(The Return of) Ignatz, by Sam Heldman

Friday, January 31, 2003

Labor Law
The National Labor Relations Board put out one decision today, a routine little "test of certification" case. (For those who are not labor lawyers, all you need to know is that test of certification cases are a routine procedural step, issued whenever an employer is trying to challenge its employees' majority vote in favor of union representation. You see, every union-representation election is like Bush v. Gore, in that there are endless opportunities for litigation; the big problem is that, during the years of such litigation, the company in effect wins by default, in that there is no union representation until and unless the years of litigation end with a union victory as enforced by a federal court of appeals. So it can be literally years between a pro-union majority vote, and the beginnings of collective bargaining.). Back to the point: at least the new Board is up and running, so there is not a complete lack of enforcement of the National Labor Relations Act.

posted by sam 3:02 PM 0 comments

for law nerds, there are new Eleventh Circuit summaries in the sub-blog, with a few more to come soon. UPDATE: more, as promised.

posted by sam 1:05 PM 0 comments

Thursday, January 30, 2003

rice for peace
Not much time for blogging today, but a friend sent me an email chain letter referring to this peace campaign, that includes (clink on the link to "1950's campaign") a neat and inspiring story about a successful collective action for peace, and a call for a similar campaign today. Who knows -- maybe it's those dreaded crypto-Stalinists again*, or the rice lobby, I don't have time to check it out because I'm writing a brief -- but if you have time, click and think.

* Note to those who don't spend their lives on blogs: see Max for background of this petty attempt at inside humor.

posted by sam 2:43 PM 0 comments

see further comments on Sixth Circuit nominee Jeffrey Sutton, as an update to yesterday's last post.

posted by sam 8:28 AM 0 comments

Wednesday, January 29, 2003

Sixth Circuit nominee Jeffrey Sutton
If the Associated Press's reporting of his testimony in his confirmation hearing can be believed, Sixth Circuit nominee Jeffrey Sutton is not being quite honest with the Senate. According to the AP, which is paraphrasing rather than quoting, Sutton told the Senate Judiciary Committee that "he was only arguing for his clients' views and not for his personal positions" in the cases where he has driven the anti-civil rights "federalism" train in the Supreme Court. How would he square this with his earlier statement to noted legal reporter Tony Mauro, quoted (e.g.) here, that he "loves" and "believes in" the arguments that he's making in these cases and that he seeks the cases out? Which Senator will cross-examine him on this? As I've said before, there's nothing wrong with being a "cause" lawyer; I'm one, when I can be. It just matters what causes you advocate, and (now) whether you're candid about it.

UPDATE: This story from the NYT confirms the impression that Sutton's posture -- on his own, and through helpful Republican Senators -- was "I was just being an advocate." And it seems that Senator Leahy, to his credit, knows that this is inconsistent with Sutton's past statement(s). But none of this seems to matter -- except possibly when it comes to filibuster time on the Senate floor -- because the Republicans have escalated even the already-high partisan manouevering to ensure that they get their nominees to the floor without even a good hard look in a hearing. Surely no one can claim, now, that Senator Hatch is anything other than a deeply partisan warrior.

Let me make clear, also, that "I was just being an advocate" is sometimes the truth for lawyers. Some cases I have worked on, I have done so for reasons other than a belief that my client was demonstrably "right" in a moral sense; I did what lawyers do, which is to provide zealous representation to achieve the client's lawful goals. But by the same token, when I represent labor unions, year after year, in case after case, I don't pretend to anyone that I am "just being an advocate". Some lawyers are "cause" lawyers, others are not. Sutton is one, by his own (past) admission. And -- just as Justice Scalia now feels comfortable giving a speech indicating how he'd vote on future First Amendment religion cases -- Sutton should be candid enough to say, "yes, I am a true believer in this stuff, just as I said a few years ago." Then the Senate could have an honest vote over whether we need more true believers like that on the federal bench.

posted by sam 1:30 PM 0 comments

testing the uploading of images.

posted by sam 1:08 PM 0 comments

political warfare

Interesting political fight going on in Georgia as to whether the State AG or the Governor gets to call the shots regarding the State's position in voting rights litigation; the Governor wants the State to withdraw its challenge in the Supreme Court (even though the Supreme Court has already noted jurisdiction and is to hear the case) and the State AG doesn't. See this article in law.com. Could partisan politics have something to do with it???? If this were Alabama, we would know the answer, at least as of a few years ago when I last had occasion to worry about this division of power: in Alabama, the AG gets to decide what the State's position will be in litigation, and the Governor can try to intervene to state a different position if he wants. (If you are truly curious about this, the Ala. S.Ct. cases on point as of a few years ago were Ex parte Weaver and Blue Cross, neither one of which is likely available online).

posted by sam 10:35 AM 0 comments

Kurt Vonnegut

Via Atrios, an interview with Kurt Vonnegut, which is well worth reading about politics, art, human history ...

posted by sam 8:33 AM 0 comments

Tuesday, January 28, 2003

Bush Administration is taking a position with which leading American mega-corporations disagree!
... on affirmative action, that is.

posted by sam 9:58 PM 0 comments

Nora Jones is Ravi Shankar's daughter?????

seems to be true.

posted by sam 9:24 PM 0 comments


"no one's ever been healed by a frivolous lawsuit; I urge the Congress to pass medical malpractice reform".

A sentence worthy of a particularly bad blogger.

posted by sam 9:23 PM 0 comments

The State of the Union, again

The State of the Union is apparently perfect, except for those darn taxes!

posted by sam 9:18 PM 0 comments

The State of the Union

If you like self-consciously hip electronic music, don't like the policies of the Bush Administration, can stand cold weather, and live in the DC area, you are in luck tonight. As for me, I prefer odd quasi-trad to self-consciously hip electronic music, and would rather be in a warm room even if smoke-filled, so I'm going to see Bonnie Prince Billy at the Black Cat.

posted by sam 2:00 PM 0 comments


All the cool kids are doing it. So I'm trying too: to set up an RSS/XML feed, by which you can use a little quasi-browser news aggregator thingy, to see when I've posted something new. It should be at http://sheldman.blogspot.com/rss/sheldman.xml If this doesn't work for you, or if you can see that I've done something mortifyingly wrong, please let me know.

posted by sam 1:43 PM 0 comments

I have been spending too much time among the bloggers. I can tell, because I find myself thinking, in social situations, that I could make a "Mary Rosh" joke and everybody would find it witty (rather than looking at me blankly). If you don't know what I'm talking about, and are interested in very odd human behavior, check out Mark Kleiman's recap of the story.

posted by sam 6:59 AM 0 comments

Monday, January 27, 2003

Sorry -- all my mental energy is being used for other purposes today, at least so far. Please check back later.

posted by sam 2:04 PM 0 comments

Saturday, January 25, 2003

Is this what the Instapundit means by "a pack, not a herd," too?

posted by sam 6:28 AM 0 comments

Friday, January 24, 2003

One more thought about long copyrights, and then I will stop pretending that I really know what I'm talking about.

I know that, to a large degree, the Eldred crowd's fixation on Mickey Mouse is largely a matter of rhetoric and politics. Now, sure, I can get on board with that as a matter of rhetoric and politics: I'm all in favor of sticking it to The Man, and sometimes Disney Inc. seems to be The Man. But often it seems to go way beyond that; it seems that the Eldred crowd often want to convince us that the world would in fact be materially better if Mickey lapsed into the public domain, that this would allow the flowering of a whole variety of low-cost, high-creativity, Mickey-derivatives that are (a) so cool that Disney would never allow them as long as it holds a valid copyright in the essence of Mickey; and (b) yet not allowable under current copyright law as "fair use" (e.g., parody). It's conceivable that this is true, and I was wondering how to test it empirically.

So I thought, well, I'll do some digging around to make comparisons as between Tarzan and Conan. Tarzan, having been created in the 1910s, ought to be in the public domain, which is not to say that you can freely copy a newly-copyrighted Tarzan movie, but you ought to be able to make your own Tarzan movie without the permission of the estate of Edgar Rice Burroughs. And Conan, having been created in the 1930s, is probably not in the public domain. So, I thought, if I could prove that paperbacks of all the old Conan books are about as cheap as paperbacks of the old Tarzan books, and that there has been no flowering of cool new takes on Tarzan now that he's out from under the thumb of The Man, then this would support my view that the length of the term of copyright is not a particularly important thing to worry about; more important would be to precisely define, and perhaps alter, what rights are included in the copyright, and to whom they belong.

But here's what I found: it's pretty damn hard to satisfy yourself, with a little googling, that Tarzan is in the public domain and that Conan's not. It's pretty clear that Tarzan is (though ERB Inc. still does its best to convey the impression that all licensing must be done through it, presumably with a payment of $), but the copyright status of Conan is not at all clear; you can find whole webpages devoted to intricate analyses of which Conan stories lapsed into the pd when somebody forgot to renew the copyright, and which ones didn't.

There is a somewhat similar problem with respect to old music recordings from the 1920s and 30s: nobody to whom I've talked is really confident about whether such recordings are in the public domain. There's some concern, on some people's part, that perhaps the law of some state or another might still be providing some protection for some old recordings; the federal copyright law does not apply. Most people who are interested in reissuing such recordings, either on CD or on the web, seem to have reasonably taken the view "I won't worry about it; many of the old labels are out of business, and Columbia certainly won't sue me because they don't want to lose."

But I think that it would be much better for the free flow of public domain creativity if the Eldred crowd would put their energies into trying to bring clarity to the copyright status of old works, than in worrying about the length of the term. I see on Lessig's blog that he is in fact working on this issue, and has a particular proposal about it, and I applaud that effort even while I am otherwise skeptical of the "information wants to be free/copyright term must be shortened" movement.

posted by sam 1:56 PM 0 comments

Ok, so I think that I have a thought here.

First, I was thinking about Howard Bashman's post the other day that recalled Justice Stevens's position in Bakke that "race-blind" admissions were required by federal statute (Title VI, it's called). Some are wondering whether Justice Stevens will take that same view (which was rejected by the majority of Justices in Bakke) in the Michigan cases, thus giving an easy win to the AA-opponents, or whether he will have changed his views and ought to be embarrassed for having done so. To me it's quite obvious that he ought to have no embarrassment about saying, "sure, that was my view and the view of a minority on the court; but we were outvoted, and the Congress could have amended the law to adopt our 'race-blind' interpretation any time in wanted, but never did, so I take it that the Congress agrees that the majority was right and that's that, as far as statutory interpretation goes."

Second, in connection with my exchange with Ampersand on copyright (see earlier today), I was thinking about the difference between (a) trying to establish something as a constitutional principle through litigation; and (b) doing the harder and more complex work of writing a statute that says what you think would be good policy.

Third, I was thinking about an email that Marty Lederman sent me yesterday that was full of interesting points about the impact of the Administration's brief in the Michigan cases on a wide variety of federal statutes; AND

ok, ok, get to the point.

The point is this: if race-blind admissions are so central to the President's vision, and so obviously-correct from the intellectual-Republican/Federalist Society point of view, why don't they do the dirty work of amending Title VI to make it say what they want to say? After all, they've got control of the Congress and the White House. They could amend the statute at any time; if they've got the mojo to shove Federalist-Society judges down our throats, they've got the mojo to do this too. (Sure, I know that Trent Lott, who favors affirmative action across the board, would have to be brought back into the Republican fold on this issue; I imagine that could be done somehow). Why not use those branches of government, rather than the Court? The answer is that it is more politically convenient for the Administration to use the Court as a tool to achieve this political goal. It allows them to do it with less public discussion, less public input, and less accountability. It allows them to avoid actually having to say with real precision what they think the law ought to be, and to avoid taking heat for the details.

Does this, in itself, make the Administration's action constitutionally illegitimate? Not really, just makes it weaselly. And it makes it all the more clear that none of us should forget, as the Administration shoves young aggressive new judges down our throats, that the judiciary is an important tool in the politican's toolbox, and it does not behoove us to pretend otherwise.

posted by sam 11:59 AM 0 comments

There is good news and there is bad news.

The good news is that Jeff Cooper is back to blogging.

The bad news is that Barry/Ampersand says I'm wrong about copyright, based on my musings below about how much it pleases me that Leonard Cohen racked up some $$ from "Shrek". This is bad, because when Barry disagrees with you it usually means that you're wrong; and even when you're not, he writes it so well that it seems that he must be correct. But, I think that maybe I'm not wrong, and that he and I are actually talking about different things. I'm for long-lasting copyrights; his main point, as I understand it, is that our current laws [insert: in conjunction with the currently-existing institutions which often mean that creators in some fields do not own the copyrights] tend to screw the actual creator in many instances in many ways. I agree, and would be happy with a reworking of copyright laws that gave more control to the actual creator, with well-thought-out rules as to which sorts of things could be copied and used under compulsory-license schemes, which sorts of things the artist could block, which sorts of things the artist could do even after selling the copyright, etc. But all those things are, I think, separate from the issue of the length of copyright; and I still want artists to be able to profit from their works for many years. I would love to see other legislation giving them more protections and negotiating-strength too. To remedy the specific problem that seems to drive Barry's message the most, would be easy: a law that the actual human creator of any character (in cartoon, or series of written works) should have the right to create derivative works even without the consent of the copyright owner. Would that be a good law? I think so. But I would tinker with that sort of thing as necessary, rather than the big-gun approach of shortening copyright terms.

posted by sam 6:52 AM 0 comments

Thursday, January 23, 2003

This is pretty neat: an official federal gov't website on which you can find out about, and submit comments on, proposed regulations. It would have been nice, though, if the Washington Post story had printed the url correctly: it's www.regulations.gov, not "regulation" without the "s".

posted by sam 11:59 AM 0 comments

Kos on blogging:
I'm a terrible blogger, **way** behind the curve. I mean, the story I'm discussing below was posted over five hours ago. Atrios tackled it four hours ago (or so). And the comment board denizens have been discussing it for at least several hours.
I mean, this news is so early afternoon. But what the heck.

posted by sam 10:01 AM 0 comments

If you want to be disturbed this morning, read the Eleventh Circuit's opinion (issued last week but only just now available in html) in US v. Steiger. It's disturbing to me for two reasons: as an example of the horrible things that some people do to children, and as an example of the near-total lack of privacy that we have by virtue of modern technology (including the internet). Steiger, for whom I have no love at all in case you need to have the obvious stated, was caught by some anonymous person in Turkey who makes a hobby of tricking people into downloading trojan horses by which he can scour their hard drives. Rightly or wrongly, the Eleventh Circuit holds that the admission of the evidence gathered by the anonymous guy did not violate federal wiretapping laws. Surely one aspect or the other of the situtation -- and perhaps both -- will disturb you too.

posted by sam 9:46 AM 0 comments

A cynic's recap of the Supreme Court term so far.

Well, I've been knocking myself out trying to give sensible predictions as to how the Court will rule in the cases that have been argued this Term. I've done pretty well, I think: of the cases that have already been decided after argument, I've been wrong on only two cases and right on 10. And three cases resulted in opinions even without having had oral argument. The whole list of all these cases is here, with links to pdf files of all the decisions. (There have also been two argued cases where the Court said "never mind" and declined to issue any ruling).

I could have done even better in my predictions -- indeed would have had a perfect score thus far -- had I followed this simple rule: In any case about criminal law (including the post-conviction rights of criminals), the government will win. This would have led me to avoid my two wrong predictions (Bean and Sattazahn), as well as allowing me clairvoyance with respect to two of the opinion-without-argument cases. Five of the 15 decided cases would have been correctly predicted, and none incorrectly, on the basis of this rule of thumb alone.

Another prediction that would have gotten you 5 points and no errors would be "That darn liberal Ninth Circuit? Reverse." In fact, these reversals have all been unanimous. But please don't fall for the old line that these unanimous reversals are proof that the Ninth Circuit's judges are "bad" (as in, incompetent); also unanimously reversed, so far, have been the Fifth and the Tenth Circuits, who aren't anybody's idea of liberal. I've talked about this before.

But having been cynical for a couple of paragraphs, I will try not to be such a grump and to reach the question: yes, but has the Court gotten anything seriously wrong yet? And how do you answer that? The obvious answer is that there's no agreed-upon way to answer the question. But here is my idea of a fun thought experiment along these lines: how would the Court's Term have been different if there were four cloned Justices Heldman, in place of the four most "conservative" (right-wing) Justices? The answer, as to the bottom-line outcomes of decided cases, is "not much at all." One person would be off death row in Pennsylvania (where he is now still scheduled to die by 5-4 vote), and we (the four of me, and Justice Stevens) would have held that the government waived the dispositive issue in US v. Recio. But other than that, the outcomes would probably have been the same.1

What does this show? Take your pick: (a) that the cases that are decided this early in the Court's Term tend not to be divisive ones (he says, on the day after the anniversary of Roe v. Wade), or (b) that much of the real action on the Court comes not in deciding cases, but instead in deciding which cases to hear. Take yesterday's decision in Meyer v. Holley. Sure, it looks like the Ninth Circuit was probably wrong, but from reading the Supreme Court's opinion it seems that this precise issue had never come up in any other case before now; and that it would come up again in a way that really mattered in future cases, if ever, only very rarely. So was this really one of the 80-or-so most important cases of the year, one of the ones that the Supreme Court ought to be fooling with? The Justices Heldman would have very different priorities as to what issues are really deserving of the Court's consideration, and could fill up the Court's docket with review of "conservative" lower court decisions that are rather clearly wrong.

1 Yes, I know that as a guy who loves the internet I'm supposed to decry Eldred, but I don't; I favor long-lasting and robust copyright protection. And I realized why, the other day, when the movie Shrek was on the TV, and the soundtrack included John Cale's version of Leonard Cohen's song "Hallelujah": I think it's great and even important that Leonard Cohen get a lot of money for writing such a song, whether it's used in a movie 15 or 50 or even somewhat more years after he wrote it. I don't know enough about music licensing to know whether John Cale would have gotten big checks from this too, but I hope so.

posted by sam 7:08 AM 0 comments

Wednesday, January 22, 2003

I apologize for not having anything interesting to say today. Mostly I'm writing a couple of briefs. But I'm also just not that interesting today.

posted by sam 12:56 PM 0 comments

Tuesday, January 21, 2003

Supreme Court

The second case to be argued tomorrow, and the last case to be argued until late February, is Pharmaceutical Research v. Concannon. It is a challenge to a Maine law that was designed to bring down prescription drug prices, by leveraging the State's power as a big purchaser under Medicaid. The details are enough to make your head hurt. The whippersnappers over at Goldstein Howe have a post that tells you more about the substance of the case than I care to, including links to many briefs. To make a long story short, one question is whether Maine's law violates the Constitution's Commerce Clause, on the theory that it amounts to an attempt by Maine to regulate things going on outside of Maine; the answer to this question is probably, "nope, no violation there," which is what the First Circuit said. The First Circuit also said that Maine's law does not conflict with (and therefore is not preempted by) the Medicaid statute; this is a harder question, because there is a pretty good argument that the Medicaid statute prohibits a state from aiming at non-Medicaid goals by using its Medicaid-related powers, and a pretty good argument that Maine has done that prohibited thing. My prediction is a toss-up, but I will say "REVERSE".

posted by sam 2:41 PM 0 comments

Monday, January 20, 2003

Very good Martin Luther King Day post from Nathan Newman, I think.

posted by sam 6:10 PM 0 comments

Another fascinating post by Prof. Balkin, arguing (quite convincingly, I think) that it is impossible to believe in "originalism" as the only legitimate basis for constitutional law decisionmaking, and simultaneously to believe that the Supreme Court should hold affirmative action measures to be unconstitutional.

posted by sam 10:01 AM 0 comments

Supreme Court

The first case on Wednesday, Dole v. Patrickson, is about two questions under the Foreign Sovereign Immunities Act. The legal issues are not of enormous importance, unless your practice happens to include suing (or you happen to be harmed by) corporate entities that are majority-owned by foreign governments. Some farm workers in Latin American countries were injured by horrible pesticides used by fruit companies, and so sued those companies (and some chemical companies that manufactured the stuff). The defendants, in turn, filed "third party complaints" trying to shift some or all of the liability to some companies that had, until recently, been subsidiaries of a company that was majority-owned by the State of Israel. So now the question is whether the third-party defendants were entitled to remove the case to federal court under the FSIA.

Before getting to the substance, here's something somewhat interesting. You remember how, a couple of weeks ago, I was annoyed at Ninth Circuit Judge Kozinski for his twice-demonstrated proclivity for inserting snotty little Clinton and Gore jokes into his opinions? Well, lo and behold, there's another one in his opinion (pdf) for the Ninth Circuit in this case! (See fn 10 and text accompanying). Maybe there are more. Somebody with more time than I could do a study to see the full extent of Judge Kozinski's Leno-esque cavalcade of lame anti-Clinton/Gore jokes.

But back to the substance. The questions before the Supreme Court are (a) whether the FSIA provides for federal jurisdiction when the defendant isn't itself a corporation majority-owned by a foreign state, but is a separately-incorporated subsidiary of such an entity; and (b) whether the FSIA provides for federal jurisdiction even if the foreign state no longer owns the shares at the time the suit is filed. Here is an article by a law professor that explains the issues much better than I ever could. (One of the bright young whippersnappers on the Goldstein Howe blog-team/lawfirm found it and linked to it, to give credit where it's due. I need some bright young whippersnappers writing this stuff for me.) Here is the government's brief, as amicus, arguing for affirmance.

Looks to me like the government is right, and that's all the time I have to give to this case, so I say "AFFIRM."

posted by sam 9:37 AM 0 comments

Supreme Court

The second case to be argued Tuesday is City of Cuyahoga v. Buckeye Community Hope. It's about fair housing law. It might present some interesting and fundamental questions about democracy and constitutional law; or it might end up being rather mundane. I'm hoping for mundane, because the Court could -- if so inclined -- use the case to make some really bad law. (Yes, "bad" is a value judgment, and I'm talking about my preferences. I know this.)

Buckeye, a developer, was going to build low-income housing in Cuyahoga. But, surprise surprise, some people in this lovely 98% white town didn't want that! (The 98% figure, by the way, comes from the Sixth Circuit's opinion.).

The city government had tried in various ways to derail or stall the project, but ultimately had to give it approval after concluding that there was no legal basis for withholding approval. But wait! Then the town's citizens lobbied to have a referendum placed on the ballot, and passed a specific referendum that overrode that approval. So the housing could not be built. Later, the Ohio Supreme Court held that referendum to have been improper under the Ohio Constitution, and so the project could go forward. Now, the questions before the Supreme Court arise out of a federal suit filed by Buckeye against the City, in which Buckeye is now seeking damages for the delay and extra expense.

There were supposed to be three questions before the Supreme Court, including one question about whether there could be a "disparate impact" claim under the Fair Housing Act in a case like this. ("Disparate impact" claims, in a nutshell, are claims in which the plaintiff says "I ought to be able to win even without showing that the defendant was intentionally discriminating against me on the basis of race (or sex or whatever), because the impact of the defendant's actions falls disproportionately on my protected class and there's no good reason for the action. Some statutes allow disparate impact claims to be brought, and others don't.) But the plaintiffs are essentially conceding that point in their brief to the Supreme Court, saying that they're not trying to bring a disparate impact claim even though the Sixth Circuit said that they could. In a sense, that makes this -- should make it, at least -- a very easy case to predict: the Supreme Court will probably vacate or reverse the Sixth Circuit's decision at least in part, even if only on that disparate impact issue.

The other two issues are the potentially big ones. One has to do with Equal Protection, and judicial review of laws adopted by ballot initiatives. Laws that are motivated by an intent to disadvantage Black people are unconstitutional, even if that intent is not apparent on the face of the law. But the big question here is, how do you prove that intent, when you're talking about a ballot initiative? Whose intent matters? How many voters' racist intent do you have to prove? Are you even allowed to try to prove this intent? The Sixth Circuit held that Buckeye had enough evidence of intent to warrant a trial; the Supreme Court is being asked to reverse that, and could do so either with sweeping propositions of law or with a narrow opinion about the particular evidence in this case.

The other issue is about Due Process, and the interesting part here is the question whether it is ipso facto unconstitutional to enact a ballot initiative that is targeted explicitly at one person. Does our concept of government allow a democratic vote to hose one specific person? We already know that our system of government does not allow a governmental action to hose one specific person where there's not even an arguably rational reason for the hosing. But the question here, potentially, goes beyond that, bringing up big questions about what a majority is entitled to do. Or it could be that this very interesting question ultimately doesn't wind up being dispositive of the case, and the Due Process issue could be resolved on some more boring basis.

I'm pretty comfortable in predicting that the Court will vacate or reverse the Sixth Circuit's decision at least in part, so I say "REVERSE" and wait anxiously to see exactly how the opinion is written.

posted by sam 9:04 AM 0 comments

Saturday, January 18, 2003

Supreme Court

The Terms' arguments are now about half over, and I'm having trouble inspiring myself to complete this prediction game. Nonetheless, because the whole world has come to depend on the perseverance of bloggers, I will continue long enough to do this week's cases. At least there are only four, because there's no court on Monday.

So Tuesday brings, first of all, Woodford v. Garceau. The question here is about the effective date of the so-called "AntiTerrorism and Effective Death Penalty Act" and its provisions making it even harder to get federal habeas corpus relief. The actual habeas petition in this case was filed after the effective date of the Act, but the petitioner's first filings (a motion for appointment of counsel and a motion to stay the execution) were filed before that date. The Ninth Circuit said (pdf) that, because he had filed some things before the Act became law, the stringent provisions of the Act didn't apply to his case. Most other courts have disagreed, holding that the critical question is when the petition itself was filed.

How will this come out? It's hard to get a good sense of the issue because I can't find the briefs anywhere online. So I'll go with the rule of thumb: when the Ninth Circuit rules in favor of a convicted criminal, and most other Circuits have gone the other way, the Supreme Court will disagree with the Ninth Circuit. Sorry to be so glib. REVERSE.

posted by sam 6:59 AM 0 comments

Have you been pining to see Bob Dylan act more? Me too. Good news is that you can see clips from his upcoming movie, Masked and Anonymous. In one clip, Bob is having hyper-cryptic banter with Cheech Marin; in another, he and his band are playing "Diamond Joe" (the song by that name recorded by the Georgia Crackers, 1927, not the different version that Bob put on a record a few years ago).

posted by sam 6:46 AM 0 comments

Friday, January 17, 2003

I am merely a linker today. But I am glad to see that I'm not the only one in town who's unafraid of being labelled a quota-lover; there is also Max, who is (as always) admirably direct.

posted by sam 11:37 AM 0 comments

And there is a new blog by a Constitutional Law professor at Yale, Jack Balkin, which already contains lots of fascinating stuff to chew on, such as this. Check it out.

posted by sam 11:21 AM 0 comments

Marty Lederman, a new contributor at the Goldstein Howe SCOTUSblog and an all-around bright guy, has posted some useful commentary about the Administration's briefs in the U.Mich. cases. For some reason I can't make a specific link to the post, but go here and scroll down to around 9 this morning under Marty's name.

posted by sam 10:59 AM 0 comments

Those of you who have been disappointed by the scarcity of DC-based union-side labor lawyers in the blogging community can rest easy, because there has recently been a 100% increase in that pool. See whipsaw. Please go check him out.

posted by sam 7:34 AM 0 comments

Thanks to Howard Bashman, we know that the governments' briefs are available online (pdf format) in the law school and undergrad cases. Having read them only once through and quickly, I think that I am correct in saying that the government dodges the question whether diversity is a compelling state interest, declining to state a position on that, and instead places all its argument on the "narrow tailoring" point. And quota quota quota quota. Based on a quick reading, it appears that the government is indeed vague -- especially as to law school admissions -- about what alternative measures it thinks would have been constitutional. Even in the law school brief, its discussion about alternative measures focuses mostly on what Fla, Tex., and Cal have done as to undergrad admissions, which is a different kettle of fish, and which might or might not work in other states' undergrad institutions depending on the demographics of those states. Quota quota quota quota. That's what the Fourteenth Amendment says, you know, in its Section 6: no state can strive for racial equality in any aspect of life through the use of numerical targets as a cross-check to ensure that the decisionmaking process is not unfairly excluding minorities, because that's a quota and quotas are bad.

Also, please go read Digby's take on the issue.

posted by sam 7:19 AM 0 comments

Thursday, January 16, 2003

The big legal news issue today, of course, will entail looking at exactly what the Administration has decided to file in the Supreme Court in the University of Michigan admissions cases. We know that the Administration will be urging the Court to hold Michigan's policies - at both the undergrad and law school levels - unconstitutional. (Thanks to Atrios for pointing out that, if you want to know what you're opining about before you opine (a rare quality these days) you can find these policies online).

The brief, when filed later today, will presumably be available on-line at this page. I'll post a more specific link when I can.

Even having decided to oppose the Michigan policies, there is a great variety of positions that the Administration could take, depending on how vigorously and widely the Administration wanted to condemn "affirmative action". One of the most important things to look for, when reading the brief, is how it answers two questions: (1) is diversity in university admissions a "compelling state interest"? and (2) are the Michigan policies "narrowly tailored" towards reaching that interest? I get the sense from trying to read between the lines of the newspapers that the Administration will likely say "yes" to #1, which will mightily piss off many on the right. If they do say yes to #1, though, they'll be saying "no" to #2. What does "narrowly tailored" mean? Essentially the question is whether the judges think that the program under review is designed well enough to achieve the important goal without too many unnecessary bad side effects on those pitiful oppressed white folks. Yes, I just got snarky for a minute.

But one thing worth noting, before we go farther, is that this "narrow tailoring" inquiry does involve value judgments and policy judgments by courts -- what side effects are bad, and how much bad side effects are too much in light of the goal being sought? Now, I've long since become comfortable with the fact that constitutional law decisionmaking involves value judgments and policy judgments, and intrusion into local affairs; but if you think that that's bad, then you should apply your principle to this case as well as to others, and advocate upholding the Michigan policies.

If the Administration's brief does come down on the "narrow tailoring" issue, we will then look to see whether they give any concrete examples of things that would, in their view, be narrowly tailored and therefore lawful as means of increasing diversity in admissions. To my eye, the "top 10%" proposal (which seems to be what the President likes to toss around as the great alternative) - that anybody who graduated in the top 10 percent of her high school class will be admitted, or something of that sort - has absolutely no value as to law school admissions, absolutely no value as to private university admissions at any level (and those private universities' decisions will, of course, be vitally affected by the outcome of this case), and has some value as to some public undergrad admissions depending on local conditions that may vary. (In some places, a top 10% plan wouldn't increase diversity at all, perhaps). So if "top 10%" is the only lawful alternative they offer, then this will to a large extent constitute a hide-the-ball: "we're pretending that we're not opposed to diversity-increasing efforts across the board, but we won't tell you which ones we would support!!"

I'll close for now by offering what I hope somebody is arguing in an amicus brief in this case: that in the specific context of university admissions, the old "compelling state interest? narrowly tailored?" constitutional inquiry should not be the sole inquiry. Instead, the court's consideration of the policies should go something like this: First, you've got to figure out why we admit people to public universities. It's not as a reward for making good grades in high school. It's so that we can improve our society -- spending public resources to expand the minds of a lucky relatively-few, so that they will go on to do things that will make the world better. Admission is not an entitlement that arises from being smart. It is a matter of being chosen to be the subject of a public investment. Second, we have decided that we ought to invest in just about as many minority kids, proportionately, as white kids. Why? Because it seems pretty obvious to us that this is the way to improve the world -- not by reserving this public good mostly for white folks, but by spreading it around. The world will be better more quickly, we think, if there are black lawyers as well as white lawyers, Hispanic engineers as well as Anglo engineers, etc. And it also appears to us that any fairly-designed system of assessing "merit" just would result in approximately proportionate representation among races and ethnicities -- that is definitional, we think, as to the words "fairly-designed" and "merit". Third, if we went solely on SATs, LSATs, and grades, we wouldn't achieve this goal -- so we make adjustments. It's not a perfect system, but no one has ever yet designed a perfect system for measuring or even defining human merit in any sphere. So get over it.

To my eye, the beauty of this argument - as contrasted with the often-heard "we think diversity is a great thing because it will foster a better learning environment" argument - is that it puts the opponent to the real test: What, are you saying that you don't take it as a fundamental agreed principle that we should be investing just as much in the smartest minority kids as we do in the smartest white kids? Are you saying that you don't take it as a fundamental agreed principle that the distribution of human merit, in terms of that specific sort of merit that deserves great educational opportunity, is equal across races and ethnicities? Well, I take those things as fundamental principles, and I would hope that my Supreme Court wouldn't declare the contrary as a command of the Constitution.

posted by sam 7:35 AM 0 comments

Wednesday, January 15, 2003

Some have thought that I am too complacent or easily-dejected, in my doubts about a filibuster on Judge Pickering. But now that the liberal blogosphere's attention has turned to Sixth Circuit nominee Jeffrey Sutton, you can see at least why I want to reserve strength for more practically-important yet more difficult battles.

Sutton is the subject of a more important battle because, being in his early 40s and brilliant, he would have a major impact on the course of the law for the next few decades if confirmed. He is the subject of a more difficult battle because he's presumably got no old-time racism in his past, nor any other obvious personal failing. Instead, this will have to be fought on explicitly ideological grounds involving some complex legal issues: that he has made it his life's work thus far to press very hard in moving constitutional and statutory civil rights doctrine to the "right" - i.e., to make it more difficult in myriad ways for aggrieved individuals to obtain redress for the injuries they suffer at the hands of government and corporate actors. He makes no bones about this, really, and that at least is to his credit: he admits that he loves and believes in these States' Rights arguments, and therefore in the disemboweling of civil rights law in various ways. This is not just a matter of a lawyer faithfully representing a client; Sutton is a "cause" lawyer, and there's nothing inherently wrong with that, but one's chosen "causes" are certainly quite relevant in determining whether one should be given massive governmental power.

There is, obviously, every reason to expect that his beliefs will remain the same if he wears a robe rather than a suit. And there are, of course, further battles yet to be fought over the course of civil rights and constitutional law; there is every reason to believe that Sutton would be intellectually disposed to agree with the Federalist Society's next wave of arguments, whatever exactly they may turn out to be. I know that there are some who believe that judges' ideology has little impact on their decisions; I am not one of them. I know that there are some who believe that judicial nominees should be confirmed so long as they are competent and honest; I am not one of them. I believe that this nomination, of a judge who would have substantial and long-lasting impact on the ideological/political direction of the federal courts, warrants every opposition that can be mustered under Senate rules.

posted by sam 1:21 PM 0 comments

In other crucial news, there is this.

posted by sam 10:25 AM 0 comments

looks like the Supreme Court affirmed in Eldred v. Ashcroft. More soon.

UPDATE: Here (in pdf format) is the opinion. I will note, for whatever it's worth, that this is one of those cases in which my beliefs about constitutional law are not merely outcome-oriented results of my beliefs about immediate issues of policy. To be less pedantic about it, I think that the Sonny Bono law stinks, but think that the Court was probably right in refusing to hold it unconstitutional.

posted by sam 10:15 AM 0 comments

On Max's site, the Bush Administration's new income tax form.

posted by sam 7:22 AM 0 comments

Tuesday, January 14, 2003

The Supreme Court put out a couple of decisions today: a unanimous decision about transportation law (with a twist involving the scope of the Commerce Clause, states' rights, etc.) that I predicted correctly; and a 5-4 decision upholding a death sentence, which I had predicted incorrectly because my hopes for Justice O'Connor were too high. The death penalty case, Sattazahn, is the first deeply divisive case decided this Term; it will not be the last. The opinions are available at this page on the Supreme Court's site.

posted by sam 11:26 AM 0 comments

So much good reading from law.com this morning, including:

1) an article that every law student should read, about the benefits of working for a small firm that represents labor unions; and

2) a bunch of articles about federal judicial nominations, including

a) an overview of recent nominations;

b) an article about Ninth Circuit nominations specifically; and

c) an article all about Bill Pryor, previously discussed here as a likely 11th Circuit nominee.

Two questions about the length of poltiical memory arise from this judicial nominations talk: (1) Does Senator Hatch remember that he firmly believes that if the home-state Senators oppose a nomination, then he must oppose it as well? Will he act upon this belief as to California and Michigan nominations that the Senators from those States oppose?; and (2) Does Bill Pryor remember that he has said that the importance of the Senatorial "advice and consent" role in judicial nominations "cannot be overstated", to weed out the nominees with the wrong judicial philosophy? Will Republicans defer to his belief on that point, when Democrats oppose him based on a similar view?

posted by sam 6:30 AM 0 comments

Monday, January 13, 2003

Dwight Meredith, who is a great blogger and probably a great lawyer too, responds to my post below in which I expressed doubts about a filibuster on Judge Pickering's elevation to the Fifth Circuit. Dwight believes -- as does Atrios and others whom I respect -- that the mojo to filibuster is in fact like a muscle, and that it grows stronger with use. I hope that he is right. And if he is correct that a filibuster of Judge Pickering will lead to the strength and resolve to filibuster every far-right nominee, then I'm all for it. I think it's what needs to be done. And perhaps it's a matter of self-fulfilling prophecy. But I anticipate a fizzle.

UPDATE: Now I readily admit that I'm no expert in Senatorial behavior. But I've put my finger on why I don't anticipate a successful string of judicial-nomination filibusters. It is that we're not talking, here, about our assessment of or our hopes for the strength of the Democratic party, or even of Democratic Senators. We are talking, really, about the strength of the 41st-most-liberal Democratic Senator: will that person (whoever it is) be willing, given the electoral politics of his or her State (and fundraising needs, stature within the party, etc.), to be part of a series of unbreakable filibusters? Or will that person say "I did my party-duty on Judge Pickering, but the folks at home won't let me make a habit of it"?

Even Republican Senators -- with their relatively high party-discipline -- only voted down what, maybe ONE Clinton judicial nominee on the Senate floor? It wasn't that they loved Clinton's nominees, it was that they did not have the political will as a collective to do more than that. It's very hard for me to expect that Democrats in the Senate, with their relatively lame party discipline, will manage to do a series of filibusters. Again, I hope I'm wrong.

posted by sam 12:06 PM 0 comments

Now this is brilliant: Ted Barlow will be blogging this week only in the form of original and politically-themed "lightbulb" jokes. It's kind of like haiku. Try it at home!

posted by sam 11:03 AM 0 comments

Supreme Court

The last case for this week is Wednesday's argument in Nevada Dep't of Human Resources v. Hibbs. The question is whether states are immune from suits filed by individuals in federal court under the Family and Medical Leave Act. Why would they be immune, you ask? Aren't States required to obey federal law, under the Supremacy Clause of the Constitution? Yes, but.

You might say, "ah ha! I know the answer: it's the Eleventh Amendment, which says that States can't be sued by their own citizens in federal court!" The problem is (a) that the Eleventh Amendment doesn't say that. In fact it says something quite different: that States can't be sued by citizens of other states in federal court. Nonetheless, for over a century now the Supreme Court has ignored the words of the Eleventh Amendment, and has held that it means that States can't be sued by their own citizens in federal court. Then a few years ago, the current Supreme Court overruled prior caselaw and held that the Congress cannot take away this immunity in legislation passed under the "Commerce Clause" of the Constitution, which is the clause that gives the Congress the power to enact most of the laws that it enacts. And what's more, the Supreme Court has recently held (5-4 with the familiar Bush v. Gore lineup) that States can't be sued in state court either, for violating federal laws enacted under the Commerce Clause, if they don't want to be. (What's that you said about refraining from activism and sticking to the plain text of the Constitution?)

So, in the last few years, we've had battles over whether the Congress can provide for suits against the States by passing legislation not under the Commerce Clause but under the authority provided in Section 5 of the Fourteenth Amendment. This has been the battleground, because the Congress can abrogate the States' Eleventh Amendment immunity by properly enacting a law under the authority conferred by the Fourteenth Amendment. (Why? Because the 14th came after the 11th, and so trumps it. See, for instance, this case.) The question in these cases has been whether, in the Court's view, the legislation was a proper exercise of the Congress's 14th Amendment authority. The Court has ruled for the States, and against individuals, in these cases, holding that States can't be sued for violating a part of the Americans with Disabilities Act, or the Age Discrimination in Employment Act. In both of those cases, the Court said (in a nutshell) that the Congress was not actually remedying a pattern of unconstitutional actions by the States, so it could not use the 14th Amendment/Section 5 power to trump the Eleventh Amendment immunity.

Ok. So now we get to the present case, which is about a part of the Family and Medical Leave Act: specifically, the part (2612(a)(1)(C)) that says that an employer has to give you time off to take care of a sick family member. Was this, and more precisely the authorization to sue States when they violate this provision, a proper exercise of the authority conferred on the Congress to enforce the 14th Amendment? The theory of those who support the law, here, is that the law was an effort to address institutionalized sexism: in short, it was much more often women, rather than men, who had the difficult choice of whether to risk their jobs in order to take the time to take care of a sick relative. And because the law remedied, and attempted to prevent further manifestations of, this sex disparity, the argument goes, it was properly enacted under the 14th Amendment, and so the States have no Eleventh Amendment immunity from suit. That's the argument that persuaded the Ninth Circuit (pdf), which ruled against the State of Nevada here.

Will this argument prevail in the Supreme Court? I seriously doubt it. I think that the five more conservative Justices are quite likely to say something like "first of all, when this legislation was enacted in the 1990s, States weren't doing anything to enforce gender roles within families; if women were doing more than 50% of the caretaking, that was the result of choices by families rather than government compulsion. And the Fourteenth Amendment -- including the Section 5 grant of congressional authority -- is only about remedying governmental discrimination, not about giving the government the authority to redress private acts of discrimination. And second, even if there was some lingering state-sponsored sexism, this legislation was disproportionate and not appropriately tailored to redress that sexism: we already have federal laws prohibiting states from giving more leave to men than to women or vice versa, and there was no constitutional basis for the federal imposition of a substantive rule about how much leave should be granted."

So, I say "REVERSE".

posted by sam 10:54 AM 0 comments

Sunday, January 12, 2003

Justice Scalia just made it impossible for any judicial nominee to say, with a straight face, "Senator, I can't ethically answer that question, because it would be inappropriate of me to comment on how I would rule on a specific issue that might come before me." Justice Scalia did this, by publicly criticizing the Ninth Circuit's "Pledge of Allegiance" decision -- even though it is quite obvious that the case is likely to come before the Supreme Court. Now, I've never thought that the "I can't ethically answer that question" was a good answer. And I don't think that Justice Scalia did something unethical by giving his speech. But I hope that, when the next judicial nominee tries this weaseling, all Democratic Senators will say in unison, "if it's ok for Justice Scalia to do it, it's ok for you too -- now answer the question, please." (link, of course, via Howard Bashman).

UPDATE: A reader pointed out to me by email that Justice Scalia had already doomed the "I can't properly tell you how I'd rule on that issue, Senator" evasion, in his opinion for the Court in Republican Party v. White last term. That opinion contains Justice Scalia's explanation as to why it's not a bad thing, and not ethically improper, for candidates for judicial office to declare how they would come down on certain legal issues. I seriously hope that Democratic Senators on the Judiciary Committee don't shy away from this type of question out of some misguided squeamishness; I don't think that Republican Senators will refrain from it, when the shoes are on the other feet, now that Justice Scalia and a Supreme Court majority have endorsed the practice. (Technically, of course, White was about the selection of state court judges, by election, not about the confirmation of federal judges; but the principle is equally applicable to federal judicial confirmations). See also todays' NYT article on Justice Scalia's speech.

posted by sam 6:41 PM 0 comments

Saturday, January 11, 2003

I'd been trying to figure out exactly what this nouveau-gun-lover/anti-government-yet-jingoistic mantra "A pack not a herd" meant, having seen the phrase from time to time on the Instapundit site. Now I know: it means "I think it's really cool that an old storeowner with a shotgun killed a guy after the guy and his buddies had robbed the store with no apparent injury to anyone and were on their way out the door." Now of course I don't know all the facts, to formulate a well-considered opinion as to whether the store-owner's actions were wise, or were cowboy stupidity resulting in unwarranted death. And you know what? Neither does the Instapundit. This is the essential problem with Instapunditry: by the very nature of "insta"-ness, it involves pretending that you know enough to say something useful, when you really don't.

posted by sam 4:54 PM 0 comments

Supreme Court

The first case for Wed 1/15 is an immigration-law case, INS v. Kim. This is an area in which I am massively ignorant, so those readers who are not ignorant are warmly invited to tell me ways in which I am flat wrong. But really it's a constitutional-law case as well as an immigration-law case, so I'm not completely in the dark.

The question is whether the Constitution requires (as a matter of due process) that a lawful permanent resident alien, who is being subjected to deportation proceedings because he has been convicted of a crime, must be given a hearing and the possibility of release on bail pending the deportation hearing itself -- or whether the INS can (as the statute provides, see section 1226(c)) lock him up without bail until the deportation hearing. The Ninth Circuit held (pdf file) that such a person does have a constitutional right to a hearing on the question of release on bail; and the government has asked for review of that decision.

War on terror, war on terror, war on terror. Not actually relevant, not actually relevant, not actually relevant. Nobody's saying in this case that every person has to be released on bail, so that evildoers would be free to roam around doing evil. The argument instead is that everybody is entitled to a hearing on whether he or she should be released on bail until the final deportation hearing, depending on whether he or she is a danger and/or a flight risk.

How to call this one? Pro-reversal, you've got the fact that it's that darn liberal Ninth Circuit (though with a Reagan appointee on the panel, agreeing with the decision, if I'm not mistaken) and that the government wins most of its cases in the Supreme Court. And war on terror war on terror war on terror bad foreigners! Pro-affirmance you've got the fact that the Ninth Circuit's decision is very convincing to my eye (but then I'm one of those darn liberals too, of course). It's just not part of our legal culture, to lock people up pending the outcome of the proceedings against them, without an individualized inquiry into whether it's necessary to do so. (I understand that some people think that it should be part of our legal culture to do so, and we've done it before. But we shouldn't; it's not who we want to be, if you ask me.). And you've got this decision (pdf file) from a couple of years ago, which doesn't answer the present question but does tend to lean in favor of affirmance here.

In the end, it may come down to a specific judgment about whether an alien targeted for deportation under this statute, based on a criminal conviction, has any chance in hell of avoiding deportation. If the Court thinks that everybody who's heading for a deportation hearing is definitely, no question about it, going to be deported -- then the Court may well think that there's no problem in locking them up til we get around to that foregone conclusion.

Hard call in the end, but I'm a grumpy pessimist this morning, so I'll say "REVERSE".

posted by sam 8:14 AM 0 comments

Friday, January 10, 2003

Summaries of recent Eleventh Circuit decisions since the first of the year have now been posted in the sub-blog.

posted by sam 1:23 PM 0 comments

Does anybody know if it is possible to insert a favicon into a blogspot blog (regular old blogger, not "pro")? If you know, please let me know by email: first name at last name, dot net. Thank you.

posted by sam 11:43 AM 0 comments

Supreme Court

The second case for Tues 1/14 is KY Ass'n of Health Plans v. Miller. It is about ERISA preemption, a topic that is simultaneously frustrating, complex, tiresome, and important.

ERISA is the federal law about benefit plans: retirement plans (the colloquial but somewhat underinclusive term is "pensions"), and health & welfare plans (the colloquial, partial, but technically not-quite-right term for the most common type would be something like "employer-provided health coverage"). One thing about the federal law, ERISA, is that it "preempts" some state laws -- i.e., it makes them disappear, forbids their enforcement, keeps the states from messing with lovely national uniformity. The Supreme Court has decided about a zillion cases over the last 25 years or so about ERISA preemption, and it always (quite understandably) grouses about how utterly impenetrable and unhelpful the statute's language on this subject is.

Ok. So. Kentucky enacted some laws about health plans, HMOs, and the like, that are known as "any willing provider" laws: under these laws the health plans, HMOs, etc., can't provide coverage or payment only for the services of select physicians, chiropractors, etc., but have to cover the services of any provider who's willing to abide by the terms and conditions that the plan/HMO/whatever is offering. And the question is whether ERISA preempts these laws. The Sixth Circuit said, no it doesn't -- that Kentucky is free to have, and to enforce, these laws (at least if it doesn't try to enforce them against self-insured health plans, which have a sort of super-protected status under ERISA).

What are our clues as to how this will turn out? Number one, the government as amicus argues that there's no preemption here, and that ought to be pretty persuasive. (If you're into these things, and want to know about all the intricacies of ERISA preemption -- the "relates to" clause, the "savings" clause, and the "deemer" clause -- then click the link to the government's brief). Number two, the last time the Court tackled a difficult ERISA preemption issue, in last year's Prudential Rush HMO v. Moran, it said "no preemption". Number three, though, that was a 5-4 decision, so there's no consensus within the Court as to how you decide these issues. Number four -- and here's something pretty odd about the case -- this case has been lingering on the Court's docket for two years now, and they probably had originally intended just to hold onto it long enough to see what they would decide in Moran and then remand this case for further consideration in light of Moran if necessary. But they didn't, which suggests, to my eye, that there are some Justices who might want to make a big deal of how different this case is from Moran and how the argument for preemption is stronger here. Will one of the slim Moran-majority jump ship and vote in favor of preemption here? Could be. But ultimately I'm guessing that this case, like Moran, will come out with a decision of no-preemption, and the Court will therefore AFFIRM.

posted by sam 7:18 AM 0 comments

Follow-ups on some things from yesterday:

1) The next article in the NYT's series on McWane, Inc.; and

2) On judicial nominations, a column from E.J. Dionne about the partisan aggressiveness of the President's nominations, and various articles on Atrios's site regarding Judge Pickering, articles that could convince a reasonable person to take a hard-nosed stand against his nomination on principle even though (as I posted yesterday) the practical consequences of his elevation would be relatively minor compared to the effects of many nominations.

3) On qui tam cases, Gary O'Connor of the Statutory Construction Zone (a very useful law blog) wrote to point out that qui tam cases have a very long pedigree, going back long enough to have warranted a discussion in Blackstone's Commentaries. (Go here and search for "qui tam" if you're interested). Much of what is decried today as lawyers-run-amok, in fact, is deeply rooted in centuries-old law; and very very old law can turn out to be useful in arguing cases, more often than many lawyers realize. Fortunately, Gary has links to Blackstone and other legal history sources on his site.

posted by sam 6:24 AM 0 comments

Thursday, January 09, 2003

Important non-law stuff:

1) my friend Bruce Molsky (whom I mentioned below in my new year's post), and his band-mates in Fiddlers 4 (Darol Anger, Michael Doucet, and Rushad Eggleston), were nominated for a Grammy in the Best Traditional Folk category. This is one more indication that you should buy their record, which mixes many threads of American music.

2) there is finally a good browser for Mac OS X -- Apple's own "Safari," downloadable for free at Apple's site. It blocks pop-ups, is much smaller and quicker than Netscape, and (so far, at least, even though it's only beta) works better than the off-brand stuff that I had been using.

posted by sam 5:00 PM 0 comments

Having no Senator myself (because I live in DC), I am not in much of a position to tell any U.S. Senators what to do. But if I did have one, this is what I would tell him or her:
if there's only enough mojo for a small number of filibusters on judicial nominees, don't use up much of that mojo on Judge Pickering
My reason is simple and practical: Judge Pickering is, right now, a U.S. District Court Judge in his mid-60s. He will have, one would guess, not that many more years on the bench, and certainly not that many more years before taking senior status (which would allow the then-current President to name a successor). He would have more of some sorts of power, during those next not-so-many years, on the Court of Appeals; but on the other hand, he's got plenty of power now on the District Court and can stay there as long as he wants. So the marginal increase of Bush-political-influence-on-the-bench by virtue of elevation to the Appeals Court, over the remainder of his judicial career, pales in comparison to the marginal increase in influence that would be created by the appointment of (say) someone around 40 yrs old who does not already have a lifetime appointment to the federal bench.

Now I recognize that more is at stake here than just lawyerly rough calculations of expected practical impact on judicial decisions. There is symbolism, and politics, and there is also PRINCIPLE at various levels, not just the sort of practical calculus that I mentioned above. But the practical calculus ought to have a good bit to do with it, I think. Now, I don't think that "no" votes are a limited resource; each Senator can and should vote against any nominee that he or she thinks should not be confirmed. But unless liberal Democratic Senators are prepared for quite a few filibusters, I would urge that they save their energy for younger nominees who are not already enjoying life-tenured positions on the lower courts.

But maybe filibusters are like bicep curls -- doing them creates the strength to do more of them? If anybody who knows a lot about politics tells me that that's the case, then I'll rethink my theory.


I know that what I have written above will seem weak or even unprincipled to those who oppose Judge Pickering's elevation because of particular things about him: a belief that he is a racist, most prominently. But what I'm trying to get to, here, is a way of discussing judicial nominations that is more openly based on ideology -- and more precisely, our best predictions as to how the nominee would, if confirmed, impact the course of the law -- and not on other things about the nominee personally. I prefer that mode of discussion of nominees, rather than the more "personal" mode of discussion -- in which opposition to nominees is often framed as an attack on the ethics of the nominee, or the subjective and high-stakes question of whether he or she is a racist, or a sexist. One reason I prefer the openly ideological mode of discussion is that I think -- I hope -- that framing the debate in these terms would help lawyers feel unafraid of publicly stating their opinions about nominees. As it stands, there is something potentially intimidating, to lawyers, about taking a stand on nominations -- the old saying, "if you're going to jump the king, make sure that you kill him", or in other words "woe unto you if the nominee whom you opposed gets confirmed!" I do trust that judges try very hard not to hold grudges against those who opposed their nominations. But I think that the grudges would be tinier -- even non-existent, I hope -- if opposition to nominations could be framed explicitly as "I'm not saying he's a crook, not saying that he violated canons of judicial ethics, not saying that he's a racist -- none of that is the basis for my opposition. What I'm saying is that I think based on his record that he would tend to vote for such-and-such kind of decisions, and I would very much prefer judges who would vote the other way." This, by the way, is why I feel comfortable being perhaps the first and only person to publicly oppose the seems-quite-likely-now nomination of Ala. AG Bill Pryor to the Eleventh Circuit. I don't think he's a crook, I don't think he's unethical, I don't think anything bad about him personally; I just think that his view of law is extremely different from mine, and that he knows as well as I do that judges have much room to make law. I expect that he would make decisions with which I disagree, more often than not, when there was room for disagreement. As long as I can frame my opposition to his apparent candidacy in this way -- as long as this is seen in the political world as good-enough reason to oppose a judicial nominee -- then I have a reasonable faith that, if confirmed, he won't hold a grudge. And I would do the same as to Judge Pickering, and Justice Owen, and Mr. Estrada: I'm not saying that they're crooks, I don't want to make this personal in any way, but I'll bet dollars to donuts that they would send the law in a more conservative direction, and I vigorously oppose that.

posted by sam 12:07 PM 0 comments

Supreme Court

The first case for Tues 1/14 is Cook County v. US ex rel Chandler. It is a "qui tam" case. That means that it's a case under the False Claims Act, a Civil War-era statute that provides for lawsuits against those who defraud the government. One interesting thing about this law is that it allows a private individual to sue "on behalf of" the U.S., when the individual knows of the fraud. Hence the funny name of the case -- this "US ex rel" business. The individual can even get some of the recovery, as a reward for bringing the fraud to light. Fun fun fun. Corporations and other defendants hate the law, of course.

The question here is whether a municipality (county or city) can be a "person" that is subject to suit under this law. (The law says that "any person" who does the enumerated bad things shall be liable.). The Supreme Court has already told us that States aren't "persons" within the meaning of this law, and can't be sued. Naturally enough, counties and cities want that immunity too. But I think it's perfectly clear that they're not entitled to it. The reason, in a nutshell, is that the Supreme Court has long interpreted the word "person", in statutes from that era, as including municipalities while not including States. (Compare, e.g., this (cities are "persons" within 42 U.S.C. § 1983) and this (States aren't).). The Court should, and will, AFFIRM the decision of the Seventh Circuit. In fact, the affirmance should be unanimous, leaving only the question why they bothered to take the case.

posted by sam 11:21 AM 0 comments

I recommend that you read this and this, articles in the NYT about the horribly dangerous work conditions at factories owned by McWane, Inc., a Birmingham-based manufacturer of pipe. These articles are apparently the beginning of a series, and are connected to a show to be seen tonight on Frontline on the same topic. It will make you shudder, I predict, and will (I hope) make you advocate better workplace-safety laws and better enforcement of those laws

posted by sam 7:02 AM 0 comments

Wednesday, January 08, 2003

Supreme Court

Made it back from Atlanta sooner than expected, so I will in fact blog. I will blog tomorrow about federal appellate nominations in the news -- Judge Pickering to the Fifth Circuit, and the looking-quite-likely-now probable nomination of Ala. A.G. Bill Pryor to the Eleventh -- if I can figure out how to write something that is (a) potentially useful to readers and (b) not an act of shooting myself in the professional foot. But that can wait, because now we're on to Supreme Court predictions.

The second case for Monday 1/13 is yet another case brought by blogger-and-Supreme-Court-practitioner Tom Goldstein. It's Clay v. U.S., and it's about the time limits within which a person convicted of a crime in federal court must file a petition for post-conviction relief. Post-conviction relief – you can say "habeas corpus" if you like – is the process by which, even after you have been convicted and your conviction has been affirmed on appeal, you can file a new proceeding in a further attempt to show that your conviction was unconstitutional or otherwise unlawful.

The federal statute says that a federal prisoner has one year within which to file a petition for post-conviction relief. One year from what, you ask? That's the right question. One year from when the person's conviction becomes final, says the statute (in the part relevant here). When does a conviction become final? Right question again. Most courts say that it's when your petition for certiorari in the Supreme Court is denied or when the time within which you could have filed such a petition runs out, if you didn't file one. The Seventh Circuit (unpublished opinion, I think) disagrees, though, saying that – if you don't file a petition for certiorari upon the affirmance of your conviction – your one-year period for filing a petition for post-conviction relief begins to run when the appellate court's mandate issues, not when your time for filing a cert petition expired. Not that big a difference – less than 90 days – but big enough to make some petitions timely or not. Like Clay's, for instance.

Clay will win. The Supreme Court will REVERSE. In other related contexts, the concept of "finality of the conviction" has been construed to mean "when the time for petitioning for certiorari would have run out" – and, because we lawyers like symmetry and consistency, the concept ought to be construed the same way in this context. Even the United States agrees that this is the right result. (This is one of the good things about the government; sometimes it admits that it is due to lose a case in the Supreme Court.).

posted by sam 5:25 PM 0 comments

Good morning. No blogging of substance today; I am in Atlanta to argue a case before the U.S. Court of Appeals for the Eleventh Circuit. Please come back tomorrow.

posted by sam 6:56 AM 0 comments

Tuesday, January 07, 2003

Oh wait, there is one more thing that I can post about, that does not constitute impermissible class warfare. That is this: that yesterday, the Eleventh Circuit reversed the dismissal of criminal charges against the Republican Sheriff of Jefferson County, Alabama, and his lawyer. The charge, in a nutshell, is that they conspired to illegally utilize the state and federal crime databases not for any legitimate law enforcement purposes but to help their own efforts in an election contest (rummaging around to see if any ineligible ex-felons had voted). The District Court had dismissed the case based on alleged prosecutorial misconduct, but the Eleventh Circuit said that the prosecutors had behaved just fine. As usual, no web link to the opinion yet, but you can fiddle around on the Circuit's site and find a zip file of a wordperfect version of the opinion. Or wait a few days and it will be on Findlaw sooner or later. I will say, for what it's worth, that the lawyer in question has always been, in my experience, a very nice and honorable guy, even when we were on opposite sides of hard political battles; and no one's been found guilty yet, and this merely sends the case back for trial.

posted by sam 7:35 AM 0 comments

Supreme Court

Ok, back to the Supreme Court explanation and prediction-game (and just in time, too, because I don't have anything else I could think of to say today except for class warfare stuff, and that's BAD, you know.).

The first case on Monday is a bankruptcy case, Archer v. Warner. The deal with bankruptcy is that, if you "go bankrupt" (a phrase that corporate bankruptcy lawyers tend hate because it's so imprecise and colloquial – if you want to drive a corporate bankruptcy lawyer crazy, use that phrase incessantly) – if you go bankrupt, the debts that you owed when you filed your bankruptcy petition are "discharged". They go away. You don't owe them anymore. That's what bankruptcy is. (It's not a lovely process from the debtor's point of view; it's not just a matter of saying "ha ha! gotcha, creditors!" Do not fool yourself into thinking that individuals who file bankruptcy proceedings are generally really lucky duckies.).

But under the Bankruptcy Code, some debts are "nondischargeable" because, for various policy reasons, we (more precisely, those who write and enact the Code) have decided that you shouldn't be able to eliminate them by going through bankruptcy. Among the non-dischargeable debts – i.e., the things that you have to pay back even after you go through bankruptcy – is money that was obtained by fraud. If you cheat (defraud) somebody, you can't then avoid the legal obligation to pay them back by seeking bankruptcy protection. Got that?

Ok. Now the next step. The parties here had a lawsuit in which Archer sued Warner, claiming that Warner had taken Archer's money by fraud and had done various other related things. So you're thinking, based on that last paragraph, "well, Warner can't evade the obligation to pay that money by declaring bankruptcy, because money obtained by fraud is a non-dischargeable debt." Good for you – you're right, if you assume that Warner actually had done the bad things that were alleged. But Warner hadn't gone into bankruptcy yet. First, Warner settled the lawsuit, agreeing to pay Archer some money to resolve the case, with neither side admitting that the other was right (which is, of course, the usual routine in settlements – nobody admits anything except that they want the lawsuit to be done with). And then Warner filed a bankruptcy petition. And the U.S. Court of Appeals for the Fourth Circuit said that now the debt was dischargeable, because the debt was now just a matter of a contract – the settlement agreement – rather than being about money obtained by fraud, and contractual debts (unlike money-obtained-by-fraud debts) are dischargeable. The question is whether the Fourth Circuit was right; other Circuits have disagreed, saying that if there was fraud, then the debt ought not be dischargeable whether the underlying case was settled or not.

Here is my advice to you: if you don't find this at least mildly interesting, you should not go to law school. My best judgment is that the Supreme Court will REVERSE; the simplest way to explain why is to say that the dissent below seems pretty convincing to me.

posted by sam 7:13 AM 0 comments

Monday, January 06, 2003

This is what a trial balloon looks like. There is already a nominee for the current Alabama-based vacancy on the U.S. Court of Appeals for the Eleventh Circuit. But the White House and Senator Sessions are thinking of yanking that nomination and offering Alabama Attorney General Bill Pryor instead. And they want to see how stiff the opposition to Pryor would be. So somebody tells the Birmingham newspaper; and then somebody tells #1-law-blogger Howard Bashman about the newspaper article (because surely Howard doesn't read 100 newspapers online every day, does he??) and voila, the idea is up for discussion in Alabama, among interest groups, and among the small world of appellate-law junkies.

Sometimes I wish I'd started this blog with a Greek pseudonym, rather than under the same name that I use when I sign legal pleadings and briefs; there is something unwise (from a selfish point of view) about a lawyer's taking a public stand about the composition of a court before which he practices often and whose members, once confirmed, have life tenure. But I'll be up-front about it: although Bill is a very bright guy and has grown politically during his time in the AG's office, I still don't think that he would be a good Circuit Judge. I intend to discuss this at more length later; for now, peruse his "public policy" links on the official website of the Attorney General's office, to get a flavor of where he's coming from.

UPDATE: See also this news report, which details two of the things that would be among the most contentious issues in any Senate consideration of AG Pryor's nomination: his conduct with respect to tobacco companies, and his role in increasing the partisan divisions among state Attorneys General by starting a "Republican Attorney Generals' Association" despite the fact that the tradition among holders of those offices had been to avoid such partisan divides. And this reprint of a Washington Post article about that Association.

UPDATE UPDATE: But it occurs to me that maybe I have merely been set up to play a role, that this is just a bit of pressure on liberal groups to say, "fine! fine! let's have hearings on the current nominee! just don't send up Attorney General Pryor."

posted by sam 8:31 AM 0 comments

Sunday, January 05, 2003

Occasionally I realize that I tend to underperform miserably at one of the tasks that is apparently central to blogging: the "hey, go read this interesting thing that so-and-so wrote" post. I just assume that most people are reading all of the great blogs linked over there (<-----).

But if you're interested in tricky problems about the nature of democracy, go read what Fritz Schranck is writing about, about who gets to vote in a beach town. If you own part of a time-share, should you get a full vote? A fractional vote? No vote? It's making me wonder ... could I buy a piece of land real cheap in rural Alabama, divide it into fractional interests (say, about a million) and give them away to progressive political activists ...

posted by sam 7:10 AM 0 comments

Saturday, January 04, 2003

With further good intentions for the New Year, I am starting again to post synopses of important (to whom? why, to me of course) Eleventh Circuit, Alabama, and NLRB decisions in the sub-blog, starting with decisions from the Circuit yesterday on ERISA-exhaustion and on qualified immunity.

posted by sam 3:44 PM 0 comments

Yesterday, in an opinion of the U.S. Court of Appeals for the Ninth Circuit, Judge Alex Kozinski made a lame and gratuitous joke at the expense of former Vice President Gore. It was a lame joke of the sub-species "he claimed to have invented the internet, ha ha ha". Here's the pdf file; go to footnote 18 of Judge Kozinski's dissent, p. 33 of the pdf file. Even Jay Leno is over that; but Judge Kozinski is not.

A few weeks ago, in an opinion dealing with Gennifer Flowers' defamation case against James Carville, Senator Hillary Clinton, and others, Judge Kozinski made a lame and gratuitous joke about Monica Lewinsky. (One of the cases cited as precedent had included a party named "Levinsky, Inc.," and Judge Kozinski thought it clever to say "(no relation)". See page 12 of this pdf file.) (How do I know these things? By reading Howard Bashman's appellate-law blog, of course.)

Impeachable offense for a judge? Clearly not. But beneath the dignity of a court, and contrary to everything that judging should be, and bad for the judicial system? I think so.

In part, I recognize, I am a stick-in-the-mud about judicial opinions. I don't think that judges ought to show off, or show out, in any way. I don't usually like Judge Kozinski's occasional acts of self-consciously cute hipness in opinions, even when they are apolitical. Heck, I'm such a stick-in-the-mud that I find it annoying to read the opinions of some judges who make a point of using words that not one person in 1,000 has ever heard. To me, judicial opinions are supposed to do two things: (a) explain the results to the litigants, in such a way that – with the help of their lawyers – those litigants can understand why they won or lost and thereby, even if they think it stinks, come to understand that the process was a fair one; (b) explain the result to non-parties so that they too can understand the process to have been a fair one and the result to have been a reasonable one, and help them make educated guesses about what conduct will be held lawful or unlawful in future cases. Anything that does not contribute to these two goals has no place in an opinion, I think. If this makes the role of judging intolerably boring to a person, then I think that person ought to be an advocate or law professor or performance artist and not a judge. Now let me be clear: I'm not saying that jokes, or fancy words, or even Justice-Scalia-brand vitriol, are a violation of any judicial ethic, or ought to be outlawed, or make someone unfit for judging; I'm expressing a personal preference and a view about what I think judicial opinions should be or not be. Judicial opinions aren't like blogs, you know; instead, they are the (one would hope) rational voice of the government, explaining why it is taking or not taking an action that (in most cases) is pretty damn serious, at least to the people involved in the lawsuit.

But these recent political pokes by Judge Kozinski take it to a much different level. In one instance – where the case actually did have something to do with former President Clinton, and the joke was at the expense of him and Ms. Lewinsky – I think that a reasonable losing litigant (Carville or Stephanopoulos, perhaps) could infer something about the judge's political party preference, could infer that the judge didn't even particularly think it important to try to banish that party preference from his mind while doing the act of judging, and could wonder if that party preference might at some level have had something to do with how the judge voted in the case. And a person would be even more reasonable in wondering that, upon reading Judge Kozinski's swipe at former Vice President Gore: "heck, the guy can't even keep his snide expressions of political preferences to himself, even when they have absolutely nothing to do with the case!". Hear me now: I'm not saying that the fix was in, that Judge Kozinski's vote in the either of these cases was a partisan one. But I have more trust in the fairness of judges than many people do; and one of the important rules about judges is that they ought to avoid even those sorts of behavior that would lead some reasonable people to question their fairness. Judge Kozinski's swipes fail that test.

posted by sam 2:52 PM 0 comments

Friday, January 03, 2003


One of my New Year's resolutions is to be better about keeping up to date with my synopses of NLRB decisions. This resolution ought to be pretty easy for the next few weeks, because -- with a new Board including four new Members (out of five) just having been installed -- they presumably won't really get cranked up and start putting out many substantive opinions for a while yet. Today's news, however, brings the first decision ever of the "W Board" or the "Battista Board," whichever you prefer to call it: a little unanimous order approving a settlement that had temporarily suspended a union rep from practice before the Board, because he allegedly punched a guy. Why bother to make this the new Board's first order of business? Because the temporary suspension was due to end two days ago, so they had to get the opinion in before then. This labor law is heady stuff.

posted by sam 1:40 PM 0 comments

In 10 days, the Supreme Court will start hearing arguments again; and in advance of that, I'll be continuing my game of posting explanations and predictions of the outcomes of the cases. During the week of 1/13, there's a wide range of cases, from bankruptcy to immigration to ERISA preemption to qui tam to § 2255 to the latest foray into the brave new world of state sovereignty. If you don't know what some of those buzzwords mean, just stick around.

posted by sam 10:46 AM 0 comments

This darn blogging thing has gotten so out of hand, that I can't even be the first one to post in outrage about the Department of Labor's decision to stop publicly disclosing information about mass layoffs. Jeanne D'Arc and Nathan Newman have already discussed it well.

For years, the DOL has been posting such information, and it has (as reflected in the news article linked above) been very useful to state and local governments as well as to labor. Just to give you a sense of what we're talking about, it was 240,000 lost jobs during November alone, at more than 2000 employers -- and that's just mass layoffs, those that affected more than 50 people for a sustained period. But to the Administration, it's not worth keeping track of the numbers or making them publicly available -- even when our beloved States say that they find the information very useful in their task of helping dislocated workers.

There would, by the way, be an easy way that the DOL could continue to provide information that was not as good but still worth something, and to do so very cheaply. Employers who have mass layoffs or plant closings are required by federal statute to give notice to their State governments; and the feds could very inexpensively collect and publish the aggregate data from the notices given to the States by law-abiding employers. Again, this would not be perfect, but it would help. How far from perfect would this cheap alternative be? Hey, that's an interesting question in itself -- if we compared the DOL's independently-obtained data against the list of those employers who gave the statutorily-required notice, what would we find to be the rate of law-abidingness among employers who had the statutory duty to provide this notice? Fascinating question to which I have absolutely no answer, and don't expect to get one from the Administration. They just don't want to get into such things. The economy is fine -- now move along.

posted by sam 7:14 AM 0 comments

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