Bold legal innovation in Illinois:

Rules of Evidence!

Welcome to the 20th century, Illinois judiciary.

If you thought patent trolls were a new thing...

check this out.

Is it proper for a legislator to consider the constitutionality of a bill when voting on it?

Dahlia Lithwick thinks not, apparently:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

More here.

And now for something completely different...

After so much fun, I thought it would be a good time for a wonky post about how to handle missed deadlines in civil litigation.  Particularly patent litigation.

One of the annoying things about patent litigation is that in many jurisdictions there are local rules that require the exchange of various pleading-like documents that set out the parties' infringement claims and invalidity defenses in great detail.  These are intended to replace the prior practice of exchanging contention interrogatories (though this is still the practice in most jurisdictions).  In my experience, these local rules generally create more problems than they solve, and create much satellite litigation about the timing and adequacy of the required disclosures.  While lawyers fight these issues out, the actual merits of the case sit off to the side.  Waiting.

I was reminded of this while reading an order issued yesterday by Magistrate Judge Jeffery Cole in the United States District Court for the Northern District of Illinois.

I get one more too!

Proof & Hearsay (the Milwaukee Journal-Sentinel's law blog) has a great scoop on Mr. Kratz:  a link to pictures of his sweet $350,000 house.  (Actually, it sold for $335,000, another sign of Mr. Kratz's fading star, I guess.)  Among many other awesome features, the house includes a "champagne parlor":

Looks like a VIP (Very Imprudent Prize) room to me.  One can only imagine the wild monkey-business that went on in there after late-night trips to the morgue.

All this glamour and glory on the salary of a state government employee!

One more and then I'll stop.

I will admit that this is starting to feel like piling on. However, Kenneth Kratz is going out of his way to make me look like a genius.

According to the AP, a third woman has come forward and alleged improper behavior by Mr. Kratz.

The latest allegations are more disturbing than the autopsy date but, arguably, less disturbing than hitting on a domestic abuse victim. Maria Ruskiewicz says that she was prosecuted by Mr. Kratz on a drug charge in 1997. In 2008, after turning her life around, she asked Mr. Kratz for support in seeking a pardon. Ms. Ruskiewicz met with Mr. Kratz and during the meeting, apparently apropos of nothing, he asked her if a boss could have a sexual relationship with a secretary. As an aside, the answer depends on whether the sexual relationship is welcome or unwelcome. A valuable lesson to keep in mind when sending text messages.

In any event, after meeting with Mr. Kratz, Ms. Ruskiewicz sent him a thank you text message. In response, Mr. Kratz began sending her suggestive emails. It is unclear on whether he mentioned he was "the prize." Understandably, Ms. Ruskiewicz was concerned about angering Mr. Kratz, who was critical for her pardon. However, she told him she was not interested and he said he would stop. Chivalry, apparently, is not dead.

All was quiet between the two of them for several months until Mr. Kratz sent her a message asking her to meet in person to discuss "a personal matter." By this time, Ms. Ruskiewicz was in law school and she met with an associate dean to discuss how to handle the situation. They then met with a university lawyer and decided the best course of action was to ignore the message. She also apparently informed an assistant district attorney in Kenosha County, Wisconsin about the text messages while discussing a possible internship. I wonder how that topic came up.

Anyway, I suspect the question now is how many more people have to come forward before this guy realizes that resigning is his best option. My guess, as indicated in the subject line, is one.

Inflammatory stupidity is one of the privileges of being a government employee

I'm not sure whether I can make the sparks fly in response to your post on Andrew Shirvell, the anti-gay (and anti-one-paticular-gay-guy) crusading assistant AG in Michigan.  But I will make two points in his defense:

Who takes a date to an autopsy?

In the early 90s, there was a Milwaukee rock band named "Soda". One of their songs contained the line "Monday morning, is just a kick in the head." I could not help but think of that line today when I read the latest developments concerning disgraced Calumet County District Attorney Kenneth Kratz. Monday is kicking him in the head. It appears that Wisconsin Governor Jim Doyle, a former prosecutor, does not believe that Mr. Kratz is the victim (or the prize) and is moving swiftly to remove him. Apparently, a taxpayer has to make a complaint before the Governor can do anything in the matter.

As the article points out, Mr. Kratz has also decided that he needs a lawyer. You will note that there is no link to the lawyer's web page. That is because, as far as I could determine, he doesn't have one. I am not sure that bodes well for Mr. Kratz.

Anyway, consistent with my prediction of further weirdness from Mr. Kratz, another woman has come forward. The Governor's office apparently received a letter from a second woman who says Kratz tried to use his job to entice her. Now, this woman apparently wasn't a victim of domestic abuse seeking Mr. Kratz's help. Instead, Mr. Kratz went out on date with the woman and gave her confidential details of a high-profile murder investigation. No word on whether this gambit helped win a second date.

While that is creepy, the really creepy part of the story is that Mr. Kratz also thought inviting the woman to an autopsy was a good way to move the relationship along. Like any good lawyer, he made sure that his offer of an autopsy was contingent upon receiving something in return. In this case the woman was supposed to "act his girlfriend and would wear high heels and a skirt." Maybe he felt it would be disrespectful to an autopsy than wearing flats and slacks.

What is it with prosecuting attorneys this week?

While this isn't as bad as Kenneth Kratz, an attorney in the Michigan Attorney General's office is engaged in some deeply weird blogging. Clearly some public officials have too much free time.

Andrew Shirvell, an assistant attorney general in Michigan, has a blog devoted to expressing his contempt of one gay person. I wrote that correctly, it is a blog dedicated to picking on one gay person. That person is University of Michigan Student Assembly president Chris Armstrong. Now, Mr. Shirvell doesn't like gay people, period. Still, the blog is really about one particular gay person. In fact, Mr. Shirvell has written 27 posts about one person. Who has the energy for that? Mr. Kratz or Ieshuh Griifin are going to have to make a lot more news before we come close to topping that figure.

Mr. Shirvell accuses this college student of being a “Nazi-like” recruiter to the “cult of homosexuality.” The analogy sort of breaks down when you consider that Nazi’s did not like homosexuals very much. Maybe less blogging about one gay student and more history study is in order. It certainly couldn't hurt.

The Michigan Rules of Professional Conduct seem to discourage this sort of thing. Rule 6.5(a) says:

A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic.

I suppose Mr. Shirvell has two explanations for why he is not violating the rule. One is that sexual orientation is not a “protected personal characteristic.” However, Michigan does prohibit some forms of sexual orientation discrimination. The other may be that Mr. Armstrong is not, as of yet, “involved in the legal process”. But, as the comment to Rule 6.5 notes:

A lawyer must take particular care to avoid words or actions that appear to be improperly based upon a person’s race, gender, or other protected personal characteristic. Legal institutions, and those who serve them, should take leadership roles in assuring equal treatment for all.

It’s probably fair to say that Mr. Shirvell is falling short of that ideal. His blog is certainly based on one protected personal characteristic. I suspect that homosexuals who have been victims of crimes would not want Mr. Shirvell involved in their case.

So what to make of Mr. Shirvell’s hobby? Given that no one likes a bully, it seems like Mr. Shirvell should get a new pastime. Especially since his boss does not like it. Of course, now that his boss is on the record as not liking it, Mr. Shirvell will have a First Amendment retaliation claim if he gets fired or disciplined in the near future. In any event, if he directed some of the energy he devotes to Mr. Armstrong towards model trains, I bet Mr. Shirvell could make something like this. At the very least, it would keep him off the computer.

If Kenneth Kratz is the prize, I don't want to play.

The problem with our "sparks fly" theme is that your post on Calumet County district attorney Kenneth Kratz obliges me, in theory, to defend him.

Update on the sexting DA

He is refusing (or refudiating, if you prefer) calls for his resignation.  Don't these people know that he is the prize?

Bomb

The other day, a young man blew himself up in the park across the street from where I live.  My wife and I were awoken by the blast, but assumed it was an uncomfortably close bolt of lighting, and went back to sleep.  The Evanston police did something similar.  Although several citizens called in the blast, they found nothing.  It was only a couple hours later that a man walking his dog found the headless body.  And, oh yeah, there was another bomb.   Here is a picture of the bomb squad in action, taken from our kitchen window, shortly after they detonated the second device:

Turns out that that bomber went to the same high school as my wife, Madison West.  (Yet another reason why Madison Memorial is superior.)  The bomber's family says it was a suicide, and that the bomber had battled depression all his life.  Very sad, if so.  Though I must say that this was a very thorough suicide, seeing as how he apparently brought an extra bomb.

But all's well that ends well:  today I went back to the park with my two-and-a-half year-old daughter.  (She kept saying, "We go to the park now."  She had no answer for my question, "Do you really think that's appropriate?"  Nonetheless, I yielded--but only after forcing her to add "please" to the request / demand.)  Although a tree or two have been chopped down (biohazard, goes the rumor), we got some new swings out of the deal.

UPDATE:


Evanston police have ruled the death a suicide.

Update on Ieshuh Griffin's bid for Wisconsin Assembly

Daily Show senior political correspondent John Oliver has a hard hitting report (see below).  Previous coverage from the Gillette-Torvik blog available here, here, and here.

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Slogan's Hero
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

"I'm the atty. I have the $350,000 house. I have the 6-figure career. You may be the tall, young, hot nymph, but I am the prize!"

Although you might guess that this is a quote out of a personal email from Mr. Gillette to me, it was actually a sext from a Wisconsin DA to a victim in a domestic abuse case he was prosecuting.

Wisconsin stays hot in the legal news.

Update on Iowa Supreme Court retention elections

A few weeks ago, I blogged about the campaign to unseat three Iowa Supreme Court justices based on their decision finding restrictions on same-sex marriage unconstitutional.  On Slate, Dahlia Lithwick has an article about how Sandra Day O'Connor has been "drawn into" this debate. 

A government of lawyers, not men

You claim that Monday's factoids of the day were misleading.  I reject that assertion, which is premised on what you perceive to be my unstated interpretation of the undisputed factoids I provided.  My stated interpretation, I thought, was pretty clear:  you should get a job as a government lawyer if you can.

As to your specific points, I concede that the federal government is usually trying to recruit the same lawyers that big firms are trying to recruit, and that the big firms generally pay a higher nominal salary than the government, so the comparison isn't perfect.  But government lawyers also work fewer hours, making the hourly comparison difficult.  And government lawyers all work less, since they get generous vacation benefits that big firm lawyers could only dream about.  (On the other hand, most government lawyers live in DC or other big cities, where the standard of living is higher.) 

But I actually think your post raises a deeper question:  should the federal government be trying to recruit the same lawyer as big firms?  In other words, does the federal government really need to be competing with the private sector to attract the very best (or at least most highly credentialed) attorneys?  There's a case to be made, I think, that the federal government could get by with average lawyers, and that --given its generous benefits-- it could still probably recruit halfway decent lawyers with significantly lower median salaries of, say, $100k.  This plan would save the US almost a billion dollars a year.

Context is everything

My main criticism of Judge Wood's opinion is that it does not provide context for the comments the judge made.  As the recent incident with Shirley Sherrod showed (say that three times fast), what seem like racist comments in isolation can take on an entirely different meaning when considered in context. 

Take "you people."  It is easy to imagine circumstances where those two words are inappropriate, but it is also easy to imagine circumstances where they are perfectly appropriate.  Judge Wood's opinion gives us no context to evaluate which circumstances were present here.  But, as the government's brief notes, what the judge actually said was "you people aren't supposed to be here," and he said it immediately after a discussion of the illegal immigration status of both Figueroa and his wife.  That context overwhelmingly supports the interpretation that by "you people" Judge Randa just meant Mr. Figueroa and his wife -- nothing less, nothing more.  Although this was the government's position (and the government attorney was presumably in the courtroom when the words were uttered), Judge Wood doesn't even consider this explanation as a possibility.  Instead, her opinion says, "Figueroa understood ["you people" and "those people"] to refer to persons of Mexican origin, although it is possible that the district court was referring to illegal immigrants or immigrants more generally."  

You point out that nothing in the opinion states that Figueroa is an illegal immigrant, and you are correct.  But this is a problem with the opinion, not my argument.  It is just another example of Judge Wood failing to provide context.  It is actually pretty disturbing that it is impossible to figure out from the opinion whether Figueroa is an illegal or legal immigrant, because if he were a legal immigrant then Judge Randa's disquisition on illegal immigration would have been truly bizarre.  But, as the governement's brief makes clear, it was in fact the illegal-immigration status of Figueroa and his wife that was the catalyst for Judge Randa's comments on illegal immigration, and these comments were perfectly appropriate:

[W]hile it is impermissible to sentence a defendant on the basis of national origin, it is absolutely appropriate to consider whether a defendant has previously broken the law. As this Court once noted, the act of illegally entering the country “is no different than any other recent prior illegal act of any defendant being sentenced for any offense.” Gomez, 797 F.2d at 420. Thus, while the subject of illegal immigration “sometimes raises emotional issues, . . . the illegal act of an alien is entitled to no more deference than some other prior illegal act of a citizen also being sentenced for a drug violation.” Id.

Finally, you're correct that Figueroa challenged the procedure, not the reasonableness of his sentence.  But neither the majority opinion nor the concurrence explains how the procedure of the sentences was tainted if it wasn't tainted with ethnic or national origin bias (issues that the court refused to take up).  If the court had held that Judge Randa's comments exhibited an ethnic bias, that would satisfy me that they'd found an improper procedure.  But I don't think inflammatory, odd, or extraneous comments by a judge should be enough to undo an otherwise appropriate and reasonable sentence.

Au Contraire, Mon Frère

I was puzzled about your statements because your post implied that you think the Seventh Circuit got it wrong. I think they got it right. As such, your implication puzzled me. Your subsequent post clarified the matter.

You ask whether there is anything wrong with the Hitler analogy. You go on to say that analogizing the plea by Figueroa’s wife to Hitler is “sophisticated”. It is not. If anything, it is a cheap argument. You next say that love of his family is “irrelevant to his culpability for a crime and the sentence he receives”. You are half-right. It is irrelevant to his crime. But it is not irrelevant to the sentence he receives. Family ties and circumstances are one of the relatively few reasons that defendants receive a downward departure (page 41; I know it is 2003 but that is the most recent report I could find.).

Second state that the ruminations about “Mexico etc.” are understandable because the judge might be frustrated to sentencing an illegal immigrant to 20 years in a federal prison. But where in the opinion does it say that Figueroa is an illegal immigrant? It says he was native of Mexico. However, he is not charged with being an illegal immigrant and his sentence does not appear to include remand to the Department of Homeland Security for deportation after he completes his sentence (as, I am told, is normally done with illegal immigrants). This suggests to me that Figueroa is not an illegal immigrant. Finally, I commend your use of “etc” to cover the judge’s comments about the relationship between Hugo Chavez and Iranian terrorism. By lumping them in "etc.", they get to be part of a discussion of what country has better prisons as opposed to whether the judge thought the sentence necessary to eradicate a relationship that I am positive was not mentioned at trial.

If you don’t think that “you people” is inflammatory, I can only suggest that you use that phrase in your next conversation with a person whose race is different than your and see whether they think it is an innocuous comment.

As to your third point, I don’t have it out for any current or former jurists. Especially not the one who presided over my first trial. Those particular quotes were used because I have been researching Ponzi schemes and they came up in my research. In the interest of balance, I should also included the comments made by the judge after Aaron Biber pled guilty but, mentions of Hitler aside, I am trying to keep my posts family-friendly.

Finally, the question before the Seventh Circuit is whether, given the comments the judge made, the sentence was procedurally fair. As the opinion notes, Figureoa did not make a reasonableness challenge. Thus, your proposed opinion does not really address the issue on the appeal. Moreover, you assume that because the sentence was on the low end of the guidelines it is per se acceptable. What is the support of that proposition? It seems just as easy to conclude, based on the judge’s remarks, that an American citizen would have gotten a sentence below the guidelines. I bet the American would also have been spared the discussion of national characteristics. As the concurrence notes, maybe the result will be the same sentence. However, he still gets to have a sentencing where it does not appear that the judge is relying on Hugo Chavez’s connection to Iranian terrorism to determine the length of the sentence.

You mean misleading factoid of the day.

The problem with the survey you cite is that it doesn't appear to be an apples to apples comparison. It just says that that the median income for all lawyers in private practice is $116,000 and that the median income for federal government lawyer is $126,000. From this, you suggest, perhaps unintentionally, that the government is paying too much for its attorneys. Or perhaps, your suggestion is that because the government prints money it doesn't care what it pays its employees.

Nothing should have happened

You say you are "puzzled" by my statement that Mr. Figueroa's sentence was reversed "all because the judge shot his mouth off at sentencing."  I don't understand your puzzlement.  My statement is clear as a bell, and nothing other than the judge's comments were criticized on the appeal.  There was no argument that the length of the sentence was, in itself, inappropriate.  The only allegation was that his strange comments were improper, and perhaps reflected some impermissible considerations in sentencing.  If he had simply said, "the guidelines recommend a range, your conduct and circumstances are ordinary, and I sentence you within that range," there would be no case.  I did not state or imply that the judge's statements were appropriate or harmless or that the appeals court was supposed to ignore them.  Nor did I state or imply that the appeals court's decision was wrong or inappropriate.  Nor did I (intend to) convey the impression that the judge made just a single, isolated remark.  (Note that in my micro-synopsis of the case I noted "inflammatory comments about Mexico" and "colorful--and inappropriate--analogies.")  I just quoted the one paragraph from the opinoin because, frankly, I thought it was the most amusing.

But you raise some interesting issues that I'm willing to take the other side on.

What was supposed to happen?

I am puzzled by your statement "all because the judge shot his mouth off at sentencing" in your last post. Were the statements harmless? How would we know that? Was the appellate court supposed to ignore what the judge said? First let us note that the "low end" of the sentencing guidelines is 235 months. Or as those of us who count years put it: more than 19 years. That is a long time. Some folks claim that bad things happen in prison. Government surveys support this claim.

But I digress. The trial court didn't shoot its mouth off by making one offhanded comment about Hitler. Instead, the judge engaged in a "lengthy and disconnected lecture" of "topics both outside the record and extraneous to any proper sentencing consideration." The judge talked about how "the southwest is being overwhelmed". He lamented the factors he believes motivate immigration to the United States. He commented on the immigration status of Figueroa, his wife, and his three sisters. He referred to them as "you people". As the opinion notes, the judge revealed an "odd focus on nation-states and national characteristics." The district court linked the drug trade to Mexico, Columbia, and Venezuela, and then to Iranian terrorists via Hugo Chavez, the president of Venezuela (a linkage that I doubt the prosecution proved at trial beyond a reasonable doubt). Then, apparently unaware of the survey or Norm MacDonald line I linked above, the judge told the convicted that he should be happy he was going to prison in America rather than Turkey, Mexico, Malaysia, or Thailand.

As the opinon notes, none of these comments are appropriately part of the sentencing. Maybe the defendant would have received a sentence below the guidelines if the judge wasn't concerned about the defendant's immigration status. While I suspect that the defendant's sentence will be the same on remand, I'm glad that the original sentencing was reversed and that the appeals court called out the trial court for its comments.

Finally, the judge's comments are a great example of something I wonder about every time I see a sentencing: why does the judge feel the need to berate the convicted defendant at the sentencing? The sentence reflects society's disapproval of the defendant's actions. What's the point of telling a defendant to "grow up" or that they "haven't got a clue what the difference is between a truth and a lie"? At a lot of sentencings, the judge is sending someone to an unpleasant place for a very long time. The defendant doesn't get to, normally, challenge or argue with the remarks made to him at the sentencing. Presumably the defendant deserves the sentence, but berating someone who can't speak back strikes me as pointless bullying.

"Adolf Hitler loved his dog. Yet he killed six million Jews."

Today the Seventh Circuit, in an opinion by Judge Wood, upheld the conviction of Jose Figueroa for conspiring to deal drugs, but remanded the case for resentencing, even though the district court judge (Rudolf T. Randa, E.D. Wis) sentenced him to the low end of the guideline range.  All because the judge shot his mouth off at sentencing, making inflammatory comments about Mexico (the defendant's home nation) and using "colorful—and inappropriate—analogies to dispense with arguments that he did not appreciate."  To wit:

Rejecting Figueroa’s wife’s comment that the sentence was unfair, he said that “[i]t reminds me of . . . the person who killed his parents . . . asking [the judge] to have sympathy for him because he’s an orphan.” The judge appears to have been referring to the “classic definition of chutzpa,” LEO ROSTEN, THE JOYS OF YIDDISH 94 (1971), but this is a term that does not apply to a wife’s assertion that her husband’s incarceration will harm the family. Later, the judge discounted Figueroa’s claim that he was a good family man: “even Adolf Hitler was admired by his family. Adolf Hitler loved his dog. Yet he killed six million Jews.”

Federal government lawyer salaries

Factoids of the day:

(1)  According to the Bureau of Labor Statistics, the median salary for lawyers working in the executive branch of the federal government (i.e., any lawyer working for a federal agency) is $126,080. 

(2)  According to the same source, this is $10,000 more than the median yearly salary for lawyers in the business of providing "legal services" (i.e., private practice). 

(3)  In 2008, the federal government employed 31,800 lawyers (more than the 31,400 tax examiners, collectors, and revenue agents it employed).

(4)  Thus, by my calculation, the federal government pays about four billion dollars in lawyers' salaries every year. 

It's like I always tell people:  you can't go wrong working for the outfit that prints the money.

Some helpful advice

From the owner's manual of my 1996 Ford Explorer:

Be careful not to add engine coolant to the windshield washer fluid reservoir. If sprayed on the windshield, engine coolant could make it difficult to see through the windshield.

No doubt a lawyer is responsible for this, somehow.

Intercepting emails is a federal crime

As affirmed in this recent opinion by the Seventh Circuit.  Chief Judge Easterbrook sets the scene, almost too pithily:

David Szymuszkiewicz was in trouble at work. His driver’s license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers’ homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client. She discovered a “rule” that directed Outlook to forward to Szymuszkiewicz all messages she received. Szymuszkiewicz was convicted under the Wiretap Act for intentionally intercepting an electronic communication. See 18 U.S.C. §2511(1)(a). 

 Intrigue at the IRS.

Is polyamory the next great civil rights movement?

The answer is no.

But the lawsuits are probably coming.

The invisible chief?

Linda Greenhouse has an article about how only 28% of Americans can identify John Roberts as the Chief Justice of the US Supreme Court -- even when fed Roberts, John Paul Stevens, Harry Reid, and Thurgood Marshall in a multiple choice question.  Fifty-three percent simply didn't know; 28% got it right; the rest (20%) got it wrong.  (Though, depending on how you count the votes, maybe everybody got it right.)

Greenhouse finds this surprising.  I don't.  But it reminded me of a recent snippet I read from Tony Blair's new memoir:

The single hardest thing for a practising politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh...., before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll..... 

This is doubly true for the politics of the Supreme Court, I would think.

"Things Could Be Worse"

That is is the title (or headline) of an op-ed by Paul Krugman comparing the state of the US economy to Japan's.  You would think his thesis might be that "things could be worse" in the US because, hey, we could be in a 20-year funk like the Japanese.  But no.  His argument is that things could be worse in Japan--it could have Republicans, but thankfully it does not.  At least that appears to be the argument.

Scalia speaks at Marquette Law School

Justice Scalia went to Marquette to emphasize the importance of law teaching.  He did not, however, emphasize the importance of hair combing. 

Reached for comment, Scalia had this to say:  "Vaffanculo."

Evanston City Code, Part 2

A while back I blogged about some of the more "interesting" ordinances in my new home town, Evanston, Illinois.  I thought of this again today when I was at the grocery store buying two six-packs of beer.  One of the nice things about where we live is that we are just a five-minute walk to two grocery stores, both of which sell beer and wine.  So help is never far away.  But both stores require that we put six-packs and wine into grocery bags, based on their stated belief that it is illegal in Evanston to walk around the city with six packs of beer, etc.  When I was researching the code last month, I took a brief look at the alcohol ordinance and saw nothing to prevent this.  Today, after again being forced to transport my six packs in grocery backs, I decided to settle this once and for all.

Here is the text of the relevant ordinance: 

Does the new pleading regime of Iqbal and Twombly apply to affirmative defenses?

Most litigators know (at least they should) that a pair of recent U.S. Supreme Court cases (Iqbal and Twombly) effectively heightened the standards for pleading causes of action in a complaint.  In the old days (i.e., the early 2000s), a plaintiff's lawyer could just throw together a complaint with a skeletal set of conclusory assertions to match the elements for each cause of action.  Now the Supreme Court has interpreted Rule 8(a) of the Rules of Civil Procedure to require that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."  This "plausibility" requirement sent shockwaves through the plaintiffs' bar.

New business plan?

"Copyright troll."

I like the tag.

Way to avoid a reference to Kool and the Gang, Bart. The Second Circuit has one opinion and the Minnesota Human Rights Department has a different one. Of course, the Second Circuit is considering the Equal Protection clause, and the the department was interpreting Minnesota's Human Rights Act.

Considering the opposite conclusion reached by these two entities, begs the question of why the plaintiff chose to sue under the Equal Protection clause instead of a state or federal public anti-discrimination law. At first I thought it might be because the plaintiff, Den Hollander was not represented by an attorney and, therefore, was unaware that New York City prohibits discrimination by businesses (I know, New York State probably does too but it is late and finding that statute is unnecessary to my point). However, it turns out that Mr. Hollander is an attorney. One whose whole practice is apparently devoted to being an (or perhaps the), "anti-feminist lawyer". Given that he is a lawyer, his unwillingness to invoke anti-discrimination in public accommodation laws is perplexing.

One thing on Mr. Hollander's website that I think all attorneys can relate to is this: on each of his loses in his "trilogy of cases" he blames the judge rather than a weakness with his case or advocacy skills.

Ladies' Night Constitutional

The Second Circuit has rejected an Equal Protection challenge to a private nightclub's policy of regularly charging men a higher cover charge.  This policy is known as "Ladies' Night."  The Court ruled that the Equal Protection clause did not apply because private nightclubs are not state actors.

Leaving aside the constitutional question, I am calling on all men to boycott institutions that employ these discriminatory practices.  But, then again, a successful boycott by men would only increase the proportion of women-to-men at such institutions, which is the goal of Ladies' Night .  So, on second thought, I demand that men boycott all Ladies' Nights, particularly in the Evanston, Illinois area.  Alas, the only way for me to enforce gender solidarity on this issue is to patrol the nightclubs myself.