lay terminology) that if you think that somebody with a state or local government has violated your constitutional rights, you can sue them for damages or for an injunction in federal court. For reasons having more to do, I think, with the politics and economics of who-had-legal-representation than with the politics of judging, this statute lay dormant (practically unused) for decades. But it was still on the books, STILL THE LAW, still what Congress had told federal judges that they ought to be doing if litigants asked them to, all along. And now it gets used by litigants rather often. So now when people of all stripes quite properly file lawsuits saying "this action violates my constitutional rights, I want $ or an order telling them to stop", the federal courts are SUPPOSED to decide those cases. Because we're talking constitutional rights, we're (almost by definition) talking about "the most difficult social/legislative issues of the day". The federal courts would be WRONG to say "I'm not going to decide that case," because Congress has told them to decide such cases. The federal court would be WRONG to say "I'll decide it, but won't overturn the government action because I don't think that's my proper role." That's why federal courts do, and should, hear all the cases like the Pledge case, Roe v. Wade, Brown v. BOE, Bush v. Gore, and so forth -- because they are obeying a statute enacted by Congress. (Opponents of judicial involvement in such things will be glad to know that, in fact, the courts have made up all sorts of rules limiting their own involvement in such cases, despite the clear and simple language of section 1983 that they should get involved. I think that this tendency has gone too far, but there you have it -- judicial efforts to AVOID being caught up in the difficult issues of the day).

Now maybe Howard is suggesting that the Congress ought to repeal section 1983, and that unconstitutional actions by state and local governments shouldn't be remedied (at least not in federal court)? Maybe so, but I doubt it, and I know that I would campaign with all my heart against such a massive change in our law and culture.

P.S. An Alabamian really can't talk about these issues without thinking of Judge Frank Johnson, who was (not because he wanted to be, but because he happened to be the U.S. District Judge in Montgomery, a thankless job at the time if there ever was one) pretty constantly involved in major litigation on unconstitutional and otherwise unlawful state action. A Republican whom President Carter elevated to the Circuit after decades on the District Court, and a no-nonsense guy (don't think that you could come to court unprepared if you were "liberal", any more than if you were "conservative"), he ordered major reforms of Alabama's institutions because the Congress told him that was his jurisdiction, and the State of Alabama did so many unconstitutional things. He did so, literally, at great personal risk and sacrifice. And he was right. I am not prepared to accept any philosophy of "the proper judicial role" that can't reckon with Judge Johnson.

PPS -- one correction. When I said "Bush v. Gore" above, I was thinking of the federal court litigation that Bush filed under sec 1983, which technically wasn't what the Supreme Court was reviewing in Bush v. Gore. But the point's the same -- Bush, like Brown and Roe and the Pledge dude, invoked the power of the federal courts under the statutory authority of sec. 1983.

posted by sam 6:14 AM 0 comments

Thursday, August 15, 2002

Eleventh Circuit update Nothing from the Circuit today but a one-sentence order affirming the convictions of Drayton and Brown on remand from the Supreme Court's decision. This was the bus search case, the holding of which is essentially that if you don't want the policemen to rummage through your luggage, then you'd better pluck up your courage and tell them "no". To put it somewhat less glibly, the police don't have to tell you that you have the right to refuse; it's up to you to know that and to exercise the right. I've heard of criminal lawyers whose business cards say, on the back, "Here's what to do when the police start to ask you questions: ask if you're under arrest. If they say anything other than 'yes,' then just walk away."

posted by sam 6:45 PM 0 comments

I know I shouldn't bother with David Horowitz, but can it be possible that the Right really takes seriously someone who calls the American Bar Association the "Subversive Bar Association" and accuses it of being part of "the ongoing campaign of the left to hamstring Homeland defenses"? Their leadership ranks may or may not be mildly tilted towards establishment business-representing Democrats rather than establishment business-representing Republicans, but it is simply delusional to call the ABA a "subversive" group. The former ABA president whom I know from Alabama, who is the senior partner of this Fortune-500-representing lawfirm, will surely be surprised to know that he was an enemy of the state.

posted by sam 2:41 PM 0 comments

More on UAL Further thoughts about the NYT story on United's possible bankruptcy. Predictably, some management-side critics are quoted and/or paraphrased in that piece as saying that there's something wrong with unions and employees having a significant voice in corporate decisionmaking (as shareholders or directors) because it's a conflict of interest -- the unions and employees will vote in favor of their own interests as employees and shareholders (it is said) rather than thinking ONLY of their interests as shareholders. (With a particularly snotty tone, the CEO of Continental calls it "the inmates running the asylum," which takes some gall in the current climate of corporate shenanigans). In a nice coincidence, the U.S. Court of Appeals for the First Circuit decided yesterday that -- even in smally closely-held corporations, where shareholders tend to owe greater obligations to each other than they do in larger publicly traded corps -- it's ok for a shareholder to vote based on its own self-interest, at least so long as there is also a plausible business motivation for the vote.

posted by sam 12:27 PM 0 comments

More on the imaginary homicide After my earlier post this morning, a friendly reader sent me the text of the decision of Ala. Crim. App., in this case (Banks v. State) reversing the denial of the defendant's motion to withdraw his guilty plea. It's so long that I can't seem to paste it into blogger, but I'll be glad to send it as email text to anybody who's really interested. Better than paying $ to Lexis/Westlaw. Just let me know, by sending me an email at my first name at my last name, dot net.

posted by sam 11:41 AM 0 comments

DC Voting Rights In further discussions, Max once again blows IP out of the water on the DC voting rights issue. No need for me to add much to that, except to say that I continue to be befuddled. When I read IP, he's always making these seven-word posts about the right to own guns, and the right not to suffer minor hassles in the airport -- taking an aggressive and sometimes even admirable libertarian stance in favor of the protection of freedom even if it comes with certain societal costs (e.g., kids accidentally killing themselves with their parents' guns). But when it comes to my right to vote, all of a sudden he's got various policy arguments why it just wouldn't be a good idea? Doesn't anybody even try to have an internally consistent philosophy anymore?

posted by sam 7:25 AM 0 comments

United Airlines Do I know enough about the economics of the airline industry to tell UAL's unions whether it would be wise for them to agree to concessions to avoid this threat of bankruptcy? Of course not. (I know enough labor and bankruptcy law to predict that a bankruptcy court might well impose concessions on them if they don't agree,but that's another story). But I do know that the NYT has a conservative (pro-management) bias! The Times says that UAL "has given its pilots and machinists generous contracts". That's not how life works in labor relations, I can tell you: "given" is a biased verb, connoting corporate generosity instead of arms-length negotiations. I've never seen a company "give" a union a thing; employees negotiate and earn.

posted by sam 7:06 AM 0 comments

class actions An article from the NYT this morning about state courts in Illinois with the reputation for approving allegedly awful class action settlements.

posted by sam 6:42 AM 0 comments

"An imaginary homicide" A NYT op-ed this morning about three retarded defendants in Alabama who were induced to plead guilty to having killed a baby, despite the fact that the baby rather clearly never existed. (I'm not talking, here, about divisive arguments about whether life begins at conception. I'm talking about no baby in anyone's definition of the word). It looks as though justice may prevail despite the prosecutor's continuing efforts. Wish that I could link to the recent decision of the Court of Criminal Appeals in favor of one of the defendants, but again I can't because there's no website.

UPDATE: The Birmingham News, certainly not known for a liberal bias, also had a scathing editorial about this case yesterday.

posted by sam 6:37 AM 0 comments

Wednesday, August 14, 2002

Eleventh Circuit Today's output is just an order refusing, just for procedural and jurisdictional reasons under the statute designed to speed up death cases, even to get to the constitutional merits of whether the Court should stop an execution scheduled for tonight. The issue on the merits wasn't whether to vacate the death sentence; it was only whether to put it off long enough to make the State "take certain measures to minimize the risk of unnecessary pain, suffering and mutilation during the execution process". But, again, procedural rules get in the way of even talking about whether the Constitution requires that relief. I don't know whether the decision was "right" as a matter of the language of the statute and precedents; but it's outrageous to me, even if the decision is "right" in this sense, that we have a set of laws that demands that result.

posted by sam 9:12 PM 0 comments

Voting Rights The AP has this story about Black citizens of Bibb County who are opposing a proposal to change voting locations such that they would feel like they were voting under the watchful eye of the local police. Not that I'm giving legal advice here or anything, but I hope that these voters remember that if the plan is adopted despite their opposition, they can voice their objections to the DOJ in a preclearance review.

posted by sam 4:51 PM 0 comments

Instapundit and Crackers (To get up-to-speed, read this if you haven't.) Cooped-up always seems to be more erudite than I am, and his post on the IP-Max rumble and DC voting rights continues that trend -- in part. As I said to a critic/reader this morning, I don't like yelling matches, myself, as a type of human interaction.

But I do differ with Cooped on one important point. IP is all worked up because Max called him a "cracker". It was not an irrelevant -- though it was an irreverent -- thing to say, because (as Cooped points out) calling DC voters "not ready for self-government," as IP did, could be read as having racial overtones. I know that I read it that way, as a white Alabamian transplanted to DC. But here's where I think that I deviate a bit from Cooped -- and here I know that there is a substantial chance of making a whole lot of people mad and filling up my in-box. I've never felt that calling a white southerner a "cracker" is an ethnic slur, particularly where (as here) it is precipitated by a narrow-minded remark on the southerner's part. It's an insult and a name-calling, to be sure, and life is nicer if there's less of that. But it is simply not in the same category, in my eyes at least, as the common derogatory terms for black and brown people. Why? Because its focus is more on narrow-mindedness and bigotry than on race or ethnicity. White southerners are not, definitionally, crackers. Up with us! -- so long as we don't say arrogant things like "those folks in DC aren't ready for self-government."

So, as a potential cracker myself when I say something ignorant, I don't take offense at Max's post. And besides, Max was way right on the merits.

posted by sam 3:23 PM 0 comments

Arbitration and the DOL Michael Fox, a blogger who represents employers, has noted that Solicitor Scalia (son of you-know-who) at the DOL has issued a directive that the DOL will not bring suit on behalf of some employees whose rights have been violated, under laws enforceable by the DOL, when the employees are covered by arbitration agreements with their employer. As Fox notes, the Supreme Court held (in a case raising similar issues with the EEOC) that the government doesn't have to defer to arbitration in such cases; but now the DOL will do so anyway. I'm trying to find the directive itself online.

UPDATE: Here is the directive, as a pdf file.

UPDATE UPDATE: Having read the directive -- and here I know that some lawyers who are generally on "my side" on various things might disagree with me -- I don't think it's so bad. What I was most concerned about, was whether the DOL would recognize the importance of fairness in the arbitration agreement itself -- allowing the arbitrator to issue all available remedies, allowing class-wide arbitration, allowing discovery, etc. The directive (while not as strong as I would have written it in this regard) does recognize all of these things as relevant to the DOL's decision whether to defer. And the directive also points out various other reasons why deferral to arbitration won't be appropriate in some cases.

Now I know that "trial lawyer" folks tend to think of arbitration as horrible -- but to at least some of us who come to the table as union lawyers, arbitration isn't a bad word. So long as it's not just a way by which the defendant tries to limit the relief available, or to make litigation more costly to the employee/consumer, whether arbitration is good or bad really just depends on who the arbitrator is; and compared to the random draw in many U.S. District Courts, I'd be happy with a panel from the AAA or FMCS in some disputes.

posted by sam 2:17 PM 0 comments

11th Circuit One new case yesterday, about preservation of arguments for habeas review by Florida prisoners. See Decisions.

posted by sam 12:20 PM 0 comments

NLRB update Here is a substantial change in the layout of this blog. From now on, I am going to put the long descriptions of new decisions from the NLRB, 11th Circuit, and Alabama Courts on a sub-blog in order to reduce clutter here. I will mention the new postings on this blog, so that those who are interested can go. Like this:

Last week, the NLRB's weekly update included 13 new decisions, probably representing the last of Chairman Hurtgen's output I think. A few interesting ones, including a case exercising jurisdiction over some employees affiliated with CUNY (despite the fact that it's a public university); a decision about the interplay between the duty to provide information under section 8(a)(5), and the attorney-client privilege; and an admirable refusal by Chairman Hurtgen, on his way out the door, to use a "motion to reconsider" as a chance for the new Republican-appointee majority to undo a recent decision it didn't like.

posted by sam 12:08 PM 0 comments

More on Hamdi Last week I pointed out, in decidedly un-kneejerk fashion I might add, that the government's refusal to produce information about detainee Hamdi, as the judge had ordered, was not too remarkable from a purely procedural point of view. Today's further report from the Post suggests that this District Judge knows precisely what to do when faced with a recalcitrant party (even if it's the government) that refuses to provide information: grill them, and make them reasonably fear that, if they continue to refuse to provide meaningful information, you will simply draw every reasonable factual inference against them. (After all, if the information would have helped the government's case, they surely would have produced it pursuant to the Court's order; and so the Court can reasonably infer that the withheld information would not be sufficient to support the government's position). This, rather than getting constitutionally wigged-out about an executive-judicial showdown, is the proper judicial response to executive arrogance in this instance, I think. It's what any of us, in private practice would face if we tried to pull rank on a U.S. District Judge, refusing even to treat the Court with enough respect to give straight answers to its questions at oral argument; and it's nice to see a court in which the government seems to be subject to the same rules.

posted by sam 11:16 AM 0 comments

Voting Rights in the District of Columbia The reputedly-wise Instapundit (a law professor, for Pete's sake) -- based on news stories about some individual loser government employees -- opines that if the District of Columbia is treated like a colony through the federal denial of basic voting rights, that's ok because (he says) DC's "not ready for self-government". This, from a guy who purports to be a defender of liberty? Isn't the right to vote -- without being told that the whole populace is "not ready" for that right -- somewhat important to liberty? (Lots of libertarians on the web these days are all up in arms about airport security as an intrusion into liberty, of course. But I was the random-shoes-off guy when boarding a flight the other day, and let me tell you: it was a lot less unpleasant than having no representation in Congress because I live in DC!)

UPDATE: Now IP's all in a huff with MaxSpeak over tangential aspects of the posting in which IP said this absurd thing. Well, fine. But it IS just quite silly that, even this morning, IP's also worked up about an airline passenger being forced to take a sip of her coffee (how outrageous! in a democracy! well, I never!), yet he supports the most fundamental denial of liberty to those of us who live in DC.

posted by sam 7:32 AM 0 comments

Eleventh Circuit If you read law.com, and saw this story about the Eleventh Circuit's affirmance of a huge Rule 11 sanction, you may be wondering "why didn't Sam mention that obviously important case? what's the use of his site anyway?". The answer is that the case is about four weeks old, and it came out before I even started blogging. Fortunately, I can cut and paste the synopsis I wrote for our lawfirm's website at the time:

Oxford Asset Mgmt v. Jaharis (July 16, 2002) gets our vote for the scariest case yet this year. The Court affirms the Rule 12(b)(6) dismissal of a securities fraud case, with a discussion that seems to our eyes to stray far from the traditional standard for such dismissals; the Court considers various "facts" outside the pleadings, and painstaking picks apart the case rather than asking whether there are any conceivable facts that could allow plaintiffs to prevail. Maybe this is something special about securities cases under the recent statute limiting those cases, rather than a more general trend towards a more aggressive dismissal of cases in general; we hope so. Then, to top it off, the Court (for the most part) affirms a Rule 11 attorneys' fee award against the plaintiffs and their counsel, on the grounds that their factual allegations were without substantial support (BUT ISN'T THIS INCONSISTENT WITH THE WHOLE POINT OF RULE 12, WHICH IS THAT THE ALLEGATIONS MUST BE TAKEN AS TRUE? IF THAT'S THE BASIS ON WHICH THE CASE WAS DISMISSED, HOW COULD IT BE A PROPER RULE 12 DISMISSAL???). And how much was the award, you ask? Get this: ABOUT HALF A MILLION DOLLARS, FOR ALMOST 2000 HOURS OF WORK, ON A CASE THAT DIDN'T GET PAST A MOTION TO DISMISS! (We'd love to have a client that would pay us for that many hours on a case that only gets that far, but have never heard of such a thing!) Meanwhile, the Court takes the opportunity to make some bad dicta about attorneys' fee awards, which some future courts will use against prevailing plaintiffs. What a scary case.

posted by sam 7:04 AM 0 comments

Tuesday, August 13, 2002

An answer, in advance, to my anonymous AOL correspondents Yes, of course Howard has a right to link to whomever he pleases. Yes, I know that her book sells lots of copies, and that some millions of people agree with her on some points. But it's been quite well established, on various blogs, that a vast number of her so-called "facts" are not facts at all. And her rhetoric is often quite hateful. Not to mention that she's at the far-right-wing, and I'm not. So it's my right not to like her, and it's further my right to believe (as I do) that she represents the exact opposite of what every good appellate lawyer -- whatever his or her politics -- should admire and strive for, which is (a) scrupulous honesty with the facts; and (b) collegiality towards one's opponents. So yes, I think that the link to her was Appalling.

posted by sam 5:08 PM 0 comments

A correction for sure this time Now Howard -- who's advertising himself as telling us about appellate law -- is giving a link (without apparent irony or vomiting) to a soft-ball interview with Ann Coulter? ugh. Howard seems to be a nice guy in my correspondence with him, really truly, but after this I am going to have to change my links on the left-hand side of this page. In the world of legal blogs, this is something like a gnat smacking his forehead at the antics of a groundhog, I know. But as soon as I get back from picking up my kid at daycare, I swear I'm changing my links ...

posted by sam 4:27 PM 0 comments

Another labor blogger Thanks to MaxSpeak for turning me on to another union blog that is off to a promising start.

posted by sam 1:42 PM 0 comments

U.S. Supreme Court If (like me) you've got a big hard drive and DSL and a certain law-geekiness, you might love to download bound volumes of the U.S. Supreme Court reports in pdf format -- available from the 1991 Term onward -- from the Court's site here. It's great, for instance, if you know the name of the case you want to cite in a brief -- use Findlaw to find what volume it's in, and then (rather than reading the ugly Findlaw version) go to that volume's pdf file. True excitement.

posted by sam 10:38 AM 0 comments

A correction I noted in my very first (or was it second) post on this blog that I liked How Appealing because it was mercifully rather free of right-wing politics. I'm afraid that either I was a poor reader, or peer pressure has made old Howard want to show out a bit. Because amendments to posts are apparently not allowed in the blog world, my former naive comments will remain for all to see.

posted by sam 7:41 AM 0 comments

Labor Law A couple of years ago, the NLRB decided a case called FES, Inc., in which the NLRB set out a number of new rules and standards to govern cases in which a company is charged with having refused to hire, or refused to consider for hiring, people because they were pro-union. An important case in the field. Today's news is that the U.S. Court of Appeals for the 3rd Circuit enforced the Board's order (pdf file).

posted by sam 7:24 AM 0 comments

Monday, August 12, 2002

Labor News If there is anyone reading this who doesn't already read Nathan Newman's periodic roundups of labor news (see today's here), you should. They are quite informative. Warning to all anonymous AOL subscribers who tell me that I am an outrageously biased left-winger because I don't think that the New York Times is pink: on that standard, he seems to be one too, I'm afraid.

posted by sam 9:50 PM 0 comments

Eleventh Circuit Here's what the Circuit did while I was away last week:

First, they took en banc two cases in which they will – I predict – hold that Georgia sheriffs are State, rather than County, officials. The upshot, if my prediction is correct, will be that you can't sue the County under 42 U.S.C. sec. 1983 for a sheriff's unconstitutional policies, nor can you sue the State (because of that non-textual constitutional doctrine, state sovereign immunity).

Robinson v. Moore is another long opinion affirming the denial of habeas relief to a death-row defendant. The core of the case is trial counsel's failure to present mitigating evidence; the court denies relief anyway.

Kirby v. Norfolk Southern is about bills of lading and a "Himalaya clause". This is one of those areas of law that I don't pretend to understand, even enough to spend the time figuring out how to summarize the case. You're on your own.

U.S. v. Schlaen affirms convictions for money laundering and, on the government's cross-appeal, reverses a downward departure. In a sting operation, the defendants agreed to buy computer equipment for drug lords who paid them cash (actually, they were government agents in disguise) and not to file with the IRS those forms that you've got to file in a cash transaction greater than $10,000. The jury, though, acquitted the defendants on the counts that charged them with failure to file those required forms. How, then, could they be guilty of laundering – especially when the laundering statute at issue includes, as an element of the crime, an intent to avoid a transaction-reporting requirement? Isn't this completely inconsistent with the acquittal on the filing counts? Yes, of course it is! Even the Court seems to agree. But, says the Court,"So what?" That's not a quote from the opinion, but this is: "Even where conviction on one count and acquittal on another count is a logical impossibility, the conviction will stand, unless it was otherwise obtained in error."

Fishermen v. Closter Farms (no Findlaw link yet) holds that a farm wasn't required to have a permit under the Clean Water Act in order to discharge pollutants into a lake where, according to the Court, the water it was discharging into the lake was covered by "agricultural exemptions" to the Act, and there was no sufficient evidence of non-agricultural pollutants (either from the farm or from adjacent properties (whose water was also being discharged into the lake by the farm).

Alabama Court of Civ. App. Six cases from the Ct. Civ. App. last week (as always, if you want links to these, lobby the government to put up a free and functioning web site!):

Horton v. Raspberry: Trial court had granted summary judgment against beneficiaries, holding that the testator was competent at the time she executed the will; Ct Civ App reverses. The only evidence of lack of testamentary capacity was the fact that the will itself said she had five kids, when in fact she had six kids. This in itself is enough to create an issue of fact as to testamentary capacity, says the appellate court. Lesson: if you want to disinherit one of your kids, don't try to add insult to injury by pretending that the kid doesn't exist!

Goolesby v. Wilks is another case showing what a mess can arise when you file too many post-judgment motions. The main holding seems to be that, once having entered a remittitur order (i.e., an order saying that there will be a new trial if the plaintiff does not accept a reduced damage award), the trial court cannot then enter a judgment as a matter of law in favor of the defendant.

Gatlin v. State is an impressive victory for whoever was Gatlin's lawyer: the Court reverses the trial court's order forfeiting a big wad of cash to the State, when the cash was found in his truck along with some pills and dope. Fortunately for Gatlin, he had a good explanation for where the pills and the money came from, so the Ct Civ App reverses the adverse factual findings of the trial court.

Creel v. Creel affirms the trial court on a custody issue.

CDW v. State ex rel JOS: IMPORTANT if you ever practice in this field and don't want to screw up – holds that proceedings to determine paternity are governed by the Juvenile Procedure rules rather than the Rules of Civil Procedure, so you only have 14 days to file a post-trial motion or to appeal.

Browder v. Food Giant affirms summary judgment, holding that it was Ms. Browder's own damn fault that she fell in the grocery store parking lot. Lesson: if possible, get an expert to opine that the hazard would not have been obvious to a reasonable person. And, if possible, don't let your sweet old-lady client indulge her penchant for self-flagellation during her deposition.

posted by sam 12:44 PM 0 comments

Taxes in Alabama According to this, a Univ. of Ala. law professor has written a devastating critique of Alabama's inadequate and regressive tax system, from both a legal and a theological perspective. I don't know much about theology or tax law, but I do know a regressive and underfunded tax system, leading to inadequate public services, when I see one.

posted by sam 7:15 AM 0 comments

Baseball For those following labor relations in the baseball industry, the New York Times has an update on the negotiations and possible strike. I have no idea whether the union is being smart about its goals and strategies, and don't much care; but the great thing is, that these decisions are entirely up to the union and its members, and not to the rest of us (right, George Will?).

posted by sam 7:04 AM 0 comments

Sunday, August 11, 2002

Jeffrey Rosen on the confirmation battles In today's NYT Magazine, Jeffrey Rosen writes about the confirmation battles over the federal appellate bench. It's a perfectly good article in some ways, but to my eye the article naively (I say "naively" rather than "sneakily" because I have no reason to doubt the guy's motives) underestimates how much the ideology -- or, to speak more broadly and less inflammatorily (if that's a word), the leanings -- of a lower-court federal judge matters. The key passage in the article, in this regard, is this:

"the Senate and the interest groups have created the misleading impression that lower-court judges are more polarized and less constrained than they actually are. In fact, on the best functioning appellate courts, there are clear right and wrong answers in most cases that judges, Democrats and Republicans alike, can identify after careful study of the complicated facts and relevant precedents."

This passage is wrong or at least incomplete in two important respects, and -- in those respects -- underestimates the effect of a judge's (or potential judge's) leanings.

First, there are many many cases in which there are no "clear right and wrong answers". These are not only the hot-button social issues. Judges disagree often in mundane civil cases, for instance, over whether the plaintiff had produced enough evidence to warrant a trial, and so forth.

And second, even in some cases where there is an obviously "right" answer, some judges pick the "wrong" answer instead. (See, for instance, this case, in which the Supreme Court unanimously reversed a federal appellate court that had truly gone out on a limb in favor of employers in discrimination cases.).

In both of those types of situations -- where the case could reasonably go either way, or where the court (to put it charitably) goofs -- it is surely uncontroversial to recognize that some judges are more likely to pick the "liberal" answer and some more likely to pick the "conservative" one. (Sure, these "liberal" and "conservative" labels are vast oversimplifications. So I'll be more concrete. With specific reference to the areas in which I practice most often, some judges are more likely to rule for the employee/the consumer/the injured person, and other judges are more likely to rule for the employer/seller/manufacturer.). And it's not always easy for an outside observer to identify cases in which a judge's leanings have impacted the decision. For one thing, many appellate decisions are unpublished and -- especially in the Eleventh Circuit, where I practice most -- are never read by anybody but the parties to the case. And for another thing, even when the opinion includes no eye-popping decision about a pure question of law, still the judges' leanings may have impacted the judges' view of the evidence (and thus their decision).

Am I saying something outrageous, that will make judges hate me? Of course not. Here's the thing: EVERY PRACTICING LAWYER knows that some judges are more likely to rule (for instance) for the employer than are other judges. And some people who want to be judges will have the urge (conscious or not) to rule in favor of the corporation, and against the individual, in every case. If they get to be judges, they will have the opportunity to give free rein to those impulses, in ways that the Supreme Court can't police. So why should we pretend during confirmation battles -- as Rosen would apparently have us do, in saying that lower-court judges are quite "constrained" and that the answers are preordained in "most" cases -- that this isn't the case? I'm all in favor of confirming qualified mainstream people to the federal bench. But let's make sure that they are actually mainstream -- and reject the ones that aren't -- rather than comforting ourselves with the naive idea that even the ones on the radical fringe can't do much harm.

UPDATE: Spouting off in this vein makes me remember something that one federal appellate judge said of another, several years ago (I heard it from the speaker's law clerk, soon after it was said): "When _______ ____ sits down to decide a case, she asks herself this series of questions: (1) What decision can I make that will most help the Republican Party of the United States? (2) What decision can I make that will most help the Republican Party of the State of ____? and (3) What decision can I make that will most help ME?"

posted by sam 3:07 PM 0 comments

Back to the computer I have found evidence that -- despite the fact that it seems patently absurd on its face -- it is indeed TRUE that there is a left-wing conspiracy, among major corporate media interests, to suppress right-of-center voices. When killing time in the Denver airport on an AT&T payphone-with-internet, I had no trouble getting to Nathan Newman, MaxSpeak, or myself at blogspot -- but both How Appealing and the Volokh group were marked as "filtered due to content" and could not be viewed. It must be all those pro-Federalist Society posts.

posted by sam 1:25 PM 0 comments

Where are those darn libertarians when you need one? The NYT has another report on the Bush administration's interference with labor relations on the docks, through threats to prohibit a strike. The other day, I asked some of the web's well-known libertarian-leaning legal minds to weigh in on this, because it is both a threat to individual liberty and an intrusion into the freedom of a marketplace. I know that those folks don't exist in order to respond to my calls for comment -- but this is certainly a major economic story and places the pro-corporate wing of the Republican party squarely at odds with the party's sometime libertarian stance. So far, silence from those quarters. Apparently, guns are more important (philosophically, symbolically, or otherwise) to many libertarians than the right of American workers to join together with their like-minded colleagues in saying "I won't work for those wages".

posted by sam 1:19 PM 0 comments

Wednesday, August 07, 2002

Away Now I'm going out of town. PLEASE come back on Sunday, when I will have returned. Please send me an email if you know something interesting. Thank you. Sam

posted by sam 9:45 AM 0 comments

Not liberal bias, just a bit of over-hype The Washington Post (here, according to blogger usage, I'm supposed to say "breathlessly") reports that the government has "defied" a District Judge's order to turn over documents regarding a detainee. Then the Post quotes a professor who says that such defiance of a court order is unprecedented.

This is over-hype, I think. The only way that any party to any case can get appellate review of an order to produce documents (or an order to give testimony, or the like) is to refuse to comply. For most of us, then comes the hard part: you can't appeal until you've actually been held in contempt, which often means going to jail. (Remember Susan MacDougal, whose name I have probably misspelled). Some government officials (remember Richard Nixon) have the luxury of the right to appeal without first being held in contempt. But if you comply with the trial court's order, and turn over the docs, then you generally can't appeal because the case is moot. Therefore -- unless there's something that the Post isn't making clear -- the goverment's "defiance" is simply what the government must do in order to appeal the order. I'm not saying that the government should appeal, or that the government's position is right; just that this is -- procedurally -- nothing too remarkable.

In this regard, orders to turn over documents (or give testimony) are unlike other sorts of court orders. When a court issues an injunction of some other sort -- e.g., "stop picketing,", or "desegregate the schools" -- the general rule is that you've got to comply with the order while it's on appeal. But not with orders to turn over documents. Why the difference? Lots of reasons, and no time to explain to the non-lawyers right now (going out of town soon).

Does this mean the dreaded "liberal bias" in the Post? Of course not. It means the general media preference for BIG story over run-of-the-mill explanation of legal arcana. Legal niceties like this always tend to get lost, no matter whether it's Republicans or Democrats who are the subject of the story.

posted by sam 9:06 AM 0 comments

Eleventh Circuit Six cases from the Eleventh Circuit yesterday (only quick descriptions because I'm getting ready to go out of town):

Knight v. Miami reverses the denial of summary judgment based on qualified immunity, in a Fourth Amendment case. Because the law on qualified immunity in Fourth Amendment cases is somewhat sui generis, this opinion doesn't answer the looming question of what the Circuit will do with Hope v. Pelzer. The case does hold that, though warrantless arrests inside the home are generally unconstitutional, it's ok for the police to tell you sternly to come outside and then arrest you without a warrant.

U.S. v. Quintana (1) upholds a local rule requiring motions for downward departure to be filed no later than 5 days before sentencing; and (2) holds that, although the defendant was not permitted to allocute (i.e., address the court at the sentencing hearing) this was not reversible error because the defendant got the low end of the guidelines sentence anyway.

Isaacs v. Head denies habeas corpus relief in a capital case, in a long opinion that I haven't had a chance to digest yet. Among other things, the defendant's state-court trial was opened with an official prayer, but the Eleventh Circuit refuses to grant relief on that account; and there is an issue as to the applicability of the AEDPA that divides the panel here.

SEC v. ETS Payphones holds that some weird deal about leasing payphones, which the SEC said was really a Ponzi scheme, didn't constitute an "investment contract" within the jurisdiction of the SEC. If you understand the difference between "horizontal commonality" and "vertical commonality" and if this is important to your practice, you should read this case.

Chavis v. Clayton County School Dist. holds that "race-based retaliatory conduct aimed against a person who testified truthfully in criminal court in a way that was helpful to a person of a particular race -- the "wrong" race in Defendants' eyes" -- is actionable under 42 U.S.C. sec. 1985(2).

US v. Sigma Int'l -- not yet up on Findlaw, I think -- refuses (en banc) to grant a name-clearing hearing to a former AUSA who was slammed in a prior panel opinion. The main reason, it appears, is that the panel opinion was vacated when the case was taken en banc (and then the case was settled), so the Court treats the panel opinion, which had criticized the lawyer, as a nullity that doesn't justify any further action. This leaves open the question whether lawyers who are slammed in other Circuit opinions, which are not vacated, will be entitled to any name-clearing process.

posted by sam 7:23 AM 0 comments

Tuesday, August 06, 2002

Coal miners' rescue MaxSpeak has an informative post, with actual FACTS (those darn things are hard to come by, in some quarters of the web and other media these days) showing that the Administration's photo-ops and nice words about the rescued miners are in sharp contrast to its proposed cuts in funding for mine safety.

posted by sam 4:47 PM 0 comments

The Clintons' request for reimbursement of attorneys' fees The Clintons were in the news a few days ago, for filing a request for reimbursement of attorneys' fees incurred by them during the Whitewater investigation/fiasco/m-r-w-conspiracy (choose your own word). If you want a glimpse into the current thinking of the special judicial panel that rules on such requests, see today's opinion denying (for the most part) former Sec'y of Labor Alexis Herman's request. John Dean (I can't quite decide what to think of him these days) had a piece on this the other day in Findlaw, arguing that the Clintons are clearly entitled to reimbursement unless the political fix is in.

posted by sam 1:19 PM 0 comments

Arbitration of discrimination claims Can an employer require its employees not only to arbitrate their discrimination claims (rather than bring a lawsuit in federal court), but also to give up their federal statutory right to an attorney's fee award? Seems to me that the answer is obviously "no"; but the Seventh Circuit had an awfully hard time getting to the correct answer in this (pdf file) case yesterday. One judge agreed with me; another judge agreed only because the employer had conceded the point at oral argument; and the third judge wrote only about a jurisdictional question.

posted by sam 10:46 AM 0 comments

Whistleblowing Salon reports on successful whistleblower suits (one plaintiff's victory, one settlement) by DynCorp employees who claim to have been fired for blowing the whistle on fellow employees' involvement in a sex-slave trade. Really. Now realize that those employees would have been completely out of luck in Alabama, which remains an "employment at will" state.

UPDATE: It continues to surprise me how many people don't realize that most American workers, particularly in non-organized workplaces, can be fired for a variety of silly reasons with no recourse. Slate's advice columnist, for instance, opined the other day that people can't be fired for sniffing shoes -- but I'd be quite surprised if such a firing (of an employee not protected by a union contract) would be unlawful anywhere, and I know that there are many places where it would be lawful.

posted by sam 7:05 AM 0 comments

The Administration plans to stop a strike The President, according to this story, is making plans to prevent dockworkers from striking. Let's hear from all the very bright libertarian-leaning law-bloggers about what an outrage such big-government intervention would be!

posted by sam 6:45 AM 0 comments

Monday, August 05, 2002

What do Bob Dylan and James Traficant have in common? Can anyone please tell me why Bob Dylan was wearing a long wig and fake beard at an outdoor summer concert?

posted by sam 3:23 PM 0 comments

Justice Thomas The Washington Post is having an online discussion about Justice Thomas, with the people who wrote yesterday's Magazine cover story about him. Even if you don't click in time to be part of the discussion, it will be archived (if the link changes, I'll try to remember to post it).

UPDATE: Why no editorializing from me as to what I think about Justice Thomas's voting record? Because at this point very few people who care to form opinions about Supreme Court Justices are lacking a rather firm opinion about him, and so I didn't feel the need to hear myself talk. If you are interested in adding to your understanding about how he votes and how those votes tend to impact the powerful and the powerless, and want my help in that, then send me an email and I'll send you some cites!

posted by sam 1:19 PM 0 comments

Labor I'm not quite sure why the AP wire, in Alabama, is carrying this piece about what it's like to work on a garbage truck -- it's not breaking news -- but it's well worth reading to remind yourself of various things.

posted by sam 6:38 AM 0 comments

AFL-CIO The NYT reports that Steve Rosenthal, the successful political director of the AFL-CIO, is leaving that post (but that he will continue to work with the labor movement).

posted by sam 6:21 AM 0 comments

Sunday, August 04, 2002

NLRB decisions This week's NLRB weekly summary has these decisions:

Control Bldg. Servicess affirms the ALJ's finding that the employer violated Section 8(a)(3) by firing an employee in retaliation for union activity. Though the ALJ had not explicitly found that unlawful motivation, the Board made such a finding, based on the pretextual nature of the employer's purported reasons, the timing of the discharge, and the employer's surveillance of employees.

AAR Hermetic affirms, without substantial discussion, the ALJ's dismissal of an 8(a)(3) refusal-to-hire-case, based on credibility determinations as to the employer's motivation.

Budget Rent-a-Car reverses the Regional Director's determination that the petitioned-for single-facility units were appropriate. The Board holds instead that the 5 rent-a-car locations in the Detroit area were so integrated that the single-facility presumption has been rebutted, and the 5 constitute a single unit.

Demco New York holds that the employer's interrogation of an employee about union membership, activities, and sentiments was coercive and thus violated section 8(a)(1), even though the interrogator was only a low-level supervisor and the conversation was relatively informal.

Hanson Aggregates Central is an unremarkable case finding various ULP's by the employer, and therefore setting aside the employer's election victory. (It's sad, I know, to call such a campaign of unlawfulness by an employer "unremarkable," but it is what we see every day in this line of work. To say that intentional flouting of the law is unremarkable doesn't mean it's acceptable.). There is some cross-talk among the Members as to the appropriate standard for determining when an employer has effectively repudiated unlawful action by one of its supervisors, but the case makes no new law in that regard for now.

Michael's Painting finds one company to be the alter ego of another (reaffirming that a partial legitimate motivation for the creation of a second company does not preclude a finding of alter ego status), and -- because of an outrageous pattern of violations of the law -- imposes a Gissel bargaining order.

Pinnacle Metal Products affirms the ALJ's finding that the employer unlawfully refused to reinstate strikers upon their unconditional offer to return. The Board rejects the employer's argument that the wording of the offer indicated that it applied only to those employees who physically showed up to work on a certain day; the Board held that the offer included all striking employees. The Board also held that, under the terms of the employer's drug-testing policy, returning strikers could not be subjected to drug testing as a condition of return to work.

posted by sam 2:07 PM 0 comments

Union organizing and privatization As state and local governments contract-out more of their functions that are performed by organized employees, public-sector unions have two natural responses: (1) to mobilize politically against such contracting-out; and (2) to organize the private-sector contractors. Some employers have contended that this constitues a conflict of interest; but this week the U.S. Court of Appeals for the First Circuit, enforcing an NLRB order, rejected that argument. (The First Circuit didn't put the final nail in the coffin of this sort of argument, certainly, but the Court did go pretty far towards burying it).

posted by sam 1:30 PM 0 comments

Saturday, August 03, 2002

Eleventh Circuit Two cases yesterday:

Covad Communications v. Bellsouth Covad had an "interconnection agreement" with Bellsouth regarding DSL lines, but says that Bellsouth was jerking it around to stifle competition. Covad sued under antitrust law, the Telecom Act of 1996, and state law. District Court dismissed; Circuit reverses. Holdings include: The Telecom Act doesn't displace antitrust law and doesn't preempt state law; plaintiff had adequately pleaded antitrust claims; and the claims under the agreement and the Act don't have to be presented to a state commission.

Trustmark v. ESLU, Inc. is a contractual dispute between two companies in the insurance business. Two noteworthy aspects of the opinion: (1) it holds that, although parties are entitled to notice that a Rule 12 motion is going to be converted into a summary judgment motion, there are RARE cases in which the proceedings show that everybody knew that was what was going on, so that the lack of explicit notice is harmless; and (2) it holds that the suit was barred by res judicata (where this was suit #2, and suit #1 regarding some identical alleged breaches of the same contract had ended with a judgment in favor of the defendant). The Court holds that "where the second lawsuit alleges a breach of the same contract that was breached in the first, by the same party, in the same general manner, those actions constitute the factual predicate, and any claims relating to that contract should be brought in the same lawsuit."

posted by sam 7:24 AM 0 comments

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