Oregon Supreme Court Rules on...Circumcision?!?

I know divorce is painful for children, but this is ridiculous.

The wishes of a 12-year-old boy should be considered in a dispute between his divorced parents about whether he should be circumcised, the Oregon Supreme Court ruled Friday. The father, James Boldt, converted to Judaism in 2004 and wants the boy to be circumcised as part of the faith. The mother, Lia Boldt, appealed to the high court, saying the operation could harm her son physically and psychologically.

The state Supreme Court ruled that earlier court decisions failed to determine whether the boy wanted the circumcision, as his father contended, or opposed it, as his mother alleged. The Supreme Court sent the case back to the trial court to answer that question.

File this under "No Sh$%, Sherlock." If the right to privacy means anything, it means the autonomy to make basic decisions about what happens to your own body. A 12 year-old might not be an adult, but he should have a say in this matter. He's certainly old enough to have an opinion about whether he wants to...shall we say...habeas corpus...to a moyul.

The case has drawn attention from Jewish groups concerned that the Oregon court might restrict the practice. A group called Doctors Opposing Circumcision backs the mother. The courts have steered clear of religious or medical issues, focusing on the questions of custody and care of the child.

That's good. We wouldn't want to get distracted by other issues. A boy's wiener is on the line!

I feel bad for this kid. He has to get into a suit and tie, go to court, and talk to a judge about his feelings on circumcision. I feel awkward just writing about it. But that is certainly better than having someone else decide for him.

Court TV

The New York Times published an editorial today calling on the Supreme Court to televise its proceedings. The editors reasoned:

Just last week, [the Supreme Court] heard arguments on a challenge to a harsh Indiana voter ID law, a partisan scheme to disenfranchise poor and minority voters. It was, like many legal showdowns in the court, something Americans would have been interested in observing firsthand. Yet beyond a few hundred visitors, the public was denied that opportunity because members of the court, stubbornly clinging to their clubby ways, refuse to allow their proceedings to be televised...This disdain for openness and transparency by an institution central to the nation's democracy is unacceptable.

I feel very conflicted on this issue. On the one hand, civic literacy in this country is abysmal. Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment. Twenty-six percent believed the document's purpose was to declare independence from England. And here's a bizarre stat: almost two-thirds of Americans think Karl Marx’s maxim, “From each according to his ability, to each according to his needs” was or could have been written by the framers and included in the Constitution.

Thus I sympathize with those who argue that exposing more people to Supreme Court proceedings will spur greater understanding of the Constitution and the judiciary. However, the addition C-SPAN has done little to educate the general population about the how the Congress works. If this problem is ever to be remedied, it will be because of education, not television coverage.

Besides, covering oral argument isn't even the best way for the public to increase its understanding of the Court. It's opinions that matter the most, and those have to be read, not watched. Oral argument may occasionally bring a touch of courtroom drama, but that is not what holds legal precedent.

Also, it is a stretch to say that the Supreme Court is not transparent. It is the one institution of government which explains every decision it makes in exquisite detail. In fact the rationale is often more important than the outcome itself. There is plenty of print coverage of the Court's proceedings, and often the Court releases audio files of oral arguments immediately.

But there is something fundamentally different about television coverage - the incompetence of television journalists. T.V. news stories are almost always too short to fully explain the necessary complexities of Supreme Court cases. T.V. journalists rarely have legal training, and it shows. For example, when Bush v. Gore was handed down a CNN reporter was breathlessly flipping through the opinion on camera, and he had absolutely no idea what the outcome was. It would be very easy to take a :10 soundbyte of video footage and contextualize it completely incorrectly.

Furthermore, the Supreme Court is not supposed to be a democratic institution. It is designed to emphasize the impartiality and permanence of the law. That's why there are only nine members with lifetime tenures. Even the black robes are designed to de-emphasize the personalities of the justices. Putting the justices front and center on TV gives the public the wrong impression about how the Court functions.

Look I whole-heartedly support C-SPAN, but televising the Court is completely different. Television coverage of the legislative branch is a great service because it increases the ease with which voters can hold their elected officials accountable. They can make more informed choices because of greater access to their legislator's actions. But the public cannot hold the Supreme Court accountable in the next election, so its "right to know" is less important. I'm not saying it's better that the public remain ignorant, though that will probably be the case either way. What I am saying is that the information the public does receive should be full and complete and not subject to the manipulation or oversimplification by the retards at CNN and MSNBC.

And I'm not gonna even think about how Fox News would screw up TV coverage of the Supreme Court...

Would you pass the butter, Justice Breyer?

The quote of the day comes from Justice Breyer's dissent in Ali v. Federal Bureau of Prisons:

The word “any” is of no help because all speakers (including writers and legislators) who use general words such as “all,” “any,” “never,” and “none” normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, “There isn’t any butter,” I do not mean, “There isn’t any butter in town.” The context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as “any” will apply.

A couple of observations: first, this might be the first time in the Court's history that a justice has ever mentioned his wife in an opinion (if I am wrong about this, please leave me a comment).

Second, aside from being amusing, this debate could actually shine some light on how the Court might rule on the D.C. gun case. Here's why. The issue in this case was whether Mr. Ali, a convicted murderer, had standing to sue the Bureau of Prisons for losing some of his personal property when he was transferred from one prison to another. The Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity for claims arising out of torts committed by federal employees, with one important exemption involving "the detention of any … property by any officer of customs or excise or any other law enforcement officer."

The majority took the Justice Black approach: "any other law enforcement officer" means what it says. Thus Bureau of Prisons employees are protected by sovereign immunity. Justice Breyer argues, as indicated above, that the term must be read in context.

Are you catching on to the analogy to the gun case? The liberals in that case will argue that the 2nd Amendment reference, "A well regulated militia," means that the right to bear arms is not an individual right, and thus governments can place reasonable restrictions on that right.

But you might point out that in Ali, the liberals were in the minority. Isn't that a bad sign for the gun case? No because although Justice Ginsburg sided with the majority in Ali, it is incredibly unlikely she will side with the conservatives in the gun case. On the other hand, Justice Kennedy dissented in Ali, which is a good omen for his position on the Second Amendment.

Don't believe me? The able-bodied folks over at the Legal Times think the same way.

Larry Sabato - professional amateur constitutional scholar

The most shameless, self-promoting, media diva in political science has released yet another book. Larry Sabato has released A More Perfect Constitution, which contains 23 suggestions for constitutional amendments to improve our democracy. Most of his ideas can be summed up as "radically stupid." For example:

• Expand the House of Representatives to 1,000 to make legislators more accountable to the people. Earth to Sabato, if you want to see a resurgence of retail politics in congressional elections, you would need at least 2,000 House members. Setting the size 1,000 just increases the number of earmarks and campaign contributions without any real benefit.


• Establish a new 6-year, 1-time presidential term with the option for the president to seek 2 additional years in an up/down referendum of the American people. Referendum elections? Yeah that worked out great in California.


• Revise the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a president will win without a majority of the popular vote. As much as I would like to see Democrats get more votes in CA, NY, NJ, MA, and IL, this is an incredibly dumb idea. How do you justify this preferential treatment to the slew of tiny states?

Three of his four ideas for improving the judiciary are similarly retarded:

• Eliminating lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges. Apparently judges having experience is a bad thing? I wasn't aware of this.


• Set a mandatory retirement age for all federal judges.


• Expand the size of the Supreme Court from 9 to 12 to be more representative.

Where have I heard these ideas before? Oh yeah...

Plus, I know political scientists are often not good with numbers. But 12 is an even number. Which means many 5-4 decisions will become 6-6 decisions in the future. And the lower court's ruling would stand. Why bother having a Supreme Court if it isn't allowed to be decisive? It would ruin the institutional legitimacy if it produced deadlocked decisions. The American public would view it with the same degree of cynicism as the other gridlocked branches.

AARRGGHH!!! The ironic thing is, on Sabato's website, he invites people to vote on his proposals. And most of them have been rejected. I wonder why?

Breaking News: Having Sex With Patients Not A Job Duty of Therapists

(Once again, thanks to How Appealing)

File this one under the heading of "No Sh#%, Sherlock."

So a therapist in Kentucky started sleeping with one of his patients. His patient, shocker, got more depressed and sued the doctor for seducing her. The doctor wants to use his liability insurance to settle the claim, but the insurance company argued that sleeping with patients is not within the scope of employment for a therapist. Thus his actions were not covered by his policy.

As a result, the 6th Circuit Court of Appeals had to weigh in:

In the instant case, the district court properly concluded that a therapist’s sexual affair with his patient is outside the scope of his employment as a matter of law. While the Kentucky courts have not explicitly addressed this issue, the Kentucky Supreme Court’s decision in Osborne strongly suggests that it would find such sexual activities not to be within a therapist’s scope of employment. Indeed, it is hard to imagine any type of counseling position where having a sexual affair with a patient would be within the scope of employment. We have been unable to find any Kentucky case which has held that engaging in sexual activities with a client is within the person’s scope of employment for purposes of insurance coverage.

Unless you're a hooker! I wonder how many legal prostitutes in Nevada have liability insurance? Sounds like some legal research might be required...

Seriously though, I'm not sure why this case ended up in the 6th Circuit after winding its way through the Kentucky courts. This seems like a pretty clear-cut issue. Blue staters and red staters might not agree on much. But certainly we can all rally behind the principle that it is not a therapist job to screw his patients.

Judge Posner lays down the law

Via How Appealing

In a recent reinsurance case (which are usually very boring) Judge Posner oberseved:

One who voluntarily confers a benefit on another, which is to say in the absence of a contractual obligation to do so, ordinarily has no legal claim to be compensated. If while you are sitting on your porch sipping Margaritas a trio of itinerant musicians serenades you with mandolin, lute, and hautboy, you have no obligation, in the absence of a contract, to pay them for their performance no matter how much you enjoyed it; and likewise if they were gardeners whom you had hired and on a break from their gardening they took up their musical instruments to serenade you. When voluntary transactions are feasible (in economic parlance, when transaction costs are low), it is better and cheaper to require the parties to make their own terms than for a court to try to fix them--better and cheaper that the musicians should negotiate a price with you in advance than for them to go running to court for a judicial determination of the just price for their performance.

Sounds like Judge Posner enjoys living in a Jimmy Buffett fantasy universe.

Also check out Posner's conclusion to a torts case:

This lawsuit, a simple tort case, is in its tenth year. It is high time the district judge, who has presided over it from the beginning, grabbed it by the neck, gave it a good shake, and placed it on the path to a speedy decision.

Who is this guy, a mafia hitman?

As dicta goes, this stuff is pretty good.

Floor or Ceiling?

The Supreme Court recently heard oral argument in a case that sits at the intersection of federalism and the search and seizure jurisprudence. The question is: what happens if a state law gives criminal suspects more privacy rights than those guaranteed under the 4th Amendment? Here are the facts of the case:

In this case, the police in Virginia arrested a man for driving with a suspended license. Under Virginia law, that offense is a misdemeanor that does not justify an arrest, except in unusual circumstances. Ordinarily, the police are limited to issuing a summons and a notice to appear in court.

Nonetheless, the police took the man, David L. Moore, into custody and in the search that followed found 16 grams of crack cocaine (about a half ounce) and $516 in cash. Mr. Moore was convicted of the drug offense and sentenced to five years in prison. The Virginia Supreme Court dismissed all charges, ruling that because the arrest was unlawful, so was the search.

But, under the U.S. Supreme Court's precedent, searches that are "incident to a lawful arrest" are valid. Thus, the question is: was the arrest lawful? Under Virginia law, it was not.

The 4th Amendment tells a different story. Arrests can be made if there is probable cause that a crime took place. In this case, there is general agreement that there was probable cause, so as far as a federal court is concerned, the arrest was lawful.

AARRGH! This is one of the messy problems with the doctrine of incorporation, a series of Supreme Court decisions that ruled that the Bill of Rights applies to state governments as well as to the feds. In particular, Mapp v. Ohio held that the exclusionary rule (evidence seized from an unlawful search cannot be entered into evidence) applies to the states.

The rationale behind the incorporation doctrine was to apply basic individual rights to state policy because the states must provide due process under the 14th Amendment. And the rights protected under the Bill of Rights are examples of due process obligations state have to their citizens. In other words, the purpose of the incorporation doctrine is to expand rights, not to contract them.

My position is that since these were state charges in a state court, the Court should respect the relevant state law surrounding the arrest, unless the state law does not uphold the minimum standards set forth in the 4th Amendment. If a state goes further than the Bill of Rights, they should be allowed to do because of the basic tenets of federalism.

For example, many state constitutions go further than the 1st Amendment in enforcing a separation of church and state. The Constitution of the State of Washington mandates that no public monies be used for the training of priests. Because of that constitutional principle, the legislature put a restriction on a recent publicly-funded college scholarship program: you could not use state money to get a theology degree.

The United States Supreme Court, in Locke v. Davey, found that there was not a violation of the Free Exercise Clause posed by this structure of the scholarship program. Even if there was a threat to free exercise, Washington had a "substantial state interest" in not funding "devotional degrees" based on the principles of federalism.

It would have been silly for the Supreme Court to substitute a more minimal 1st Amendment Establishment Clause standard for the standard the state had set for itself (through the democratic process, I might add). The same logic should apply here.

And I think the Supreme Court is likely to agree. Check out this exchange with Justice Scalia. It demonstrates the sweeping nature of the opposing position:

Justice Antonin Scalia asked whether, as a Supreme Court justice, he could search a neighbor’s house on suspicion that marijuana was being grown there. Yes, if the justice, as a federal employee acting on behalf of the government, had probable cause, [Virginia prosecutor] Mr. McCullough said. How about a “federally employed janitor?” Justice Scalia asked. “His neighbor is growing marijuana, and he’s just as offended as a Supreme Court justice would be. Can he conduct a search?” The lawyer replied, “I think if he’s doing it on behalf of the state, the answer is yes.” Justice Scalia said, “Wow.”

Wow, indeed. N.B. This is one of the very few times I ever agree with Justice Scalia. I wonder if there will be a blue moon tonight.

Benchmark Writing from the Bench

Lately, I have noticed a kind of “theme” emerging from some of the research I have conducted into opinion writing. This theme is not really a theme at all, but a set of threads from present time and distant past, observations on opinion writing, and also the efforts of judges themselves in resolving conflicts before their courts. I have come across a number of opinions, some of which should confound the most ardent social scientist applying the attitudinal model of judicial decision making. Some observers make claims that lately judges have written in a way that exhibits a diminished quality, is uncivil, or ineffectual. These references are made generally of judges, and (of course) among those who sit on the United States Supreme Court.

For example, in a 1990 Washington Law Review article, then-U.S. Court of Appeals Judge Ruth Bader Ginsburg lamented that often justices write too much in dissent diluting the effectiveness of dissenting. She calls this the judicial equivalent of crying wolf. Justice O.W. Holmes frequently declined to dissent in a case when a previous dissent in a substantively similar case had adequately summed up his objections to the opinion of the Court.

Incivility, however still uncommon, has become a greater concern lately. Justice Scalia has been derided for his sarcasm and heated rhetoric – clearly a decline in civility on the highest collegial court in the land. But, it affects other courts as well. In a recent example, a member of the West Virginia Supreme Court chastised a colleague for incivility in his opinion writing. In a concurrence, he cited Roscoe Pound:

"The opinions of the judge of a highest court of a state are no place for intemperate denunciation of the judge's colleagues, violent invective, attributings of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or obtuseness of fellow members of the court." Caperton v. Massey Coal Co.

Interestingly, the invective came in a contract law case appealed on a question of standard of review of forum selection clauses. Good government!! Talk about a subject to get your blood boiling! Why just the other day Brother Harlan and I were discussing a recent case on a request for clarification by the United States government on an evidentiary decision by a federal district court judge. Brother Harlan insisted that the proper standard was de novo review. I told him I'd see him in hell first because de novo is only applied in cases in which a lower court has ruled on the merits. Next thing I know, we threw down and I gave him the process he was due!

On the other hand, some judges have demeaned their role as arbiter by writing in rhyme, using parody, or employing other forms that I’ve got to admit are amazingly funny. And, these efforts are in no way breaking new ground – judges have been doing this for several generations now at the least. Some responses are simply merited by the requests of attorneys. For example, a federal district court judge in Galveston, Texas ruled on a motion for change of venue (forum inconveniens) to Houston because Houston has a nicer airport for their private plane. In denying the motion, the judge made reference to Galveston having all the modern conveniences including “’lectricity”, and “paved roads upon which counsel for defendant may speed to justice”.

Other examples are hilarious, but may not be exactly be in response to a ridiculous request. In the 1994 case Matter of West Texas Marketing Corp. the IRS brought suit to collect an overpayment to a debtor (one Mr. Kellogg) of a company declaring Chapter 7 bankruptcy. The judge wrote in resolving the IRS’ claim

“This case makes plain the proposition that Kellogg does not have a monopoly on flakes. Indeed, it is Kellogg’s opponent, the United States Government acting through the Internal Revenue Service … which has committed two scoops of errors, allowing a case which should have been a snap, to dissolve into a series of crackles and pops.”

Nor is such behavior new to courts. In 1932, A Texas State Court judge was called upon to resolve a matter involving the killing of a one-eyed mare, the judge wrote the following:

Comes now the plaintiff, appellee,
And moves this Honorable Court to see,
That House Bill Number 304
Threw open wide the Court House door,
Of County Court in Hemphill County
Where Guthrie sought relief and bounty,
And recompense and generous meed,
For his departed wayward steed,
Cut down in all her youthful pride,
When she was taken for a ride."

Finally, here is an outstanding example from 1941 upon which any good German (i.e., bureaucratic) judge would frown. In the case Cordas v. Peerless, City Court of New York Justice Carlin wrote the following . . . a small portion of his restatement of the facts!:

This case presents the ordinary man--that problem child of the law--in a most bizarre setting. As a lowly chauffeur in defendant's employ he became in a trice the protagonist in a breach-bating drama with a denouement almost tragic. It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street toward 2d Avenue, whither they were resorting 'with expedition swift as thought' for most obvious reasons.

Clearly, this judge must have had aspirations of writing a script for a major movie house. But, oh that judges would take the time to resolve matters using this kind of attention, not just to detail, but to lyrical form and style. Now THAT would truly make dicta supreme! Not to mention the ratio.

No Comp for Crack Dealer

Now that I have your attention...Who says state supreme courts never have any fun? Check out this story from Workforce Management magazine:

Continually selling crack cocaine amounts to employment and thus is sufficient cause to terminate permanent total disability compensation, Ohio’s Supreme Court has ruled.

The high court’s decision December 21 in State ex rel. Lynch vs. Industrial Commission of Ohio upheld a March 1998 finding by Ohio’s Industrial Commission that Henry Lynch’s ongoing crack-cocaine enterprise constituted “sustained remunerative employment.”

When Lynch was arrested for selling crack, the Ohio Bureau of Workers' Compensation found out and stripped him of his disability benefits. This raises a number of interesting legal questions:

1. How much crack does one have to sell to be classified as a full-time crack dealer? Apparently, the bar is set pretty low. Lynch earned between $300 and $500 a week. I can see why he fought this case all the way to the state supreme court. It's not like he was the Donald Trump of crack dealers. Lynch should have moved to Washington, D.C. Marion Barry alone would double Lynch's income.

2. Does the IRS now get involved? Now that Mr. Lynch enterprise has been ruled "sustained remunerative employment" does that mean he needs to file as a small business with the IRS? Has he paid his Social Security taxes?

3. Why is the state picking on this guy? It's not fair that this struggling small-business owner should lose valuable income, when Ol' Dirty Bastard can drive up to a welfare office in a limousine to collect his check, while profiting off a top-ten album. (N.B. that is probably the only hip-hop reference you will ever see on this blog, so enjoy it!)

It's Official: Hell Has Frozen Over

Snow...in Baghdad.

Gay people must have cooties

Otherwise how can you explain this story? The Toronto Star is reporting that the Canadian health care system bans most gay men from donating organs because of the alleged prevalence of HIV/AIDS within that community.

Now doctors are beginning to speak out. Dr. Philip Berger of Toronto says: "it's what the individual does in their sexual lives, whether gay or straight, (that) puts them at risk. To exclude bona fide donors because they've had sex with another man ... would exclude a lot of people who are no risk at all. Zero risk."

No s#%^, Sherlock! I thought Canadians were supposed to be so much more sophisticated than Americans with their shiny universal health care. This rule is so incredibly stupid, you would expect it to come from somewhere in the American South, where vilifying gays is as valued a tradition as apple pie (sorry, Brandeis).

I know that Canadian taste in music and fashion are usually a few years behind the United States, but you'd think the news that AIDS is not a gay man's disease would have reached our northern neighbors by now.

[Dr. Berger] adds that current HIV screening tests can confirm the infection-free status of donated organs rapidly and with virtual certainty.

The only risk would come from donors in the "so-called window period when they've been recently infected," Berger says, calling that an "infinitesimal" worry.

Talk about a harsh solution to a tiny problem. This policy just perpetuates stereotypes that have been proven scientifically untrue years ago. It just doesn't make any sense that a government that legalized gay marriage would adopt such a policy. Well at least Canada is fulfilling its mission of giving good reasons for Americans to gripe at them.

Who Stands in the Way of “The Great Wall of Bush”? Rootin’-Tootin’ Cowboys from Tejas!

The Associated Press is reporting that the Department of Justice is readying 102 lawsuits against property owners in border states who refuse to grant access to Department of Homeland Security officials selecting sites to build border fences. The Bush administration hopes to erect approximately 370 miles of fence and 300 miles of car barriers along the Mexican border before the end of 2008.

Many property owners refusing access were given a deadline by which to comply. That deadline has passed for most of them and the DOJ will file suit against 11 property owners in Arizona, 20 in California and . . . Good Government, Batman!!! Seventy-one in Texas?!

God love those Texans! They hate the federal government with a passion so absolute that, Bushes’ state-wide approval rating notwithstanding (with a national average of just 32% (American Research Group poll, January 6, 2008), more than 50% of Texans approve of the job Bush is doing as president), they would rather go down fighting than give their favored son his wall.

It is no secret that the political culture of Texas is in many ways a Tory Democracy (emphasis on Tory, not so much on democracy) characterized by a codependent relationship between average Texans and the elites they elect to hate government for them. The average Texan is not so much apathetic as he is . . . hell, he thinks he's Shane from the movie of that name! Generally, Texans believe that any effort to improve the functions of government (state or federal) will only end in a worse situation than before, with power shifting toward those elite ruling families that already dominate Texas power politics. After all, folks, this is the state that, recognizing how ridiculous is its present constitution, held a convention in the 1970s, crafted a really fine document that everyone at the convention agreed on, and then failed to vote it out of the convention! Some of its staunchest supporters fled the convention It’s a Wild, Wild, Wild, Wild World-style before the vote was taken! (I get this image of men in suits and Stetson hats running pell-mell for their steer horn-adorned burnt orange and maroon Cadillacs. “Yee-haw!! Let’s get the hell outa here, Billy Bob!")

The prevalence of Traditionalistic Political Culture in Texas is such that certain families have ruled, are ruling and will rule in the future. But, only so long as they encourage the kind of hate for government that appeals to the average Texan, and only so long as they do not try to use government for any purpose other than to reaffirm Texan's can-do, up-by-the-bootstraps individualism. Otherwise, when government acts (even and especially that big, impersonal, Washington machine run by their big-government conservative ex-governor, George) its actions are intrusive and erode the Texas pioneer spirit.

And this is why George has picked exactly the wrong thing belonging to property owners at the border with which to tamper–their property.While he’s at it, he might consider collecting a few rifles, too. Who knows, if the DOJ successfully prosecutes these property owners, they might decide to revive that Republic of Texas thing they had going in the 1990s!

All rise! The Honorable Judge Haberdasher Presiding

The Associated Press has a story (via How Appealing) about a judge after my own heart:

Circuit Judge William Sosnay held up court for about three hours Tuesday after a prosecutor showed up wearing a red ascot to court despite a rule requiring lawyers to wear neckties.

Sosnay decided that Warren Zier's ascot - a silk scarf-like loop of cloth worn at the base of the neck - "borders on contemptuous."

Thank you, Judge Sosnay, for upholding traditional American values. Decent God-fearing Americans are supposed to wear a regular tie when they appear in court. Bow ties are OK on occasion, but sear sucker can only be worn between Memorial Day and Labor Day. If a lawyer is smart enough to pass the bar, he or she should be intellectually capable of following these simple rules.

Ascots are French, and embracing French fashion in American courts is a dangerous idea because the French have no respect for the rule of law. They didn't bother with trials of their leaders during the French Revolution; they went straight to the guillotine. Also the French are currently on their fifth constitution since 1789. They just get bored and rewrite the rules of their country every 20 years or so.

And they number their constitutions because they know there will be yet another one in the future. In American history, yes the Articles of Confederation were a disaster, but there will never be a Second or Third Constitution of the United States. They one we have right now is good enough, thank you very much.

Also, what message does it say to the clients you represent when you wear French fashion? That you are a cheese-eating surrender monkey. As soon as the trial gets tough, you will collapse like a house of cards.

Zier said he plans to continue with his practice of rotating his neck wear from a long tie to a bow tie to an ascot.

What an idiot. Spending time in jail to make a fashion statement. That's exactly why civil disobedience was invented.

Please Hold, Your Approximate Wait Time is...25 Years to Life.

Here is the first of hopefully many posts by my good friend, Holmes.

On January 7, 2008, in the case Shawano County Sheriff v. Van Patten (07-212), the U.S. Supreme Court issued a per curiam opinion overturning a decision of the 7th Circuit Court of appeal that Joseph Van Patten did not receive effective representation of counsel when he pleaded no contest to first degree reckless homicide and was sentenced to 25 years imprisonment. Van Patten’s attorney participated in the plea proceeding . . . by tele-conference, communicating with the court over speakerphone. A 7th Circuit panel had ruled unanimously that Van Patten had been denied "even a warm body" when his lawyer literally phoned it in, referring to the quality of representation offered as "perfunctory."

Following the 7th Circuit’s decision, Wisconsin officials requested Supreme Court intervention and maintained that Van Patten’s case did not rise to the level allowing federal review under the Antiterrorism and Effective Death Penalty Act. The act requires federal court review when some action taken by a state court runs contrary to a specific Supreme Court precedent. In a concurring opinion, Justice Stevens noted that no previous Supreme Court precedent established that a defense attorney must in fact be present in open court to provide adequate representation – a situation he attributed to a "drafting error" in another case, United States v. Cronic.

While Cronic is controlling, at the time it was decided, no member of the Court could have "contemplated representation by attorneys who were not present in the flesh . . ." This "explains the author's failure to add the words 'in open court' after the word 'present.'" At the time Cronic was decided (1984), teleconferencing technology was not generally available for an attorney to "phone it in." (Test case, anyone? "Hi, ACLU? I’m calling about my 6th Amendment right to effective counsel. Does that include him being in the room when I get screwed with my pants on by the courts?")

However, the Court went beyond consideration of the statute’s requirements. While not ruling on the merits of the case, it did note "even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere phone contact amounted to total absence" of effective counsel.

So . . . not being present doesn’t mean you’re totally absent?! Maybe for phone sex, but in a criminal proceeding? On a related question, we asked Van Patten’s attorney (by phone, of course) if absence makes the heart grow fonder. He stated emphatically that it does not.

It should come as some small consolation to us all that the State of Wisconsin has gone on record, stating that it "does not condone defense counsel assisting clients by telephone at court proceedings." In a related matter, Van Patten has filed a motion to allow him to phone in his jail time.

Keep It Simple, Stupid!

The Richmond Times-Dispatch (via How Appealing) has a fantastic story about law students using simple language. Heretofore, lawyers have felt the need to contort the English language to make their arguments ipso facto. But every once in a while, a word is just a word. A group of law students at the University of Virginia took a case to the Supreme Court arguing for a plain-language meaning of the word "use," and they won!

Here are the facts of the case: Michael Watson attempted to buy a handgun from a government informant and offered doses of OxyContin to make the purchase. Watson was charged with using a firearm while selling drugs.

Whiskey. Tango. Foxtrot? I didn't know that Bill Clinton had become a federal prosecutor. Who else could bend the meaning of the word "use" to fit this situation. And that is exactly what the students told the Supreme Court:

The gist of the student's argument was that "use," in plain English, does not mean that accepting a gun as payment is "using" it. In other words, Watson received the gun but in fact didn't use it at all.

"How would you understand it in ordinary English?" Stancil asked. "Could Congress have meant 'use' means receipt? We thought we had much the better of that argument."

By a 9-0 vote, the Supreme Court agreed. Justice David H. Souter, writing the Dec. 10 opinion, said the government's position that Watson "used" the pistol by receiving it for narcotics "lacks authority in either precedent or regular English."

By the way, I didn't know that "regular English" holds legal authority in the same way precedent does. This takes framer's intent to a whole new level.

It pains me to say this, given where I went to college, but way to go UVA students!

Justice Scalia and "24"

I read the following over at Salon (via Quiz Law):

Last June during a panel discussion in Ottawa about terrorism and the use of torture, Supreme Court Justice Antonin Scalia stood up for the TV torturer
extraordinaire and hero of Fox Broadcasting's "24." Scalia insisted that the fictional spy had "saved hundreds of thousands of lives" using tough interrogation tactics to stop a terrorist from nuking Los Angeles.

"Is any jury going to convict Jack Bauer?" Scalia scoffed. He went on to argue that when it comes to torture, "the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

First of all, I agree - we ought not to believe in absolutes (at least jurispudentially), which is why originalism is a CROCK. But when it comes to moral absolutes, it is a different story. I don't have a lot of moral absolutes, but torture is definitely on the list. Justice Scalia on the other hand, is either a moral relativist or a sadist.

Second, is it healthy for civic discourse to have Supreme Court justices commenting on a TV show? Nobody asked George W. what he thought of President Bartlet. Maybe Justice Scalia can elaborate and tell us why "Will and Grace" provides compelling evidence as to why the 14th Amendment should not protect gays from discrimination at a higher level of scrutiny.

The answer to Scalia's question, by the way, is "no" - a jury would not convict Jack Bauer. Not because the American people can stomach torture, but because if he were convicted, he would bust out of prison and torture all 12 jurors - within 24 hours.

Unless he gets pulled over for drunk driving first.

An overlooked bicentennial

Last year, there was great fanfare celebrating the 200th anniversary of the United Kingdom's ban on the slave trade. The movie Amazing Grace chronicled the story of William Wilberforce, the parliamentarian who championed the cause of abolition.

But January 1, 2008 marked another bicentennial that most people did not notice - a ban on the importation of slaves into the United States. According to a New York Times op-ed by Professor Eric Foner of Columbia University:

The slave trade was a major source of disagreement at the Constitutional Convention of 1787. South Carolina’s delegates were determined to protect slavery, and they had a powerful impact on the final document. They originated the three-fifths clause (giving the South extra representation in Congress by counting part of its slave population) and threatened disunion if the slave trade were banned, as other states demanded.

The result was a compromise barring Congress from prohibiting the importation of slaves until 1808. Some Anti-Federalists, as opponents of ratification were called, cited the slave trade clause as a reason why the Constitution should be rejected, claiming it brought shame upon the new nation.

Congress passed an importation ban in 1807, and it took effect on January 1, 1808, the first date eligible under the Constitution. This caused many African-Americans to celebrate January 1 as an alternative to July 4.

Of course the importation ban did not stop slavery. Slaves were still smuggled into this country, and the children of slaves provided new generations of servitude. But it still served an important purpose, according to Professor Foner:

More slaves would also have meant heightened fear of revolt and ever more stringent controls on the slave population. It would have reinforced Southerners’ demands to annex to the United States areas suitable for plantation slavery in the Caribbean and Central America. Had the importation of slaves continued unchecked, the United States could well have become the hemispheric slave-based empire of which many Southerners dreamed.

That is an accomplishment worthy of remembrance.

Words of the year

Leave it to uppity English professors to come up with a list of the most useless words of 2007. Academics at Lake Superior State University compile an annual List of Words Banished from the Queen's English for Mis-Use, Over-Use and General Uselessness. Amongst this year's winners: "surge," "organic," and the phrases "under the bus" and "it is what it is."

First of all, who the hell calls our language Queen's English? We whooped the British. Twice. I'm not saying we should Americanize the name of our language, but we should at least leave the monarchy out of it. Second, the title of this list is 14 words long. Isn't that pretty useless when three or four words will do?

But I will admit that most of these words and phrases are pretty empty. Organic means carbon-based. Remember sleeping through organic chemistry in college? So unless your diet consists of nothing but salt, you're eating organic food.

Why am I ranting about this list? Because the creator of the list received a letter from an Arizona Supreme Court justice who is such a fan of the list that he forbids all attorneys to use them in his presence. OK, so you're not a fan of "surge." Let's replace it with words like: "arbitrary," "capricious," and "tyrannical." Is that better, your honor?

While we are on the subject, check out the folks at Merriam-Webster, who just came out with their top words of 2007. The winner is a word that likely will make the grammar Nazis at Lake Superior State cringe: w00t. It is a word coined by Internet-savy young people and it is an expression of joy.

Other good words on that list: quixotic (RIP Robert Goulet) and sardoodledom. Not sure what this last one means? Sardoodledom: mechanically contrived plot structure and stereotyped or unrealistic characterization in drama, see, e.g., Desperate Housewives.

Wait, you mean Brandeis is asking for YOUR help?

Yes. I know you want to strut like a rooster, but wait until you actually read the rest of this to do so. Wait, wait - okay, strut if you want.

Done? All right, moving right along.

I've been fired up by a decision issued last week by the NLRB (National Labor Relations Board, the court that decides disputes between workers acting collectively and employers). Basically, the Board issued a decision on the last day of the Chairman's term, after this Senate made it clear that he was no longer acceptable as Chairman, and I think in his hurry to give one last "F^#& you" to unions, workers, and Democrats, that the opinion misunderstands Constitutional law.

So, here's the background:

This decision, Register-Guard, which can be found under the citation 351 NLRB No. 70, or at the NLRB website [here http://www.nlrb.gov/shared_files/Board%20Decisions/351/V35170.pdf], overturns what I think is roughly twenty years of consistent precedent. So first, let me explain the old rule, and then I'll explain the new rule, hopefully without having to get too legalistic.

So, the old rule was that an employer could impose on their employees a rule forbidding solicitation (which is just asking for stuff). An employer could even forbid talking by employees other than on work business (I once worked at a place like that - it sucked). But the no-solicitation rule had to be just that, no-solicitation. It couldn't be "Susie gets to put up her 'Puppies for Sale' sign, but Johnny can't put up his 'Join the Union' sign." That would be "disparate enforcement," and would be discriminating against the union in violation of the National Labor Relations Act (NLRA). A rule that applied to employee speech during working time also could be applied to employer property like bulletin boards and e-mail systems.

The Board, in this decision, changed that rule. Adopting the reasoning of the Seventh Circuit in a couple of decisions, the Board has decided that selling stuff is different from union postings, and so are "personal postings," which are things like wedding announcements and the like. Therefore, the Board has adopted a new rule: that "disparate enforcement" only exists when the line between permitted and forbidden speech is made on a ground covered by the NLRA. Basically, the new rule says that the employer can't allow antiunion workers to solicit while forbidding prounion workers. There's some stuff in the opinion about "organizational" postings being the line, and that may indicate a slightly broader rule, but the only example the Board gives for conduct that would violate the rule is the one I just said - letting one side of the union divide speak, pro or con, and preventing the other.

Here's where I need help. I have an instinct that this rule is unconstitutional - that it violates the First Amendment. I don't want to get too bogged down in where my thinking is, partially to avoid boring you and partially to avoid "prior publication" under copyright. But my instinct means nothing without solid research. I need to hash out my reasoning, and back it up solidly with good law every step of the way. I want to write a law review article on this. It may be submitted as my student note for the new journal I'm working on founding at Alabama - the Alabama Civil Rights-Civil Liberties Law Review. Or if that collapses under its own weight, I'll submit it to journals elsewhere.

If I were a law professor, I would just hire a couple of law students to help me out. But I'm not a law professor, and I can't afford to pay research assistants. So instead, I want you to volunteer!

I'm kidding, of course. Well, not really. What I need is people who get the reasoning behind my instincts, who are willing to either do the research on their own (if they have a flat-fee Westlaw or Lexis subscription), or read stuff I send that I think might be helpful, figure out what is helpful and send summaries back to me so that I don't have to wade through quite so much crap. Because let's face it: any of you who've done research know that you read much more crap that seems germane and turns out not to be than you read stuff that helps.

Why should you be interested in this? Simply, because the American labor movement is suffering a death of a thousand cuts. The NLRA still says that the national labor policy of the United States is to encourage collective bargaining. But the number of workers covered by collective bargaining agreements continues to drop, and the power of workers coming together only exists if they can actually talk to each other about coming together. Republican-dominated Labor Boards have consistently acted to contract worker power while paying lip service to the law's professed preference. Lip service to the law IS, at its heart, the destruction of the rule of law. Those who would destroy the rule of law never come out and say that's what they're doing until they can't be stopped. They always pay lip service, which means that they can still be shut down.

I am not denying the vital importance of other realms where the "creeps," as Dan calls them, are attacking the rule of law. I am being published this year in the ABA Section of International Law's Year-in-Review, a casenote on one of the enemy combatant habeas cases. But this is an opportunity to make an argument that the Board, a quasi-judicial body, has taken leave of the law. Certainly there are those who will suggest that the Board has also taken leave of its senses; I'm not going to be quite so bold. But the point is that it seems that the law is clearly against the Board, and I think there's room to go after them - hard, and push back against those who would dismiss our law.

If you're interested, you can e-mail me at matthewkrellSPAMWORKSFORBELOWMINIMUMWAGE@bellsouth.net - minus the text in capitals. Or you can leave a comment here. I'll send you an e-mail with an abstract of my reasoning, and you can decide what you want to do.