Happy July 4th!

America, F%#$ Yeah!

Happy 4th of July, Britain!!

Check out the Gallery of Unfortunate 4th of July Postcards:

This one is my favorite.
My Caption:

Yank: "Sorry about attacking your Hessians at Christmas. That just wasn't cricket."
Brit: They were just Hessians, old man. So sorry about the Boston Massacre, Stamp Act, the whole Jamacian Rum thing, quartering soldiers, issuing those general warrants to search, the tea tax, dissolving your legislatures, denying you trial by jury, obstructing the administration of justice, sending out the Dragoons, and all that rot, what what.
Yank: All is forgiven, chum. And, we'll be there to save your ass in World War II.

Happy Independence Day! Let's not forget our other important national holiday on September 17th (Constitution Day).

Excellent Dicta! (part 3)

A grateful hat tip to the Wall Street Journal Law Blog.

The Delaware Court of Chancery, as you might imagine, handles a lot of corporate law cases, which are usually dry, boring affairs. Well, Chief Judge William B. Chandler III (hereinafter referred to as "My Hero") decided to spice things up a little in a case about the merger of two major gaming companies, Activision and Vivendi. He begins his opinion with the following:

World of Warcraft, the market-leading massively multiplayer online role playing game, entices millions of paying subscribers to immerse themselves in a virtual online world. These subscribers create their own characters, and through these avatars they interact with other players, develop skills, create a unique jargon, join guilds and alliances, engage in battles, and embark on quests. . . . In some ways, perhaps, the world of Mergers and Acquisitions is a massively multiplayer role playing game as well. Like in World of Warcraft and other games, the participants in the M&A field take on certain roles, interact in their own community, hone specialized skills, and even develop a unique, somewhat curious vernacular. One particular quest in the world of M&A is disclosure litigation. In the instance of disclosure litigation presently pending before this Court, the world of M&A meets the World of Warcraft.

And then he concludes his opinion:

In the role-playing game that is this disclosure litigation, both sides have played their respective roles well....Like any game, this one has rules, and the most essential rule of disclosure is materiality. Because the plaintiff could not establish the materiality of its final three disclosure claims, the motion for a preliminary injunction is denied. . . .GAME OVER.

What can else can I say but w00t! This is truly dicta-licious.

P.S. Mary, this one is for you! XOXO

Excellent Dicta! (part 2)

Yesterday's installment was written by the Chief Justice of the Supreme Court. Today's edition was written by a man who thinks he is the Chief Justice.

This opinion was written by Seventh Circuit Judge and noted ornithologist Richard Posner. The passage addresses the "ostrich instruction," which is when a judge tells a jury that a defendant who lacked certain knowledge can still be found guilty if the evidence shows he intentionally avoided knowing the truth (a la an ostrich hiding in the sand). Here's the quote from United States v. Black, et al., No. 07-4080, slip op. at 12-13 (7th Cir. June 25, 2008):

Three more issues need to be discussed. The first is whether an “ostrich” instruction should have been given. The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich, www.sandiegozoo.org/animalbytes/t-ostrich.html (visited June 12, 2008) (“When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible”). It is too late, however, to correct this injustice.

Great. Now zoos are going to feel compelled to submit amicus briefs to defend their animals. As if we don't already have enough amici already.

As the good folks over at Lowering the Bar note:

If ostriches were not seen as such a pushover, then there might be less ostrich-related violence, and the resulting increase in the self-confidence of male ostriches might lead to more ostriches. Which, I think we can all agree, would be a good thing.

Excellent Dicta!

As the name of our blog implies, we are obsessed with dicta. Earlier this term, the Supreme Court handed down Sprint v. APCC Services. All you need to know about this case is what the New York Times wrote: "Four pages into his dissent on Monday in an achingly boring dispute between pay phone companies and long distance carriers, John G. Roberts Jr., the chief justice of the United States, put a song lyric where the citation to precedent usually goes."

The payphone operators assigned their claims to respondents “for purposes of collection,” App. to Pet. for Cert. 114a; respondents never had any share in the amount collected. The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. “When you got nothing, you got nothing to lose.” Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).

Supreme Dicta has no problem with citing Bob Dylan in an appellate court decision. In fact, we encourage it. But this citation does present a problem with using original intent as an interpretive method.

I was always under the impression that the lyric read: "When you ain't got nothing, you got nothing to lose." A Google search for that version of the lyric yields 1,800 hits. And this You Tube clip of Dylan singing the song in 1966 shows him using the word ain't (at the 5:50 mark):

So why was the lyric cited incorrectly? Probably because on Dylan's own website lists the lyric without the word "ain't."

So anyone who thinks that determining the framer's intent is easy, think again. Bob Dylan is the ONLY framer for this song, and even HE is saying contradictory things.

So to summarize this post...Scalia can bite me. Thomas too...actually I'm afraid either one might give me rabies.

Of Floyd Landis, Virgins & Procedural Justice

During an interview just after World War II, an Italian journalist asked the great Italian cycling champion, Fausto Coppi, if he ever used performance enhancing drugs (in that time Amphetamines). He answered that he only used them when it was necessary. “When is it necessary?” the journalist asked next.

“All the time,” he answered.

Drugs in cycling are ubiquitous. They always have been. So, the fact that Floyd Landis has exhausted his appeals of a positive doping test after Stage 17 of the 2006 Tour de France shouldn’t surprise us – he doped. They all dope. And USPS doped better than anyone else (according to members of the team who have come clean). USPS was a machine that would never allow something like a positive drug test to occur. How Landis let this one get away from him we will never know, but it probably has to do with his new team not being quite as good at it.

Now, after a ruling by the Court of Arbitration for Sport (CAS) upholding the test for synthetic testosterone conducted after an initial botched test of Landis’ A sample, WADA (World Anti-Doping Agency) and USADA (United States Anti-Doping Agency) are happy that they got their man. According to Travis Tygart (CEO of USADA), Landis “was not able to escape the consequences of his doping or his effort to attack those who protect the rights of clean athletes.” CAS castigated Landis’ efforts to discredit the French Laboratory responsible for conducting tests of athletes. The Tour director is happy that this is finally behind him and the 2008 Tour de France can go on without distraction (for about 5 minutes until the first doping violation emerges immediately after the prologue time trial).

This is an interesting area of international law. While developing international conventions with the goal of establishing uniform standards in testing across various sports, WADA raises questions of bureaucratic regulations and interpretations of rules promulgated by a veritable maze of international organizing bodies for sport. Here is WADA’s own description of itself:

WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting against doping in sport. The agency consists of equal representatives from the Olympic Movement and public authorities.

The maze is complicated by the fact that procedural protections for athletes that are commonly provided for criminally accused in United States courts are simply not there. Several examples are simply confounding, mostly because no one seems to care! The most recent is the statement from WADA today:

As with any athlete whose sample analysis resulted in an adverse analytical finding, Mr Landis had every opportunity to present his case to hearing panels at different stages of the process. He did so and chose in addition to mount an aggressive campaign against the anti-doping movement, spreading an unprecedented amount of misinformation in the public domain to attempt to derail the attention from the core of the case.

What this statement does not address is the finding by both the original panel and the CAS that the French laboratory followed questionable practices. Both determined that the original test (when properly conducted and interpreted) did not justify the second test for the presence of synthetic testosterone. Yet, such procedural violations were not grounds to overturn the positive doping test, return Landis’ Tour title, or overturn his two year ban from cycling. Furthermore, the statement simply continues the policy of criticizing Landis in the press for mounting a public campaign to fund his defense, and for making portions of his case available to the public.

Another example of how athletes lack basic procedural protections is the lip service paid to the innocent until proven guilty standard. WADA, USADA, and other international anti-doping institutions seem hell-bent on discrediting those accused of doping even before any hearing takes place. This is precisely the same kind of behavior that got Mike Nifong in trouble. Dick Pound, former president of WADA said this about Landis after his initial positive test (which, you might keep in mind, was botched, and should not have provided a basis for conducting a further test):

"I mean, it was 11 to 1!" (referring to the testosterone-to-epitestosterone level). "You’d think he’d be violating every virgin within 100 miles. How does he even get on his bicycle?"

He doesn't seem to understand that this isn't the point. And, I'm beginning to understand much more clearly why it is we love Rule of Law here in the United States. Generally speaking, prosecutors here keep their damn mouths shut until they are within the proper venue. WADA, USADA and heads of other agencies have used their positions as bully pulpits, and its an embarrassment.

The anti-doping system requires revision . . . because there is no good guy here. Floyd Landis used banned substances to recover from a massive “bonk” during stage 16, in which he cracked on one of the difficult climbs and fell out of the top ten leaders of the Tour. A guy like that should get the hell out of my sport. But, the procedural safeguards for athletes are inadequate. As much as I hate watching cycling on TV these days (robots on steroids on bicycles), it seems to me that WADA has been given authority to prejudice hearings, determine guilt ad hoc, announce this to the public, and complain when athletes defend themselves. God forbid that we should do what CAS says should be done – seek the truth in the matter.

Retarded legislation: Congressional edition

Look at the sponsors of this constitutional amendment introduced in the Senate on Wednesday...

110th CONGRESS

2d Session

S. J. RES. 43

Proposing an amendment to the Constitution of the United States relating to marriage.

IN THE SENATE OF THE UNITED STATES

JUNE 25, 2008

Mr. WICKER (for himself, Mr. VITTER, Mr. CRAIG, Mr. ROBERTS, Mr. INHOFE, Mr. BROWNBACK, Mr. ALLARD, Mr. THUNE, and Mr. SHELBY) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

---

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relating to marriage.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

“ARTICLE —

“ Section 1. This article may be cited as the Marriage Protection Amendment.”

“ Section 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”.

-------------------------

Yeah because adding your name to a Constitutional amendment that has less than a 0% chance of passing makes up for the sins you have committed in the past...

This smells like hypocrisy, which is actually quite similar to the smell of the men's room in the Minneapolis airport.

Mark Twain put it best when he said: "Congressman is the trivialist distinction for a full grown man."

Sweet Jesus

Today the Supremes handed down their ruling in District of Columbia v. Heller, the case which struck down the D.C. handgun ban. I have skimmed the opinions and am in the process of reading them thoroughly. If you want good, objective analysis please visit here. If, however, you are looking for the lighter side of this ruling, continue reading.

Dozens of advocacy groups have fired off press releases reacting to the ruling. Check out this one that caught my attention (HT to WSJ Law Blog):

'Praise the Lord and pass the ammunition' is the best way to describe today’s decision. The right to self-defense is a liberty at the core of the American Revolution. It was ordinary people who defended life and liberty against organized tyranny. The King of Great Britain sought to disarm the colonists because he, like any criminal, knew that a disarmed people are a weak people who can easily be overcome. The Second Amendment stands as an impenetrable wall between tyranny and freedom.

Who would you guess wrote this statement? The NRA, Citizens' Defense League, Sons of Confederate Veterans?

Not even close. It was Mathew (that is not a typo) Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law. The Liberty Counsel is dedicated to “restoring the culture” (whatever the hell that means) by advancing religious freedom, the sanctity of life, and the traditional family. In other words, he's Jerry Falwell's lawyer.

Mat(t), you were so close, but let me tell you how to count to two. You want to ruin the First Amendment to the Constitution. This case deals with the Second Amendment.

I must have missed that day in Sunday School when we were taught that Jesus wants people to own guns. This press release is just the latest example the Religious Right is more interested in political power than theological orthodoxy.

As a Supreme Dicta exclusive, I have obtained Mat(t) Staver's version of Jesus' Beatitudes:

Blessed are the poor in spirit,
for they shall get their revenge in a work-place shooting.

Blessed are they who mourn,
for they shall be joined by more gun violence victims.

Blessed are the meek,
for they are pussies who don't own guns.

Blessed are they who hunger and thirst for justice,
for they shall become vigilantes.

Blessed are the merciful,
for they shall put animals out of their misery.

Blessed are the pure of heart,
for they shall see Charlton Heston.

Blessed are the peacemakers,
for they shall shoot first and ask questions later.

Blessed are they who suffer persecution for justice sake,
for theirs is a five-vote conservative majority.

Mat(t)hew Staver, Supreme Dicta's Wanker of the Day.*

*The term Wanker of the Day is a registered trademark of the very excellent bloggers over at Street Prophets.