Category: Law 2002-04

Mighty Brobeck has struck out. I guess innovations like taking payment in the stocks of internet companies didn’t turn out to be much of a financial plan. A friend who used to work there emailed me the poem “Ozymandias” (“‘My name is Ozymandias, king of kings: Look on my works, ye Mighty, and despair!’ Nothing beside remains.”). An appropriate sentiment.

The New York Times tells us:
President Bush has asked administration lawyers to present him with a brief arguing that the University of Michigan’s programs for using race in admission decisions go too far, officials said today. The officials said Mr. Bush was prepared to have the government file the papers with the Supreme Court on Thursday, a move that would inject the administration into one of the largest affirmative action cases in a generation. But the White House said Mr. Bush had not yet given the final approval to move ahead. And it was unclear how sweeping a stand the administration would take on the fundamental question of whether race may ever be used as a factor in higher-education admissions decisions.
Leaving aside for the moment the politics of the issue, what I find hilarious is the suggestion that Bush decides, on Tuesday, that he wants the Solicitor General’s office to prepare a Supreme Court brief on a constitutional issue of colossal importance. As if legal briefs of this nature grow on trees, rather than being wrung in blood from a staff of lawyers over a period of weeks or months (yes, I’ve written briefs in a day, but not for an appellate court and certainly not on an issue that I expect the U.S. Supreme Court to settle for all time). The article later says that “[o]fficials have been wrestling over the wording of the brief,” which hints at reality. The truth is that the bulk of the brief needs to have been written by now, unless they’ve actually gone to the extraordinary, although I’m sure not unprecedented, step of writing more than one version of the brief.

A gentleman by the name of Jack Ass is suing over harm to his reputation from the movie “Jackass.” I kid you not – read his affidavit (the best part may be the request for $10 million in damages). (Link via Howard Bashman)

Regardless of who you believe in this particular dispute, it’s heartening to note that, in the law, there can be consequences to overheated rhetoric. It’s one reason why I love my job: few things are more fun than using your adversary’s own words to hang them.

Here’s advice I’m not good at following: when you speak infrequently, your words carry more weight. This account of yesterday;s oral argument in the Supreme Court on the constitutionality of a law banning cross-burning suggests that rare comments by Justice Clarence Thomas at oral argument – castigating the Justice Department for taking too narrow a position in defending the law rather than making explicit the unique symbolism of cross-burning as a trigger to terrorism against African-Americans – made a deep impact on the tenor of the entire argument. (Link via How Appealing).
UPDATE: Slate Court-watcher Dahlia Lithwick has the definitive, and sidesplittingly funny, account of this case; she notes that “Some of the alleged cross-burners in this case were either too drunk, racist, or stupid to actually set a wooden cross on fire, even with the help of lighter fluid.” And this:
Out of nowhere booms the great, surprising “Luke-I-am-your-father” voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone’s head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital. “Aren’t you understating the effects … of 100 years of lynching?” he booms. “This was a reign of terror, and the cross was a sign of that. … It is unlike any symbol in our society. It was intended to cause fear, terrorize.”

In a decision that may provide unintended benefits to religious people asserting their rights, the Ninth Circuit declines to dismiss the Pledge of Allegiance case on standing grounds. After the initial decision in the case holding the Pledge of Allegiance to be an unconstitutional establishment of religion (due to the phrase “under God”), the mother of the schoolgirl in the case got a custody order specifying that the dad, who was the force behind the lawsuit, did not have custody. He then dropped his claim to bring suit on behalf of the girl and sued instead as a parent, arguing that he had a personal right to sue as a parent. Let’s pick up the Ninth Circuit’s reasoning:
Newdow . . . can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his young daughter on a daily basis in that official view. The pledge to a nation “under God,” with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.
(Thanks to the prolific Howard Bashman for noting the decision).
This is a powerful argument that the judges may not have entirely thought through, because it implies a direct parental right not to have doctrines taught in school that contradict one’s theology. The creationists will just loooove this language.
(Leave aside for now the PC hooey in the reference to “non-Judeo-Christian religions,” which may be intended to exclude from the annals of the oppressors here a certain other prominent monotheist religion of arguably Judeo-Christian origin).

Stuart Buck has a great post on Laurence Tribe and his momentary disdain a few years back for a “laid-back jurisprudence of a morphing Constitution.” On the broader point raised on the Volokh site, about people’s constitutional theories hewing to their policy preferences, I think that’s true up to a point, and it’s most true where the constitution is most ambiguous. But there are neutral principles, there is a historical record; the document is not just an ink blot.

A friend at his law firm sends along this Boston Globe obituary for Richard Testa, founder of Testa Hurwitz & Thibeault, who died in his sleep yesterday at age 63.

This Boston Globe column has some amusing stuff about BC law profs with their knickers in a twist over the Solomon Amendment, but also some serious business – the possible move of Harvard Law School away from its historic site and Harvard Square to a location in Allston. For the record, I’m very much against this.

Clifford Chance does some damage control in this substance-free New York Law Journal puff piece.

The urgency of the scenarios outlined in Stuart Taylor’s much-discussed article handicapping the next Supreme Court vacancy are underlined as Chief Justice Rehnquist slips and falls at his home.

BIG decisions on deck at tomorrow’s conference about what cases the Supreme Court will take, including the Michigan affirmative action case (which presents squarely the issue of whether schools can use “diversity” as code for racial preferences) and a challenge to the 1986 decision finding no constitutional obstacle to sodomy laws (a debatable decision, but expect much enthusiasm for re-visiting this issue from corners of the profession that swooned with ecstasy over the 1992 decision that held that Roe v. Wade had been on the books too long to be reconsidered). The Court’s decisions on whether to take the cases may be available as early as December 2.

It just doesn’t get more “only in America” than a lawsuit against a restaurant filed by someone who got fat . . . while living in a homeless shelter.

A Bahamas-flagged oil tanker captained by a Greek skipper sinks off the coast of Spain, prompting criticism of Britain and Latvia.
Why do I have the sneaking suspicion that all of this will wind up in court here in New York?

Either things have changed quite a lot since I graduated in 1996, or Dorothy Rabinowitz is entirely overwrought in her conclusion that “At Harvard Law today, skill in hard combative argument is no longer prized, nor even considered quite respectable. Indeed, first-year law students can hardly fail to notice the pall of official disapproval now settled over everything smacking of conflict and argument.” True, with the death of Philip Areeda, HLS is down to just one agressive practitioner of the Socratic method (Arthur Miller), and the school no longer flunks a lot of students. But I’d invite her to attend one of Alan Dershowitz’s classes, or any Con Law section, if she thinks that argument and intellectual combat have given way to holding hands and singing ‘Kumbaya.’
The real, and more substantial charge in her article is that the administration caved in too easily to demands from the Black Law Students Association for punishments for Professors Charles Nesson and David Rosenberg for alleged racial insensitivity. Now, you have to get the background here. Nesson is a strange, strange man (some of you may remember his protrayal as ‘Billion-Dollar Charlie’ in the book A Civil Action, or as one of the moderators of Fred Friendly’s ‘Ethics’ series on CBS in the 1980s, which brought together congresspersons, network anchors, priests, generals and judges to discuss difficult hypothetical questions of ethics), who has spoken publicly about his drug use and generally worked hard to be seen as an eccentric who’s not afraid to force people to look at things from different directions. Indeed, Nesson’s favorite illustration in his Evidence casebook is the ‘Necker cube,” the box of lines that seems to change directions depending how you look at it. I personally didn’t find his “Introduction to Lawyering” class exceptionally useful, but he did give us some real-world examples of things like obstructive conduct in the defense of depositions that are rarely seen in the law school environment but all too often displayed in the real legal profession. Nesson’s attempt to put the user of a racial slur on trial, with himself as defense counsel, is of a piece with this; maybe (as Dershowitz did when my Criminal Law class discussed rape), he should have warned people that if they’d be too upset to listen to this discussion, they should leave the room and come back in a few days (then again, now that I think of it, Dershowitz also devoted a third of the final exam to rape shield law, so maybe that’s a bad example). But it’s really sad if law students think that some things are so upsetting they can not even be put on trial and opened to debate.
As for the other accused professor, I suppose some people just don’t like Professor Rosenberg. I had Rosenberg for first-year torts, and he presented himself as an outsized caricature of the politically incorrect professor. He threw a casebook at the wall the first day of class and argued that most of the ‘law’ of torts was useless and meaningless in the real world; when anyone would get too far into actual doctrine he would snap, “when you graduate you can hire people from Yale to make dumb arguments like that.” He claimed to hand out grades via a roulette wheel in his office. He also made an obviously tongue-in-cheek show of being politically incorrect, like claiming to enjoy clubbing baby seals for sport. One guy in my torts class did nothing but take down funny sayings of Rosenberg (and he got an A+, so who am I to argue?). Anyway, taking a stray remark from David Rosenberg as the cause for theatrical outrage seems to be an obvious case of a complete failure of the irony detector.
It’s been a tough year for Dean Clark, who may have felt pressure to throw a bone to perennially dissatisfied campus Leftists after the Solomon Amendment compelled him to go back on HLS’ policy of discriminating against military recruiters. Law students are never a happy bunch; we used to joke about the fact that the business students all cheer their dean at graduation, while law students are always in the middle of some mass protest. And giving people permission to cut class is no great revolution; some people don’t go to class at all, ever, anyway (some of the school’s urban legends suggest that Nesson was one of these in his student days). I can’t necessarily fault Dean Clark for letting Nesson step down voluntarily, since Nesson has come under disciplinary scrutiny before, and his voluntary withdrawal may actually serve as a bit of a lesson here itself.
In other words, I don’t entirely fault the administration here; far harsher measures were available, and I’m sure the BLSA is deeply dissatisfied with the response anyway. Nor do I suspect that open and contentious debate generally is endangered at HLS; the more likely result is simply that debate on race is stifled. But even that seems overstated; you can still take a class on race relations with Randall Kennedy, who’s just written an entire book on the N-word. Another tempest in a teapot, but life will go on.

The perfect Christmas gift for the litigator on your list!

Howard Bashman on a very unusual Eighth Circuit opinion in which the en banc court defends itself against an implicit charge of racism made by the district judge.

The Second Circuit vacates a sentence that barred the defendant from watching TV while under home confinement, rejecting the District Court’s conclusion that the defendant should be forced to spend some time with himself:
“[L]acking [in the record] is a sufficient relationship between the television restriction and the abatement of Bello’s criminality. Even if contemplation is deemed somehow more beneficial for this defendant than for most others (for reasons not clear from the record), we are inclined to agree with Bello that because other amusements are available to him at home, there is no reason to assume that in the absence of televised entertainment he will tend to his conscience. Bello cites radio and the Internet as ways he might spend his time at home without resort to silent introspection. He could add crosswords and jigsaw puzzles, not to mention light reading. For all the record shows or the district court has found, Bello is as likely to occupy his mind by planning his next crime as anything else”

Dahlia Lithwick of Slate captures some of the ironies of the now-infamous Clifford Chance memo. (The New York Law Journal also captures the real bad news in the memo, from the perspective of big-law-firm managing partners). Of course, Lithwick herself is not innocent of griping about (spare us!) the tedium of being an internet legal pundit, where one never has to set foot in a courtroom with fewer than nine judges in it. (Any litigator who follows the Supreme Court could have told her that the real drama of First Monday in October is the cert granted/cert denied lists).

The NY Times calls out the usual parade of horribles to denounce the billable hour. I’m no fan of the billable hour, to be sure, but critics invariably lose most of their steam once they try to come up with a workable alternative. Clients pay the bills, and for large law firms engaged in defending civil litigation or in many types of corporate transactions, clients have generally preferred to have the bills determined on the basis of hourly rates. In areas like bankruptcy, it’s the courts themselves that often determine the bills, and they do it by the hour. There are intermiediate steps that can be taken to help clients keep a watchful eye, like the ABA’s task-based billing codes that some clients prefer. None of this excuses the egregious cases of fraud, like people billing 44 hour days, but at the end of the day, as long as clients are reviewing the bills and are happy with what they are paying for what they are getting in return, the billable hour system will endure.

Jonah Goldberg has the goods on the media’s jump to conclusions about the sniper(s). Instapundit also links to blogger Rand Simberg, with a similar but more pointed observation: that the media was dying to “paint Republicans as bigoted enablers of right-wing violence . . . two weeks before a mid-term election.”
On a lighter note, Wednesday night I was flipping channels with the sound down, and saw on FOXNews the bizarre headline “BREAKING NEWS: A Tree Stump Was Removed And Loaded Into A Truck.”
The scary thing is, I knew what they were talking about.

My older brother had the best line when they arrested Mr. Muhammad and his stepson: “I guess that guy who took his son out to beat up the first base coach at Comiskey Park is out of the running for ‘Father of the Year’.”
On a related note, Howard Bashman asks how the arrest of the 17-year-old stepson will affect the debate over the constitutionality of the death penalty for minors.

My younger brother sends this link: a fantasy league to track Supreme Court decisions! Nerdvana! Where do I sign up?

A sketch artist touches up the latest composite of the DC sniper.

Read this very short opinion (in PDF format) by Justice Thomas, which pours well-deserved scorn on Justice Breyer’s argument that the Eighth Amendment permits defendants to run out the clock on the death penalty and then complain that the delays caused by their appeals have created a cruel and unusual punishment. Justice Stephens adds a weak disclaimer to Thomas’ opinion.
I’m not totally a death penalty cheerleader, but arguments like this are appalling. Even if there was some merit to the “delay” argument, its proponents should at least recognize that the “delay” should – after the fashion of the Speedy Trial Act – exclude any delays caused by the defendant himself, including the pendency of appeals, delays in bringing a habeas petition, etc., which would exclude nearly all of the time at issue in most of these cases.

Johnny Cochran gets sued. Who says there’s no justice?

This reads like something from the Onion, but sadly, it’s not. Can one man really turn our nation’s capital and scores of surrounding suburbs into Beirut?

The full Second Circuit is wrestling with a case that could have a huge impact on white-collar criminal prosecutions.

Supreme Court denied certiorari in case of Maria Hsia, the Clinton-era campaign finance scandal figure. I noted the case and its significance here.

OK, the “Confederate battlefield” theory is out the window with last night’s shooting in Falls Church. They’re gonna get this guy, somehow, but it looks like he’ll probably kill again before they do, which is a horrible thought. I’m sure plenty of people are afraid to leave the house in the DC area, and I can’t say I blame them. When things have calmed down, somebody should remember to extend a very warm thank you to these guys.
My father, who was a New York City cop, reminds me that the simplest slips can break a case like this – they got the Son of Sam because a cop who wrote traffic summonses noticed that he’d written up the same car at the site of three of the shootings. Once they had the car, they had David Berkowitz, and they still do.
My guess is, when they get this guy, Virginia will try him first. I have mixed feelings about the death penalty, but this is one of the easy cases.

Dave Shiflett over at the American Prowler is doing some racial profiling on the DC sniper (ask yourself what the sniper looks like before you click). If you missed it, Slate had a nice piece last Teusday (has this story been going on that long?) with an NYPD detective profiling the weapon. Here’s a random thought: last two shootings were at Manassas and Fredricksburg. If the next one’s at Anteitam or Appomattox, I think we’ve got ourselves a much clearer profile.

The DC Circuit affirms summary judgment dismissing an employment discrimination claim by a Postal Service employee who claims that his job got worse when he was reassigned, at the same pay and benefits, to a job including “general budget duties for an office and supervis[ing] up to a dozen workers.” What was his previous job? The court quotes this priceless exchange from his deposition:
Q So you stayed at Merrifield. What were your duties at Merrifield?
A None.
Q None?
A [sic] Did you work while you were out there?
A No.
Q What did you do all day?
A Occupied an office.

Howard Bashman notices that the Second Circuit has withdrawn its opinion upholding the Vermont campaign finance law, Act 64. So there. (I may update this post later if I find out more).