Let's play guess the state?

A judge from which state was just reprimanded, but not suspended, for "directing profanity-laced invective at lawyers and litigants on multiple occasions"?

'>That's right. What did you expect? The disciplinary body decided against suspending the judge because he always prefaces his tirades with the phrase, "No disrespect."

Hat tip to the good folks over at Quiz Law.

Justice Thomas Fails to Inspire

A brief followup to a recent post about the Supreme Court and college football, Justice Thomas visited the University of Georgia football team after practice last week.

What impact did Justice Thomas' pep talk have? Well, the highly touted Bulldogs lost to the Alabama Crimson Tide (w00t, Brandeis).

Even in college football, Justice Thomas finds himself writing in dissent...

Dick Move Du Jour

Hat tip to The Fix over at the Washington Post.

OK check out this screenshot of a Wall Street Journal webpage.



Now look at this more detailed image.



Note the date and time?! Earth the McCain campaign, you can't claim to win a motherfu#$&*! debate before it even takes place.

And two days ago McCain said the debate should be postponed. Good Lord.

I did debate in both high school and college, and no one ever tried to pull this kind of s%#&. Although some of the tactics that the Harvard debaters pulled on me were almost as sleezy.

Greatest. Case. Name. Ever.

On several different ocassions, I have noted some of the funniest case names ever. I thought I had reached the limits of awesomeness with some of these other entries. I was WRONG. Mea culpa! This is the greatest case name ever:

United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness, 40 F. Supp. 208 (W D.N.Y. 1941) (holding product was misbranded because it was not in fact a cure or treatment for drunkenness).*

*Remember, I have neither the time nor the energy to make s*&^ like this up.

I am now on a mission from God. By the time my academic career is over, I must find a legitimate reason to cite this bad boy. This case name must live on forever.

Once again, the good folks over at Lowering the Bar deserve all the credit for finding this gem. Simply outstanding!

President Bartlett Meets Obama

Anyone who knows me has had put up with my endless fawning for NBC's The West Wing. So I was very excited to see that Maureen Dowd had outsourced her New York Times column to the creator of the West Wing, Aaron Sorkin.

You absolutely must read this dialogue Sorkin created between Jed Bartlett and Barack Obama. It is simply outstanding.

Lawyer of the day

Stick around for the last story in this video clip. It is dictaworthy.

Justice Alito and Socrates

Tuesday night I personally witnessed Justice Alito overturn a death sentence for the first time in his career. Too bad the defendant has been dead for almost 2,500 years and it was a moot court.

The Shakespeare Theatre Company put on a moot court to appeal the death sentence of the Greek philosopher Socrates. It was a fantastic evening, worth every bit of the $20 I paid for admission. The audience and the judicial panel both voted to overturn the sentence after real big-wig Washington attorneys argued both sides of the case. Here's a write up from the D.C. Examiner.

That was Justice Samuel Alito presiding Tuesday night at a special judicial proceeding. No, the Supreme Court hasn't convened early this year. Alito's bench was at the Shakespeare Theatre Company's Harman Hall, where he presided over a mock appeal on behalf of Socrates.

In the fundraiser for the company, the great Greek philosopher had appealed his 2,500-year-old conviction and death sentence for impiety and corrupting the youth of Athens. He had good counsel, too, in Abbe Lowell of McDermott Will and Emery, who has represented President Clinton, Gary Condit and Jack Abramoff. Lowell appeared with Abe Krash of Arnold and Porter, opposing the lawyers for Athens, Betty Jo Christian and Pantelis Michalopoulos, both of Steptoe and Johnson.

Among the five-judge panel, Alito made the first query of counsel, asking Krash about whether Socrates was indeed a threat to the community. "If the state is strong, the state has no threat from a gadfly" like Socrates, said Alito. "But what if the state is teetering, as Athens may have been" at the time?

Also getting in some verbal jabs were federal judges Paul Michel, Rosemary Collyer, Brett Kavanaugh and Richard Leon.

Great links

Sorry that I have not been posting as frequently. I am in the midst of changing jobs, and I hope to be more focused on blogging again soon.

One of my favorite blawgs is over at the Wall Street Journal. Their Law Blog often gives me some good material for me to mouth off about. I saw three stories over the last few days that were just fantastic. I have not had time to make them into their own posts, so I thought I would pull them together in one digest.

• Can a judge order a woman to stop having children? Apparently the answer is yes, at least for one judge in Austin, Texas.
• It pays to be the Chief Justice of the United States. Not only do you get to borrow paintings from the National Gallery of Art, you get to give a pep talk to the Notre Dame football team. Did it work? Well, the Fighting Irish went on to beat Michigan at home last weekend (though Michigan is pretty sucky this year).
• Speaking of sports and the law, here's the quote of the week: "I think the Court can absolutely positively take judicial notice that Duke is probably the worst football team in Division I football. Everybody knows that. That’s no secret. Intrigued? Read on.

Oral Argument in the 7th Circuit? More like Oral Masscre!

Here is an example of how appellate court judges do in fact come down from the hills after the battle has raged and do shoot the wounded. In this case, the Seventh Circuit should be shooting the wounded (or, at least the counsel for petitioner).

The case is Illinois Bell v. Global NAPs Illinois. It presents issues of interstate commerce – the Federal Communications Act of 1934, setting of rates by the Interstate Commerce Commission, contract law and diversity jurisdiction. This case involves an issue involving one of the parties to this suit.

In my day as an associate justice of the Supreme Court of the United States, I heard quite a few very skilled advocates. And, as someone who once said of John W. Davis “of all the persons who appeared before the Court in my times, there was never anybody more elegant, more clear, more concise or more logical . . .” I express shock and surprise. Below, I summarize for those interested some of the crucial rules violated by both counsel:

1. Know the basic and mundane responsibilities of your job: For example, counsel for petitioner places the subject of jurisdiction (the first concern of every court when presented with a claim for resolution) third among the three points he intends to address. While the court makes it clear they want to discuss jurisdiction, counsel had already informed them that he was going to leave it off altogether. And the reason the court is so upset with him to begin with is that he failed to address jurisdiction fully . . . on brief. (In oral argument, after being asked to address jurisdiction, he compounds his mistake by noting AGAIN that it was his third and last point).
2. Know the record from cover to cover: Counsel for petitioner does not seem to recognize and understand how the separate party provision applies to the structure of corporations owned by his client that may or may not allow the 7th circuit to consider this appeal. As opposed to separate claims for relief.
3. The strongest point of appeal should be argued first – when asked for his strongest argument . . . there is . . . silence.
4. Change places, in your imagination of course, with the court: If either counsel had considered even for a moment what kind of questions might animate discussion, what might concern the court about this narrow topic, perhaps this all could have been avoided.
5. State the applicable rules of law on which you rely: Of course, this rule assumes that you know and understand the rules of law, and that you can fall back on a case or cases to support a position.
6. Always “go for the jugular vein”: Because neither one had much of an argument and had briefed so poorly, it ended up being the court that went for the jugular. One can imagine the two opposing counsel limping out of court holding each other up, and commiserating over a beer.

One positive thing to note– neither counsel ever let it get personal. While being battered to death, they both kept what composure they could muster for being so unprepared.

Like Abbott and Costello, except nerdier

An instant message exchange today between myself and Mr. Justice Brandeis:

Brandeis: In my free speech seminar, someone yesterday spoke of James Dobson in an approving manner - I spit away the taste of his name.

Harlan: Lol. That's the downfall of free speech - stupid and false speech is still free. , e.g., Bong Hits for Jesus.

Brandeis: But not maliciously false speech, which is at least a step in the right direction.

Harlan: Right, although corporations get away with maliciously false speech all the time with the deference given to advertisements.

Brandeis: I thought commercial speech enjoyed less protection.

Harlan: There is no effective prosecution. The Enzyte people got away with their shit for years before they got caught.

Brandeis: What did they say that was maliciously false?

Harlan: That their product would grow your johnson. Remember Bob?

Brandeis: Do you know that their product won't grow your johnson?

Harlan: Ummm....I plead the 5th?

You Just Got BarackRoll'd!

I don't usually bloviate on partisan politics on this blog (though I do bloviate about other topics). But I had to share this YouTube sensation with you. Enjoy!

Hat tip to my coworker (and Quiz Law) for pointing me in this direction.

Virginia to Student Voters: Lose Your Scholarships

Okay, so it ain't "Drop Dead." But the county registrar in the county where Virginia Tech trains the next generation of dog-fighting quarterbacks recently announced that students who register to vote at their college address (specifically, a dormitory) are subject to sanctions. The registrar claimed that parents of such students could no longer claim the students as dependents on their tax return (IRS response: "What?"); that the student could lose their scholarships; that the students could lose the right to be covered on their parents' car or health insurance.

Let's pause, and look at some seemingly unrelated statutes: 42 U.S.C. Sec. 1985(c) says:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; . . . [creates a private cause of action entitling the injured person or class to damages].

(emphasis added). The United States District Court for the Eastern District of Texas sez:

“. . . Because voting rights involve the First Amendment freedom of association, the State may not impose restrictions upon that right unless there is a compelling state interest in the imposed restriction or classification. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). It would seem, therefore, that the extra burden of proof imposed upon students in regard to proof of their domicil may only be held constitutional if a compelling state interest is thereby served.

U.S. v. State of Texas, 445 F. Supp. 1245, 1255 (E.D. Tex. 1978), aff'd sub. nom. Symm v. U.S., 439 U.S. 1109 (1979). The Supreme Court sez:

We recently held that “ ‘the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.’ ”

Rumsfeld v. FAIR, 547 U.S. 47, 59 (2006) (internal citations omitted). So, let's put it together:

Voting rights are First Amendment rights, which means that discriminating against someone has to satisfy strict scrutiny. Denial of benefits in such a way as to infringe on First Amendment rights is an auto-fail for the government. Conspiracy (action by two or more) to infringe First Amendment rights creates a private cause of action, with treble damages and attorney's fees.

Virginia Tech students, call me! Let's get together and sue the effin' bastards!

Headline of the day

"Gunshot victim sues to get back prosthetic leg."

(Actually an even more hilarious version of this headline belongs to How Appealing who quipped: "All your prosthetic leg are belong to us.")

According the Scottsbluff (Nebraska) Star-Herald, Val McCabe has a real suckass week. First he got shot. Five times. Including once in his ass. And his prosthetic leg was taken away from him. By the police (they claim it is evidence since one of the bullets hit it).

And he had to file a lawsuit to get the damn thing back. He can't use crutches because he had to have surgery on his hand (his doctors are afraid his stitches would rip and he would bleed to death). And his home is not wheel-chair accessible. Thus he was stuck in the hospital waiting for a judge to grant...wait for it...a writ of habeas corpus.

This type of prosecutorial misconduct can perhaps best be described by the legal term verpus facina, which translated from Latin means a dick move. Fortunately, Box Butte County District Judge Brian Silverman ordered the leg to be returned within the hour.

"Box Butte County Attorney Kathleen Hutchinson declined to comment on the case." No s^%$!

I've said once, and I will say it again. I have neither the time nor the energy to make crap like this up.

Are you ready for some football?

Here's a public service announcement: the regular season of the NFL starts tonight, when my Redskins will lose in an embarrassing fashion to the New York Giants.

But mainly I was just looking for an excuse to post this picture. A most grateful hattip to the good folks over at Quiz Law.

Move over Footnote 4

(Grateful H/T to Legal Antics)

Meet Footnote 27 of the case Clancy v. King handed down by the Maryland Court of Appeals.

If a significant motive for Clancy exercising his contractual right to withdraw his name from the Op-Center series was to decrease the profitability of the series, thereby denying his JRLP partner and ex-wife revenue, because he desired to spite or punish King for or as a consequence of their divorce, it reasonably could be maintained that he acted in bad faith towards both the Op-Center Joint Venture and JRLP. One certainly breaches the promise of good faith owed in contract and as fiduciary in a partnership by working actively to decrease directly the profits of the business venture.<sup>27

27</sup>Jerry Seinfeld, perhaps an unlikely legal illustrator, once epitomized faith in contract. In an episode of his television show, Jerry's character jacket at a men's clothing shop. The terms of the contract permitted Jerry to refund at his discretion. When Jerry attempted to return the jacket after personal quarrel with the salesman, the following discussion took place.

Jerry: Excuse me, I'd like to return this jacket.
Clerk: Certainly. May I ask why?
Jerry: For spite.
Clerk: Spite?
Jerry: That's right. I don't care for the salesman that sold it to me.
Clerk: I don't think you can return an item for spite.
Jerry: What do you mean?
Clerk: Well, if there was some problem with the garment. If it were unsatisfactory in some way, then we could do it for you, but I'm afraid spite doesn't fit into any of our conditions for a refund.
Jerry: That's ridiculous, I want to return it. What's the difference what the reason is?
Clerk: Let me speak with the manager . . . excuse me. Bob!
(walks over to the manager and whispers)
Bob: What seems to be the problem?
Jerry : Well, I want to return this jacket and she asked me why and I said for spite and now she won't take it back.
Bob: That's true. You can't return an item based purely on spite.
Jerry: Well, so fine then . . . then I don't want it and then
that's why I'm returning it.
Bob: Well you already said spite so . . . .
Jerry: But I changed my mind.
Bob: No, you said spite. Too late.

-----

Simply awesomesauce. No commentary. I will just let the funny speak for itself.