(The Return of) Ignatz, by Sam Heldman

Thursday, March 31, 2005

Sometimes it seems that life is full of disappointments. Among them is the new Beck record.

posted by sam 11:51 AM 3 comments

feelings about constitutional law

The newspapers are abuzz about the fact that Eleventh Circuit Judge Birch -- appointed by the first Pres. Bush -- wrote an opinion (for himself alone) in the Schiavo matter, saying that the Schiavo-specific law was unconstitutional. He really laid into them, "them" being the Congress and President, saying that the statute went against the very basic priniciples of our constitutional democracy. You can get the opinion from here.

What's interesting to me, the more I think about it, is that Judge Birch's view of the unconstitutionality of the law was so different from mine. His view was all about separation of powers, and (not that I necessarily think that there's anything wrong with this) was more about the rights of courts than about the rights of individuals. Now, I understand that he might say that preserving the rights of courts is a way to preserve the rights of individuals, and he would be right. But if I were writing an opinion asserting that the Schiavo law was unconstitutional -- and I probably, but not certainly, would have done so if I were in his shoes -- I would have talked about Equal Protection, the rights of individuals, as much as about separation of powers. The Congress enacted a law creating the right to bring a lawsuit against a handful of people -- Michael Schiavo, and the hospice, and maybe a few others. Other than the carefully created media- and political-circus, there is no rational basis to single them out, out of all other people and institutions who are involved in this sort of dispute every week.

Now maybe Judge Birch (whom I respect a lot, by the way, even though his views often differ from mine) knows some reason I don't, as to why precedent would have foreclosed such an Equal Protection argument. But I think that the argument would have been at least as strong as his separation of powers argument, and I'm very surprised that he didn't invoke it as well. Whether this marks some greater difference between liberal visions of constitutional law and conservative ones is an interesting question; my tentative answer is, "not as much as you might think."

posted by sam 9:07 AM 4 comments

Wednesday, March 30, 2005

law blogging
Two good employment-related decisions from the Supreme Court in the last couple of days.

In Jackson v. B'ham Bd. of Ed., the Court held that a coach may sue if he suffers retaliation by his employer for complaining about unequal treatment of girls' sports teams. More generally (and more technically), there is such a thing as a claim for retaliation under Title IX. This had been a question, because the statute only speaks in terms of outlawing "discrimination," whereas some other statutes specifically outlaw retaliation as well. However, the Court held that the word "discrimination" in Title IX encompasses retaliation, especially because not long before the enactment of Title IX the Supreme Court had interpreted the word "discrimination" in another civil rights statute as encompassing retaliation. If Congress didn't mean to adopt that interpretation when enacting Title IX, says the Court, they would have said so. This just goes to show that the impact of Supreme Court Justices can live on, in direct and indirect ways, long after they are gone.

In Smith v. City of Jackson, the Court held that employees may bring suit under the Age Discrimination in Employment Act not only for intentional discrimination (where the boss is in fact motivated by the employee's age) but also for disparate impact discrimination (where the employee is subjected to some test, standard, rule, etc., that impacts older workers more heavily than younger workers). In so ruling, the Court did make some qualifications and "but"s and "still"s, and so such cases will not be easy (for instance, the Court said that the particular claim in this case would fail) -- but they can be brought. Blogger and Supreme Court expert advocate Tom Goldstein handled the case for the employees and did a great job.

posted by sam 11:49 AM 1 comments

word to the wise

If you think that you may ever become the defendant in a prosecution for murder, you should not adopt any variant on the word "Murder" as your stage name.

posted by sam 8:45 AM 0 comments

Howell Heflin

Not to take anything away from Johnnie Cochran, a great criminal defense lawyer, but here's to former Alabama Chief Justice and U.S. Senator Howell Heflin, who died yesterday.

Senator Heflin was, for his time and place, a real progressive on many issues. He had a real sense of fairness. He brought the Alabama Supreme Court into the 20th century. He had such an accent. Every Alabama lawyer, in the heat of the moment during argument or trial, sometimes subconsciously exaggerates his or her own accent. I have done it myself, embarrassingly enough. I think that maybe we're trying to be Howell Heflin.

He also stole a very lame joke from me once. One summer when I was about 18, I was an intern at the Birmingham public radio station, and the one-person news department sent me off with a microphone and a cassette record to cover the groundbreaking for some new building. Before it started, I found myself standing next to Senator Heflin, in front of a huge hole in the ground with backhoes and bulldozers in it. I said, "Gee Senator, we're here for a groundbreaking but it looks like they've broken quite a bit of ground already." Then the ceremony starts, and he stole my joke, and everybody laughed.

posted by sam 7:26 AM 0 comments

fun with Scarborough

Atrios is right, this transcript of a physician with no patience for Joe Scarborough's antics is priceless.

Now it can be told: I rode on a 4-seater airplane once with Joe Scarborough, from Alabama to DC, before he was a tv guy.

posted by sam 6:54 AM 0 comments

Tuesday, March 29, 2005

blogging about my blogging
Yes, I know that the post immediately below this one is of a sort that is so common in politico-blogging that it is almost (almost?) a cliche. A bit too easy, maybe. Nonetheless, it is instructive about the infinite capacity of humans to do bad things, to delude themselves, and just to be jerks when you get right down to it.

posted by sam 5:05 PM 0 comments

Thank you for your expert opinion, Mr. Smith

Here, six months ago, is the Boy Scouts' "National Director of Program" Douglas S. Smith, Jr., writing forcefully in support of the Boy Scouts' belief that exclusion of gay people is fundamentally necessary to that organization's purpose and values. The basis for this exclusion is the Scouts' putative belief that gay sex is immoral.

Here, today, is an article stating that Boy Scouts' former National Director of Program Douglas S. Smith, Jr., has been charged with, and is expected to plead guilty to, receipt and distribution of images of child pornography.

[UPDATE, the following day: The Boy Scouts are too busy with homophobia to understand how things work on the internet -- they thought they could make this go away by taking down the page in the first link above. But here, via Red State Diaries, is the google cache. Wankers.]

posted by sam 4:08 PM 0 comments

Sunday, March 27, 2005

I am old fashioned.

Had an old friend over last night, who started telling me how the wave of the future, and the best thing since sliced bread, was the Rhaspody "huge music collection in the sky" service. For some number of dollars a month you can stream from an enormous record collection, and you never have to buy new cds ever again in your life. I resisted, and he proseltyzed, and I still resisted.

Then he asked if he could rummage through my cds and put on some music. I agreed, and he emerged a while later raving about how it was just like bein in a candy store and there were all these great things to listen to.

My guess is that most of what caught his eye in my record collection was probably stuff that he could have heard on Rhapsody; apparently the collection is huge. But flipping through the cases, even though not as satisfactory as flipping through LPs (among other things, how do people who smoke dope clean their dope anymore, if they can't use double album covers?), is a great pleasure and adventure.

So today, instead of downloading the new Decemberists and Iron & Wine records from iTunes, I went to an actual record store and paid green dollars for them.

posted by sam 4:04 PM 1 comments

Saturday, March 26, 2005

nothing interesting on my mind today, but I do have more gmail account invitations to give away if you want one. if so, send me an email -- first name at last name, dot net.

posted by sam 2:48 PM 1 comments

Thursday, March 24, 2005

now that's a good bunch of sentences.
Was going to try to give the NTAGS sentence award to The Poor Man tonight, but couldn't decide on the best sentence. Is it:
It’s funny that this stupid Schiavo case should be a defining moment - that matters of state and billions of dollars and millions of lives should take a back seat to this “my baby fell down a well!” human interest crap, but ain’t it America? - but I suppose, scale aside, it’s an illustrative enough example, thanks to the fractal self-similarity of the Wingnut Function.
Or is it:
Asking oneself “why do they keep playing me for a chump?” is a question that chumps are always asking themselves, a question which answers itself, chumps.
Or is it the sentence immediately following:
Yes, the Republican Party is primarily concerned with A) diminishing the government’s power over large corporations and the very rich, and B) pandering to a sizeable constituency who want to increase the government’s power over every other facet of American life, and over the rest of the world, in accordance with God’s Holy Bible, a book they have not read.
Or is it:
However, one must note, in the interest of Kristofian non-partisan fairness, that none of this makes Michael Moore any slimmer.
Every other funny-political blogger is, tonight, the poor man's The Poor Man.

posted by sam 7:45 PM 2 comments

ways in which I am different from Bob Dylan

I am different from Bob Dylan.

If I were like Bob Dylan in having (a) an unquenchable desire to tour constantly, (b) money enough to keep great musicians well-paid all year round, to practice more songs for our repertoire during those months we weren't playing, (c) hundreds of recorded songs as well as encyclopedic knowledge of the American music tradition, and (d) fans in whose eyes I could do no wrong, I would still be different from Bob Dylan.

That is, I would play different songs every night. I would certainly not play 5 of the same songs nearly every night of the 13 dates so far this tour, nor would I play some songs two and three hundred times in concert during the last four years.

This is better than talking about Schiavo.

posted by sam 3:45 PM 2 comments

that damn case

I really hate the fact that it's taking up so much of the news, but if everybody's talking about it we might as well help them know what they're talking about.

As it's panning out (in the dissents in the 11th Circuit, and now in the application to the Supreme Court), the disputed issue is whether the Congress told the courts to, and whether (for that reason or some other reason) the courts should, issue an emergency order keeping Ms. Schiavo alive pending some further proceedings in the case.

There are two sub-parts of this issue, technically.

One is whether the courts can/should use the authority of the old old All Writs Act to issue such an order, without regard to the standard that governs issuance of temporary restraining orders and preliminary injunctions. To get a preliminary injunction or temporary restraining order, you've got to show (among other things) that you have a substantial likelihood of ultimately succeeding in the merits of the case. No federal judge, not even the dissenters in the 11th Circuit, has said anything substantive about any putative merit in the Schindlers' federal claims. The federal district court judge, and the panel majority, explicitly said that those claims have no substantial likelihood of success. Some people -- including the dissenters -- say that the standard should be different under the All Writs Act. But why? Why would a federal court issue an emergency order, forcing people to do things, in a case that seems clearly to have no merit whatsoever? Just so that the case can drag on for a while before ultimately being dismissed? That makes no sense to me.

The other is whether the Congress instructed the courts, in the Schiavo-specific statute, to issue such an order. Clearly, they did not. In an earlier version of the bill they were going to, but that was removed before final passage and signing. Now, the people who say that Congress did give that instruction are relying on the statutory instruction that the federal review of the claims should be "de novo." But the phrase "de novo" does not mean that there must be a trial, or anything of the sort. The phrase "de novo" means only "without deference to what another tribunal has done". In other words, a court reviewing something de novo doesn't assume that the other court's factual findings are correct, or that its view of the law was correct. But this is entirely separate from the question of whether there is a viable federal claim in the Schindlers' case. If there was a viable federal claim, and if one element of such a claim required a factual finding as to Ms. Schiavo's medical condition, then sure enough the federal court would have to decide that matter "de novo" if this statute is constitutional. But if there is no such viable federal claim -- and there isn't, as the courts have said -- then there is no need for any federal finding of that sort, "de novo" or otherwise.

That ends the law lesson for today.

posted by sam 7:13 AM 3 comments

Wednesday, March 23, 2005

more law
Eleventh Circuit decision here, affirming the District Court's decision in the Schiavo case. I said last night that they ought to keep it one sentence long. This opinion actually does better than that -- in terms of the merits of the legal claims, they do exactly that, but in response to a dissent they also add other discussion about the applicable procedural law and the Schiavo-specific statute that make it quite plain that the decision is correct. Good for them.

posted by sam 7:06 AM 6 comments

Tuesday, March 22, 2005

I am disgusted by the Terri Schiavo political spectacle, although I have some empathy for all the family members on the various sides. I will emerge from my disgustedness just long enough to say this: that the Eleventh Circuit ought (if they are going to affirm the District Court's denial of preliminary injunctive relief, which I believe they should under the law) simply say, "We affirm for the reasons stated by the District Court." Anything weirder or more complex than that would simply invite more political yickety-yacking.

posted by sam 7:59 PM 3 comments

Friday, March 18, 2005

now that's a good sentence.
This one gets the "NTAGS" award more for content than for style.

From the Associated Press:

Among virgins, boys who have pledged abstinence were four times more likely to have had anal sex [than those who made no abstinence pledge], according to the study.

posted by sam 5:59 PM 5 comments

the rule of law

Note to House Speaker and to DeLay:

In this country, subpoenas are pieces of paper requiring witnesses to appear for testimony, and sometimes requiring them to bring certain things with them. The word "subpoena" does not mean "a piece of paper created by a few members of one house of the legislature, having the legal effect of requiring people to do or refrain from doing something, for instance a medical procedure." The way that our legislature requires people to do or refrain from doing something is to pass a bill, which (if also passed by the other chamber) can become a law if signed by the President.

UPDATE: Oh, this is even more sick. In the few minutes it took to post this, the linked NYT article was updated to say also that the theory -- at least according to Frist -- is that they are going to ask Terry Schiavo to come to a hearing as a "witness," and that nobody better mess with her ability to come.

posted by sam 10:24 AM 1 comments

Thursday, March 17, 2005

things that freak me out
Sometimes I think, despite the bad things in the newspaper, that in a big-picture sense human behavior and government are getting better and will continue to do so -- and that our country has some shared basic principles that will continue to push it in the right direction.

Other days, I read things that really make me believe that our country is in a pitched battle between people of reasonable moral sense and people without, and that the outcome is far from certain.

Today is one of those worse days. Eugene Volokh, putatively the blogosphere's most pleasant and erudite right-wing lawyer, says that he is in favor of -- and would, if he were the family member of a victim, would like to participate in -- the execution of mass murderers in long, drawn-out, excruciating public-participation ceremonies. And, as Marty Lederman explains, Harvard Law professor Alan Dershowitz -- putatively a smart guy -- absurdly professes to be unsure whether the intentional infliction of "excruciating" pain for fifteen minutes constitutes "torture" under the relevant legal definition.

Volokh says, in a nutshell, "that's my moral intuition and you can't prove it's wrong." Sure can't, you moral relativist you. But my moral intuition is that it's outrageously hideously wrong. Dershowitz, by contrast, is wrong as a legal matter as well as a moral matter.

posted by sam 12:15 PM 6 comments

more music

This is a good way to waste some time: Band to Band, which allows you to click any two bands from a long list, and then it compiles a sort of "six degrees of Kevin Bacon" thing linking them through other bands, based on shared members of the various bands. Did you know that you can get from Kansas to Rites of Spring in only 11 steps?

UPDATE: Funkadelic to Fairport Convention in 7.

FURTHER UPDATE: Foghat to the Pixies takes only 13. Furthermore, Ginger Baker is the center of the universe.

posted by sam 9:45 AM 0 comments

Wednesday, March 16, 2005

Gotta blog about something, just so my blogging muscles don't atrophy as a result of the near-total lack of inspiration. So ...

Every decade brings its own example of an old-time banjo-fiddle band with a rock or punk edge. You had Earl Johnson and his various bands in the 30s, the Correctones and Fat Meat Boys in the 70s, the Horse Flies starting in the 80s (and to the present), the Hix in the 90s (and don't say Bad Livers or I will scream -- they were the worst band ever). The 00s have The Old Crow Medicine Show, whom I am going to see tonight at the 930 Club. How do you like that -- an old time band at the 930. There are some downloads on the band's site that you might like.

The other night I saw the premiere of the second installment in the Burn to Shine series of indy-music documentaries. In each installment, you take one city, document a snapshot of a slice of its music scene by having all the bands come to a building on one day and take turns recording live -- then you burn down, or otherwise destroy, the house. Sweet. First was DC, which I mentioned here a few weeks ago. This new one was Chicago, and let me tell you -- you need to see it when it becomes available for purchase, even if only to see Nels Cline's guitar playing on Wilco's performance of Muzzle of Bees. Trust me on this. Also to see a house torn down very loudly by a big backhoe. Cool!

[UPDATE, the following day. Unsurprising fact learned last night: the sound people at the 930 Club don't really know how to mix an old-time band. Could hardly hear the fiddle, or the lower four strings of the banjos. However, the fun made up for the muddiness of the sound.]

posted by sam 7:44 AM 0 comments

Saturday, March 12, 2005

good thing to remember
This morning's David Brooks column should be posted over every blogger's and every pundit's desk, as a constant reminder: if you don't have anything interesting to say, just keep quiet. I think it is the stupidest thing I ever read.

posted by sam 11:21 AM 4 comments

states I've been to

Does this make me one of them "coastal elites" you're always hearing about?

create your own personalized map of the USA

posted by sam 10:03 AM 2 comments

Thursday, March 10, 2005

politics blogging
You may have noticed that blogging inspiration has been limited here lately, and that in particular there has been very little about the big legislative issues (bankruptcy changes, failure to raise minimum wage, etc.) that have been in the news. Here is the reason: the only thing that I can think of to say, these days, about any action by the legislative or executive branches is: that's what you get when you vote for Republicans. I don't mean to be flippant about it. When you vote for Republicans, you get legislative and executive actions that favor the interests of the rich and corporate over the interests of the non-rich, more so than when you vote for Democrats.

Well, you can see what kind of mood I'm in.

posted by sam 4:47 PM 4 comments

York PA and its widespread confusion about the relationship between man and other animals

Surely there is a connection here. About six weeks ago I noted that a school board near York PA was telling kids not to believe so much in evolution. Now, I learn via Atrios that there is something of a bestiality problem in the area. I think that this is probably what you get when you make people wig out about their relationship to non-human animals: they act out in odd ways.

posted by sam 12:25 PM 0 comments

Wednesday, March 09, 2005

This is interesting to me -- a judge in New York has issued a ruling that is hailed as a breakthrough decision, a courageous decision, a novel and creative decision: he allowed a wife to seek a divorce on the grounds that her husband has (among other things) refused to talk with her, sleep in the same room as her, eat with her, or even eat food prepared by her for twelve years. It took creative and courageous thinking to reach that result? Apparently New York is the only state where the legislature has refused to adopt no-fault divorce.

posted by sam 7:24 AM 0 comments

Tuesday, March 08, 2005

Bill Mitch
I just found out that my old friend Bill Mitch, who was one of the senior partners in the first lawfirm I worked for, died over the weekend at the age of 89. He was one of the first generation of real union lawyers in the South. He had great stories and real wisdom, and was a hell of a lot of fun to talk with. He taught me a lot, and he had a soft heart under a crusty facade.

Too many people dying lately.

posted by sam 11:56 AM 1 comments

Monday, March 07, 2005

Sorry, no thoughts worth blogging today. Please try again later.

posted by sam 4:31 PM 0 comments

Friday, March 04, 2005

the majesty of the law
I try very hard to have faith in the Supreme Court. But then I just got my stamped-filed copies of another little cert petition that I filed yesterday, and they bear the official stamp of the Supreme Court reflecting that they were received at the Court on February 31, 2005.

posted by sam 2:07 PM 5 comments


I get so many emails these days purporting to be from Washington Mutual bank asking me to input my personal data on some website in order to "update" my account -- I'm thinking of doing it, just so that maybe the fraudsters will stop sending me so many emails. I wonder if that will work.

Alternatively, I may embark on a new career as a proofreader for phishing emails. They certainly need one. I wonder where I would apply.

posted by sam 10:49 AM 2 comments

Wednesday, March 02, 2005

Ten Commandments
As I mentioned earlier in the week, today was Ten Commandments day at the Supreme Court. How much does I personally care about the issue? Some, but not a whole whole lot. But I come closer to caring a whole whole lot -- to seeing this as an important battle in the effort to make sure that government remains distinct from religion -- when I read about what Justice Scalia said at the argument. I see it reported the same way in two different places, and so I trust the reporting: that his take on the big Texas 10 Commandments monument was that it was "a symbol of the fact that government derives its authority from God," and that this is a good thing (or at least a constitutionally-acceptable thing). Here I was thinking that people didn't necessarily agree on whether the existence of God is a "fact," and that the Government wasn't supposed to take sides in that debate.

But there is, at least, this: that having staked out that position, Justice Scalia can't very well sign on to an opinion saying that the posting of the Commandments or the construction of a Commandments monument is merely some sort of secular historical blah blah blah. I have more intellectual respect for arguments in favor of some far-out minority view of the meaning of the Establishment Clause, than for arguments that try to pave the way for public displays of religious symbolism by pretending that it isn't really religious symbolism.

posted by sam 4:06 PM 6 comments

important lesson for today

If you are a super-secret spy, and make a super-secret deal with the CIA that they will give you $ in exchange for your super-secret spying -- don't be under the illusion that you can sue the CIA if it refuses to pay the $ as promised. You can't, because that's the thing about super-secret spy deals: they're too super-secret to talk about in court. So says (pdf) the Supreme Court today. As if you didn't already know one of the basic rules of life, which is don't ever assume that you're the person to whom a deceptive person is being honest.

posted by sam 1:24 PM 0 comments

Tuesday, March 01, 2005

death penalty
As you may know, the Supreme Court held (pdf) today that the Constitution forbids the execution of people for crimes that they committed when they were younger than 18. A wonderful result as a matter of policy. Whether it was a proper constitutional holding -- something that the Supreme Court can and should remove from the legislative realm -- is a hotly debated question, of course, and is a fascinating example of this sort of question if you're into that kind of debate. I am comfortable with it being a judicial question. I am freaked out that it had to become one.

posted by sam 4:35 PM 0 comments

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