(The Return of) Ignatz, by Sam Heldman

Saturday, November 30, 2002

Supreme Court (II)

Tues 12/3 brings a case arising under the Fair Housing Act, 42 U.S.C. § 3601 et seq. The case is Meyer v. Holley, and the Ninth Circuit's decision (pdf) is here. The question is, who is liable for race discrimination in real estate sales? Just the racist agent who directly committed the discriminatory act? The Ninth Circuit, relying on a HUD regulation, said that liability goes beyond that agent, and attaches not only to the corporation that employed the agent but also to the agent's boss, because he owned the corporation and had the authority to control the agent's actions. The boss as Petitioner – along with the United States as amicus – says that allowing the imposition of liability on an individual corporate officer/supervisor goes beyond the intent and language of the statute, beyond the intent and language of the regulations, and beyond the normal boundaries of what the law usually allows. I'm predicting that the Court will agree and REVERSE for one simple reason: they wouldn't have taken the case unless they wanted to reverse. There's no split in the Circuits as far as I can tell – quite the contrary, in fact, it seems from reading the Ninth Circuit's opinion and the government's amicus brief – and no real burning need throughout the nation to have this issue addressed by the Supreme Court, so there's no reason why the Court should have taken the case except that it has "liberal Ninth Circuit, let's reverse 'em again!" written all over it. You could say, I suppose, that it only takes four to grant cert so this only proves that there are four who wanted to reverse (or maybe three and one who went along for the ride) and that Justice O'Connor might provide a fifth vote for affirmance; but I think that these Justices have been working together long enough and are good enough at counting each other's noses that they don't tend to grant cases without a Circuit split unless the Justices who want to reverse are sure that they can get the votes to do so. This is the same dynamic I've talked about before as to the juvenile death penalty issue; you don't provide the fourth vote for cert unless you're pretty confident that your view will prevail on the merits, because (at least where there's no split in the Circuits) a Supreme Court decision with which you disagree is usually worse than no Supreme Court decision at all.

By the way, for those millions of you following this case closely, the U.S. does say – even though it disagrees with the Ninth Circuit's theory – that a remand would be appropriate to allow plaintiffs to pursue a theory of "piercing the corporate veil". Thus the U.S. styles itself as being on Respondents' side and asks for "affirmance" of the Ninth Circuit decision to remand the case. I doubt that the Court will address the "piercing" point, and certainly guess that – even if the Court wants to allow further proceedings on that – it will call itself "vacating" or "reversing" the Ninth Circuit's decision rather than "affirming" as the U.S. would have it.

* * * * * * *

The second case for Tues 12/3, Wash. State Dep't of Soc. & Health Svcs. v. Guardianship of Keffeler comes from the Supreme Court of the State of Washington. The case involves kids who are receiving Social Security benefits who are in foster care. More precisely, the state agency sometimes gets itself appointed as "representative payee" for those benefits – i.e., it receives the check on behalf of the kid when no one else has gotten appointed to do so – and then the agency pays itself back, out of the kid's benefits, for the payments it gives the kid's foster parents. The Wash. S.Ct. said that this violates the federal Social Security law, which says (in paraphrase) that a kid's creditors can't take his benefit payments. The State (supported by the U.S. as amicus), on the other hand, says "That doesn't make any sense. If a kid's natural and custodial parent was the representative payee, the parent could use the kid's benefits to pay for her food, clothes, and whatnot. We're just doing the exact same thing!"

This is a hard case, I think – hard mostly because the state agency isn't really using each kid's benefits to pay for that kid's favorite cereal, or shoes with pictures of Bob the Builder on them; instead, it's reimbursing itself according to an across-the-board schedule. So the State's analogy of itself to a parent is far from perfect, even leaving aside the emotional factors. And whichever way the case comes out, it seems like there will be some inequality in how various kids are treated; some foster kids' benefits will be gobbled up to pay for necessities, and other foster kids' won't, depending on who their "representative payee" is. A mess.

A total shot in the dark: the Court will REVERSE.

posted by sam 6:09 AM 0 comments

Supreme Court (I) Courtesy of the Goldstein Howe ScotusBlog, this ABC News/AP report on the White Mtn. Apache Tribe and Navajo Nation cases discussed below. The report says that a win for the Navajo Nation would be a $600 million "windfall". I had always thought that the word "windfall" had the connotation of something undeserved; if I'm right about this, then that implicit assertion of undeservedness, without any facts or legal argument to back up the assertion, is awfully lame news reporting. But the dictionaries around here say that "windfall" denotes merely unexpectedness; and so to call a win for the Navajo Nation a "windfall" would mean that ABC/AP is glibly betting heavily that the Supreme Court will reverse the Nation's victory in the lower court. Mostly, though, this probably just means that the writer was using the word "windfall" to mean only "wow, that's a lot of money!"; and the lesson here, a good one for all of us who write for public consumption, is "don't use a word unless you know what it means."

posted by sam 6:02 AM 0 comments

Friday, November 29, 2002

A musician friend told me, just before dinner yesterday afternoon, about CD Baby, an online music store for independent (i.e., artist-produced, not label-owned) music. He reports that, from the artist's point of view, this is a reliable and helpful company. Its website is well designed, and its selection is broad. This sort of thing, not napster-limewire-whatever, is (in my opinion) the real artist-friendly future of music on the internet. Yes, it requires you to pay money for the cd, and a great deal of that money goes to the artist. I'm for it.

And -- on the other topic of discussion before dinner -- Henry Kissinger's appointment to the 9/11 commission is the equivalent of an "in your face, you impotent little nothings, we can do whatever we want and get away with it!" to those who pay attention to the news and to history. It's a grotesque triumphant dance of the currently-powerful, designed largely to make the opposition feel marginalized and disheartened. It's almost working on me.

posted by sam 8:40 AM 0 comments

Supreme Court

Arguments start back up the week of December 2 – 12 cases to be argued over the next two weeks – and there are many that will be (for me at least) hard to predict.

December 2 brings two "Indian law" cases. If you want to skip over the nuts and bolts of the legal stuff, and go straight to my little rant, skip to the last paragraph.

Both of these cases present variants on the question whether a tribe can sue the United States for monetary relief, when the U.S. was allegedly supposed to be acting as a trustee for members of the tribe but ended up (imagine that!) screwing them. In both cases, the U.S. Court of Appeals for the Federal Circuit – a specialized appellate court that hears an odd variety of cases including certain claims against the government – said that the tribe could sue the U.S. for monetary relief.

In the first case, U.S. v. White Mtn. Apache Tribe, the U.S. was supposed (by statute) to be holding some real property (Fort Apache) in trust for the Tribe. But the U.S. let the buildings on that property fall into disrepair; some were condemned and demolished. The Tribe says it would cost $14 million to repair the place, and sued for that money. This case requires the Court to look back to its own opinions in U.S. v. Mitchell I and II. Under those opinions, the fact that the government holds property in trust for Indians does not mean, ipso facto, that the government is required to manage the property, or that the government can be held monetarily liable for failure to manage the property properly. Beyond the establishment of the trust, there has to be something else in order to allow a monetary claim like the ones brought in these cases. What that 'something else" is, is the millions-of-dollars question.

My guess is that the Court will hold that the "something else" that is needed to justify a monetary award in a case like this is not just the governmental right to control the use of the property (which is essentially what the Federal Circuit held), but, beyond that, a clear statutory directive that the government must manage the property for the monetary benefit of the beneficiary Indians. That sort of clear statement is lacking in White Mtn. Apache and so I say "REVERSE."

In U.S. v. Navajo Nation, what's at stake is bigger: hundreds of millions of dollars in royalty payments for mineral extraction from Indian lands. The allegation is that the government was required to act in a fiduciary capacity towards the Indians in setting the royalty rate, but that the government was in fact acting more in the interest of Peabody Coal and royally screwed the Indians whom it was supposed to be protecting. Here again, what we're looking at for guidance is Mitchell I and II. The plaintiffs' arguments have a great appeal: if the government is supposed to be acting in the best interests of the Tribe in this context, and it instead intentionally screwed them, that's an outrage. But I think it's more likely that this Court will take hard-nosed approach: "Don't give us that touchy-feely generalized abstract stuff about 'supposed to act in the best interests of the Tribe'; If you want $600 million from the U.S., you'd better show us a statute that clearly imposes on the U.S. the duty to do what you say it should have done. And we don't see any such clearly-applicable clearly-worded statute, so you're out of luck." So I'm saying "REVERSE" here too.

My little rant is not just that – if things go the way I expect – this will once again be a triumph of the more powerful over the less powerful. It is that, even while the Court portrays itself as doing the least "activist" part of its job – "we're just meekly doing our best to interpret the statutes that Congress drafted!" – there is much room for the Court to "actively" create the governing law, by (for example) saying "it's not clear that Congress meant 'x', and we would need a very clear statement to that effect before we would interpret the statute as meaning 'x'." As you can see above, I expect that sort of argument to carry the day in these cases. And so the lesson today is, don't think of such rules as being neutral, mild-mannered, self-effacing ones on the judiciary's part. Those rules can be – not that they always are, but that they can be – the vehicle by which judges make sure that statute-based cases come out the way they think the law "ought" to be.

posted by sam 7:53 AM 0 comments

Thursday, November 28, 2002

Happy Thanksgiving. Supreme Court predictions for next week will start tomorrow. I would have started today, but for three reasons: (1) my prediction is that in Monday's two cases, Indian tribes are going to get hosed, and I'd rather focus today on the positive side of Thanksgiving; (2) I've got to spend the morning breaking down cardboard boxes instead; and (3) whatever time is not spent breaking down cardboard boxes, and eating with friends and family, will be spent in re-inventing my recipe for oyster dressing. My game with myself is that I never write down the recipe. It includes ____ jars of oysters (drained and chopped up into big pieces), _____ crackers (crumbled), ____ onions (caramelized), ____ butter and half-and-half to get it juicy in the pyrex pan, and salt and pepper and ______. Then I cook it for ______ at ______ degrees until it looks good. Each time I make it, I require myself to fill in the blanks. It's never been bad so far.

posted by sam 7:28 AM 0 comments

Well, that didn't take long: U.S. District Judge Sharon L. Blackburn has dismissed the lawsuit challenging Birmingham's Vulcan statute under the establishment clause of the First Amendment. See below for earlier discussion.

posted by sam 7:03 AM 0 comments

Wednesday, November 27, 2002

As many of my friends in the left-hand links column have already discussed, the great moral philosopher John Rawls died recently. It's funny to me that -- not having looked at blogs or newspaper, and being unaware of his death -- I was shelving books in my new office yesterday and got a little jolt of inspiration on picking up the familiar big green paperback of his "A Theory of Justice."

Professor Rawls was a warm and mild person, and it was easy to imagine that this personality (and the things that created that personality) drove him to his gut sense of moral philosophy. On the other end of the small-world academic spectrum, in the days when I studied those things, you had Professor Nozick, with a more individualistic moral philosophy that could only have come from someone with a more brash and self-pleased personal style.

I hope it's not disrespectful to Rawls to say that neither of them, I suppose, ever really convinced anybody who wasn't leaning in his direction already. If you were a Rawlsian sort, then his explanations of where those gut impulses would lead, in a philosophical sense, were mesmerizing and inspiring. If you weren't a Rawlsian sort to begin with, at least deep down in your heart of hearts, then his beautifully articulated theory of justice would have seemed like bleeding-heart naivete. I am tempted, often and even now, to describe the difference between Rawlsians and non-Rawlsians as the difference between people who care deeply about the happiness of those less fortunate, and people for whom that is pretty low on their personal priority list.

So here's my Thanksgiving wish for tonight: Thanks to Professor Rawls for building an unshakeable philosophical foundation for those to whom distributive justice is a living concern.

posted by sam 8:57 PM 0 comments

Tuesday, November 26, 2002

It is sometimes hard to tell the difference among: (1) a person who simply has no clue; (2) a person who is pretending to have no clue, in order to make a joke; and (3) a person who is pretending to have no clue, in order to make a political point. I think that this person -- who, in the aftermath of the Montgomery Ten Commandments case, has sued claiming that Birmingham's statue of Roman god (or demi-god?) Vulcan, is a violation of the First Amendment too -- is of the third category. But again it's hard to tell. In case any of the rest of you is confused, let me point out that the City of Birmingham does not try, and has never tried, to proselytize on behalf of, or to endorse belief in, ancient Roman polytheism. It's about iron and steel, not religion. This is, as we lawyers say, the material distinction between the Vulcan case and the Ten Commandments case. Duh.

posted by sam 4:07 PM 0 comments

Days without blogging, and even without reading blogs. My body is shaking from the withdrawal. I might be back up to speed tomorrow. The last couple of days have been spent in moving home+office, with chagrin at how much stuff we have accumulated. Back soon, in any event. Thanks for checking. Don't give up on me. Supreme Court predictions for next week coming soon, as soon as I find my brain under all these boxes. Sam

posted by sam 2:20 PM 0 comments

Saturday, November 23, 2002

The Alabama Supreme Court, according to this news report, believes that the state's death penalty scheme (in which judges are free to override jury recommendations of life sentences, and to impose death) is constitutional even after Ring v. AZ. I haven't seen the opinion yet, but I have a definite opinion that the state's law is in fact unconstitutional under Ring, particularly because there is no provision in the law by which the jury is to make factual findings on the existence (vel non) of aggravating circumstances that would be binding on the judge.

posted by sam 7:02 AM 0 comments

Various people are doing a great job of shedding light on tort-reform rhetoric -- and in particular that old canard about the McDonald's hot coffee lawsuit -- so I don't have to. Read Off the Kuff, P.L.A., and Jeff Cooper.

posted by sam 6:58 AM 0 comments


One of my oddly-Eminem-acceptant friends says, re my assertion below that I don't like arrogant, swaggering, recording artists,
Jeez, Sam. If you don't like arrogant swaggering singers, you must not like
Rock'n'Roll. Or the Blues for the matter. I mean, Robert Johnson and Mick
Jagger and John Lydon and Jerry Lee Lewis are nothing if not arrogant and
swaggering. Then there's Bob "Idiot Wind" Dylan.
I think that we may be on to something here -- and it may be a useful thing for Amazon's Chief Algorithms Officer to know. (I used to think that I was an individual. Now, thanks to Amazon, I know that I'm "just another one of those liberal intellectuals who likes to listen to alt-country music while he cooks.").

I do find, now that you mention it, that I don't really like the swaggering arrogant blues musicians -- I gravitate towards the shuddering-in-fear-of-God sound of Blind Willie Johnson, and like Muddy Waters' "Mannish Boy" etc. a lot only because I sense a smile behind that arrogance. (Same with Howling Wolf; and definitely, obviously, with Bo Diddley of course). Mick Jagger, you can have; give me Peter Wolf, shuffling pleasantly down the street in Boston without knighthood, entourage, or lycra. (Though to Mick's credit, he does some great backup singing on Peter Wolf's latest record). I would rather listen to an hour of Buddy Holly than five minutes of Jerry Lee Lewis; this probably makes the people who made that test all the more certain that I am female. In punk, too, I gravitate towards the people who seem (in, and from, their music) to be self-effacing or at least reasonably-self-doubting rather than the people who are full of themselves. As for Bob, I satisfy myself that his arrogant side is only an occasionally-worn mask to hide the turmoil; I hope I'm right. Even with old-time music from the 1920s and 30s, a genre notably lacking in artists who were unadulterated self-congratulators, years can sometimes pass before I'll put on a record of Uncle Dave Macon, with his flashy clothes and banjo-twirling and sometimes self-applauding stance.

Yep, that's my Amazon music profile: I like records by musicians who either aren't arrogant and swaggering, or are swaggering with a little wink to let you know that it's just (or at least partly) a put-on. (The one exception: Hendrix. If I had been Hendrix, I would have swaggered too.). If Eminem has that wink, then maybe it'll grow on me.

posted by sam 6:40 AM 0 comments

Friday, November 22, 2002

There continues to be little time for blogging around here today. I regret to say that this will probably continue through Monday. I do have time, though, for these two thoughts:

1) In the last 24 hours, 3 people whose musical tastes, politics, and core values are largely similar to my own have told me that they like Eminem's records. I don't know what to make of this. I even downloaded some stuff, and it still seems to me that it's just the sound of an arrogant swaggering guy, with a good producer. I don't like arrogant swaggering guys, even if they do have good producers. If you can clue me in, please do.

2) For some reason, I have been thinking all morning about a quote from William Kunstler, making an objection in the Chicago conspiracy trial. At the very beginning of the trial -- indeed, before the beginning, during jury selection -- the judge was reading the indictment to prospective jurors, and was doing so in a very dramatic way, seemingly to make the jurors shudder at the horrible conspiracy of those darn hippy freaks. Kunstler jumped to his feet and said "We object to the reading in a manner in which Orson Welles would read the Declaration of Independence." Of course there was no way that the objection would ever have been sustained, and no way that its overruling, in itself, would ever have formed the basis for a reversal by an appellate court; but the objection was, I think, a brilliant way of challenging authority. Sometimes a lawyer has to know how to do that -- and doing it in just the right way is extraordinarily difficult. I googled about this to make sure that I wasn't dreaming the quote, and found only one page on the whole web discussing this. (Now of course there are two). It's a recent article by a B.U. Law Professor about the trial as theater and law, pdf file here, that looks well worth reading.

posted by sam 12:16 PM 0 comments

Thursday, November 21, 2002

Have you always thought that your life would be complete if you could hear Bob Dylan sing George Harrison's "Something"? Lucky you. Also what appears to be his first-ever live performance of "Yea Heavy and a Bottle of Bread". Both in Real Audio from Bob's site.

posted by sam 6:11 PM 0 comments

Unless I find a hidden pocket of time, significant blogging is unlikely today. You'll be fine, I'm sure.

posted by sam 8:23 AM 0 comments

Wednesday, November 20, 2002

Judicial nominations, etc. Remember a few weeks ago when Senator Hatch explained that his view of Senatorial consideration of federal judicial nominees is that the President should ALWAYS get his way (assuming that the nominee is competent and unbiased), with the tiny proviso (inserted in order to explain his vote against a Clinton nominee) that if the home-State Senators are against a nominee then the Senate should reject him or her? Here's my earlier post, calling that a peculiar view and one that no one should feel compelled to share. Now I see, thanks to Howard Bashman's latest roundup of pending appellate nominations, that (in connection with a Ninth Circuit vacancy) we may have a chance to see whether Senator Hatch even believes in his stated view -- or whether perhaps there is a proviso to the proviso, to the effect that the "home-State Senator's prerogative" only applies when the home-State Senator is a Republican.

This is one of several recent news items that have been foreshadowed by Ignatz. Everyone in Alabama is starting to recognize that the State may well have to pay a million or so in attorneys' fees to the plaintiffs in the Ten Commandments case; and you heard it here first. Supreme Court observers are starting to see that Gonzales, not Estrada, is at the head of the line for Supreme Court vacancies; and I pointed out weeks ago that many aspects of the confirmation battles were a setup for that outcome. (I do recognize I'm not the only person who saw this coming!).

Clever me.

posted by sam 10:41 AM 0 comments

Tuesday, November 19, 2002

Following the decision by Judge Thompson that the Ten Commandments monument in the Alabama state judicial building must go -- a decision that is quite obviously compelled by Supreme Court precedent, I might add, and that can only be overturned by either a judicial fudge or an overt overruling by the Supreme Court of fundamental principles of current constitutional law -- there are rumblings among the pro-monument community of possible civil disobedience, of some mass action to keep the monument in place.

And this brings up, in my mind, the difficulty of achieving a coherent theory about the propriety of civil disobedience. To put it most frankly, it's hard for me -- and hard for most people, I think -- to get past thinking "Civil disobedience is fantastic in service of a cause that I believe is very very important, but is lousy when done in pursuit of goals that I don't share." And I'm not even sure whether, by admitting that this thought forms part of my thinking, I've admitted something slightly embarrassing or not. I think that everybody probably feels the same way, at least at some levels.

When lawyering, one has to find some principle that goes beyond this "my causes are good, and causes that aren't mine are bad" notion. This is why, for instance, labor lawyers always follow with interest all legal developments regarding abortion protests; because the First Amendment (and related) arguments that we make on the picket line are very much affected by abortion protesters' success (or lack thereof) in making similar arguments. Constitutional law makes strange -- and not very close -- bedfellows sometimes. (Note that I am not drawing an equivalence, in terms of tactics or goals, between labor picketing and abortion protests; I am noting the fact that legal precedents in one field carry over into the other).

But one's approach to civil disobedience -- and particularly the avowed violation of an injunction or other specific legal order -- does not, I think, require a lawyer to espouse a principle that cuts across ideological lines. The reason is that by engaging in civil disobedience of this sort, one is not invoking a legal right that one's ideological opponents also have. Instead, civil disobedience of this sort is an act avowedly outside the law. One who does it must go into it, knowing that punishment (by contempt of court or otherwise) is the likely result. Even at the height of the civil rights movement, the Supreme Court upheld punishment of civil rights protesters for violating injunctions that they (correctly, in my view) felt were immoral and indeed unlawful. But that's the deal: engaging in civil disobedience, in terms of violating an injunction or similar order, can subject you to punishment. And so -- having recognized this -- the lawyer is (I think) free to step out of the lawyer-shoes into human shoes and say "does it strike me that this cause is just enough, to warrant violating the order?"

There is, though, one context in which civil disobedience should -- in my view -- be reserved for the most truly once-in-a-lifetime extraordinary situation, if indeed you can think of any example in American legal history where it would be warranted. That context is the one that presents itself in the Alabama Ten Commandments situation: where the person subject to the judicial order is himself a government official -- here, the Chief Justice of the Alabama Supreme Court. The entire concept of being the Chief Justice of that Court, and indeed the entire concept of being a government official, entails an obedience to the law, even if you really really really think that the law is really really really wrong. Civil disobedience by a government official is not civil disobedience; it is usurpation of governmental authority, and it is contrary to everything that our democracy holds dear.

So, my best hope is that Chief Justice Moore will tell his followers, in the strongest terms possible, that he will comply with Judge Thompson's order (while appealing it, if that is what he chooses to do); and that he will ask them not to make it more difficult for him to obey the law in that regard. I trust and believe that he will do precisely that.

posted by sam 4:06 PM 0 comments

Monday, November 18, 2002

Class actions

As the New York Times reported (here and here) yesterday, corporate lobbyists are hard at work on new bills to reduce the availability of class actions to redress corporate and governmental malfeasance of various sorts. A class action, as you probably know, is a case in which one or a few individuals sue not only on their own behalf, but on behalf of – i.e., seeking redress for – all others similarly situated. There has been a concerted effort by corporate lobbyists, lawyers, and PR folks to portray the class action system as unfairly tilted against corporations.

The current proposal, discussed by the Times, is to allow removal of state-court class actions to federal court, even when each individual class member's claim is tiny. That is currently not allowed, but corporations want to change the law in order to allow it. It's sort of funny, in a sick way, that this proposal is seen as making headway – now that we are governed by the party that nominally loves state sovereignty – just weeks after the Supreme Court unanimously reminded us that an over-broad view of federal removal jurisdiction is an affront to the "rightful independence of state governments". But I'm well accustomed to the fact that state's rights rhetoric is just a tool, used when convenient, to put a happy face on interest-group power grabs, and discarded when inconvenient; I hope that you are accustomed to that, too, and can see through the political uses of that rhetoric.

How truly significant this expansion of removal jurisdiction would be, on its own, is subject to debate I suppose. But don't make the mistake of thinking that this change would come on its own; instead, it would be one of many bricks in a new wall of laws designed to make it harder to bring class actions. Having corralled such suits into federal court, lobbyists will work for even more new federal rules to make such actions substantively and procedurally more difficult. This is just interest group politics, pure and simple.

So, speaking in terms of interest group politics, the company lobbyists would like to portray the relevant groups as "class action lawyers" vs. "the rest of the nation". Being (as one part of my practice) a class action lawyer myself, I have a different view. And my view, I like to think, comes not only from being a class action lawyer but from being a consumer, like the other hundreds of millions of my American readers out there. Now, I recognize that class actions are sometimes an imprecise and imperfect way of redressing corporate or governmental misconduct. But until some better way is unveiled and made widely active – and none has been, so far – the real question (at least as to class actions against companies) becomes "do you think that corporations are being overdeterred, or underdeterred, from dicking over large numbers of consumers?" If you think that companies are overdeterred, then class actions should be made less available; if you think that companies feel too free to cheat us without real fear of consequences, then you should favor greater availability of class actions. When a company cheats a million people out of 10 or 50 or 500 or even a couple of thousand dollars each, there is of course no real prospect of a wave of individual lawsuits by the cheated. Nor is there any governmental agency that can keep an eye on all such shenanigans. It's class actions, or nothing. Would you prefer "nothing"?

My view as a consumer – and again as a class action lawyer – is that companies are grotesquely underdeterred from dicking us over en masse. It happens all the time, in my experience. For instance, a couple of months ago my cable company called me and asked if I would like HBO free for 60 days. Being a suspicious sort, I cross-examined the salesperson and determined that I really wasn't going to be charged anything so long as I cancelled it on the 59th day. A couple of days later I called to see when my free HBO would be turned on, and cross-examined a second representative and got the same assurance. So the 59th day came this week, and I called the cable company and was told that the deal had been 30 days and they'd been charging me for the last month; and sure enough my bill just came and I've been charged. Now it is conceivable I suppose that this was an isolated mistake that happened only to me, somehow. But it's quite possible that this affected hundreds or thousands; and it is even possible that it was intentional. If you find that inherently implausible, I've got a bridge I'd like to sell you. And of course this is a relatively petty example. Bigger examples abound, in reported cases; and that's why the companies are working hard to defeat the class action bar.

If your experience is like mine – teaching you that corporations assert the unbridled power to dick us around for a few dollars here and there or even for lots of dollars, and that there's nothing you can do about it but gripe at some low-level employee wearing a telephone headset – then I suggest that your interests are more aligned with us class action lawyers than with corporations. And you, like me, should oppose corporate-driven legislation to curb such lawsuits. This is not to say that the current system of class actions is perfect; nothing is perfect. But the corporate drive for "reform" isn't designed to make it perfect from anyone's perspective other than the corporate one. Please try not to be fooled by their rhetoric and horror stories.

posted by sam 8:21 AM 0 comments

Sunday, November 17, 2002

Fellow Alabamian-progressive-law-blogger Ed Still has a great op-ed piece in the Birmingham News today, about the importance of putting together a thoroughly-considered set of state election laws that actually work together as a coherent whole.

posted by sam 9:03 PM 0 comments

Not much blogging today, just these two points:

1) I don't care much for regular Tabasco sauce these days. The very hot garlicky red sauce in the bottle with the rooster on it, available at Asian grocery stores, is the standard in our house. But I did order from Tabasco.com big bottles of the four new varieties of hot sauce -- Chipotle, Habanero, Garlic & Green -- and they are all well worth having around.

2) Assuming that Judge Thompson of U.S. District Ct., Middle Dist. Ala., has not changed his previously-indicated plans, his order and opinion in the Ten Commandments in the Courthouse case (previously discussed on this site ad nauseam, e.g. here) will be coming out tomorrow. My advice: read Howard Bashman's site regularly throughout the day, as he'll probably have a link to the opinion as soon as its available. Unless he's tied up writing a brief all day, as I will be.

posted by sam 7:23 AM 0 comments

Saturday, November 16, 2002

I have been declared, by this little test, to be female -- with an 86 percent confidence level in that assertion. In this, I am precisely as clearly-female as Jeanne D'Arc, Ampersand, and Sisyphus. Remember, everybody: gender roles are a social construct. gender roles are a social construct. gender roles are a social construct.

posted by sam 7:21 AM 0 comments

Friday, November 15, 2002

Following up on my "aargh" directed at some dude at NRO below, Kieran Healy makes the important point that adjudication itself -- the process of deciding cases -- is not just politics by another name, or at the very least cannot be seen as such if the courts are to have legitimacy. In case I've been misunderstood by anyone (but if so, read my last few posts on the matter and you'll see that I have not been accusing any sitting judge of politically- or otherwise nefariously-based decisionmaking), let me say I totally agree. Judging is not all politics. But judicial appointments ARE all politics. Prospective judges believe in their own various theories of constitutional law, or statutory interpretation, or approaches to common law, or approaches to administrative law, for complex and indeed never-discernable reasons. Politics is a lot of it, but not all of it; there is also philosophy and personality and experience etc. etc. etc. But the people who pick specific prospective judges to be actual judges do so for the specific political purpose of advancing the consequences that they expect those judges' theories will result in.

The guy to whom I "aarghed" was trying to gloss over this point, and trying to pretend that law has correct answers to the most hotly disputed questions. He said in paraphrase (go read it if you want) that it was wrong to oppose nominees on the grounds that they would turn back the clock on race, strike down environmental regulations, etc., because the only criterion that should matter is what the law "is". But what the law "is" is always changing, sometimes drastically. It doesn't change on its own; it changes because humans (especially robe-wearing humans) change it. To say otherwise is naive or faux-naive, and we have here a simple matter of politics as to whether we collectively WANT the courts to be more likely to rule in favor of certain interests -- again, not because the judges are nefarious, but because they are carefully-selected on the basis of their preexisting views.

Again, this is all a penetrating glimpse into the obvious, I recognize -- because otherwise, Pres. Bush would have solved the so-called "judicial vacancy crisis" by renominating all of Pres. Clinton's languished nominees, and ta-da! A full federal bench!

posted by sam 7:19 AM 0 comments

If the facts are correctly reported in this NYT article, Citigroup intentionally misled investors with the specific purpose of helping a high executive's children get into the nursery school of their choice. Yes, you read that correctly. The big-dog analyst at Citigroup raised AT&T's rating, because it would serve the personal ends of Citigroup's chairman, who would in return use his influence to get the tykes into the exclusive nursery school. If this does not enlist you in the class war of the ultra-rich vs everyone else, then you are clearly a class-war appeaser.

posted by sam 6:49 AM 0 comments

Thursday, November 14, 2002

You can call it stupidity if you want, but I've been spending some time the last couple of days on right-wing-law-bloggers' sites (Stuart Buck and Discriminations) trying to convince those poor souls that their views are not objectively correct, and that their pejorative adjectives about what we liberal lawyers think ("shrill", "activist," etc.) are no more inherently convincing than our pejorative adjectives about what they think ("shrill", "activist", etc.). Fewer adjectives! More reasoned arguments! And most importantly, admit that your (and my) preferences are preferences, not indisputable truths! That's my motto, when I remember to adhere to it.

UPDATE: Aargh! Here's another guy talking about jurisprudence and nominees, who needs to be reminded: DUDE! Your preferences are preferences, your beliefs are beliefs, and they are NOT truths! You want judicial rulings that favor the interests with which you align yourself. Say it, admit it, be it: you want those things, and you want the confirmation of judges whom you expect to do those things. That is your preference, not an insight into what the law "is" in some objective sense that liberals are too blinded to recognize. And it's not my preference. (link via Howard Bashman).

posted by sam 12:32 PM 0 comments


I hope that the Nation's educators are developing plans to teach this generation of kids the vital skill of Boolean or simpler-than-Boolean text-based searching. I am not making a joke. Those of us who use LEXIS/Westlaw have known this skill for years. And as Google becomes the great library in the sky, this skill will be important to nearly everyone.

I mention this -- and again I am not making a joke, because I think that doing a good boolean search is an interesting art/science, and one that can be taught -- because I find through my referrer thingy that I am site number 6 in the whole wide world for someone searching on the following:

pictures of mr bean doing funny things for downloading

posted by sam 6:55 AM 0 comments

Labor As Nathan Newman reports, the Supreme Court has denied cert in an important labor law case, thus leaving intact a Ninth Circuit ruling on a "Beck" issue. "Beck" is shorthand for the complicated law about the extent to which union-represented employees can be required to pay union dues even when they would rather be freeloaders; this ruling allows unions to collect, from those would-be spongers, the costs (among others) of organizing other workplaces. Now, coming from the "right-to-work" South, I've never had to develop an expertise on Beck issues because in the "right to work" states there is a right to be a complete freeloader. Nonetheless, Nathan has explained to me that -- beyond being a good result in a nationwide sense from the point of view of interests that I care about -- this will have indirect but beneficial legal ramifications in related contexts even in right to work states, but I can't tell you about those good consequences unless you know the secret handshake.

posted by sam 6:48 AM 0 comments

Wednesday, November 13, 2002

Labor After putting it off for far too long, I've begun summarizing the latest NLRB decisions that have issued since my last update on the new-decisions sub-blog. People who aren't labor lawyers or in the labor movement won't be interested, so don't bother clicking here if that describes you. (If that link doesn't work for you, as it's not currently working for me, just look over to the left and click "Decisions".) Here's the bottom line: (1) the two Bush recess appointees are busy pointing out precedents and rules that they'd like to see overruled if the Board ever gets a full complement of Members; and (2) some unions spend too much time fighting each other.

posted by sam 1:09 PM 0 comments

Tuesday, November 12, 2002

If all politics is just fighting over the middle ground to get 50% +1, as we are sometimes told, then it is helpful to remember that where "the middle" is, is itself variable and subject to being nudged or even moved substantially depending on what time and place you're talking about. Note, for instance, this story from Eugene, Oregon, about the issue that apparently has that community split approximately down the middle.

posted by sam 8:58 PM 0 comments

A long post about politics and judiciary

Inspired by Jeff Cooper's entry into this dialogue that Howard Bashman and I had started up, let me take a few more minutes to mention a couple of cases – just two examples among zillions – that demonstrate that the composition of the judiciary can influence the course of federal appellate decisionmaking.

I represented a union-affiliated health and welfare fund (you can think of it as "health insurance" for simplicity's sake). Like many such funds around the nation, we were trying to recover against the tobacco industry for the costs of treating illnesses that were caused by tobacco. All such cases, I think, were unsuccessful, and mine was too. But I came up – if I do say so myself – with a very clever argument that no one had thought of before, which was a theory of "tortious interference with contract." My theory was well-grounded in the Restatement (2d) of Torts, which is one of the core sources of common law; my argument was innovative but by no means loopy. The question for the Eleventh Circuit was whether Alabama law should be construed to recognize this theory. There simply was no "correct" answer; an equally reasonable opinion could have been written for me, or against me. Long story short: I lost, and the Judges dismissed my brilliant theory in a short footnote that (to my eye, having delved deeply into the case) was quite unconvincing. Now, I am NOT, NOT, NOT saying that the judges who decided the case are unfair, or that they were playing politics with me even on a subconscious level; I like and respect those judges a great deal, and I felt comfortable when I found that they would be on my panel because I know that they are fair. But this, I think, is an example of a case – and such examples are quite common – where the composition of the bench matters a great deal. To be most blunt about it: Just as President Bush knows what he's talking about when he says he wants to appoint judges in the mold of Justices Scalia and Thomas, I would prefer to see the appointment of judges who would be more likely to rule for the plaintiff in a case like this; and judges could do so without departing in any way from the mainstream of American jurisprudence. It would have been fair and honest to rule for me, just as it was fair and honest to rule against me.

Now to the more perilous part, where I roundly criticize a specific decision as being not only "maybe right, maybe wrong, depends on your point of view" but completely bizarrely wrong, and wrong in a way that serves a particular set of interests. When I was preparing for that argument, I came across a then-recent decision of the Seventh Circuit that I thought – and still think -- included perhaps the most obviously wrong broad statement of law I've ever read in a modern federal appellate decision. (The case included a lot of other stuff too, about which I don't really have an opinion; but I'm telling you about the part that struck me). The case was Insolia v. Philip Morris, and the Seventh Circuit in that case said that, when a federal court is trying to figure out a question of state law, and the answer to the state law question is unclear, the default rule should be "defendant wins." Here's the quote that I'm talking about:
Though district courts may try to determine how the state courts would rule on an unclear area of state law, district courts are encouraged to dismiss actions based on novel state law claims. … When confronted with a state law question that could go either way, the federal courts usually choose the narrower interpretation that restricts liability.
If you've had a semester of law school, you'll know why that seems absurd and unfair to me; if not, I'll just say, it's contrary to everything that the Supreme Court and every other court has said about the federal approach to state-law questions for decades, and is avowedly tilted towards defendants (who tend to be corporations, the establishment) and against the plaintiffs (who tend to be consumers/workers/injured persons). And no Sam Heldman-appointee to the federal bench would ever, ever, ever, consider signing on to an opinion that included that statement. I fear that many Bush II appointees would be glad to – and would say "see, we're just following precedent. see Insolia." This matters a great deal; this statement, if widely adopted, could make the difference in many many many cases, and almost always to the advantage of a corporation and the disadvantage of a person.

You may notice, if you're tuned into such things, that the Judge who wrote this statement in Insolia was a Clinton appointee. This shows that a judge's philosophy – including whether he or she would find this statement as bizarrely and obviously wrong as I find it – is a subject far too complex to be reduced to "Republican appointee" vs. "Democratic appointee". And again, I don't mean to say that any judge who followed this statement – or the Judge who wrote the statement – was or would be doing something other than trying to be the best and fairest judge that he or she could be. We're all human, and are motivated by the various things that motivate humans, and sometimes make mistakes. It is possible to criticize (even severely criticize) judicial decisions without decrying the judges themselves; and that is what I mean to be doing.

But getting back to the point: I think that both of these cases that I've discussed – and a million other examples – show that there is much room for different outcomes in federal appellate judging. And predicting whether, how, and to what extent a judge will be swayed by philosophy/politics/belief in any particular case is impossible. But the broad picture is pretty undeniable: this President knows that he wants judges who will be more likely to rule for the corporation against the individual, for the government against the criminal defendant, etc., and I don't want that. Even Chief Justice Rehnquist – in agreeing in an interview not too long ago that Justices have some tendency to want to be replaced by nominees of their own political party – knows what I'm talking about: Presidents can, in a general sense, pick judges who tend to make decisions that political adherents of their own party will prefer. To say that I want more progressive judges is nothing radical; and to say that the politics and policy-preferences of judicial appointees matters, is nothing shocking or disrespectful.

UPDATE: You know, now that I have written the above, in painstakingly obsequious fashion I might add, it seems to me like what they used to call "a penetrating glimpse into the obvious." Does anybody disagree with it? Maybe not.

posted by sam 2:59 PM 0 comments

Supreme Court this week To recap the cases up for argument this week: U.S. v. Recio, the case about a particular facet of the definition of "conspiracy," is discussed here. Moseley v. Victoria's Secret, about trademark dilution, is discussed here. Smith v. Doe and Ct. v. Doe, about sex-offender registration laws under the Ex Post Facto and Due Process clauses respectively, are discussed here. I'm predicting reversal in all four cases, though I could very very easily be wrong about Moseley. (Of course, I could be wrong about everything. You know that.) Don't be surprised if the Court puts out one or two more opinions, unanimous or nearly-so, in cases argued last month; I've got my eye on Howsam v. Dean Witter (about time limits in arbitration) and Barnhart v. Peabody Coal (about coal miners' benefits).

posted by sam 6:33 AM 0 comments

Monday, November 11, 2002

Supreme Court

The last cases to be argued this week – on Wed. 11/13 – are two so-called "Megan's Law" cases, arising out of the wave of legislation directed at the registration and other regulation of convicted sex-offenders. The cases are Smith v. Doe and Ct. Dep't of Public Safety v. Doe. The "Doe"s, the convicted people challenging the new laws, won both cases in the federal courts of appeals. The two cases, though they are to be argued on the same day, present different issues.

First, though, a shout-out to the memory of Morton Stavis, a great old progressive lawyer who died about ten years ago after a very distinguished career. Why mention him in this context? Because when no one else would touch the cases, he took on the task of making sure that some people who were unjustly accused of child sexual abuse were not railroaded through the use of coached testimony and other aspects of prosecutorial hysteria. Mort didn't think, and I don’t think, that sexual abuse of kids is a good thing; but he recognized, and I do too, that the Constitution is not to be set aside even when the crime charged is a highly disturbing one. (Plus, in another context, he taught me that when you need an inspiring quote about the importance of the judicial role in ensuring that dissidents must not be subjected to trumped-up political charges on account of their views, a good place to start looking is in all the published opinions about the various prosecutions of union leader Harry Bridges).

Back to the cases! The first, Smith, comes out of Alaska. The Ninth Circuit, in an opinion (pdf) by the brilliant judge Reinhardt, held that Alaska's law (imposing very strict and very frequent registration requirements, etc., on convicted sex offenders) violated the Ex Post Facto clause of the Constitution, as applied to people whose convictions had occurred before the enactment of the law. The Ninth Circuit did not say that this holding would apply to all states' versions of such laws, but painstakingly explained why, under existing precedent (including U.S. Supreme Court precedent) Alaska's particularly onerous law did constitute punishment, which means it failed the "Ex Post Facto" test.

In the second case, Ct. Dep't of Pub. Safety v. Doe, the Second Circuit (opinion here) struck down Connecticut's law – which involved web-posting of lots of information about registered sex-offenders – as a violation of those persons' Due Process rights. In summary, the Court held that the posting constituted an assertion that each such person was more likely to be dangerous than the average person – and that it amounted to a deprivation of liberty, without due process of law, for the State to make such an across-the-board assertion without having individualized hearings about each person's likelihood of future dangerousness.

In the Connecticut case, my sense is that the impulse of many Justices will be to say "there's no constitutional impediment to the government's dissemination of true statements of fact – and there was no real implication that Mr. Doe was in fact still dangerous, just the dissemination of information on the basis of which everyone could make up his or her own mind about that question. So, no problem." Thus I'm betting that the Court will REVERSE in this case.

How about the Alaska case? I'm saying "REVERSE" there, too. While this Court can occasionally put together a majority to do something politically unpopular even in the field of sex law, I don't think it'll happen this time. The majority, I'm guessing, will hold that Alaska's law was a civil regulatory measure rather than an imposition of additional punishment after-the-fact – and therefore did not implicate Ex Post Facto concerns.

I find that I'm predicting "REVERSE" a whole lot these days.

posted by sam 12:28 PM 0 comments

Howard Bashman writes at some length about the process of federal appellate judging, arguing that it is extraordinarily rare -- and perhaps close to unheard-of -- for a federal appellate judge to issue a ruling based on his or her personal preferences, instead of basing it on the law.

Howard's post is well worth reading, and I don't have time right now to give a lengthy response. But I do think -- and I'm not at all sure that Howard would disagree -- that there are many many many cases in which federal appellate judges could come down either way. That is, precedents and other legal sources don't dictate the results in many cases; the lawyer on each side of the case can make a plausible argument that his or her side is due to win. Those cases don't meet the challenge that Howard has thrown down, challenging anyone to bring forward a case where a judge reached an obviously wrong result based on his or her preference. In the cases I'm talking about -- cases that constitute a sizeable percentage of the federal appellate docket -- a judge could in good faith go either way; and in those cases, it DOES matter very much what the "leanings" of the federal bench are. This is because they are human beings.

Federal appellate judges are often called on to decide, for instance, whether an employment-discrimination plaintiff has adduced enough evidence of discrimination, to warrant a trial; some judges tend to say "yes" more than "no," and some vice versa, even when presented with the same evidentiary record. I say this, without meaning to say that the ones who say "no" are liars or racists; but there are some who definitely lean towards rejecting employment-discrimination cases. In other types of cases, there are likewise judges who are more and less sympathetic to one side or the other -- and sympathies can make the difference in many cases.

Furthermore, a decision based in substantial part on a judge or panel's leanings -- even, again, when not "obviously wrong," still based subconsciously on leanings -- then becomes precedent and affects litigants in future cases. In other words, even when a particular case's outcome is pretty clearly dictated by precedent, that precedent itself was fairly often the result, at least in substantial part, of the prior judge or panel's leanings.

Make no mistake: if you have a bench full of very conservative people, then even if they are completely honest and upright, the decisions of that bench will move visibly towards what those judges think is best, even in the mundane sorts of cases. And this is why we should make conscious decisions about what people we want on our federal appellate bench, rather than indulging a faith that the politics and preferences of judicial nominees do not matter.

posted by sam 7:40 AM 0 comments

The only daily comic strip I read regularly, these days, is The Boondocks, which I have delivered by email every day. Its creator, Aaron McGruder, said this, which I will adopt as my personal motto:
"There's a tremendous lack of honesty and truth and sincerity in all forms of public discussion. Everyone is basically lying to you. It's not that everything I say is true, but at least I think it is."
Link via The Sideshow.

posted by sam 7:13 AM 0 comments

Sunday, November 10, 2002

Every time I open the newspaper I feel curmudgeonly, as I read people saying things that are rather clearly lies (the only other possibility being that the people involved are extraordinarily dim). Today's example takes the cake: in an article in the New York Times on a company that's developing tiny silicon chips with radio transmitters, to implant under your skin to identify you, etc., the company spokesperson -- when asked about possible future consequences of this technology, including Big Brother government monitoring -- says ""You're taking me down a road I've never speculated about." I'm sorry -- the guy works as a spokesperson for the company developing this technology, and he's never speculated about future uses of it (including some pretty darn scary ones)? I'm voting for "lying" over "extraordinarily dim" myself. The third possibility -- that the NYT is misquoting him to make him look like he's lying or dim -- is conceivable too.

posted by sam 6:51 AM 0 comments

Friday, November 08, 2002

Supreme Court

Next case up for prediction in the Supreme Court sweepstakes is Moseley v. Victoria's Secret, presenting this Court with its first opportunity to discuss the Federal Trademark Dilution Act, 15 U.S.C. § 1125(c). Others, in writing about this case, will giggle about lingerie. Not me; I find it titillating occasionally, but rarely worth giggling about. (I did, however, really like Raymond Carver's poem "Lingerie". I saw him read it once, in person. He was very awkward in person at that time. But I digress).

This statute – which is different from and more recent than the more general Trademark laws – allows the owner of a trademark (e.g., a brand name like "Victoria's Secret") to get an injunction against someone else's use of a similar mark, even without proving that consumers would be likely to get confused as between the two marks. General trademark law allows suits if there is that sort of likelihood of confusion; for instance, I probably couldn't start a website called "www.walmart1.com" and start selling stuff on it, because I would be tricking people into thinking that I was Wal-Mart. (That's the theory, at least). But this new law, as I said, allows an injunction even without proof of confusion, so long as the holder of the older famous "mark" can prove that the newcomer's mark "causes dilution of the distinctive quality" of the famous mark.

And this case, nominally, is supposed to resolve a circuit split as to what you have to prove, as the plaintiff, in order to prove that the newcomer's mark (as in this case, "Victor's Little Secret" for a store selling lingerie, adult toys, and whatnot) "causes dilution of the distinctive quality" of the mark "Victoria's Secret." Some courts have said that you have to have objective proof of actual current injury to the economic value of the famous mark. The Sixth Circuit, in its opinion in this case, disagreed, and did not require objective proof of current actual injury. Instead, the Sixth Circuit sort of said, "Well, duh, any reasonable person can see that having a cheesy store selling somewhat similar, but cheesier, merchandise will 'taint' the distinctive value of the 'Victoria's Secret' mark with a bad association; even if no consumer is actually confused, it will make them subconsciously think 'cheesy' when they see 'Victoria's Secret' from now on." That's not really what the Sixth Circuit said, precisely, but it's the gist of it.

There are, as you can see from looking at this page from Findlaw and scrolling down, lots of bigwig amici weighing in on the side of Victoria's Secret in this case; The Establishment takes this very seriously, because BRANDS are near-deities these days it seems.

How will the Court decide the case? Here's what I think: the Court won't impose a requirement of "objective" proof of actual current impact on the economic value of the mark in all cases, as the Moseleys want – to that extent, Victoria's Secret and its allies in The Establishment will win. Does this mean "affirm"? I probably should say so – after all, the expert law profs at the Wash. U. site have all predicted affirmance, and most of them predict unanimous affirmance – but I have a sneaking suspicion that the Court might end its opinion by saying something along the lines of "Well, we've just told you that you don't really need the sort of ironclad proof of current effect that the Moseleys argued for, but in the course of this opinion we've clarified what the governing law is, and it's not exactly like the standard that the lower courts applied in this case, and the best thing to do in this case, all things considered, is to let the parties go back to the lower courts and argue about how our new standard applies to the facts in this case." So, recognizing that this is a risky play on my part, I'm saying "REVERSE".

posted by sam 2:51 PM 0 comments

The New York Times reports on the UFCW's efforts to organize workers at Wal-Mart.

posted by sam 6:32 AM 0 comments

Thursday, November 07, 2002

Can anyone tell me where AG Ashcroft purports to get the legal authority to decree which state shall try the sniper suspects first? For that matter, even leaving aside the question of why AG Ashcroft gets to be the one refereeing the dispute among the prosecutors -- why do we treat this issue as though it's up to the prosecutors to work out among themselves? What I mean is, why don't we all recognize that it's largely up to the courts, with each having the power to set its own trial date after hearing from the defense about how much time the defense feels is needed for preparation as to each jurisdiction's various charges, as well as from the prosecution, and with the judges of various jurisdictions being free to consult with each other to ensure a smooth series of trial dates? Isn't that supposed to be the way our system of justice works -- that procedural decisions in criminal cases aren't solely within the authority of the prosecutor? Maybe there is a legal answer to these questions, but if so it has not been aired in the news reports that I have seen. And I do understand that AG Ashcroft, for various reasons including his "possession" of the suspects in federal custody (possession being 9/10 of the law, as they say), does have some substantial practical power to twist the arms of the various state prosecutors to go along with his preferences and in turn to pressure their respective state courts to go along too -- but the existence of that practical mojo does not, by itself, give legal legitimacy to his acting as the decisionmaker in this question, if (as I suspect) the question is more properly treated as one for judicial resolution.

posted by sam 8:53 PM 0 comments

Who's the Governor of Alabama? If anybody can help figure it out, it's Ed Still, Alabama voting-rights and election-law expert, and law-blogger.

posted by sam 8:27 PM 0 comments

Fritz Schranck has noted the decision of the U.S. Court of Appeals for the First Circuit purporting to find as a matter of fact that the Space Alien of the Weekly World News does not really exist. This reminded me (showing perhaps the odd ways my mind works) of my other favorite example of a federal appellate decision purporting to deflate a myth -- though in my example, the decision was issued about 20 years before the myth was widely disseminated. It's Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972), declaring that New Orleans D.A. Jim Garrison was nutty in his prosecution of Clay Shaw in connection with the assassination of JFK. Take that, Kevin Costner and Oliver Stone. Or does this mean, perhaps, that the Fifth Circuit's Shaw decision is -- as the First Circuit's decision on the WWN clearly is -- merely another brick in the wall of the big coverup?

On a more serious legal note, Shaw v. Garrison is a great case to cite any time your client is the target of a politically- or otherwise nuttily-motivated criminal prosecution and you need to pull out all the stops to fight it.

posted by sam 8:24 PM 0 comments

The newspapers today are full of stories noting that the President and Republican Senate will go full-speed-ahead in confirmation of right-wing judicial nominees, and perhaps even re-nomination (and confirmation) of previously-rejected nominees Pickering and Owen.

What do the Democrats need to do? Simply this: fight HARD on the Supreme Court nominee(s) -- using every available procedural move, to the point of filibuster if (as expected) the nominee is hard-right -- and on the most egregious lower-court nominees. On the remainder, the Democrats should forthrightly and simply vote against the nominees -- not blushingly and only against the worst of them, but against all who can reasonably be expected to be identifiably Republican-oriented in their judging. That way, two and four and six years from now, there can be an honest assessment by the American people once those Republican-confirmed judges have decided some high-profile cases: are these the sort of judges we want more, or fewer, of?

In advocating a resort to repeated and avowed votes-against, rather than reliance on the procedural arcana of Senatorial rules, I'm suggesting (in this context) what many people have said since Tuesday: that the Democrats need to show what they are for, rather than just being against. What Democrats need to be saying, on the judiciary, is this: You want a litmus test? I got your litmus test right here, buddy: We'd prefer to see people on the federal bench who have spent their legal careers helping those less fortunate than themselves, rather than those who have spent their time helping the rich get richer. The best way to get that message across is by doing it explicitly -- not by placing blue slips, or refusing to withdraw pink slips, or whatever the hell they do over in the Senate to block nominees surreptitiously.

Will the American people care? All I can say today is, I hope so.

posted by sam 8:33 AM 0 comments

Wednesday, November 06, 2002

Supreme Court

Moving on to next week's Supreme Court arguments: there's no court on Monday, so only four cases to discuss.

First case up is U.S. v. Recio. When I say "Ninth Circuit ruled in favor of some guys who had been convicted of a drug conspiracy", what the first thing that pops into your head? Probably "Supreme Court will REVERSE." (At least if you're the type of person who cares enough about such things to read these predictions). Especially after this week's blast of per curiam reversals of the Ninth Circuit even without full briefing and argument, it seems that this Term, the Court is continuing its pattern of reversing the Ninth Circuit often. (I previously discussed this pattern here, asserting that it does not mean that the Ninth Circuit errs more often than other Circuits, but that the pattern is an artifact of the Supreme Court's near-complete right to pick what lower court errors it chooses to bother itself with correcting.).

Anyway, getting back to the case: Recio and his co-defendant only showed up to transport the drugs after the government had already got wind of the operation, intercepted the drugs, arrested some participants, and (with the cooperation of one of those arrestees) continued on with the operation in order to sting further participants. One of the arrestees sent word to his colleagues that a new driver was needed to pick up the truck, and that's when Recio and his co-defendant showed up. Here's the Ninth Circuit's opinion (pdf), reversing the convictions for insufficient evidence that Recio and his co-defendant were actually part of a conspiracy when they showed up on the scene. The Government, seeking cert, says that the operative question is whether a conspiracy to traffic in drugs ends, by definition, when the government intercepts the drugs. In other words, on this view, the question is whether the government has to prove that Recio and his co-defendant were in fact in on the conspiracy before the government derailed it; the Government doesn't want to have to prove that. Frankly, from my reading of the opinion of the Ninth Circuit and of the briefs available on Findlaw, I'm not even sure that this question should ultimately be dispositive; ultimately this looks to be mostly a case about evidence and inference rather than about grand legal principles. But the Court took the case, so presumably some governing legal principle – beyond "that darn Ninth Circuit should be tougher on crime" – will emerge.

Someday, I hope, the Supreme Court will do something to stop the thus-far-unchecked expansion of "conspiracy" in drug trafficking cases; though the concept of "conspiracy" is supposed to require actual proof of an agreement to pursue a common goal, that requirement often gets glossed over (or at least stretched very thin and supported by conjecture) in drug cases. I am reminded of how one Eleventh Circuit Judge used to describe some of that Court's opinions in conspiracy cases: "Drugs on boat. Defendant on boat. Affirmed." But don't hold your breath for this Court to stop this trend.

So I'm saying REVERSE and will eat a handful of pecans (a high-stakes bet from my point of view) if I'm wrong.

posted by sam 2:05 PM 0 comments

On the topic of the elections, I agree with Jeff Cooper. In fact, several of my friends over there in the links column have written wise things today. Including this from Jeanne D'Arc.

posted by sam 12:15 PM 0 comments

Between the election results and the cold drizzly weather, it's a lousy morning. But on the pure narrow-and-immediate-self-interest side, there is at least this: my fame has increased thanks to a mention (and quote) in this law.com article about lawyer-bloggers.

posted by sam 8:10 AM 0 comments

Tuesday, November 05, 2002

Drug laws, etc. I have, in at least one earlier post, expressed my admiration for Ala. S.Ct. Justice Johnstone for his courage and wisdom. Catching up on some reading, I just came across something he wrote in a concurrence/partial dissent in a case decided by the Ala. S.Ct. a few weeks ago, Hale v. State, that is worth my quoting and is worth your reading:
Hale did not argue to us that his sentence of life in prison plus ten years violated his Eighth Amendment, United States Constitution, guarantee against cruel and unusual punishment. See Weems v. United States, 217 U.S. 349 (1910), Robinson v. California, 370 U.S. 660 (1962), and Harmelin v. Michigan, 501 U.S. 957 (1991). Nonetheless, wise public officials may benefit the public by pondering the ramifications of this sentence and like sentences, if not for moral reasons, at least for practical reasons.

Hale has received his sentence for selling 2.15 grams, or .07 ounces, of marijuana after having already been convicted of distributing some controlled substance. The record does not reveal the quantity or identity of the controlled substance Hale distributed the first time. The amount of marijuana Hale sold to receive the sentence now before us is enough to make four or five average-sized marijuana cigarettes. State v. Laurino, 108 Ariz. 82, 83, 492 P.2d 1189, 1190 (1972) (the average weight of a marijuana cigarette is "a half a gram").

The August 10-16, 2002, issue of The Economist magazine presents and analyzes some statistics on the criminal justice system in the United States. About 2,000,000 Americans are in state and federal prisons. "A Stigma That Never Fades," The Economist, August 10-16, 2002, at 25. About 4,500,000 more are on parole or probation. Id. Another 3,000,000 Americans are ex-convicts who have completed their sentences and any periods of probation. Id.

The total population of the United States on September 18, 2002, at 7:58:20 p.m., EDT, was 288,076,459. "U.S. POPClock Projection" by the U.S. Census Bureau, Population Division. It was increasing by a net of one person every ten seconds. Id. Even so, the total of inmates, probationers, and ex-convicts, as counted by the slightly less current statistics in The Economist, at 25, aggregated about 3.3% of the entire population, including babies and children too young to be in the criminal justice system.

Nearly one in eight American men of all races, and one in three American black men, has been convicted of a felony. "Too Many Convicts," The Economist, August 10-16, 2002, at 9. One in 20 American men of all races, and one in five American black men, has been incarcerated. Id.

The United States -- counting the federal and state prison systems -- incarcerates a higher percentage of the national population than any other nation in the world. The Economist, at 25. Russia's incarceration ratio is second to that of the United States. Id. The incarceration ratio in England, the highest in Europe, is only one-fifth of the ratio in the United States. Id.

Approximately 51% of all current inmates of state prisons and local jails are incarcerated for nonviolent offenses. Paige M. Harrison and Allen J. Beck, Ph.D., "Prisoners in 2001," Bureau of Justice Statistics Bulletin, NJC 1951989, July 2002, at 12. Approximately 80% of all current federal inmates are incarcerated for nonviolent offenses. Id. at p. 14.

An ubiquitous fad these days is baggy, oversized trousers, falling off the hips. The origin of this fad is the prison system, where prisoners are issued too-big trousers when trousers that fit are unavailable. A variation of this fad -- baggy, long trunks -- has spread to boxers and basketball players, local and national.

The originators of the fad were emulating their friends or role models who were prison inmates. To some extent, the young men who adopt or copy the fad are expressing the same admiration or alliance.

Will the prison population and its admirers and allies reach a critical mass? If so, what will happen?

Exaggerating the dangers of some crimes can be a bonanza for politicians, bureaucrats, and law enforcement officials. The exaggeration prompts legislators at all levels of government to allocate more and more money to the bureaucracies and agencies. The exaggeration likewise prompts legislators, judges, and law enforcement officials to invade and progressively to eliminate the privacy, immunities, and liberties of individual citizens. For instance, hardly more than a vestige remains of the Fourth Amendment, United States Constitution, guarantee against unreasonable searches and seizures. Finally, politicians win votes by creating a menace or a worse menace in the minds of the voters and then "fighting" that menace by legislating or imposing draconian sentences. But what about the costs?

Hale is a drug offender. As of August 2002, 2,349 inmates were serving drug offense sentences exceeding ten years each in the Alabama penitentiary system. Alabama Department of Corrections, Monthly Statistical Report, Demographics and Sentencing (Research, Monitoring & Evaluation, August 2002), p. 7. As of September 30, 2001, the annual cost of incarcerating each inmate in the Alabama penitentiary system was $9,581, the lowest annual cost per inmate in this nation. "Comparison of Alabama Prison System to Other States," American Correctional Association Directory (2002). Even so, and even without any recognition of any increase in the annual cost since September 30, 2001, the annual cost of incarcerating the 2,349 inmates serving drug offense sentences of ten years or longer each in the Alabama penitentiary system is $22,505,769.

Every year this state encounters a budget crisis. The Judicial Branch of government and a number of agencies in the Executive Branch of government are suffering funding shortages, some critical, right now, and will be suffering worse shortages in the near future in the absence of some relief.

I doubt that any politician would be unable to rationalize the life-plus-ten-year sentence in Hale's case and to get some votes in the process. But are the taxpayers really getting their money's worth? Are they getting their money's worth in the hundreds of similar cases? Are we misusing our penitentiary system? Do the other Western nations know something we do not know? Do the public officials in all three branches of our State government owe a duty, as appropriate to their respective constitutional roles, see Article III, § 43, Alabama Constitution of 1901, to reexamine our sentencing laws and their application?

posted by sam 2:42 PM 0 comments

Supreme Court As others such as Howard Bashman have noted, the Supreme Court today put out its first two decisions in argued cases for this Term. They are (1) Syngenta v. Henson, which I discussed here, in which the Court holds that the All Writs Act does not provide a basis for removal jurisdiction, and (2) Yellow Transp. v. Michigan, which I discussed here, about states' fees on truckers. Neither is likely to be very interesting to a non-lawyer, I'm afraid. But most importantly, I predicted both correctly -- as did everyone else who's paying attention, such as Ted at Supreme Court Blog, and the unnamed law professor "experts" as well as the computer at Wash. U.'s site. Good for us.

posted by sam 1:08 PM 0 comments

Monday, November 04, 2002

As you get excited about exercising the right to vote for your federal legislator(s) tomorrow (which you should), spare a few seconds to think of those of us in DC, who are denied that opportunity. If your best answer to this unfairness is "if you don't like it, then move to the suburbs," let me suggest that it's a lame answer, as you would probably recognize if we were talking about the city where you live; nothing good can come of driving the most politically-aware people out of any city (much less the nation's capital), and nothing good can come of denying voting rights to those who choose to stay. The only reason that nothing is done about this, is that Republicans don't want more Democrats in Congress; and while I understand and respect partisanship in most disputes, there does come a time when partisanship must take a backseat to fundamental fairness.

posted by sam 12:03 PM 0 comments

Sunday, November 03, 2002

Supreme Court predictions for this week

To recap the Supreme Court predictions for this week:

In Pierce Cty. v. Guillen, the case about the discoverability and admissibility of road-safety records discussed here, the Court will REVERSE.

In Sattazahn v. PA, the case about whether the prosecution should have been allowed a second attempt to impose the death penalty, discussed here, the Court will also REVERSE, but my level of confidence in this prediction is not high.

In the two cases on the constitutionality of California's 3-strikes law, discussed here, the Court will rule against the defendant and for the State in both cases. That means AFFIRM in Ewing and REVERSE in Andrade.

In Norfolk & Western v. Ayers, the FELA case about asbestos liability discussed here, the Court will REVERSE.

Finally, in Abdur'Rahman v. Bell, the case about Rule 60(b) and habeas corpus discussed here, the Court will REVERSE. Between this and Sattazahn, I'm placing a big bet on Justice O'Connor (and maybe Justice Kennedy too) in death penalty cases this week. One final note: I am reliably informed that, contrary to my earlier impression, Tom Goldstein won't be arguing Abdur'Rahman, but instead his cocounsel will have at it.

posted by sam 7:00 AM 0 comments

Saturday, November 02, 2002

Supreme Court

The final case for next week, to be argued on Wed 11/6, is the second argument of this Term for Tom Goldstein, who really should be careful not to let these Supreme Court arguments intrude on his vital blogging time. The case, Abdur'Rahman v. Bell, is about finality vs. fairness in federal habeas corpus review of criminal convictions; Tom's client is Abdur'Rahman, on death row for a murder conviction in Tennessee state court. The operative opinion of the Sixth Circuit is unpublished. It's procedurally complicated, but here's the deal as I understand it. Abdur'Rahman's claim, insofar as relevant at this point, is that prosecutors unconstitutionally withheld evidence that would have helped him avoid a death sentence. When he sought federal habeas relief on this basis (and others), the District Court rejected this prosecutorial-misconduct argument on the grounds that he hadn't exhausted his available state remedies in that he hadn't presented this contention to the Tennessee Supreme Court. The Sixth Circuit likewise rejected his habeas claims. But then Tennessee made clear (in commentary to its Rules of Appellate Procedure) that you aren't (and never were) required to present such claims to the Tenn. S.Ct. This means that the federal courts' rejection of Abdur'Rahman's argument on procedural grounds was WRONG. Now the question is, what if anything can Abdur'Rahman do about it.

You might say that he should just file another habeas corpus petition, so that the court can consider this claim. But the Congress has enacted (28 U.S.C. § 2244) strict limits on when prisoners can file "successive" habeas petitions. Abdur'Rahman wants to avoid application of those limits by not filing a second petition, but instead using Fed. R. Civ. P. 60(b) to reopen the judgment against him on his first petition, and thereby to point out that the denial of relief to him on his first petition had rested on a premise about Tennessee procedural law that we now know to be incorrect. (The Federal Rules of Civil Procedure, for you non-lawyers, are just what the name implies; and Rule 60(b) is the rule that allows you to reopen a case under extraordinary circumstances). The quest for Tom and his client, as I see it, is to convince the Court that they can allow him to take this path under Rule 60(b) without opening the floodgates for every prisoner to use the Rule in order to avoid the limits on successive petitions. And they must convince the Court that, even though you can't usually use Rule 60(b) to reopen a case just because you can now show that the court was wrong about the law, you ought to be able to do that in a death penalty case, or at least in this death penalty case on these facts.

The case presents a good example of a type of difficult strategy call for a lawyer, which is whether to try to keep one's options open. If asked "could your client file a second habeas petition, if we reject his Rule 60(b) motion?", should the lawyer say, "no, that's the real point – if you hose us here, we're totally hosed and heading inexorably and rapidly towards execution without ANY substantive federal review of this important claim, because we don't fit into the narrow exceptions in section 2244 that allow a small range of successive petitions" or should he hedge his bets? The former course makes the best argument – the core of the winning argument, if I were the Justices – but nobody likes to concede away his final remaining option. Hard call.

Anyway, to the prediction: call me naïve, but I think that Justice O'Connor will find a way to rule for Abdur'Rahman without making a very wide opening for others to follow, and the Court will REVERSE.

posted by sam 6:36 AM 0 comments

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