We should be on the alert for flying pigs....Texas has, with full opportunity and authority to execute someone, refused to do so. Governor Perry decided, at the last minute, that a death row inmate who indisputably never killed anyone, but was riding in the car with the shooter, did not deserve the death penalty, and commuted the inmate's sentence to life in prison. The inmate received the death penalty under the Texas law that attributes the acts of other conspirators to each participant in the criminal scheme. So, he's legally guilty of capital murder, but should not be executed.
In his inimitable style, Perry expressed concern over multiple defendants in a death penalty case, and failed to acknowledge the more obvious issue that there are both constitutional and moral problems will an execution of a person who did not take a life. Of course, Perry merely suggested that the Legislature examine the problem, and did not commit to withhold his veto on any fair and reasonable legislative solution.
Friday, August 31, 2007
Tuesday, August 28, 2007
A New Kind of Erie Rule
Law students become familiar with the rule of Erie v. Tompkins early in their studies. In short, the rule requires a federal court to apply the law of its forum state in diversity cases. Often, the case before the federal court presents a question that has not yet been decided by the forum state, so the federal court makes an "Erie Guess" about what the highest court of its state would do if presented with the same question. That much is relatively clear.
The 7th Circuit, though, has recently put a new wrinkle into the "Erie Guess". When there is no state law to guide the federal courts, and given a choice between an interpretation of law which restricts liability and one which expands liability, the 7th Circuit says that federal courts should choose the interpretation that denies recovery.
Reading the cases from the 7th Circuit on this issue, the most recent of which is Pisciotta v. Old National Bankcorp, No. 06-3817, August 23, 2007, there is no source for this reasoning, other than the 7th Circuit's own inclination to deny recovery to any Plaintiff with a novel theory of recovery. Are we really better off with courts that deny recovery for any case, just because the legal theory is new, undecided, or "novel"? That's not a particularly good rule, since the Pisciotta case involves a situation where a computer hacker obtained access to private identity information due to inadequate security measures by the defendant bank. That's a new theory because technology has changed the business of banking, not because some greedy lawyers have dreamed up a new way to sue for money. But, I would look for other circuits (4th, 5th, and 11th Circuits) to adopt this "Erie Guess" rule when they get the chance
The 7th Circuit, though, has recently put a new wrinkle into the "Erie Guess". When there is no state law to guide the federal courts, and given a choice between an interpretation of law which restricts liability and one which expands liability, the 7th Circuit says that federal courts should choose the interpretation that denies recovery.
Reading the cases from the 7th Circuit on this issue, the most recent of which is Pisciotta v. Old National Bankcorp, No. 06-3817, August 23, 2007, there is no source for this reasoning, other than the 7th Circuit's own inclination to deny recovery to any Plaintiff with a novel theory of recovery. Are we really better off with courts that deny recovery for any case, just because the legal theory is new, undecided, or "novel"? That's not a particularly good rule, since the Pisciotta case involves a situation where a computer hacker obtained access to private identity information due to inadequate security measures by the defendant bank. That's a new theory because technology has changed the business of banking, not because some greedy lawyers have dreamed up a new way to sue for money. But, I would look for other circuits (4th, 5th, and 11th Circuits) to adopt this "Erie Guess" rule when they get the chance
Tuesday, August 21, 2007
The Texas Pledge of Allegiance
Well, another Texas Session Law pamphlet arrived today, and we are up to 690 laws passed this year. The feature this time is that the Legislature added "One State, Under God" to the Texas Pledge of Allegiance.
If you can still say the Texas Pledge, my hat's off to you, but are we now better off because a small percentage of the population will now declare that the State of Texas is "under God"? Or, more likely, did we just buy another lawsuit with the expense for our own Attorney General to put a cast of lawyers defending the law, and the State possibly paying the attorney for the other side if the suit is successful?
90 days every two years, or 2 days every 90 years? Which is the appropriate schedule of legislative sessions in Texas?
****Update 8/29/2007: There's been one lawsuit filed, and the judge refused to keep little kids from saying the pledge with the new language. In these cases, context is everything, and I can't figure out why it is necessary, NOW, to make the statement that Texas acknowledges God's role in its sovereignty. And, while I believe that all Americans should make that acknowledgement, I find it particularly galling that we will have to go to the Courthouse to figure out if it is appropriate to do so.
If you can still say the Texas Pledge, my hat's off to you, but are we now better off because a small percentage of the population will now declare that the State of Texas is "under God"? Or, more likely, did we just buy another lawsuit with the expense for our own Attorney General to put a cast of lawyers defending the law, and the State possibly paying the attorney for the other side if the suit is successful?
90 days every two years, or 2 days every 90 years? Which is the appropriate schedule of legislative sessions in Texas?
****Update 8/29/2007: There's been one lawsuit filed, and the judge refused to keep little kids from saying the pledge with the new language. In these cases, context is everything, and I can't figure out why it is necessary, NOW, to make the statement that Texas acknowledges God's role in its sovereignty. And, while I believe that all Americans should make that acknowledgement, I find it particularly galling that we will have to go to the Courthouse to figure out if it is appropriate to do so.
Thursday, August 16, 2007
How Much Law do we really need?
I got my copy of Volume 3 of the Texas Session Laws today. It covers Chaps. 269-500....meaning that our Legislature passed at least 500 laws this session. I would hope that the following two years will provide a quality of life 500 times better than it was before, but I have my doubts.
For example, one law (that is noted as significant) says that the Education Code was amended to authorize "the Commissioner of Education to consider school districts, with a wealth per student that exceeds the recapture threshold for the first time in 2006-2007 or a later school year, to have its wealth per student reduced to the equalized wealth level by deducting the recapture amount from the hold harmless amount of state aid, in lieu of a recapture option which requires the school district to hold an election".
So....am I better off or worse off?
*Update: as of September 7, 2007 (a date after which most of the legislation passed in the 2007 session have become effective) the count for the year is 962 laws passed in the 90 day session.
For example, one law (that is noted as significant) says that the Education Code was amended to authorize "the Commissioner of Education to consider school districts, with a wealth per student that exceeds the recapture threshold for the first time in 2006-2007 or a later school year, to have its wealth per student reduced to the equalized wealth level by deducting the recapture amount from the hold harmless amount of state aid, in lieu of a recapture option which requires the school district to hold an election".
So....am I better off or worse off?
*Update: as of September 7, 2007 (a date after which most of the legislation passed in the 2007 session have become effective) the count for the year is 962 laws passed in the 90 day session.
Monday, August 13, 2007
Whoops? Athletes backing the wrong shoe company
Tracy McGrady and Kevin Garnett may have backed the wrong shoe company. In a recent case, the Supreme Court of California has decided that California may enforce its ban on the importation of kangaroo products - including the hide that is used to make Adidas shoes. The United States Government is not even banning the importation, as kangaroo is not an endangered species. Nor does Australia ban the export of kangaroo product. Only California.
Being from Texas, where the use of exotic skins and hides to produce a variety of wearing apparel is a time-honored tradition, I have a hard time understanding California's position. But, maybe somebody can explain it to me.
Being from Texas, where the use of exotic skins and hides to produce a variety of wearing apparel is a time-honored tradition, I have a hard time understanding California's position. But, maybe somebody can explain it to me.
Wednesday, August 8, 2007
Corporate Manslaugther in the UK
In the world of corporate responsibility, this might seem to be good news. In the UK, entities (including the government) whose gross negligence leads to the death of an individual may now face criminal sanctions for manslaughter. Interestingly, the sanctions are not usually prison time....instead, it is financial penalties, a "publicity order" and an order to publicly take remedial steps to correct the conditions that led to the death.
Penalty No. 1 is the most interesting. In America, we call this punitive damages, and our tradition has been to allow injured parties to decide if, and when, to make a claim that gross negligence has led to death. We have also traditionally permitted juries to decide the appropriate punishment - by assessing a financial penalty. Recent US Supreme Court cases have all but removed this option under the guise of due process. And, according to reports, the High Courts in England had done the same thing -- resulting in the passage of this corporate manslaugther statute.
Whether one believes that corporate accountability is a matter of law or economics, this evolution in the law most certainly places power in the hands of the government that used to belong to the people. And, it is a symptom of a larger trend to criminalize conduct that used to be a matter for tort cases. Individualized harm is taking a back seat to generalized harm, with decisions on prosecution, trial and punishment left largely to the whim of political offices.
More information
Penalty No. 1 is the most interesting. In America, we call this punitive damages, and our tradition has been to allow injured parties to decide if, and when, to make a claim that gross negligence has led to death. We have also traditionally permitted juries to decide the appropriate punishment - by assessing a financial penalty. Recent US Supreme Court cases have all but removed this option under the guise of due process. And, according to reports, the High Courts in England had done the same thing -- resulting in the passage of this corporate manslaugther statute.
Whether one believes that corporate accountability is a matter of law or economics, this evolution in the law most certainly places power in the hands of the government that used to belong to the people. And, it is a symptom of a larger trend to criminalize conduct that used to be a matter for tort cases. Individualized harm is taking a back seat to generalized harm, with decisions on prosecution, trial and punishment left largely to the whim of political offices.
More information
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