AlwaysAppealing

Go Ahead and Eat Those Poppy Seed Muffins

2008-03-29T22:17:00.002-05:00

I thought it was relatively clear that your employer could require you to take a drug test in order to qualify for employment. I was wrong. In a case out of the 9th Circuit, Lanier v. City of Woodburn, the Court held that a City cannot have such a requirement.

Ms. Lanier applied for a job as a "page" at the public library in Woodburn (no pun intended). Apparently, a page at the library retrieves books from the book drop, and then returns the books to the shelves. The City of Woodburn had declared itself to be a "drug-free workplace", and required all applicants to submit to a drug and alcohol screen, and successfully pass the screening.

The City had adopted its "drug-free" policy in response to incident with affected employees in the past, and for the library because it attracted a lot of youth for its services. Regardless, the Court found no special need for sober employees at the library and banned the regulation for the City.

Why do THEY work so hard to look foolish?

2008-03-16T21:59:00.000-05:00

Here's your government at work.

The Clayton Sam Colt Hamilton Trust owns a 3,200 acre ranch in Val Verde County. It is near the City of Del Rio, Texas. As you might expect, there's not any water on the ranch, but it lies just above the Edwards-Trinity Aquifer, and can pump water from the Aquifer.

In 1997, the Trust sold 15 acres to the City of Del Rio, and the tract is wholly surrounded by ranch land. The Deed says:

GRANTOR reserves unto Grantor, its successors, heirs and assigns forever all water rights associated with said tract, however, Grantor may not use any portion of the surface of said tract for exploring, drilling or producing any such water.

So, the City bought the property without any water rights at all. But, three years after buying the tract, the City started drilled a water well on the tract. When the Trust manager objected, the City said "too bad", and replied to the inevitable lawsuit by saying that it had the right to drill for water. The City claimed that you can't own (and can't reserve) water until it is pumped out of the ground. According to the City in the case, "only through the most strained interpretation of the Trust's reservation of 'water rights' may the Court reach the conclusion that there is an accompanying prohibition on the City's pumping rights." So, the City claimed that there is such a thing as "pumping rights" that are distinct from the thing you are pumping. As the Court noted in its opinion - the City cited no authority for this assertion.

The Texas Supreme Court had consistently, and for over 100 years, held that you can separate water rights from the land that is being sold, and that you can therefore reserve the water rights when you sell the surface estate.

Thank you, San Antonio Court of Appeals, for the lesson in obviousness so clearly underappreciated by the City of Del Rio.

Late, but Deserved Congratulation

2008-03-15T21:47:00.000-05:00

I have neglected my blog due to a long-deserved vacation, and the work that piled up while I was gone. On the vacation front, I went to the Florida Keys, and fished for Eagle Rays. Our captain was quite expert at guiding us in this venture, and I was quite successful. I returned to learn that a lady had died doing the same thing in almost precisely the same area of the Keys.

But, before I left, I collected an article about a case at the Texas Supreme Court that hasn't been mentioned on any Baylor Law blog that I could find. In El Paso Hospital District v. Texas Health & Human Services, the Court invalidated an agency rule about the submission of Medicaid claims. The Agency had not followed the rulemaking requirements of the Texas Administrative Procedures Act, according to the opinion. But, the judgment of the Court did not enjoin enforcement of the rule.

After the initial unanimous opinion, your Professor - Ron Beal - wrote a letter to the Court as an amicus curaie noting that the opinion did not say that the Agency tried to follow the rule-making process in good faith. Instead, the Court found the rule to be a nullity, and therefore, the Agency was not entitled to "cure" the rule - the Court should render judgment enjoining enforcement of the Rule. The Court followed Professor Beal's advice on that issue and on several other issues that he mentioned in his letter.

Good Job - Professor Beal.

And, While We're Talking About California

2008-02-28T21:53:00.003-06:00

In an earlier post, I gave praise to a California appellate court for its treatment of the anonymous blogger issue. But, if you got the impression that California lawsuits are really just about like lawsuits elsewhere, consider Orlando v. Alarm One.

In that case, the Alarm One people were sued for sexual battery, and other claims arising out the team-building exercises that they held for employees. Alarm One sells residential alarm systems, and apparently has periodic sales motivational programs where the employees engage in zany, pep-rally style exercises. One of the exercises involves giving spankings to adult sales force members who have not met their quota.

I can't write too much more about this, and don't feel the need to. I take back my tongue in cheek comments that implied that Indiana law was problematic.

Would You Like Your Child to be on TV?

2008-02-26T20:49:00.001-06:00

The Overton County School Board, in Tennessee, decided to install video surveillance cameras in the local middle schools. Although they wanted to install the cameras, they simply assigned the task of how and where to install the cameras to a Director of Schools. This guy delegated the job to a principal, who further delegated the job to an assistant principal. The assistant principal then installed the camera facing doors, and in the girls and boys locker rooms. All collected camera images were transmitted to the computer in the Assistant Principal's office and stored on his hard drive. When the cameras became operational, the Assistant Principal noticed that the cameras were capturing pictures of kids dressing and undressing in the locker rooms, and suggested a change. It wasn't done.

I know you think you know what's coming, but it's even worse.

The camera images could be accessed not only on-site, but remotely. The password and user ID for the remote access was never changed from the default password, and quite a few people across the country got a peek at the locker room activities.

So, when the kids found out about this, they understandably sued for an unreasonable search under the Fourth Amendment. The District Court was asked to dismiss the case on the claim that the school officials had qualified immunity - basically that they neither knew of, nor understood that they were violating anyone's constitutional rights. When the case got the 6th Circuit, the Court said that it understood the nee for video surveillance as a security measure for schoolchildren, but could not countenance the idea that this particular search was reasonable. Notably, the parents and students were not given notice that the kids were subjected to video recording of them in various stages of undress.

In holding that the school officials were not entitled to a "pass" for this violation, the Court said that, "Some personal liberties are so fundamental to human dignity as to need no specific explication in out Constitution in order to ensure their protection against government invasion."

It is sometimes amazing not only what our school administrators will do (like even installing the cameras in the locker room in the first place), but just as amazing that they will attempt to avoid any responsibility for their actions. I'm sure the kids learned something from this.

As If Airport Security Wasn't Bad Enough

2008-02-25T21:14:00.001-06:00

Although I shouldn't be surprised, I was a little (at first). The Border Patrol and Customs folks are apparently doing more than the metal detector and x-ray system to scan people who enter the U.S. The Electronic Frontier Foundation and the Asian Law Caucus recently sued over some very intrusive search techniques used by the government. Here's how the EFF website describes it (eff.org):

"ALC, a San Francisco-based civil rights organization, received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information."

There were people who had their laptop seized, with a demand for the log-on name and password. And, when things are returned (and sometimes they are not), they have often been altered by the Government. The Government calls these searches "routine". I would beg to differ, and would probably change my flight or not travel if my other option was turning over my electronic equipment without any idea what was going to be done, or when I would get it back.

Anonymous Posting Protected by California Court

2008-02-23T21:29:00.001-06:00

A California appellate court has gone the extra mile to protect the identity of bloggers. In a financial message board, there was apparently a lively, and not very nice discussion about the corporate officers of a Florida company. Upset with the cyber-smear, one of the corporate officers sued to get the identity of 10 Yahoo! posters. One of the anonymous posters objected, and the Court of Appeal in California agreed.

In an interesting opinion, the Court noted that courts have recognized the right to publish anonymously as a long-standing tradition. "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously, or not at all."

Of course, the right to be nameless is not the same as the right to defame without disclosing your identity. The California court used the same balancing test that the Texas court used in the case I posted about here.

Essentially, in order to learn who the blogger is, you must have a defamation case that would survive a Motion for Summary Judgment. I think that is a decent way to balance interests, and am glad to see other courts adopting it.

Another Thing You Can't Do In Front of A Jury

2008-02-18T17:47:00.010-06:00

I've posted on this topic before, but came across this interesting event from a products liability case. At the end of a trial, the plaintiff apparently began his closing argument in the traditional way - thanking the jury for their time. But, then he said that his client - the Plaintiff - would like to stand and thank the jury as well.

It's good to know, at this point, that the plaintiff is a grandmother was suing on behalf of her daughter and grandchildren who had died in events giving rise to the suit.

As the Texas Supreme Court put it:

Immediately, without leave of court or notice to opposing counsel, [the plaintiff] stood and said to an all-Hispanic jury: "Muchas gracias les doy de parte de mis nietos y mi hija y de parte mia la jurado." ("Thank you very much to the jury on the part of my grandchildren and my daughter and on my part.")

At oral argument before the Texas Supreme Court, the lawyer conceded that it was improper for the plaintiff to address the jury but argued that the error was harmless. The Supreme Court thought the harm was "manifest" to any experienced trial lawyer. A party's personal expression of gratitude to the jury at the close of a case is error that cannot be repaired, the Court said.

I would tend to agree that this is pretty tacky tactics, but still stand by the idea that a jury ought to be pretty wise to this scam. It's an obvious play for sympathy. And, once again, you would hope that jurors would do better than feel obliged to give the person employing this tactic money as a reward for the tactic. Would the case really have turned out differently if grandma had not said this?

Happy Valentine's Day

2008-02-14T17:37:00.004-06:00

This was making the e-mail rounds today. It's kinda funny, but I'm not sure I'd recommend it.

A Real Life View of Defamation Law

2008-02-14T17:14:00.005-06:00

Here are some facts from a recent case out of the Supreme Court of Illionois. Its a defamation case, and arises from two competitors in the men's clothing business. One shop - Imperial - was owned by folks of Jewish descent. The other - Cosmos's - was run by folks of Italian descent. Cosmo's prides itself on being home of the original 3-for-1 sale. After making an allegedly objective comparison between what Cosmo's offered in its 3-for-1 promotion, Imperial decided that its 1-for-1 prices were really lower than the combined prices at Cosmo's and tried to exploit this price advantage by offering its own 3-for-1 promotion. Cosmo responded with a big ad in the paper that included the following language (quoted from the Court opinion):

We all know, there is only one "America" in the world and only one "3 for 1" in the Midwest...and in both cases it was the original thinking of an Italian that made them famous. So to the shameless owners of Empire rags center, east Eden and south of quality, we say..."Start being kosher...Stop openly copying and coveting your neighbor's concepts or a hail storm of frozen matzo balls shall deluge your "flea market style warehouse".

It is laugable how with all the integrity of the "Iraq Information Minister", they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for imitation that has the transparency of a hooker come on...but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our "3 for 1" values.

I assume you get the idea, even though the ad is more extensive. The Court opinion is 17 pages of recital and analysis of the law, the end result of which is this -- no reasonable reader would construe these things as statements of fact, and they are not, therefore, actionable. I bring the case up because I think that the general populace has the idea that you are not permitted to print advertisements with racial slurs and general denigration of a competitor's product. In Illinois, that's not the case. The Court said, "No matter how distasteful they may be, ephithets aimed at ethnic or religious groups fall within the protection of the first amendment....No circumstances are alleged in this case that would strip the language used in the ad here of that protection."

Given the likelihood that the "speech" here is commercial, and the minimal value of this kind of sppech in contributing to the commercial purpose, I wonder whether the Constitution really protects this type of ad. I have no information that indicates that the case might go to the Supreme Court, but it would not surprise me if it did.

Oregon Supreme Court Won't Change its Mind on Punitive Damages

2008-02-13T11:44:00.003-06:00

Two weeks ago, the Oregon Supreme Court affirmed a punitive damage award of $80 million against Philip Morris. Now that case is the one where the United States Supreme Court expressly told the Oregon court that a punitive damage award is not allowed when the jury is allowed to base its award on harm that was suffered by persons other than the Plaintiff.

This is the third time that the case has been heard by the Oregon Court. And, it sets up an argument that the Oregon court is actually thumbing its judicial nose at the Supreme Court. This time, the Oregon court recognized that the Supreme Court said that the award was constitutionally infirm - because it violated the due process clause. But, the Oregon judges now say that they need not follow the Supreme Court's ruling because there were state law procedural defects in raising this issue. Specifically, Philip Morris did not make a valid objection to the jury instructions, and Philip Morris did not submit a jury instruction that was valid under State law.

The obvious tactic of the Oregon court is to do whatever is necessary to punish the evil tobacco company, now by basing its decision affirming the award on an "independent state ground". The United States Supreme Court clearly has said that a punitive damage award cannot stand if it is a multiple of more than 10 times the actual damages. In short, it is fairly clear that the award is wrong under the due process clause, and it will be interesting to see if Philip Morris appeals back to the United States Supreme Court to make sure that the "multiple of actual damages" rule is expressly applied to this case.

Breaking News: Congress Wasting Time!

2008-02-13T09:30:00.010-06:00

Today, Congress is holding hearings involving the use of steroids - including the testimony of Roger Clemens and Brian McNamee. The hearing started with statements by the Congressman - a predictably boring beginning. In fact, as I write, we have more than 30 minutes of statements, and not a single question to anyone.

Now, what is the purpose of this? The initial statements tell you why. The Congressmen are there to keep their friend, George Mitchell, from having his long-winded report criticized.

The bottom line is that if Roger Clemens or Brian McNamee have done anything wrong, they should be arrested, charged and tried in a court. Putting either of them in a spot where they have few, if any, of the trial protections that Americans routinely enjoy would seem to be wrong-headed on many levels. Republican Tom Davis as much said so - saying that although this was not a court of law - "that's OK". He claimed that the purpose of the hearing was to "save lives".

I'll leave it to the reader as to whether this is a waste of time, and provide you a picture of the Committee Chair - Henry Waxman - who, in this photo, is rockin' his 70's porn stache. As I am watching, I wonder why the Republicans are for Clemens (in large degree), and the Democrats are against him. What political ideology is behind that?

Apparently, the resolution of the matter will depend on the marks on Roger's Rear End. This is getting silly.

Election Update

2008-02-08T17:50:00.000-06:00

Thurbert Baker - who describes himself as "Tough as Nails" is won re-election as the Attorney General for the State of Georgia last November. Mr. Baker is the prosecutor who insisted that Genarlow Wilson serve 10 years in jail for a consensual sex act committed with an underage partner. I reported on Genarlow Wilson's release here.

I don't know whether to believe that people approve of a rather two-faced approach to a very difficult situation, whether they thought that Mr. Baker did the best he could in a bad situation, or whether they have forgotten what happened here.

I would not have forgotten that after a Judge said that the punishment was far out of line, the prosecuting authority insisted on contesting that ruling, and insisting that Genarlow serve the entire sentence. On the other hand, I don't know what the option was -- who was opposing Mr. Baker.

State of Texas Steals Dirt from Landowner

2008-02-07T15:21:00.000-06:00

It's a nice headline, but the conclusion comes from a case just decided by the 14th Court of Appeals in Houston. It seems that the State (surprisingly) decided to improve a highway, and needed land to build a detention pond. A detention pond catches all the water that runs off the concrete, that might otherwise be soaked into the land. The State tried to condemn land to do this, but eventually negotiated a permanent easement with the landowner allowing the State to have its pond.

The State then built the pond, but in the course of doing so, carted off some 87,500 cubic feet of dirt. It then hauled the dirt to its other construction projects and used it. Although it paid for the easement, it didn't pay for the dirt. When the landowner found out that the State had taken the dirt and used it for another purpose, they sued. The State claimed that the dirt was part of the deal, even though the dirt was never mentioned in the negotiated agreement. The State countered that use of the dirt was implied.

The Court of Appeals adroitly noted:

The State, no novice to construction projects, knows the value of dirt. It is also quite likely, though this case has not progressed to the point of determining the value of the dirt removed, that it exceeds the $55,000.00 paid ... for the permanent easement.

In this case the State actively negotiated and procured an easement for the single purpose of building a water detention facility, but then proceeded to remove thousands of cubic meters of soil from that location for a purpose unrelated to the construction of the detention facility. While it may be "reasonably necessary" for the state to displace the soil to dig the detention facility, the state provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location ... and use it for its own purposes.

I assume that if the shoe was on the other foot, the State would insist on being paid for dirt. I'm glad to see the landowners did here.

Note: I don't know who the little kid on the big pile of dirt is in the picture for this post, but that is a very big pile...maybe 87,500 cubic feet?

Goodbye to Professor Horner

2008-02-06T17:14:00.000-06:00

My contracts professor passed this week. And, although more and more close to me are passing through the years, I feel this loss because Professor Ed Horner was so exceedingly smart, yet so kind and unassuming. Long after I had left school, I saw him at school, and around town, and he never failed to have a kind word, and he was always ready to talk - about anything I might bring up. He had the heart of a servant - to his students, to his church and to his profession that set an example for everyone. I am a better person because I knew Professor Horner. And, there are likely thousands like me.

If I told Professor Horner that this was one of my favorite Hymns, he would have just smiled at me, and said it was his favorite too (whether it was or not). So, I'm going to print it here, to affirm that Professor Horner's hard work is over.

When my life work is ended, and I cross the swelling tide,
When the bright and glorious morning I shall see;
I shall know my Redeemer when I reach the other side,
And His smile will be the first to welcome me.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Oh, the soul thrilling rapture when I view His blessèd face,
And the luster of His kindly beaming eye;
How my full heart will praise Him for the mercy, love and grace,
That prepare for me a mansion in the sky.

Oh, the dear ones in glory, how they beckon me to come,
And our parting at the river I recall;
To the sweet vales of Eden they will sing my welcome home;
But I long to meet my Savior first of all.

Through the gates to the city in a robe of spotless white,
He will lead me where no tears will ever fall;
In the glad song of ages I shall mingle with delight;
But I long to meet my Savior first of all.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Words by Fanny J. Crosby

What Can You NOT say to Jurors

2008-02-06T16:34:00.000-06:00

The Texas Supreme Court has taken a renewed interest in what kinds of lawyer arguments are improper. The basic premise behind the law relating to improper jury argument is that silver-tongued lawyers are able to appeal to the prejudices or sympathies of jurors to such an extent that the reasoning of the jurors is overwhelmed and the final verdict cannot be trusted.

With the general populace as skeptical about lawyers as they are today, I'm not sure that this premise can be voiced with a straight face. If the talk radio people can call the President a Nazi, is there really a belief that jurors can't separate vitriolic hyperbole from the role they are asked to undertake.

Recently, the Court said that lawyers can't refer to Nazis in their closing arguments to jurors. And, the lawyer in the Nazi case clearly went over the line of good taste and decorum. However, I want to believe that you can pick 12 people at random, and still be reasonably assured that they are not going to believe what the lawyer said just because he or she is so mesmerizing. The next case up involves these nefarious statements:

For years, in this conservative community, juries have been very liberal with the doctors, very liberal. What I mean is, their verdicts didn't send much of a message at all....physicians in this community have been able to count on the fact that juries are going to be liberal with them, and where has that gotten us? How do you send a message in this kind of case? It is with the amount of the verdict. And that is what I am talking about when I say the juries in Lubbock have been very liberal with doctors in the past, because juries' verdict haven't gotten anybody's attention, and that is what we are asking for here.

I'm not much persuaded that this case turns out differently if these words, or anything like it is said or is not said. But, I wouldn't bet money that the doctors don't get a reversal.

Gay & Lesbian Studies in Kindergarten

2008-02-06T13:59:00.001-06:00

Massachusetts has a statute that provides that parents must be given notice, and an opportunity to exempt their children from public school curriculum which primarily involves human sexual education or human sexuality issues. But, in Lexington schools, the school system doesn't think that book that depict gay marriage involve sexuality issues. So, kindergarten students and first grade students are given books and materials that talk about gay marriage, and same sex parents - and the student's parents have no say in whether their own children are required to be a part of these "lessons". According to the school, its a topic of non-discrimination, not sexuality. So, even the youngest of students needs to be taught these lessons at public schools. Apparently, parents cannot be trusted in Massachusetts with these issues.

Two families challenged the schools in Lexington, not over the decision to make the books part of the curriculum, but for not allowing the parents to have notice of what is being taught, and an opportunity to "opt out".

A Federal District Court favored the schools. Although the District Court acknowldeged that parent have a constitutuional right to direct the education of their children, parents don't have a right to say "how" their children will be educated. The Court found that the school is not compelling these very young kids to believe anything, or to hold beliefs contrary to their parent's upbringing and guidance. Nor are the parents prohibited from teaching a contrary message at home. Part of the Court's reasoning here is that Massachusetts permits gay marriage. In the end, the parents get no say in what their kids are taught, and cannot refuse to have their kids participate in lessons that are fundamentally at odds with the parents desire for their kids.

I might agree with the Court if the kids at issue were older - capable of discerning the source of the conflicting messages, and capable of deciding which of them they choose to believe or respect. But, 5 and 6 year old kids don't have this discernment as a general rule. If you live in Massachusetts, your kids better grow up quick...there's no time for them to learn about primary colors, animals, shapes or letters. They need to be getting into politically correct thinking before the schools deal with education.

Watch Where You Pay Your Taxes

2008-02-05T18:10:00.000-06:00

The Texas Supreme Court recently decided that if a taxpayer pays his property taxes in the wrong county because of a boundary dispute between two different counties, the taxing entity who was supposed to get the tax dollars can't sue to recover the erroneous payments collected by another county.

Now, the opinion says that the Counties can't fight it out in court under the doctrine of sovereign immunity. One county can't sue the other. What is not decided is whether the taxpayer has to pay twice - once to the County that didn't deserve the taxes, and once to the County who did deserve the taxes, but can't collect them from the other county.

Double Taxation sounds wrong on quite a few levels, but when the taxpayer gets sued, I'm not sure his receipt for payment from another county amounts to any defense at all. If you pay in error, you might be entitled to a refund, but I wouldn't bet on it.

If you think this is a weird and unusual situation, you ought to look at the map for school districts and other taxing entities in Texas. If you think that you don't live near a boundary line, you might find that you do, and that this problem is more real than you thought.

The New Jersey Nets are a "Public Use"

2008-02-05T17:57:00.000-06:00

Just this week, the 2nd Circuit handed down an opinion about a development project in Brooklyn, New York - the site of the new home for the wickedly important New Jersey Nets. Apparently, there are 15 homes and businesses in the area where the arena is supposed to be built that are in the way of this project. The homeowners and business owners do not want to sell, so they are going to be forcibly removed by the power of eminent domain.

Now, the project is not just a basketball arena, but a group of 16 high-rise apartment buildings, and several office towers. The man behind the dream is the owner of the New Jersey Nets - Bruce Ratner - who not only gets the arena with public money, but help with his other real estate projects (the apartment buildings and the office towers).

The 2nd Circuit acknowledged that the power of eminent domain is a "fundamental and necessary attribute of sovereignty" but didn't really bother to explain how Mr. Ratner became the sovereign. The Court finally held that the federal courts couldn't be bothered with disputes over such things, and that if the private owners didn't like this, they should vote someone into office that would protect their interests. The Court carefully notes that the "government" has designated this area of Brooklyn as "blighted", and that many of the buildings there are vacant or underutilized. Some of the property is in irregularly shaped lots, and there is crumbling brick and flaking paint on others. In addition, the project may someday include affordable housing (on the order of 5% of the total units).

So, that's public use. When the people in America finally get tired of being run over by their government, I don't think that the change is going to be very pretty.

The US Supreme Court better hurry up

2008-02-05T17:47:00.000-06:00

Late last week, the 11th Circuit decided that an Alabama inmate who had challenged the lethal injection protocol in Alabama waited too long to file suit. The State of Alabama changed to lethal injection back in July of 2002. When it adopted a lethal injection protocol, the State allowed inmates the option to be executed by electrocution or by injection. Willie McNair abstained, and lethal injection was the default method.

When Mr. McNair's appeals and habeas corpus options expired, he filed a suit to challenge the lethal injection that he was destined to suffer. Too late for you, said the 11th Circuit. Mr. McNair should have complained about the procedure in 2002 or at least by 2004 (two years after the change in the procedure).

So, the saga of courts refusing to recognize that the Supreme Court is actually going to decide this issue, and that going through with an execution might be determined to be a violation of the Constitution continues. Why the 11th Circuit felt compelled to decide this case - to make any decision - while the real issue is before the US Supreme Court is a mystery to me. All they had to do was wait - until perhaps June - and they would have a guide for their decision in this case. Apparently, it is really important that Mr. McNair die.

Fallout from the "Bong Hits for Jesus"

2008-01-21T15:36:00.000-06:00

The public school in Saginaw, Michigan has a school project that they call "Classroom City". Students are assigned the task of developing a product for sale, and the school then becomes a small "city" where these products are offered, and the kids are competing for the "class room city" dollars that are the medium of exchange. Of course, the administrators have to approve of the product being sold. That all sounds like an interesting exercise in economics and such.

Joel Curry, a 5th grader at the Handley School wanted to sell candy cane tree ornaments made of pipe-cleaners, and wanted to attach a card to the product explaining why the candy cane was representative of a variety of Christian messages. The school banned the explanatory card. Joel brought suit, and lost in Curry v. Saginaw City School District.

The 6th Circuit held that the principal's decision to prohibit the Christian message on the product was within the principal's discretion. The principal thought that other students and parents might be offended by the product. Moreover, the principal thought that because the product was being sold at the Classroom City project, others might conclude that the candy cane ornaments and the accompanying card had the express approval of the school, and that the school favored Christianity over other religions.

Now, I'm not sure that I can fault the 6th Circuit's analysis of the Constitutional problems presented by Joel's candy cane and card. But, I do wonder when the populace got so sensitive to a 5th grader's class project that they thought lives would be ruined if the kid put a message on his product that inspired him, if no one else. The Classroom City project was designed to simulate the marketplace...so if the marketplace was offended or didn't like the product, I guess that young Joel would have learned that business and religion don't mix well. What Joel learned, though, is that freedom is a bit illusory in Saginaw, Michigan, and that the heavy hand of government falls on 5th graders just like it does on everyone else.

Say Thank You to Amazon.com

2008-01-14T11:34:00.000-06:00

Last summer, a grand jury in Wisconsin sent a subpoena to Amazon.com asking it to disclose the identity of used book buyers who supposedly bought books from a guy that the government was investigating for tax evasion. According to the opinion just recently unsealed (In Re: Grand Jury Subpoena to Amazon.com dated August 7, 2006, 2007 U.S. Dist. Lexis 86563), one of the prolific used book dealers on Amazon was a fellow who sold 24,000 books onlineand didn't report the income. None of the buyers (Amazon's on-line customers) was suspected of any wrongdoing. Nor was Amazon accused of doing anything wrong. The government wanted to talk to the customers to build their case against the used bookseller.

Amazon fought the subpoena, contending that the disclosure of the reading habits or preferences of anyone was simply none of the government's business. And, the Magistrate Judge agreed. The subpoena, he said, "...permits the government to peek into the reading habits of specific individuals without their prior knowledge or permitssion". And, "it is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else."

United States Magistrate Judge Stephen L. Crocker, of the Western District of Wisconsin deserves praise for this opinion, and decision. And, I applaud Amazon.com for sticking up for its customers - which it clearly did not have to do. I can certainly envision an on-line vendor quietly supplying lists like this, and letting customers wonder how the feds got the information. Not Amazon -- they stood up for their customers.

The 5th Circuit Affirms Punitive Damages without any Compensatory Damages

2008-01-13T11:20:00.000-06:00

In Abner v. The Kansas City Southern Railroad Co., the 5th Circuit reviewed a case under Title VII for employment discrimination. The facts are pretty bad for the Railroad...lots of "n-word" references in the evidence, along with KKK references and pictures of a noose. The jury found that the Plaintiffs were subjected to a "hostile working environment", but did not award any compensatory damages. In other words, the Plaintiffs didn't lose a job, lose a raise or promotion, or fail to receive some other benefit because of the color of their skin. But, the jury was outraged by the conduct (apparently) because it awarded each Plaintiff $125,000 in punitive damages.

The general reaction from lawyers about such an award would be that it could not stand. Punitive damages, generally, are not permissible unless there are compensatory damages. But, to my surprise, the 5th Circuit followed other circuits that have held that Title VII permits punitive damages without compensatory damages. The only prerequisite is that there be a Constitutional violation.

The reason this is permitted is two-fold. First, there is a high threshold for liability (a plaintiff must show "malice" or "conscious indifference"). Second, there is a cap on punitive damages - a system that insures that the punitive award won't be so high as to implicate due process concerns. From a plaintiff's viewpoint, this is a welcome reading of the law -- but one that I believe is highly influenced by the horrible facts. Less egregious actions in the workplace would probably not be so convincing to the 5th Circuit. From a defense standpoint, it is probably a case that is limited to its facts. I don't see any of the Circuits as likely to "binge" on punitive damages just because of this case.

Don Imus on the Golf Channel?

2008-01-10T15:25:00.000-06:00

I was more than a little surprised to learn that an "anchor-person" on the Golf Channel was recently suspended for making untoward remarks during a golf match. KellyTilghman (who I've never heard of) was working with a more famous golfer (Nick Faldo) at the Mercedes-Benz Championship. Faldo said something about whether any of the younger players were capable of challenging Tiger Woods as the World's Number 1 player in golf. Faldo then suggested that maybe they shoudl just "gang up for a while". At which point Tilghman said, "Lynch him in a back alley". That's the only context that is reported in the news now, and I didn't see the broadcast.

One surprising thing is the Kelly is a female golfer, and my stereotype for racist remarks does not usually include females at all. The other surprising thing is that the amount of press for this remark does not seem to resemble the public outcry when Don Imus make a very tacky remark about a girl's basketball team.

Tiger Woods almost immediately remarked (through his people) that the remark "unequivocally" had no "ill intent". Al Sharpton felt otherwise, and has made his feelings known. But, other than a few remote comments on the Web, this one has been under the radar. I would have thought that golf and women's basketball were on about the same plane of public interest, but I guess not. Or maybe racist and feminine-phobic is worse than just racist.

Steroids and Alger Hiss

2008-01-05T12:00:00.000-06:00

Your Congress has fallen back into the very bad habit of calling people before them to testify...the sole purpose of which is to HOPE that they lie so that they can be charged with perjury. Ask your father or grandfather who Alger Hiss is. He was a rock-star political guy during the Red Scare, and a not-too-well-known writer/reporter said that Alger Hiss was a communist. There was no crime that he could be charged with, so he was called before Congress to say, under oath, whether he was a Communist or not. The end result of his emphatic denial before Congress was two trials for perjury (one hung jury and one conviction). Now, all this kept the media not only employed, but very busy. In the end, though, the public got nothin'.

So it goes with Roger Clemens and Andy Petitte, and probably a later string of players. The whole point of Congressional hearings can only be to have these fellows hopefully lie before Congress so that they can be charged with perjury. The public hearings will allow the Congresspeople put on their indignant faces and publicly wonder how a baseball player could have ever made more money and received more public attention than an elected representative. The later trial will diminish these athletes in the public eye, I'm sure. But, I wonder whether the marketplace will do that by itself -- without the horrendous expenditure of public funds and energy.

If I've made myself clear in this post, it is apparent that these are not the only times that this method has been used to puff up the collective congressional chest. Other examples?

What Version of Free Speech Do You Prefer?

2007-12-31T14:41:00.000-06:00

I read an editorial column recently about what it called the "phenomenon" of "libel tourism" - where plaintiffs bring their defamation of character cases in the courts of England rather than in the United States, because the UK is so plaintiff-friendly in defamation cases. Defamation claims in the US are somewhat difficult to win because the 1st Amendment reflects a core value of speech and open dialogue that is willing to permit some rather horrendous falsehoods rather than to compensate every wrong. In the UK, reputation and privacy are valued above speech and openess to an extent that permits compensation where the US would not.

The question of which is more valuable (free speech or privacy) contains a bit of irony in America since there appears to be a "right of privacy" guaranteed by our Constitution, but is a less-valued Constitutional (but "fundamental") right than the right to freedom of speech. So, our right to privacy includes a lot of things (raising families, contraception, and sex partners), but does not include what would seem to be the most basic part of privacy - the right to be left alone.

Of course, one's perception on which is more valuable (free speech or privacy) would depend greatly on what side of the blog you are on. Authors/speakers want speech. Subjects of speech want privacy. But, whatever side you are on, I wonder whether the British feel less informed on important matters than we do in America. I'll bet they don't.

Another Post about Night-Time Activites

2007-12-27T13:31:00.000-06:00

The Minnesota Supreme Court made an interesting ruling recently. It overturned a narcotics conviction because the search that uncovered the drugs was unreasonable under the 4th Amendment. Why was this search unreasonable? Because it was conducted at night.

Susan Ranae Jackson's home was raided at night, with a search warrant. But, in this case, the warrant contained no information that provided an adequate basis to conclude that the search needed to occur at night. I'm guessing that if there were some danger that evidence might disappear or that danger to the warrant-serving officers were in the affidavit supporting the warrant, things might have been different.

But, what is interesting is that the "night-time" search issue provided a basis for reversal of a conviction. The 4th Amendment says nothing about the time of day for searches, nor has the United States Supreme Court said that searches should normally be in daylight hours. All that you can read in the Constitution is that searches should not be "unreasonable". Even the "original intent" readers of the Constitution would have to concede that the use of the term "unreasonable" leaves room for courts to put a gloss of some kind on the strict language of the Constitution. But, the U.S. Supreme Court has said that searches are unreasonable when there is a objective reason to know that people would expect privacy in certain areas. I guess that applies not only to geography, but to time of day.

Night-time searches could be arguably unreasonable because of the occupant's vulnerability at night. The mid-night phone call is alarming enough -- compare that to having your door blasted open by cops while your are in your bed-time attire and maybe asleep. The Minnesota court noted that 12 of the original states, plus the First Congress prohibited night-time searches by statute (as the State of Minnesota apparently has). While I never really considered whether the cops ought to be out busting down doors at night (since they do it so often on TV), I find myself in agreement with the Minnesota court. If there is a good reason to go into a home at night, then the cops ought to be able to articulate it. If not, everyone ought to get some sleep and take care of business in the morning.

The Texas Pole Tax

2007-12-24T09:26:00.000-06:00

You've got to hand it to the Texas Legislature. Beginning in January, Texas will collect a tax on patrons at strip clubs - $5.00 per head for each visitor. According to estimates, the tax will bring in $40 million per year.

What makes this a brilliant move is that the Legislature claims that the tax will go to help rape victims. Now, who would vote against that? But, more importantly, who is going to insure that the money actually goes to help anyone in particular. One of the sponsors of the measure actually works for an organization that stands to get a piece of the tax pie (if indeed it is doled out as adverstised). More likely, I think most would agree, the tax money collected will simply disappear in a maze of collection expenses, administrative expenses, and small payouts. I figure its just another example of method of getting legislation passed -- earmark the money for an indisputable need; make the tax small; tax people who are not likely to protest too much.

Don't expect a big bump in funding for women's issues. It's just another way to make money for your government. Of course, don't be surprised when your own vice gets taxed one day.

And You Thought Colorado was Laid-Back

2007-12-17T16:55:00.000-06:00

Like quite a few folks, Edward Casey got a traffic ticket. He contested the ticket in Federal Heights, Colorado. He lost the case. The judge told him to take the "file" (which the judge then handed to him), and go to the Clerk's office and pay his fine. Casey had left his money in the truck, so he carried the file out to his truck, got his wallet and started back in. Apparently, it is a crime to remove a "file" from the Courthouse, so as Casey was walking back to the Courthouse, he was confronted by a Federal Heights policeman.

Casey admitted to the cop that he had the file, and as he was showing it to the cop, he was put into an arm-lock. Casey kept struggling to get in the courthouse and return the file. While the two were struggling (and the cop never said, "you're under arrest" or "stop resisting") a second cop arrives and fired her TASER at Casey. He got hit, but pulled the barbs out, and started for the Courthouse again. At this point, even more officers arrived. They tackled Casey, hand-cuffed him and repeatedly banged his head against the concrete. Finally, Casey was arrested, and charged with obstructing governmental operations - a crime that carries a $50 fine.

He sued for excessive force. A district judge dismissed the case - holding that the force used was not excessive. The 10th Circuit reversed and reinstated Casey's claim. The opinion is Casey v. City of Federal Heights, et al, No. 06-1426 (December 10, 2007).

There's something to be said for the the single-bullet practice in Mayberry.

Merry Government Approved Christmas

2007-12-16T10:46:00.000-06:00

Christmas in Washington is about what you would expect if you thought about it. If you want to put up Christmas decorations at your office in the Pentagon, you have to fill out Government Form DD-2798 (Click on the link to read the 12-page form).

John Doe Wins a Case

2007-12-15T20:02:00.000-06:00

The Texarkana Court of Appeals recently considered a case of first impression in Texas relating to the identity of bloggers. The Essent PRMC Hospital filed suit against 10 "John Doe" bloggers who were apparently saying not so nice things about the hospital on a blog. Claiming the comments to be libelous, the Hospital sought a court order requiring the blogger's ISP to disclose the identity of the bloggers so that they could be formally sued and could appear in the lawsuit.

The trial court essentially refused to enter the order requiring disclosure until the bloggers had an opportunity to appear and be heard. Clever fellows hired a lawyer to show up in court, but they didn't come. The lawyer did his best to defend the blogger's rights to freedom of speech, but the trial judge eventually ordered disclosure.

The Court of Appeals made a few important rulings.

First, the federal statute 47 U.S.C, Section 551 does not provide an independent discovery mechanism for disclosure of identity. It merely provides a substantive basis for disclosure and provides the ISP a "safe-haven" if it discloses in response to a court order. (Interestingly, the Court took the position that when the government requests disclosure, it must prove, by clear and convincing evidence that a crime has likely been committed). Private parties need not meet this burden.

Second, the Court held that getting a disclosure order requires compliance with the Texas Rules of Civil Procedure. It is effectively a discovery request to a third party (the ISP that is asked to disclose names is not part of the litigation), and it must meet the requirements of Texas Rule 202 or some other discovery device in order for the trial court to act.

Third, there are constitutional protections for all "speakers" on the internet. In order to prove their right to get the identities of bloggers, a litigant must show enough evidence to survive a Motion for Summary Judgment. In other words, merely claiming that the words are libelous is not enough. The trial judge would have to be satisfied that if the words were indeed published, then the plaintiff would have a valid claim.

The opinion, No. 06-07-123-CV, styled In Re Does 1-10 (December 12, 2007) is the first effort I have seen by a Texas appellate court to determine the rights and obligations of bloggers, and it is worth a read. Click on the Title of this post to read the opinion.

Got Milk?

2007-12-13T13:34:00.000-06:00

A lawsuit has been filed in Seattle, Washington claiming that some of the nation's biggest grocers have been selling milk as "organic" when the milk does not meet the government standards for organiosity. If you go to Target, and buy "Archer Farms" milk, the suit says that you are not buying organic milk - despite the pretty package. The pictures on the carton should be more like the one on the right according to the plaintiffs in the case.

The beef (pardon the pun) is that large corporate players in the milk market say that thier farms are organic when they are really not. That makes it difficult for mom & pop dairies to compete.

In answer to the complaint, Target says that the lawsuit is an attempt to override the USDA definition of organic with the consumer's view of what is organic -- which is a pretty surprising statement. I guess Target thinks that we have to take the Government's word for everything, and that consumers are just too stupid to figure out if the Government's definition is anything approaching the common useage of the word "organic". If the lawsuit is right, and the big milk players are using 325 acres of land to maintain and milke 4,000 cows, most of us would have a hard time accepting a government definition of that production as "organic" because those 4,000 cows are not out in the pasture getting food.

Where did that old "customer is always right" thing go?

Toilet Troubles -- the Legal Kind

2007-12-12T15:23:00.000-06:00

Dawn Herb's toilet backed up a while back, and she got understandably upset...well, she got a little more upset than some and ended up swearing "like a longshoreman" at the offending appliance.

Nearby, a cop - who was one of Dawn's neighbors - heard her outburst, and instead of "protecting and serving" came to her house and arrested her for using obscene language that causes "public inconvenience, annoyance or harm" - a violation of the law of Scranton, PA.

Dawn is being defended in the case by the ACLU. The ACLU lawyer very eloquently argued that "The laws cannot require us to speak eloquently, in good taste or an inoffensive fashion. We are allowed to speack colorfully..."

Apparently unable to avoid the "potty mouth" puns, the lawyer also argued that "We're allowed to swear at each other. It doesn't mean we should, but we are allowed to, and the government and the law cannot stick its nose into these private matters".

Surely, he didn't mean that.

I should note, this post does not contain a picture of Dawn - to my knowledge

Pledge of Allegiance and In God We Trust

2007-12-11T09:30:00.000-06:00

The 9th Court of Appeals heard arguments last week in the new Newdow cases. Michael Newdow, who shamed America with his Supreme Court arguments seeking to delete "under God" from the Pledge of Allegiance, has revised his case so that his own standing to contest the phrase cannot be doubted. He has upped the ante by adding a claim that our money should not contain the phrase "In God We Trust". The District Court has already handed Newdow a win, holding the Pledge unconstitutional. A different District judge rejected the "In God We Trust" claim.

Obviously, the 9th Circuit will posture these cases for the Supreme Court to hear again. And, while I'm tempted to say that this is a petty fight that generates more work than its resolution warrants, I'm going to come down on the side of saying this is worth debating in the courts. The decision will tell us something about what kind of country we are -- regardless of the result.

Christmas Carols - A Timely Topic

2007-12-10T21:24:00.000-06:00

I was reading one well-respected blog, and read with interest, a post on Christmas carols. Click here to be inspired. So, I thought I would add my own favorite carol. Written during the Civil War, the carol always seems to come to mind when the world is in a mess, and Christmas rolls around.

Christmas Bells
(The original poem, complete with all seven stanzas)

"I heard the bells on Christmas Day
Their old familiar carols play,
And wild and sweet
The words repeat
Of peace on earth, good-will to men!

And thought how, as the day had come,
The belfries of all Christendom
Had rolled along
The unbroken song
Of peace on earth, good-will to men!

Till, ringing, singing on its way,
The world revolved from night to day,
A voice, a chime
A chant sublime
Of peace on earth, good-will to men!

Then from each black accursed mouth
The cannon thundered in the South,
And with the sound
The carols drowned
Of peace on earth, good-will to men!

It was as if an earthquake rent
The hearth-stones of a continent,
And made forlorn
The households born
Of peace on earth, good-will to men!

And in despair I bowed my head;
"There is no peace on earth," I said;
"For hate is strong,
And mocks the song
Of peace on earth, good-will to men!"

Then pealed the bells more loud and deep:
"God is not dead; nor doth he sleep!
The Wrong shall fail,
The Right prevail,
With peace on earth, good-will to men!"

Buffaloes down $2.85 Million (or approx. 57 Million Nickels)

2007-12-10T11:31:00.000-06:00

The University of Colorado settled the case that I mentioned here. The settlement not only includes the payment of money, but also includes voluntary Title IX monitoring of the University in the future.

The comments of the University spokesperson contained all the right things, but did not comment on one interesting tidbit. When the case was in the trial court, the Federal District Judge not only found the claims to be meritless, but ordered the plaintiffs to pay the university's legal fees. That was reversed by the appeals court. So, if the University is now making a substantial payment, and saying conciliatory things, one should not get the idea that the University played nice in court during the litigation.

Honestly, you get (allegedly) raped by a recruit, you ask for compensation, and the University seeks to tag you with fees for such a preposterous request?

Investigating the Church

2007-12-09T13:37:00.000-06:00

The chairman of the Senate Finance Committee recently began an investigation of at least 6 "Mega-Church" operations asserting that he was simply making sure that these tax-exempt organizations were complying with the law. (Click on the title to read the NPR news report) And, while it may seem that these churches have expended funds on things that are not intuitively connected to ministry, I wonder why the politicians have chosen only to investigate churches.

Churches are not the only institutions that enjoy tax-exempt status. Nor are they the only tax-exempt organizations that spend money on things that would not be intuitively related to their tax-exempt missions. Is the Senate asking how much tax-exempt hosptials are paying their executives? Or how much true "charity" health-care they are providing? Is anyone wondering how tax-exempt universities are paying salaries for football coaches? Or why a college education at a tax-exempt organization is far beyond the means of many Americans?

What I see is that the larger organizations in society have lost some sense of responsibility to the people that they are supposed to serve. I am supporting a great number of institutions that are not contributing to the tax roll because they supposedly perform functions that society greatly needs and wants to encourage. But, if I attempt to use those services, I pay not just a market rate, but often a rate that is terribly expensive. If I go to the charity hospital, for example, and choose to pay cash -- my bill will be at least double what Blue Cross would have to pay to have that service performed on ME.

So, go ahead, Sen. Grassely, and look at how the churches spend their money. But, would you mind checking on some of the other organizations that don't pay taxes? At least at church, I give my money voluntarily. I don't have as much choice at some of the other "charity" organizations.

Hip Hop Rights

2007-12-05T17:58:00.000-06:00

I was surprised to learn that quite a few communities have ordinances that ban low-slung pants. One of them -- Pine Lawn, Missouri (which is close to Washington Park, Illinois) has penalties ranging from a $100 fine, with a higher fine and penalties for the parents of the kid with the low-ridin' jeans.

It's one thing to wonder why any governmental body would spend its time on this issue, but it's even harder to verbalize why the ordinance might be wrong. Although some lawyer will eventually write the petition to challenge the ordinance, it will have to assert that low-ridin' jeans are an expression of identity, or that the ordinance is an arbitrary regulation infringing on a life, liberty or property interest.

Of course, the response will be equally interesting. The government will claim that this is some reasonable regulation relating to health, safety and welfare. And, the cops will likely chime in to say that baggy pants allow people to hide weapons. What a waste of time.

Rules, We Don't Need No Stinkin' Rules

2007-12-04T00:53:00.000-06:00

I'm not just being cynical by saying that the government makes rules that it does not bother to honor. In a recent 8th Circuit case, the Court held that a state court need not either follow federal law, nor follow its own handbook for employees.

Larry McKlintic sued his employer - the 36th District Court - because it did not honor its own Family and Medical Leave Act policy. The policy was set out in the employee handbook, but the 8th Circuit said that the state was immune from suit under the 11th Amendment, and was not obligated to follow its handbook as a contractual matter.

How does a court decide that courts do not need to follow rules that every other person in the country must follow? Were I a small business owner in the 8th Circuit area, I would have a hard time showing respect for the court system.

Sleep Tight...and at Night

2007-12-03T13:28:00.000-06:00

Next Month, the Cancer research arm of the World Health Organization is going to declare that working at night is a "probable" cause of cancer. The theoretical link between night work and cancer was once described as "wacky", but it is doubtful that the "wacky" label would have deterred the WHO anyway. And, if the WHO says the link is probable, then the American Cancer Association is going to adopt that stance.

The science says that one of two things is going on. It could be that sleep deprivation weakens the immune system so that it can't fight off the growth of cancer cells (or any other deadly disease). Not exactly earth-shattering and sounds more like a correlation than a cause & effect. Second, though, the cancer folks say that night work upsets the body's production of melatonin - which both induces sleepy feelings, and suppresses tumor growth.

For lawyers, none of us will probably live long enough to see the wave of litigation by wait staff, bar tenders, shift workers and health care folks who got cancer because they worked at night. With the science just now being published, and little alternative that is safer for the necessary work, the template for liability is simply not present. But, when the worker's comp agencies start making awards for night-shift cancer, you might as well start running commercials (which ironically are more prevalent at night).

On the good news side, Texans were apparently prescient when they agreed to allow the issuance of bonds to look for a cure for cancer. Add night-shift cancer to the list...although I would expect the cure to be "Go to Bed, Dang it".

The Legislature is "at Work"

2007-12-02T00:45:00.000-06:00

Your House Speaker has put "top men" to work on issues that he thinks will come up in the next legislative session. Here is what they are working on:

1. The House Business and Industry Committee and the Insurance Committee have been given a joint charge to study the impact of the Entergy v. Summers decision on the worker's compensation systems as a whole. This broad charge should give the committees leeway to consider issues such as the level of worker's comp benefits,contractual issues between owners, general contractors, and subcontractors and the scope of the comp bar.

2. The House Civil Practices Committee is charged with studying the impact of HB 4, with particular emphasis on job creation, judicial efficiency, medical access, and medical liability insurance rates; the effect on the tort system of "meritless" litigation and whether additional sanctions are needed to discourage such litigation; the effect of multiple plaintiff litigation other than asbestos / silica litigation; and whether liability protections for health care providers in emergency or charitable care situations are "adequate".

We should, I suppose, be encouraged by the "charge" given by the Speaker to his minions.

News from the Playground

2007-11-30T15:49:00.000-06:00

In Hillsborough County, Florida, there was a hardy game of "Snare the Queer" going on. The game consists of passing a football off, and tackling the guy who is stuck with the ball -- and apparently mercilessly abusing him until he is able to get rid of it. During this particular episode, Danny Heidenberg got stuck with the ball, was tackled, and then suffered a Pro-Wrestler-like elbow drop from one of the playground bullies. The drop broke his arm and damaged his forearm - the result of which is that Danny will not likely ever be a surgeon like both his parents.

I know you anticipate the entry of plantiff's lawyers, the resulting trial, and the tort-reform-demanding verdit (which in this case was $4,000,000). But, before calling Bob Perry, and the Texans for Lawsuit Reform, consider this --

The game was one that the school knew was played, and knew that it was dangerous -- they had banned it twice.

The kids were on the playground without supervision...literally..."Nobody was wathcing them" according to trial testimony.

The school's policy manual prohibited leaving kids on the playground unattended.

The would-be wrestler said that he never would have beat up on the smaller kid had a teacher been around observing playground activities.

The school had received more than a dozen complaints about bullying and fighting on the playground, and had done nothing about it.

The broken arm required a year of electric shock therapy to get the injured nerves working again.

Now, I'm against outrageous verdicts as much as the next guy, but this is precisely the type of anecdotal case that tort-reformers described as "broken arm on school playground nets $4 Million for so-called future surgeon". What is often left out of the tort-reform ad is the clear fault of the defendant -- inexpensive, sensible and well-known steps that could have avoided injury at all. Are there really folks out there that believe that Danny should "take responsibility" and bear this injury without compensation?

The Price of Christmas is Going Up

2007-11-27T16:33:00.000-06:00

Big news on the Web today is that the 12 days of Christmas is going to cost more this year. Apparently, the rise in the minimum wage is helping the maids-a-milking, and thereby pushing up total cost. Most of the other gifts have remained relatively static, or rising roughly at the same rate as inflation. Click on the title to this post to get the details.

Punitive Damages X 1,000,000,000

2007-11-27T14:12:00.000-06:00

Just about a week ago, the 2nd Circuit affirmed a punitive damage award of $1,000,000,000 against a group of defendants from Turkey. The case, Motorola Credit v. Uzan, et al, involved a claim of fraud committed by the defendants in order to induce Motorola and Nokia to loan them about 2 BILLION dollars. According to the opinion, the defendants converted the loan proceeds to their own use, and refused to respond, or to participate meaningfully in the litigation against them. They defied court orders, refused to produce documents, would not show up for depositions, and basically became fugitives from civil justice.

The 2nd Circuit gave some interesting figures about the relationship of punitive damages to proven net worth. Courts have, apparently, approved awards of 37%, 71%, and 18% of a particular defendant's net worth. And, applying Illinois law, noted that multiples of 20 and 75 times compensatory damages had been approved (although I would not be so confident that these multiples would survive in today's courts).

In considering the facts of the case under the now-almost-famous BMW Guideposts, the 2nd Circuit made an illuminating comment --

"...to date, the defendant's financial status has occupied no place in the Supreme Court's due process review"

Thus, the idea that net worth is relevant to a punitive damages is strictly a creature of state law, not a constitutional requirement. Of course, many states do consider net worth to be relevant, but it will be interesting to see if net worth makes its way into the Constitution in the now-pending Exxon Valdez case. At this point, I'm not even sure it was an issue, but that has never really stopped the courts from writing about things. Equally important, though, are cases making their way through the courts where the financial status of the defendant is the sole issue. And, these cases turn on whether the courts will apply the principle that a punitive damage award is meant to punish, not to bankrupt. [Hazelwood v. Ill. Cent. RR., 114 Ill. App. 3d 703, 713 (App. Ct. 1983)].

But, reading BMW, one must conclude that the Court was serious when it said that "the most important indicium of the [award's] reasonableness...is the degree of reprehensibility of the defendant's conduct." 517 U.S. 559, 575. So, maybe there is room to believe that there are cases where the conduct is so reprehensible that putting a company out of business is the right thing to do.

Anybody Up for a Trip to Washington Park, Illinois?

2007-11-26T14:52:00.000-06:00

The Seventh Circuit decided an interesting case last week. Eric Joelner (whose mother must be very proud of him) filed suit against the Village of Washington Park, Illinois after the village refused to issue him a license to operate a strip club. The City had not actually denied Eric a license, it just refused to allow him to serve alcoholic beverages at his new establishment.

The Court found that the Village of Washington Park derives almost 100% of its income from the adult entertainment industry and presently has 8 strip clubs in its 2.5 mile area. Its ordinances prohibit certain activities, but they are apparently not enforced regularly at the strip clubs where the owners are friendly with the Village leaders. The former chief of police runs one of the clubs.

In the end, the 7th Circuit said that the Village's denial of a full license to Eric violated his constitutional rights, and held that the ordinance under which Eric was denied a license was void. So, if anyone is up for a road trip, this might be an interesting one.

Not a Bad E-mail story; Feel Free to Pass Along

2007-11-21T14:44:00.001-06:00

Sometimes these "heartwarming" stories are a bit too sappy for me but this one is truly interesting... In 1986, Mikele Mebembe was on holiday in Kenya after graduating from Northwestern University. On a hike through the bush, he came across a young bull elephant standing with one leg raised in the air. The elephant seemed distressed, so Mikele approached it very carefully. He got down on one knee and inspected the elephant's foot and found a large piece of wood deeply embedded in it. As carefully and as gently as he could, Mikele worked the wood out with his hunting knife, after which the elephant gingerly put down its foot. The elephant turned to face the man, and with a rather curious look on its face, stared at him for several tense moments. Mikele stood frozen, thinking of nothing else but being trampled. Eventually the elephant trumpeted loudly, turned, and walked away. Mikele never forgot that elephant or the events of that day. Twenty years later, Mikele was walking through the Chicago Zoo with his teenaged son. As they approached the elephant enclosure, one of the creatures turned and walked over to near where Mikele and his son Tapu were standing. The large bull elephant stared at Mikele, lifted its front foot off the ground, then put it down. The elephant did that several times then trumpeted loudly, all the while staring at the man. Remembering the encounter in 1986, Mikele couldn't help wondering if this was the same elephant. Mikele summoned up his courage, climbed over the railing and made his way into the enclosure. He walked right up to the elephant and stared back in wonder. The elephant trumpeted again, wrapped its trunk around one of Mikele's legs and slammed him against the railing, killing him instantly. Probably wasn't the same elephant.

Texas Attorney General's Office Slapped by 5th Circuit

2007-11-20T10:31:00.000-06:00

In Charles v. Grief (No. 07-50537), a Texas State employee sued the State after he was terminated for reporting irregularities at the Texas Lottery Commission. The State answered with a plea of qualified immunity. When the District Court denied the immunity claim, the State appealed (as is typical). The interlocutory appeal is permitted, but apparently is being abused. This is what the Court said --

The cost in time and money incurred by a public employee who has sued in the belief that he has suffered an adverse employment action as the result of unconstitutional retaliation is significantly increased when, as here, the defendant takes a clearly unwarranted appeal of an interlocutory denial of qualified immunity. Taking such an appeal is now unconscionable in light of this court’s burgeoning precedent uniformly rejecting such appeals of fact-based denials of qualified immunity for lack of appellate jurisdiction, our most recent being Connelly. Considering the usual disparity in the financial conditions of the parties to such actions, cavalierly taking such an appeal smacks of economic duress. Indeed, this is at least the second such case this year in which the office of the Attorney General of Texas has improvidently brought and doggedly prosecuted such an appeal, Connelly being another.We trust that counsel for Grief, as well as all other counsel who represent public employers and state actors in such roles, will henceforth carefully heed the case law of this court on point and be chary to take appeals of interlocutory orders denying qualified immunity on grounds of the existence of genuine factual disputes, lest they incur penalties, sanctions, damages for, e.g., frivolous appeals, or worse.

The cost of interlocutory appeals is not just a financial cost. By the time that the interlocutory appeal is concluded, it is not unusual for 6 months to a year to have passed. Moreover, the Plaintiff has usually been denied any discovery during this time. So, the Plaintiff's case is often markedly weaker because he has been unable to preserve testimony and documentary evidence. But, it might be too much to wish that the Attorney General will actually heed this advice.

And, while I'm at it - on the 4th Amendment

2007-11-19T11:02:00.000-06:00

The United States Supreme Court is going to hear a case that ought to be close to the heart of everyone who drives the highways, and in doing so, stretches the boundaries of compliance with the law. For all you non-seat-belt-wearers, speeders, and suspended license people....take heed.

In February of 2003, David Moore was stopped by the Virginia Highway Patrol. His license was suspended. Virginia does not permit arrest for this offense. Despite state law that prohibits an arrest, Mr. Moore was arrested. He was, of course, searched. Predictably, he had drugs on him. Mr. Moore claimed that the evidence procured (the drugs) should not be used as evidence against him because it was the result of an illegal search - relying on a rather traditional view of the exclusionary rule.

Now, driving with license suspended is a misdemeanor under Virginia law, so it is a crime. But, the law only authorizes a citation for the crime, with punishment to be determined later. So, the case that the Court will hear has the State of Virginia arguing that although the law does not permit a person to be deprived of liberty for the conduct proscribed, actually depriving a person of liberty (by detaining and searching them) has no consequnces for the State. Mr. Moore's argument - that an arrest requires "probable cause" and that the cops here could never have probable cause since they knew that an arrest was specifically prohibited, makes more sense to me.

Judge Keller - Part Dos

2007-11-19T09:53:00.000-06:00

Recently, the Court of Criminal Appeals decided a rather unremarkable case about the extent to which passengers may be searched when the cops stop a vehicle for the driver's conduct.

Suzanne St. George was stopped when the cops noticed a tail light out on her car. She gave the cops proper ID, as requested, and eventually received a "warning" for the broken tail light. But, the cops were obviously more interested in her passenger. They asked him for ID, and when he didn't produce it, they began an investigation of him, and eventually took him out of the car and searched his person. They found marijuana on him, and arrested him. Although a trial judge allowed the search, the Court of Appeals and 8 members of the Court of Criminal Appeals found that the cops had no reason to detain the car after the "warning", and no reason to search the passenger. This is unremarkable, and follows standard U.S. Supreme Court rulings, one as recent as June of 2007 (Boudin).

What makes the case interesting is Judge Keller's dissent. She just dissents - no opinion, no comment. Just "I don't agree." Given the vast authority against a dissent under these facts, I would think that the Chief Judge would owe us a little more.

Finally....Good News from the Sports World

2007-11-13T12:47:00.000-06:00

This isn't a post about an athlete overcoming tremendous odds to become successful in a sports endeavor. But, it is the best news about the ownership side of sports that I have read in a long time, and what I think will be a rare post about "Business Organizations".

An England-based soccer (football) club has announced that controlling interest in its club has been purchased by an internet collective. The website collects about $70 per year from its members, and members get to vote on all aspects of team ownership....right down to who is signed to play, who gets to play, and how much to pay the players. The internet collective owns 51% of the team, and anticipates that it will use continuing membership fees to enhance the club, both on and off the field. But, the owner is "not-for-profit" meaning that the value of the team is not for distribution to the owners / members.

Now, there is room for mischief here, but there is also a lot of room for improving sports (by which I mean the game, the contest, and the fan support and loyalty). It's a small step, but there are a lot of pro teams in America that I would buy a piece of if I could be assured some control. I guess anybody can pay up and vote as an owner of this particular team, but better yet, I'm hoping this translates from British to American like so many other things. Click on the title to this post to go to the team website. And, here's a link to the owners.

Ever Wonder What Happens to Lottery Winnings?

2007-11-12T09:25:00.000-06:00

In 1995, an Arkansas man won the Texas Lottery to the tune of $8.9 million bucks. The winnings paid out in annual installments of $450,000 (X 20). At the time he won, Texas lottery laws prohibited the assignment of winnings (so much for the late night commercials for lump sum payments). But, in 1999, the Texas Legislature changed the law, but for a reason still unknown to the author of the legislation -- prohibited the assignment of the last two payments. During the same session that the Legislature prohibited the assignment of the last two payments from lottery winnings, it passed another law that invalidates any law restricting the assignment of an account.

One might forgive the Legislature for passing a law in one session that obviously conflicts with a law previously passed. But...during the SAME SESSION? My suspicion that legislators rarely bother to read what they are voting on is gaining ground. The conflict between the laws is now the subject of an appeal before the Austin Court of Appeals, with the Lottery Commission claiming that their restrictive assignment provision is better than the UCC provision prohibiting restrictions.

Naming Legislation

2007-11-08T15:37:00.000-06:00

I finally got around to reading some of the cases interpreting the Patriot Act. Some of the Act's provisions are shocking to me, in terms of curtailing what I assumed were traditional rights held by the people. So, I wondered why Congresspeople would vote for this.

After some consideration, the most obvious solution came to me. It's because it is named "The Patriot Act." How could you possibly run for re-election and adequately answer your opponents' criticism that You Voted AGAINST Patriotism. This also explains "No Child Left Behind" (can't vote to leave children behind), all statutes that have "Balanced Budget" in them anywhere (everyone is for a balanced budget). Just this week, Texans were presented with a Constitutional Amendment seeking authorization to research a cure for cancer. Even citizens can't resist. For heaven's sake, who votes FOR cancer and AGAINST a cure?

Legislators have only scratched the surface of this sure-fire technique to passing legislation.

Clamping Down on Selecting a Location for a Trial

2007-11-07T14:23:00.000-06:00

Within a month, both the 5th Circuit, and the Texas Supreme Court have issued rulings that restrict a plaintiff's right to choose the forum for his suit. In both cases, the plaintiffs sought to bring suit in a location that was technically correct, but obviously chosen for the locales perceived "friendliness" to claimants, and perceived "unfriendliness" to defendants. In public, the lawyers are saying that the choice of forum had to do with efficiency of the trial process, most people recognize that the places where the suits were filed had far more to do with the friendly jury pools than with any perceived efficiency.

If the statutes permit cases to be filed in a particular location, what business does a court have in restricting permission to file there? This is especially interesting if the defendant is claiming that the suit should have been brought just a couple of hundred miles away. Why is justice so different in one locale than another -- so much so that the parties will spend untold hours and money fighting for their preferred locale? There is no morally correct answer to the problem of "plaintiff-friendly" or "defendant-friendly" venues. There is no reason that one side or the other should have a legal standard that favors their choice. A random assignment to a particular court is common within a county, but the existence of judicial districts (on both the state and federal level) makes this artificial line-drawing a bone of contention for both sides of the docket. Maybe there will be a time to do away with this rather antiquated legal principle called "venue".

Indiana....Again

2007-11-04T15:02:00.000-06:00

A 21-year-old man in Indiana was arrested for transporting "Snakes on a Bus". Apparently, the fellow had acquired some baby rattlesnakes by mail, picked them up at the post office, and then was going home. Indiana, in addition to requiring ID for voting, and requiring body cavity searches on every arrest, also requires a permit for dangerous animals.

I'm trying to assimilate Indiana law in my mind. Life is better there because they rely on ID for voting , care about your orifices , and want to protect snakes from people.

...still working on it.

This Judge Wouldn't Make it in Texas, either

2007-11-02T14:50:00.000-05:00

The Virginia Supreme Court removed a judge from office, in part, because he flipped a coin to decide a dispute. While there were other reasons for his dismissal, I don't believe this is a very good one. The coin flip was to decide who got custody of a child for Christmas -- which routinely results in the other parent getting the kid for Christmas the following year. I don't think many judges can articulate sound, judicial philosophy or reasoning that is much better than a coin flip in that situation.

But, my larger point is that, in Texas, we wouldn't put up with that either. As identified in a prior post, we prefer judges who rule the same way every time.

Some People are Just ....Different

2007-11-02T11:46:00.000-05:00

In America, we pride ourselves on tolerance for peoples and cultures that may not fit the mainstream of American thought. By way of example, the 1st Amendment may well tolerate the views of Westbrook Baptist Church, and protect its right to protest against homosexuals by appearing at the funerals of slain veterans. Yesterday, I thought that idea stretched the envelope.

Well, the "stretching the envelope" metaphor just won't work for this --

Saudi author and cleric, "Dr." Muhammad Al-'Arifi, counsels young Muslim men on how to treat their wives.

"Admonish them – once, twice, three times, four times, ten times," he advised. "If this doesn't help, refuse to share their beds."

And if that doesn't work?

"Beat them," one of his three young advisees responded.

"That's right," Al-'Arifi said.

He goes on to calmly explain to the young men that hitting their future wives in the face is a no-no.

"Beating in the face is forbidden, even when it comes to animals."

"Even if you want your camel or donkey to start walking, you are not allowed to beat it in the face. If this is true for animals, it is all the more true when it comes to humans. So beatings should be light and not in the face.

"If he beats her, the beatings must be light and must not make her face ugly. He must beat her where it will not leave marks. He should not beat her on the hand... He should beat her in some places where it will not cause any damage. He should not beat her like he would beat an animal or a child -- slapping them right and left.

"Unfortunately, many husbands beat their wives only when they get mad,and when they start beating, it as if they are punching a wall – they beat with their hands, right and left, and sometimes use their feet. Brother, it is a human being you are beating. This is forbidden. He must not do this."

Click on the title to the post to see a more complete report from FoxNews(from which I have quoted liberally).

Maryland Jury Awards $11 Million to Veteran's Family

2007-11-01T13:29:00.000-05:00

A jury in Baltimore, Maryland awarded a grieving father won a nearly $11 million in a verdict against a fundamentalist church that pickets military funerals out of a belief that the war in Iraq is a punishment for America's tolerance of homosexuality. The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as "Thank God for dead soldiers" and "God hates fags." The plaintiff family claimed the protests intruded upon what should have been a private ceremony and sullied the memory of the event. The church members say that they are following their religious beliefs by spreading the message that soldiers are dying because America is too tolerant of homosexuality.

There are two pretty important questions here. The obvious is whether the 1st Amendment allows abhorrent messages to be published at what are essentially private events. The Defendants in this case plan to appeal, and have said, "Oh, it will take about five minutes to get that thing reversed."

The less obvious question is about punitive damages. Can an award stand if it is so far beyond the Defendant's ability to pay that it can, literally, never be collected? The Federal Judge noted that the size of the compensatory award "far exceeds the net worth of the defendants." The compensatory award is only about a third of the total award by the jury. If you think that this is a purely intellectual question, keep your eyes on the Texas Supreme Court. A case posing this question is on its way there.

Taxman ever vigilant to ruin a perfectly decent holiday

2007-10-31T12:55:00.000-05:00

In Iowa, the taxman has decided that pumpkins are not food - which is normally exempt from sales tax. If you want to buy a pumpkin for eatin', you have to fill out a special form that the taxman devised to avoid paying the tax.

It makes perfectly good sense to 1) make paperwork for customers, retailers and tax people to review to keep people from having to pay about a dime in tax 2) to announce your changes just to spite people who might otherwise enjoy a holiday 3) encourage people to buy plastic and 4) enhance State revenues for just enough to pay the cost of collecting the tax.

Congratulations, Iowa!

What happened to the paddle?

2007-10-30T10:30:00.000-05:00

The 11th Circuit decided a case last week that bears mention. In Peterson v. Baker, et al (No. 06-16180, October 25, 2007), the Court decided that the imposition of corporal punishment on a mis-behaving student was not so severe that it "shocked the conscience" of the court. From the holding, one might presume that this is a paddling episode. Nope.

Jonathon Peterson was an 8th grader in remedial reading class who was cutting up with one of his friends. Jonathon's friend got sent to the Principal's office, and Jonathon decided (on his own) that he would accompany his friend. The teacher...Amber Baker...blocked Jonathon's path, and when he removed her arm from the doorway, Amber grabbed Jonathon by the throat and choked him until he complied.

Following the factual recital, the Court goes through a rather typical analysis for constitutional torts, and opines that this incident does not rise to the level of a constitutional violation. That's all well and good, but the Court fails to mention that almost every state in the South provides blanket immunity for schoolteachers for their conduct -- meaning that if Jonathon does not have a constitutional case, he has no case at all.

Cases like this tell you a couple of things. Most obvious, the world has changed. School is becoming less about learning and more about protection. (Which makes me wonder why the newspapers are so intent on telling us otherwise). Less obvious is the disingenuous writings of federal courts in cases like this. Federal courts apparently would have readers believe that the reason for dismissing a case like this is the existence of a body of state law that makes the federal courts intervention into "run of the mill tort cases" unnecessary. Well, the body of state tort law says that the litigant cannot sue in state court. Belittling litigants that are forced to file in federal court as though they are trying to make a federal case out of a small meaningless dispute is equally unnecessary.

Your Next Punitive Damage Case

2007-10-29T09:48:00.000-05:00

The Supreme Court has accepted review of the Exxon Valdez case. Some law students were not in grade school when an oil tanker was grounded in Prince William Sound spilling a lot of oil on pristine Alaskan shorelines. Clearly, the case represents one of the worst DWI situations in history. But, 18 years of litigation later, and Exxon (who makes more in one quarter's earnings that the entire punitive damage award) is howling about having to pay $2.5 billion in punitive damages.

I think $2.5 billion is a lot of money. I think $30 billion per quarter is a lot of money. Can the Court really believe that it will establish a principle of constitutional law that will be generally applicable in a case that is unique in its facts, and has a unique defendant. And, should the Court write an opinion that really applies only to Exxon's situation, it will stray farther from the mainstream of American thought than it has in my lifetime. (Honestly, other than Exxon shareholders, what American doesn't believe that Exxon deserves punishment for this?)This award will not seriously harm Exxon; it will not cause oil prices to change; it will not do anything other than to prick the finger of shareholder earnings (which have probably already accounted for the award as though it were to be paid). In other words, a win for Exxon is probably a windfall for its shareholders.

Regrettably, my advice is to load up on Exxon stock. (which, by the way, is already moving up on this announcement)

Well, Here's Your 1st View of the Lethal Injection Case

2007-10-29T09:27:00.000-05:00

Late last week, another execution was stayed - this time by the 8th Circuit. The State sought to vacate the stay, and the Supreme Court refused to do so. Justice Scalia dissented from the refusal to vacate the stay (he would have voted to let the execution proceed). Justice Alito agreed. In Justice Scalia's words:

Justice Scalia, dissenting.
I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol. The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.

In my first post about this topic, I guessed that this case would tell you a lot about the people who make decisions at the Supreme Court. While it's hard to argue that it is fair to wait 9 years to make a claim, still if it turns out that the lethal injection process is "cruel and unusual", I don't think it becomes less cruel and unacceptable because of a procedural misstep.

Not surpsingly, the 5th Circuit has the same view:

[T]he mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right . . . [a] court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.” We do not decide whether Harris properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. . . . Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state’s intention to execute him by injecting the three chemicals he now challenges. See Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) and more recently, Berry v. Epps, (No. 07-70042, October 26, 2007). On October 31st, the US Supreme Court stayed Berry's execution.

In sorta related, but largely irrelevant news: The ABA reports that executions should be halted (weeks after they already have been) (based on reports from states where executions are rare) (written by committees composed largely of death-penalty opponents). Here's a link

Georgia Teenager Released from Cruel & Unusual Sentence

2007-10-27T14:20:00.000-05:00

In 2005, Genarlow Wilson was convicted in Georgia for receiving oral sex from a minor. Wilson was 17 at the time; his partner/victim was 15. Upon being convicted, Wilson was sentenced to 10 years in jail, and deemed a sex offender subject to lifetime registration. His case has become mildly famous -- if only because both the criminal statute and the punishment are deemed a bit silly today. One might think that the crime refers to some ancient outdated law, but it is a 1997 law that provides a maximum punishment of 30 years. And, the law is broadly written -- obviously intended to cover circumstances far different than Wilson's case.

But, at some point, a prosecutor 1) decided that a teenager should be charged with this felony, and 2) that a harsh sentence should be imposed. (even though it has been reported that the victim's family never asked for prosecution, and did not agree with the sentence). The Georgia Supreme Court's opinion (available by clicking the title of this post) is 48 pages long -- detailing a raft of objections that the State's official prosecutors have to setting Wilson free. The objections range from procedural technicality (saying that even if Wilson should not have been punished for the "crime", he still must serve his 10 years because he missed a procedural step somewhere) to substantive arguments that 10 years + lifetime registration is a just penalty.

Now, there's not much in the opinion about Wilson's partner/victim - notably whether she was for or against conviction and punishment, nor is there much information about the crime at all. (It has been reported elsewhere that the incident occurred during a party at a hotel, and that Wilson was not the only one charged or convicted). But, I've yet to read a single comment by anyone that suggests that the punishment fits the crime here. All of which makes me wonder whether the people in Georgia are pleased with the vigorous and aggressive attitude of their prosecutors, whether they disclaim the prosecutor's actions in charging and trying Wilson or opposing his appeals, or whether they will even remember this case when elections come around. Just out of curiousity, I intend to keep up with this.

Judge who released Wilson: Judge Thomas Wilson - Monroe County Superior Court

Prosecutor who charged Wilson: Douglas County DA David McDade

State AG who opposed the release: Thurbert Baker (who noted after losing the case "I hope the court's decision will also put an end to this issue as a matter of contention in the hearts and minds of concerned Georgians and others across the country who have taken such a strong interest in this case") - fairly disingenuous if you take the time to read the Supreme Court opinion. Also, pretty different from his statement after the trial judge ordered Wilson's release. Baker said, at that time: "If this court, or any court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish… justice being served in a fair and equal manner."

News from the NFL

2007-10-24T11:09:00.000-05:00

The NFL changed its draft process today...reducing the time that teams are allotted to make their draft choice on Draft Day. They used to get 15 minutes to make their selection, supposedly madly consulting with their war rooms, desperately considering trades or deals, or puzzling over the character of the so to be millionaires. Of course, it was all theatre for the televised audience. To think that the Billionaires were making decisions over mere millionaires in as few as 15 minutes was a pretty silly assumption in the first place, but it made for good reality television. With the advent of "Biggest Loser", "The Bachelor" and the like, the NFL Draft Day suspense was exposed for the sham that it was, and the Commissioner of the NFL (who I like more and more) reduced the time between draft choices from 15 to 10 minutes.

I thought this was ironic, because lawyers are usually allotted 15 minutes to argue their case to appellate courts. Can we expect a similar reduction in time, now? Appellate cases don't often involve multiple year guarantees worth $10 million per year, so if the NFL can make do with just 10 minutes, I would expect courts will think that appellate arguments are no more important. Of course, if you've got a case involving the Houston Texans (who chose Mario Williams over Vince Young), you might make a persuasive case for additional time.

NOLA Still in Trouble

2007-10-23T14:08:00.001-05:00

In 2005, a group of white workers in the District Attorney's Office in New Orleans, LA, sued for racial districmination. They claimed that Eddie Jordan, the DA of Orleans Parish, was systematically replacing white workers with black workers. The workers won the case, and after two years, are still waiting to get paid the $3.5 million that they won.

This week, the federal judge said that the plaintiffs...now judgment creditors... were entitled to seize the assets of the District Attorney's office, including over $1 Million worth of vehicles and $2 Million worth of furniture. The valuation of assets owned by the DA's office is a little surprising,(at $30,000 per vehicle, the DA's office owns over 30 vehicles, and if there are 50 office spaces for DA employees, that's about $40,000 per cubicle) since the whole office was flooded in the Hurricane just a couple of short years ago.

What is not surprising is that a governmental entity is refusing to pay debts that a jury has said are owed. You may read about governmental entites paying huge amounts to civil rights plaintiffs, but I would venture that more than 90% of the time that payment is made, it is a payment made by an insurance company. When it comes to paying judgments out of real money, governmental entities are notorious deadbeats. Next time you hear a politician screaming about respect for the law, the "rule of law" or like phrases, you might want to ask how many court judgments against the government remain unpaid because the politician don't find that honoring that "rule of law" to be expedient.

Character in Harry Potter Books is Gay?

2007-10-22T19:45:00.000-05:00

I read this week that J.K. Rowling "outed" Albus Dumbledore - the Headmaster of the Hogwarts School. The guy is gay, according to the original intent of the author. Notice that I used the words "original intent"? I would guess that there would be quite a few Harry Potter fans that are going to have to revise the impressions that they formed while reading the books to adjust for Dumbledore's sexual preference.

But, is that really fair? Isn't the reader of a novel entitled to draw his own conclusions about what he reads, and choose an interpretation that is satisfying to him -- without being wedded to what the author thinks?

On the other hand, if my wife gives me a "To Do" list, I will admit that her original intent is far more important than my subjective interpretation.

So, what about laws, or our Constitution. It's a pretty difficult task to put law into the category of "novel" or "To Do" list. So, I would expect it to be equally difficult to justify a wholsale acceptance or rejection of the "intent" of the author. But, it makes me wonder whether our reaction to legislative or Constititional ambiguity with the mantra of "intent" is really a sound tool of analysis.

Coach Sees a Man about a Dog

2007-10-17T12:15:00.000-05:00

With regrets about the colors I have chosen for my page this week, I must report that Baylor has made the front page of ESPN.com (Click on the post title to see the article). It's titled "Urine Trouble", and recounts the late night puddling of a Baylor Assistant football coach.

I would suspect that a box of Depends is on its way to the Baylor Athletic Department as I write this post, and radio talk shows are probably having a field day. I understand that there is now new slang for urination - Taking a Schnupp.

If you're going to break the law, you should, I think have a crime named after you (at a minimum). If anyone wants to break loose on the best puns they have heard relating to this incident, I'd love to hear them.

Already taken: "I bet he hoped that the news didn't leak out"
Unintentionally ironic: "Golden Wave Marching Band" (the real name of the Baylor Band)
See Excellent, top-flight, 24/7 coverage of this story at Bear Meat (link to left)

Duke Lacrosse and Civil Rights Suits

2007-10-16T13:45:00.000-05:00

I've read the 155 page complaint that the Duke Lacrosse players filed against the City of Durham, North Carolina, and a group of law enforcement-related defendants. I would venture to guess that a great number of folks are anticipating a large recovery for these young men, but any lawyer that defends civil rights cases would immediately recognize some significang legal hurdles in the case.

First, prosecutors in America enjoy a type of immunity from suit and liability that is as broad an immunity that exists in the law. They cannot be held responsible for conduct, no matter how egregiously wrong, that is part of their prosecutorial function. Withholding evidence, lying about evidence, believing patently unbelievable evidence, and refusing to fairily consider defense evidence is not the work of a good prosecutor, but it is fairly within the job description of prosecutors. Nifong probably walks liability early in the case.

Even if policement and investigators aided and abetted Nifong's poorly conceived prosecution, it is unclear whether their conduct is in violation of clearly established law. If it's not, then all the other cops and investigators have qualified immunity - which means that they don't have to pay.

The City doesn't have to shoulder the responsibility for any of the defendants unless it can be shown that the City's official policies were to treat criminal suspects as Nifong and his crowd did.

All of these legal hurdles sound very prudent when applied to the run of the mill criminal who is arrested and mistreated by the cops. They are a little harder to swallow when the wrongful conduct is so wrong, so public, and so unnecessary. That's the nasty underbelly of immunity principles in the law.

If You Can Do a Summary of This Opinion - My Hat's Off to You

2007-10-15T14:10:00.000-05:00

Late last week, the 5th Circuit (a divided panel) stayed the execution of Rolando Ruiz. I wouldn't want to turn this blog into a death penalty blog, but this opinion vividly shows how messed up the law is in this area. Part of the fault is your US Congress, part belongs to the 5th Circuit, and a great part belongs to your Texas Court of Criminal Appeals.

Now, for Mr. Ruiz. It seems that everyone agrees that Mr. Ruiz had horrible lawyers appointed to his case by the State of Texas. When he was on trial, his lawyer(s) failed utterly to investigate or to present a case for mitigation of punishment. One side of this argument likes to talk about this as the "bad childhood / not enough hugs" kind of defense. The other side notes that there is but one chance to convince a jury that there is a reason to let the defendant live. Both would have to agree that this is an important part of a death penalty case.

Mr. Ruiz' lawyers were called "appallingly inept" and egregiously deficient" by the federal courts. Naturally, with those characterizations, one would assume that Mr. Ruiz would get another shot at punishment. Not so fast.

When it was time for Mr. Ruiz to make this argument, the lawyer was again inept, and failed to make this claim during a State Habeas Corpus petition. That's easily fixed, right? When he gets to federal court, the federal judge will allow him to return to State Court and make the "significant, potentially meritorious claim", Right? Nope.

The Federal Judge said that, by failing to make the argument, the Texas Court of Criminal Appeals would reject the claim as procedurally barred because it was not made at the proper time. So, the Federal Judge sends Ruiz off for execution. The 5th Circuit affirmed.

Not deterred, Ruiz applies for relief from the Texas Court of Criminal Appeals, and the Court cannot even get all of the judges to participate in the consideration of the case. But, they deny relief - without saying whether they think that the ineffective assistance of counsel claim is barred, or lacks merit. They just deny.

Back to federal court goes Ruiz - now armed, he thinks, with a decision that the Texas Court has denied him relief on the claim that he had appallingly inept counsel at trial, on appeal and in his habeas petition. Problem solved? Nope.

The 5th Circuit panel is confused by the Texas Court of Criminal Appeals failure to say why they denied relief. So, they assume that relief was denied on the merits -- at least 2 of the judges do - with one judge saying that Ruiz should be executed because he hasn't followed proper procedure.

Now, somebody can explain to me who deserves the blame for capital cases to take so long to get to resolution. In this case, it wouldn't appear that its the inmate's fault. One doesn't have to be morally opposed to a death penalty to be adamantly opposed to the American system of imposing the penalty.

Well, This is Interesting News About the Death Penalty

2007-10-11T13:24:00.000-05:00

The Texas Lawyer reported today that 20 lawyers are filing a complaint against the Presiding Judge of the Court of Criminal Appeals. Just after the US Supreme Court agreed to hear a case about the protocol for lethal injection, a Texas inmate attempted to file a Motion to Stay his execution - scheduled for later that day. The lawyers for the soon to be executed inmate called the Court of Criminal Appeals and asked them to stay open late to receive the Motion to Stay Execution. Chief Justice Keller apparently told the staff at the Court that it is the policy of the Court to close at 5:00 pm, and the Court closed.

The Inmate was not able to request a stay of execution in Texas, and thus could not request a stay at the Supreme Court. Therefore, he was executed. If all this is true, I would think that this sounds pretty bad. I wondered about this is a prior post, but would never have guessed that the reason was so mundane. My prior post wondered whether the US Supreme Court was at fault...clearly it was not. The problem, if there is one, is right here in Texas.

Here's a link to the Complaint against Chief Justice Keller.

Tort Reform is Working?

2007-10-09T10:55:00.000-05:00

In 2003, the year of the Great Medical Malpractice Crisis, Texas led the nation by passing a cap on damages in medical malpractice cases. The New York Times reported recently that the result of this tort reform package is an influx of doctors wanting to get licensed in Texas. They perceive Texas to be "doctor-friendly", according to the Times article (click on the title to this post for the aritcle).

Well, I suppose that's good news, but I wonder who all these doctors are. Are we getting applications from the ones who are afraid that killing patients in Florida will cost them a fortune, while in Texas, it's not that expensive?

Or, maybe there wasn't really a crisis at all, but the media coverage of the crisis, and the tort reform solution has convinced doctors that Texas is a good place to be -- when in reality, nothing has changed about how many people sue their doctor, or how much they really recover?

I'm cynical enough to believe the former, but realistic enough to believe that the latter is just as likely.

What Personal Behavior Can We Demand of Supreme Court Justices

2007-10-03T15:01:00.000-05:00

The editorial linked to this post (Click on the title of the post) is by a law professor who writes frequently on church/state issues. This time, she is complaining that 5 Supreme Court justices should not have attended an annual mass in Washington, D.C. She opines that their attendance at this particular worship service brings into question their ability to judge fairly and impartially, and that they should not have gone, and certainly should not have attended together.

This is some heavy thinking, but I think that she is not only asking too much from a judge when she requests that he refuse to attend church, but that she is asking far too much of the people of this country to insist that judges have an inviolate duty to separate their religion from their jobs. Each of the Justices had a record that was reviewed by the President and by the Senate before their confirmation. Each of them had years to expose any alleged agenda to violate the Free Exercise or Establishment Clause(s) of the Constitution. Each of them worked for many years around people that surely would have seen the grand conspiracy to infect judicial rulings with religious belief. Too much, then, is being made of the coincidence of a desire to worship and a duty to perform judicial duties with integrity and faithfulness to their oath and to the law of the land.

I have a unashamed bias for people in public service who believe in something. The worst kind of public servant is the kind who has whitewashed his mind of any beliefs, and engages in a mechanical application of a set of rules. No rule is devoid of exception. No rule should be applied without a view toward grace or mercy. People who believe in things motivate others to do better and to be better. Robotic work should be saved for machines.

Not all good news for University of Colorado

2007-10-01T16:24:00.000-05:00

Before Colorado kicked a last second field goal to beat No. 3 ranked Oklahoma, the athletic department got kind of a shock from the 10th Court of Appeals. In a case styled Simpson v. University of Colorado, the Court held that a co-ed could continue her case against the University for violations of Title IX. The plaintiffs in Simpson were not athletes, but young ladies who volunteered to serve as ambassadors for recruits that came to visit the University with a view toward becoming athletes. The recruits were told by their male sponsors that the ambassadors (like the Simpson plaintiffs) were there to show them a "good time" and strongly implied that sex was part of the deal.

Colorado administrators either knew that the danger of sexual assault was very high in recruit/ambassador encounters, and/or failed to train the player-hosts so as to reduce the likelihood of a sexual assault. Indeed, the assaults here were allegedly the "natural, perhaps inevitable, consequence of an officially sanctioned, but unsupervised efforts" of the University, according to the Plaintiffs. The school tried to claim that the sexual assaults on the Simpson plaintiffs was aberrant and unexpected bad behavior, but the 10th Circuit placed the potential responsibility at the doorstep of the University administrators.

Important to the Court's ruling was the report of an assault by recruits that occurred in 1997. That assault was reported to the District Attorney who notified Colorado administrators that they needed more training in their program. The administrators allegedly did not too much in reply to the District Attorney's warning.

I've got to say that this is a pretty liberal view of the requirements for Title IX liability for student/student sexual assault, but it is also a pre-trial ruling, not a ruling after a jury trial. It will be interesting to see if Colorado pays to settle, tries the case, or continues to risk adverse publicity by appealing further.

Stoners Protected by the ADA

2007-10-01T16:16:00.000-05:00

Roy Tarpley, a sometimes famous, sometime infamous, former Dallas Maverick has sued the NBA claiming that his permanent ban from basketball was a violation of the Americans with Disabilities Act. He says that his drug and alcohol addictions are disabilities - "substantially limiting at least one of his major life activities". I'm not sure which major life activity was limited. Possibilities are basketball, partying, and opposite sex relationships -- all of which were allegedly affected by what he now calls a disability. Most people back in the mid-80s just called it "stupid", but that's a vocabulary argument I will save for another day.

What makes me wonder here is whether athletes and Hollywood types are going to take over our legal system, so that the only cases that will not be referred to mediation or arbitration or dismissed are those that are titillating enough to catch the public's interest - much like the National Enquirer catches your eye at the grocery store. Before dismissing this as preposterous, ask how many civil cases that you have read about are really anything other than cases like Tarpley's. My number would fit on one hand.

Newscast about Texas Legislature

2007-09-29T10:32:00.000-05:00

The news report in the video shows the Texas Legislature in action (Click on the title for this post to get the You-Tube video). Hardly anybody is in the room when the vote is called, and legislators make desperate efforts to push the vote button in the empty seats. I was doubtful about whether legislators actually read what they were voting on, but the video may cause me to change my opinion. Either 1) they are not at the called session because they are too busy reading or 2) not only do they fail to read legislation, they don't actually cast many votes at all. According to the new report, the rules of the house prohibit this action, but one might guess that the members are getting past their own rules by one legislator giving another "permission" to cast the vote. I believe that the "permission" excuse is probably more lax than a written proxy, or even express direction to vote. I suspect that the people voting are assuming that the missing legislator will follow party lines. And that is not much of a recommendation for our two-party system.

I don't want to continue to harp on the number of laws that were passed during the 90 day session, but my confidence that the votes that I cast to elect legislative representative have any meaning whatsoever is starting to wane.

Texas Execution Halted by Supreme Court

2007-09-28T11:33:00.000-05:00

The US Supreme Court stayed the execution of a Texas inmate - Carlton Turner - so that he would not be executed pending resolution of a current case involving the constitutionality of the lethal injection protocol used in Kentucky (but either identical or similar to the one used in Texas). This is worth noting because the Court did not stay the execution of a Texas inmate earlier this week who was in the same position (his execution was carried out on the same day that the Court granted review).

Hmm....Did the earlier inmate not raise the issue by some procedural faux pas -- one that cost him his life? Did the earlier inmate deserve to die - by whatever means were in use, regardless of its constitutionality? Did the Supreme Court believe that Texas would stay the executioner's hand out of respect - knowing that the Court was taking a case involving the allegedly defective protocol? (a miscalculation by the Court that cost someone their life).

I'm going to have to read a bit more before deciding whether there is a rational distinction between the treatment of these inmates, but the Court's action seems to be inconsistent. Not a good way to start the October term, IMO.

I love this kind of "news"

2007-09-27T13:14:00.000-05:00

An AP story that is making the rounds deserves mention, and even though it would be better for Friday news, I can't control when these things happen.

A Minnesota man who was a guest at the Embassy Suites Hotel cornered a duck that swam in the hotel's lobby, grabbed the bird and ripped its head from its body while a hotel security guard and others watched.

Allegedly, the man said: "I'm hungry. I'm gonna eat it."

According to the police spokesperson: "He was allegedly drunk."

The general counsel with the Minnesota Federated Humane Societies called the incident "unconscionable," and suggested that: "I think Embassy Suites needs to take another look at this and review how they keep ducks safe, or use fish like most hotels would use."

Further comment on this post will be referred to Embassy Suites. The AP writer said that calls to Embassy Suites were not returned. Nothing I can do about that either. Reports that the man was Michael Vick are totally false.

Supreme Court will hear Voter ID case

2007-09-26T07:42:00.000-05:00

I've been accused of being too serious on this blog, so I'll take one case that the Supreme Court has decided to hear, and consider an issue that is a bit different than the one that the Court agreed to hear. In Indiana, where body cavity searches are the rule [My Prior Post on this issue], not the exception, voters are required to present government issued ID cards to vote. I guess this is to prove that you indeed reside in Indiana (something a body cavity search would not necessarily reveal) and that you are of the legal age to vote.

Aside from all the pre-teens that would apparently be permitted to vote in Indiana (because every self-respecting 14-year-old has an ID that says they are 21), age is hardly a decent gauge of whether you should be voting. Although many races are like voting for your favorite Brady Bunch character, making an intelligent and reasoned choice remains the work of a small minority of the populace.

Supreme Court will Hear Lethal Injection Case

2007-09-25T10:42:00.000-05:00

Today, the US Supreme Court decided to hear a case out of Kentucky that challenges the method of execution (lethal injection) as being cruel and unusual punishment. The argument of the inmates is that the mix of drugs (a sedative plus a paralytic plus a heart stopper) can result in needless pain and suffering. According to testimony of medical people on this issue, the sedative doesn't always work as predicted, the paralytic keeps the inmate from talking or moving, and the heart stopper is (by all accounts) like running acid through your viens. Prison officials are, of course, unable to get doctors to help them devise or supervise any method of execution, and have either relied on their own research or the advice of veterinarians to come up with this protocol.

Courts of Appeal have resisted addressing this question by either saying that the challenge to the procedure comes too early (before an execution is imminent) or comes too late (where the schedule for the execution does not permit a court sufficient time to consider the merits of the procedure).

Some of the Supreme Court's writings on the death penalty make me think that this will be a very interesting opinion. Will they end up comparing this procedure to the procedures used in the past? or to procedures currently in use around the world? Or maybe it will be a very nebulous standard that simply reveals that the Court feels that the inmates do or don't deserve to die this way at the hands of the government. In any event, this issue will tell us a lot about the people that make the decisions at the highest level of government.

Are Congresspersons really THAT Special?

2007-09-20T18:47:00.000-05:00

I read a newspaper article yesterday that said that 13 members of Congress had been subpoenaed to appear and testify at a criminal trial. The Trial was a criminal case involving a defense contractor who allegedly bribed "Duke" Cunningham (then a serving representative). The Congresspersons were asked to testify for the defense.

The general counsel to the House of Representatives apparently planned to seek to quash the subpoenas on the grounds that the members had nothing to say about the case. The subpoenas apparently can be quashed because the members did not receive a clear explanation of why the the testimony is needed. Congress has made its own rule that says that members need not comply with subpoenas unless someone can prove that the testimony is needed. The newspaper reported that each of the subpoenas were directed to persons who had received campaign contributions from the guy on trial.

It is a bit of a problem when Congress gets to make rules that benefit members, but no one else gets that benefit. It is not surprising, though, as there are a host of laws that citizens must comply with, but from which Congress is exempt. What moral justification could there be for lawmakers to make rules and laws that they themselves need not obey?

Texas Supreme Court - Part Dos

2007-09-17T14:18:00.000-05:00

The Texas Lawyer published a long article this week about the huge backlog of cases that are pending at the Texas Supreme Court, and the length of time it takes to get a decision on a case. In years past, the Texas Supreme Court worked a lot like the US Supreme Court. They took a certain number of cases for review, and decided virtually all of them before they took a summer vacation. There was some carry-over from term to term, but the number of cases carried past the summer vacation were usually cases accepted late in the year.

The Texas Lawyer article describes cases that have been argued, and not decided for over a year. There are also a number of cases where the Court has received briefing, and have not yet decided to accept the case, but the case still pends for a year or more. It is worth knowing that often the cases are pending with judgments earning interest at 10% per annum. Plaintiffs may be getting interest credit, but they still don't have a conclusion to their lawsuit. Defendants also need a resolution, but are paying through the nose to get there. Just by way of example, suppose you are a defendant who has lost a case, and suffered entry of a judgment for $1,000,000. You are tagged with 10% interest. If you put the $1,000,000 in the bank, you could not keep up with the interest tab you are running. But, you appeal anyway. You spend a year at the Court of Appeals level (where it takes time to get the record together, and to write briefs, get to argument, and get a decision). [In the Houston Courts, you cannot expect to get a submission date until a year after the briefs are filed]. You lose, and want to go the Supreme Court. There's little new briefing that needs to be done, and it ought to be about 6 months to find out if the Court will take your case. If the Court takes 2 years to decide whether to take your case, and follows their regular schedule for decision (minimum 1 year), you will have a decision between 4 & 5 years after the trial. This is $400,000 minimum out of your pocket for interest. You might have earned 5% on the money if you set it aside -- so you are down $200,000 just for the right to appeal. The math isn't perfect, but the principle is. It's not just the Plaintiffs who are suffering while the appeal is pending; the Defendants are not being well-served either.

More fodder for judicial elections that would seem to be important campaign issues. Hard to predict whether the general public will care.

Here's Your Texas Supreme Court

2007-09-17T14:01:00.000-05:00

I got a copy of a fascinating Motion filed this week in the Texas Supreme Court. In the Motion, a Plaintiff's lawyer in a mandamus case asks 4 Justices to recuse themselves from hearing the case because they have evidenced a bias for big business and insurance companies, and a prejudice against Plaintiffs who sue for money damages. Backing up the Motion is an independent study of voting patterns that shows that these four judges have never voted to allow a Plaintiff to recover money -- reversing every single award that they have reviewed in an appellate case.

Although the lawyer here is relying solely on voting patterns, he makes a nod in the Motion to the Court's practice of reviewing the factual sufficiency of the evidence to support jury verdicts in favor of Plaintiffs under the guise of discussing the law -- a practice that is undeniably common, and just as undeniably prohibited by the Texas Constitution.

Obviously, the Motion will be denied, and the 4 judges will participate in the case. But, this makes speculating on judicial elections a bit more interesting. Will the public ever learn of this? Will opponents come forward to make this a campaign issue? Will Texas actually vote that this is the kind of Supreme Court that they want? The Dallas Morning News actually published an article about this, on the front page of its business section.

Stay tuned.

I'm a Hypocrite when it comes to Michael Vick

2007-09-14T18:29:00.000-05:00

Apparently, there is a large debate on the blogosphere that says that we are all hypocrites for charging Michael Vick with a crime while we are eating burgers. How, these folks argue, can you say that Michael Vick is guilty of cruelty to animals when the cruelty in reducing cows and chickens to table-fare is ignored?

This is one aspect of the law that is becoming more than just annoying. Our society chooses to battle each and every personal decision (right down to what we eat) as though there should be a law that embodies the proper decision. I like my dog, and don't want anyone to torture her. I like fried chicken, and understand that my body needs protein. From my point of view, that's the way things were when our Constitution was written (dogs were domestic, and chickens were game). So, the only honest way to change this is to get State legislators to make a decision that humans shouldn't be eating animals. I've got some degree of confidence that I will outlive that argument. But, what a cruel waste of society's time and resources.

Federal Judges Speak about Jury Trials

2007-09-14T13:45:00.000-05:00

Judge Pat Wald, former Chief Judge of the D.C. Circuit says: "The jurisprudence of the federal court is the jurisprudence of summary judgment...Litigation management is our primary job, and even with fewer trials, there is a lot of litigation to be managed."

Judge William Young (D.C. Massachusetts): Once divorced from daily interaction with jurors, our written opinons subtly mock the very idea that democratic institutions might be made to serve the interests of justice. This leads us to prefer knowledge over hope, and the jury system is, if nothing else, our country's finest expression of hope." It is interesting that Judge Young makes the comment that our legal system prefers "knowledge over hope". Others have described the phenomenom that the high courts prefer cases that present small and discrete fact scenarios that decide small and discrete legal principles. A case that presents an interesting law review puzzle is preferred over the case that presents an opportunity to do justice. Dr. Gregory House would be proud.

For my own point of view, I am skeptical of the jury system as our finest expression of hope, but I do think that jury trials have been so marginalized that they are no longer considered an important expression of justice, or democracy. They are, now, aberrant events; a novelty to be reported, but not necessarily respected. Whether a jury trial is an expression of hope or not, the people's decisions - so vital that all 50 states supposedly guarantee the right to trial by jury -- are virtually ignored. That is a shameful way to run a government.

Using the Internet is NOT interstate commerce

2007-09-11T14:35:00.000-05:00

A 10th Circuit case has decided that a guy found with child porn images in his possession cannot be convicted simply because he used the internet. The Government did not prove that he used the internet to get the child porn. The Court refused to indulge the very likely presumption that the guy got the porn off his computer. Instead, the Government should have proven the location of the guy's ISP, the ISP servers, or the website servers that he visited.

I generally agree that federal convictions should be based on proof that the defendant did precisely what Congress has forbidden, unaided by presumption or assumptions. This one, though, is a bit of a stretch.

But, it is even more interesting that the 10th Circuit would hold this view -- one that is virtually impossible to imagine ruling the day in the 5th Circuit, the 4th Circuit or the 7th Circuit. It matters where you are charged with a crime. The case is US v. Schaefer, No. 06-3080 (10th Cir. 2007).

Net Neutrality - I'm still neutral

2007-09-11T14:27:00.000-05:00

Net Neutrality is a principal being touted to keep phone and cable companies from ruining the Internet experience for everyone. According to proponents of neutrality, the people that provide Internet service shouldn't be allowed to charge advertisers, product sellers, or others a premium for making sure that the paid content is shoveled at consumers at higher band-width or with other priorities. If we don't stop them now, we'll end up with all "net" activity covered by cable and telephone ads, sprinkled in with other content that we really don't want to see. Then we'll have to work harder and smarter to get at the information that the we really want. On the other hand, why let government into Internet regulation at all? The Justice Department was asked about regulation, and it is against it. The Federal Trade Commission is for it. The Federal Communication Commission is supposed to decide.

So, what would you rather have...the phone and cable companies messin' with your Internet....or the FCC?

My Greasy Fingers are just the start of a problem

2007-09-11T11:23:00.000-05:00

After following a few links today, I got to this information:

On May 15th, 2006 three doctors from California (Dr. Robert Harrison, MD, MPH; Dr. Arthur Gelb, MD; Dr. Phillip Harber, MD) released a document reporting the cases of two people who worked in two separate flavoring manufacturing plants, each of which manufactured artificial butter flavoring. In both of these cases, one being a 32 year old man and one being a 43 year old woman, the employees had no prior exposure to any chemicals yet they both were diagnosed with bronchiolitis obliterans, aka Popcorn Lung Disease.
Bronchiolitis obliterans is a disease of the lungs which has been nicknamed "Popcorn Lung" or "Popcorn Workers' Lung" due to onset of this disease from inhalation of airborne diacetyl, a butter flavoring used in popcorn. Popcorn Lung is a disease in which the bronchioles are plugged with granulation tissue, also inflammation and scarring occurs in the smallest airways of the lungs and can lead to severe and life threatening shortness of breath.
These are only two of many people who have been diagnosed with Popcorn Lung Disease. In fact, a man in Joplin, Missouri was awarded $20 million in a suit against the factory he worked for. He was the first of 30 people to file against this particular company.
The first reported case of Popcorn Lung in a consumer was also recently reported. A man who ate 2 bags of microwave popcorn a day for about 10 years noticed that his lung capacity was not as good as it had been in the past and when he went to a doctor about it he was diagnosed with Popcorn Lung.

I eat a small bag of Popcorn almost every day. When I go the movie, I eat too much popcorn. And, although I'm not a "butter-flavor-lover", I'm pretty sure I'm in the risk category as far as eaters go. The thing that ticks me off is that the danger from this chemical comes from heating the chemical. Thus, the popcorn is not dangerous until I put it in the microwave, and start inhaling that delicious scent. What's next? Cancer from coffee smell? Disease from baking cookies? Cinnamon Roll Cindrome?

How Much Law did we Get this year?

2007-09-07T14:47:00.000-05:00

Earlier I posted about the number of laws were passed by the Texas Legislature in 2007. As of September 7th, the count is 962 laws in the 90 day session. At the rate of 10 laws passed per day, I cannot believe that my representatives have even read most of the things that they are voting on. The 962 laws are the ones passed not the number offered for consideration.

The job of a legislator includes committee meetings, constituent visits, and floor discussion, among many other activities that they apparently tend to. (most of which deserve a completely different discussion). Given the number of days that are available for work on reading and considering laws that are presented for vote, I will venture the guess that most legislators have cast numerous votes on bills they have never read.

There are other worthwhile comments to be made about the legislative process. But, this is simple. Did you read the bill before you cast a vote? If you didn't read it, understand it, and apply your best judgment to it, then what value does "representation" have? If the citizens don't care whether you read or not, then why send you at all. We can just have insurance companies, medical lobbyists, and the dreaded "trial lawyers" battle out the future of our state..................................

Publishing despite irony.

Not Like I didn't expect it, but ....

2007-09-07T10:43:00.000-05:00

The Waco Tribune Herald reported yesterday that the funds that will be provided by a recently passed bond package would be used to purchase the Hillcrest Medical Tower. The Tower would eventually become a "new and improved" HQ for the Waco Police Department. The sales pitch thrown at the voters by both the City and its bond proponents was that the City needed a new HQ, and did not have room for all the various police departments. In addition, the new building (voters were told) would be far more efficient because all of the police-persons could be under one roof, and work together on their various crime-fighting activities.

Yesterday's article, though, made clear that

the City could not really afford to retrofit the building with the money from the bond package (thus necessitating yet more taxes and fees to fund the project)
all the departments did not even want to be in the new building, but preferred their current locations
the City would never even move all the departments into the building.

Oddly enough, the paper made no mention of the fact that the bond proponents and the City unabashedly lied to the public to get them to agree to a tax increase for the purchase of this building. It makes you want to live out in the country where you don't have to pay City taxes.

I'l be careful in Indianapolis if I were you

2007-09-01T10:19:00.000-05:00

James Campbell was in the street talking to some of his friends when a cop drove by. The Indianapolis police officer thought he observed something passing "hand to hand", and pursued Campbell. He ordered Campbell to stop, and Campbell kept walking. So, the officer drew his gun, and ordered him to the ground. Campbell was patted down, and nothing turned up.

Here's the good part: Indianapolis has a policy that any officer having control of a prisoner shall conduct a thorough body search. For Campbell, that meant that the cops pulled his pants partway down, and "separated Campbell's buttocks and did a 'visual inspection' to as to 'make sure he had nothing shoved into his anal area'".

Campbell sued, and although the jury found against him, the appellate court held that "no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the 4th Amendment."

I'm not so amazed at the appellate court ruling as I am with the fact that cops consider a "thorough search" to mean a body cavity search in the middle of someone's yard. And, I'm a bit amazed that jurors would think it was OK, too.

Maybe you can just have this done at the border of Indiana, and get a three day pass for your trips there.

Governor Perry Commutes Death Sentence

2007-08-31T13:38:00.000-05:00

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.

A New Kind of Erie Rule

2007-08-28T13:37:00.000-05:00

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 Texas Pledge of Allegiance

2007-08-21T10:37:00.001-05:00

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.

How Much Law do we really need?

2007-08-16T16:32:00.000-05:00

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.

Whoops? Athletes backing the wrong shoe company

2007-08-13T13:39:00.000-05:00

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.

Corporate Manslaugther in the UK

2007-08-08T11:07:00.001-05:00

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.

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