Wednesday, December 21, 2011

College Football and the Nature of Reality

I spend much of my free time following sports. In my lucid moments, rare as they are, I find this use of time hard to justify. What do I get out of following sports? Does it make me a better person? Does it make the world a better place?

As you can imagine, I've been able to come up with quite a few justifications (i.e., rationalizations) over the years. But today, for the first time, my sports-following habit provoked me to reflect on the nature of reality. The specific impetus for this is the controversy surrounding the decisive play in the recent Big Ten Football Championship game, in which the Wisconsin Badgers beat Michigan State in a thrilling comeback.

The decisive play was a penalty. Wisconsin, up by 3, was forced to punt with just about a minute left in the game. Michigan State returned the punt all the way to the three-yard line, but was flagged for "running into the kicker."  Safety Isaiah Lewis committed the foul.

The result of the penalty was a first down for the Badgers, which allowed them to assume the victory formation and run out the clock.

When an official makes such a game-deciding call, there will be controversy.  There are two points of contention about this particular play:  (1) Did Lewis actually run into the punter? (2) Did the punter flop?

There really can be no dispute that the answer to both questions is "yes."  The still photo included here shows clearly that Lewis did run into the punter's legs while he was in the kicking motion.  The video of the play also shows that after this moment the punter twirled to his left, far more violently that the contact itself would seem to have caused.

Thus, the only real question is whether Lewis's contact with the punter was "incidental," as incidental contact with a kicker is not a foul. The referee's judgment that the contact was not incidental is defensible, I think, because Lewis made contact with the legs of the punter while the punter was in his punting motion. The purpose of the rule is to protect the punter while he in this very vulnerable position, so any contact made with the legs at that moment cannot be incidental.  In all my years of watching football, I have never seen contact like this not called a penalty.

Some maintain, however, that Lewis did not even touch the punter.  Among those who hold this belief, apparently, is Lewis himself, the person who did in fact run into the punter.  Lewis reviewed the tape and said, "personally, I didn't feel like I hit the guy."

How can this be?

I'll admit the statement is ambiguous.  He says he "didn't" feel like he hit the guy. This leaves open the possibility that what he's saying is just that he didn't think he hit him at the time. That would certainly be understandable. Football players are well-armored, so in the heat of the moment it's possible that Lewis didn't notice the impact from the somewhat glancing contact he made with the punter.

Still, Lewis seems to be maintaining that he actually still believes he didn't hit the punter, when the tape shows clearly that he did.  But perhaps the key words in his statement are "personally" and "feel"; he says he "personally" doesn't "feel like" he hit the guy. This seems to be an assertion that reality is subjective, and the videotape is no greater evidence of what really happened than his own visceral memory. There are no facts, only feelings.

Or, in other words, "Who are you going to believe—me or your lying eyes?"

In the end, of course, the only reality that matters is the one that the referee saw, and made. And in that reality, the Badgers are going to the Rose Bowl. Again.

Sunday, December 18, 2011

In August, I noted that Herman Cain, Thaddeus McCotter, and Newt Gingrich would "never, ever, ever be the GOP nominee for president in 2012." I was asked over the weekend whether Mr. Gingrich's recent surge has caused me to reconsider this statement. It has not. One need look no further than this article to see why he won't be president.

While I doubt the judiciary is any more "arrogant" now than it has been in the past, does it not occur to Mr. Gingrich, that the majority of federal court judges were appointed by Republicans? By way of example, President George W. Bush appointed a total of 325 judges. President Obama has appointed 123.

I have a lot more I could say about Mr. Gingrich's utterly insane proposals concerning the judiciary but since he will never be president, I will simply point out that his beliefs about a rogue judiciary sound to me a lot like the complaints raised by these two lawyers.

Monday, December 12, 2011

Are sanctions cheaper in Wisconsin or do sanction amounts vary by content?

On Thursday I posted about Rebekah Nett. Ms. Nett is a Minnesota attorney who has made the news lately because she is facing a sanction of up to $10,000 as a result of some motion papers she filed that contained anti-Catholic language. More accurately, the motion papers contained anti-Catholic language but did not provide any evidentiary support for the anti-Catholic allegations. It turns out that this is not Ms. Nett's first experience with filing court documents that don't have evidentiary support. It is also not her first experience with sanctions.

On February 8, 2011, the Wisconsin Court of Appeals, issued a decision in City of Shawano v. Darlene Sense. Ms. Sense appealed her conviction of a Shawano ordinance prohibiting refusal to permit inspection of premises that are subject to a liquor license. Ms. Sense is the former the manager of the Shawano Best Western Hotel. When Shawano police officers attempted to determine whether the hotel was operating in accordance with its liquor license. Ms. Sense, depending on whom one believes, either actively prevented the officers from making the determination or failed to help the officers. In any event, Ms. Nett represented Ms. Sense.

The appeal is notable for a couple of reasons. First, it appears that the same group that owns the hotel also owns the bankrupt company in the case that has Ms. Nett in hot water in bankruptcy court. Similar to the Minnesota case I posted about, the brief supporting the appeal:

contains several brazen assertions that are completely unsupported by the record. For instance, Sense states that the Best Western hotel’s parent company “has been targeted repeatedly with numerous complaints and false accusations and negative publicity because the president is from India.” Sense contends, “Local officials and specifically, [the] mayor of Shawano, … have positioned themselves against [the parent company’s president] time after time and seek every opportunity to cause harm to any businesses in Shawano connected with [the parent company].” Sense also alleges the police’s routine compliance check was “a tactic to get into the facility during a private party to scare and intimidate guests who value their privacy … so that they might cancel their contract with the hotel …. Cancellation of their contract would have delighted City officials[.]” Sense does not provide record citations for any of these allegations, presumably because they are completely unsupported by the record.

Because she didn't support the assertions mentioned above with evidence, and also because her brief and appendix didn't comply with four procedural/stylistic rules for the appeal, Ms. Nett was sanctioned $200.

What conclusions can we draw from this? One could be that the cost of making allegations without evidentiary support is cheaper in Wisconsin. Ms. Nett faces a fine of $1,000 per unsupported allegation in Minnesota but only paid $50 per unsupported allegation in Wisconsin (assuming that the formatting errors weren't worthy of a sanction). Another conclusion might be that the cost of unsupported allegations has risen nationwide since February. Or perhaps the Minnesota sanctions are higher because of the bigoted nature of the unsupported allegations. If that is the case, then maybe the question raised by UCLA law professor Stephen Bainbridge should be considered. When he blogged about Ms. Nett's possible sanction in Minnesota, Professor Bainbridge asked, why would Judges be able so sanction parties for offensive speech without running afoul of the First Amendment. Any thoughts, Mr. Torvik?

Thursday, December 8, 2011

The cost of a slur? Apparently $1,000.

When asked (and sometimes without being asked), I identify my religon as Roman Catholic. Some of my irreligious friends believe that I am some kind of hardcore believer because I manage to attend Mass on Sunday at one of the nine Roman Catholic churches near my office or home. Reasonable minds can, of course, disagree as to whether complying with the Fourth Commandment makes one devout. Some would say that is simply meeting one the minimum requirements.

In any event, we Roman Catholics are living in interesting times. Among other things, today is the Solemnity of the Immaculate Conception. Non-Catholics (and some Catholics) are often confused by this Holy Day of Obligation. People think that it celebrates Mary’s conception of Jesus Christ. It doesn’t. Instead it celebrates St. Anne’s conception of Mary. I think Catholics get this day confused because the Gospel reading for the day is about Mary’s conception of Christ. Non-Catholics might find the day confusing because the Bible doesn’t mention Mary’s parents, let alone Mary being conceived. However, as the Immaculate Conception is one of the two times a Pope has invoked the doctrine of Papal Infallibility, I prefer not to think about that too much.

In addition to this confusing day, last month the text of the Mass has been changed for the first time since the Mass stopped being said in Latin. A lot of other folks have opined on the changes. So, I’ll let Stephen Colbert handle that issue.

I would like to discuss the recent filings in the United States Bankruptcy Court for the District of Minnesota allege a conspiracy between Catholic lawyers and judges. I am not sure when this conspiracy got started. I must have missed church that day as I have not heard of it before.

The St. Paul Pioneer Press first broke the story. As the story notes, Yehud-Monosson USA Inc., declared bankruptcy. Rebeckah Nett is representing the company in the bankruptcy proceeding. The story mentions that the company and one of its related ventures, Midwest Oil of Minnesota, have filed five bankruptcy cases in three states dating back to March 2009. The Pioneer Press also notes that Yehud-Monosson USA Inc., is a subsidiary of the Dr. R.C. Samanta Roy Institute of Science and Technology Inc., of Shawano, Wis. The institute is named after its spiritual leader, an Indian immigrant who used to be known as R.C. Samanta Roy but now goes by the name Avraham Cohen.

Anyway, the trustee in the bankruptcy, Nauni Manty, scheduled a motion for contempt alleging that she had not received business records that the bankruptcy judge ordered Yehud-Monosson USA Inc., provide to her. The motion was scheduled to be heard at 1:00 on November 17. Due to an apparent clerical error, the hearing on the motion that was sent to the company and its attorney said that the hearing was at 1:30. Given the error, it was entirely unsurprising when Ms. Nett missed the hearing. In light of the fact that Ms. Nett wasn’t there, the judge rescheduled hearing.

In a sense, rescheduling the hearing benefitted ordered Yehud-Monosson USA Inc. After all, the company wasn’t found in contempt. However, neither Naomi Isaacson, the company’s president (and a lawyer), nor Ms. Nett apparently saw it that way.

On November 25, a week after the judge continued the hearing, the Company filed motion to vacate the order continuing the hearing. Before examining the motion, remember that Rule 9011(b) of the Federal Rules of Bankruptcy Court requires that any motion (or argument) have evidentiary support for any factual contentions and that the claims and argument not be frivolous. Simply put, neither the lawyer nor the client can simply make things up. With Rule 9011(b) in mind, the motion papers allege a wide-ranging conspiracy among Catholic members of the bench and bar. Specifically, the motion says the following items are “facts.” None of these “facts” are supported by a citation to a factual record. My thoughts on the “facts” follow the quotes:

1. “Chapter 7 Trustee Nauni Manty had actually scheduled the hearing with Nancy Dreher, the Catholic judge, for 1:00 p.m. but sent notice to the Debtor [Yehud-Monosson USA Inc.] that the hearing was set for 1:30 p.m.” It is undisputedly true that the time in the trustee’s notice was incorrect. For a discussion of Judge Dreher’s religion, keep reading.

2. “Debtor seriously questions Chapter 7 Trustee Nauni Manty’s motive in informing Debtor of the wrong time for the hearing. Was it to the make the job of the black-robed bigot that much easier? So, rather than forcing the Court to hear the case on its merits, the matter can just go by default? Debtor is suspicious of the Chapter 7 Trustee Nauni Manty’s motive given her track record of lies, deceit, treachery, and connivery, particularly, since the Chapter 7 Trustee Nauni Manty, the U.S. Trustee Colin Kreuziger, and Nancy Dreher, the Catholic judge, have been communicating with each other about this Debtor on an ex parte basis.” The section overlooks the maxim that the simplest explanation is most often the correct explanation. Instead of clerical error it alleges a conspiracy. I guess that could be called opinion. Albeit, not one based on fact. As a practice pointer I should point out that it is probably not effective argument to call the judge hearing your motion a “black-robed bigot.”

3. “U.S. Trustee Colin Kreuziger, Chapter 7 Trustee Nauni Manty, and Nancy Dreher, the Catholic judge, are of the same race and religion and their track record demonstrates their conspiracy and deceitful practices to hurt the Debtor. Even though all documents have been produced, Jesuitess Nauni Manty keeps repeating the same lie that records are missing.” Prior to this story breaking, I had never heard of a Jesuitess. I found that odd given that I went to a Jesuit University. It turns out that a Jesuitess is a member of an order of nuns that has not existed since 1633 (as a side note, the same Pope who suppressed the order also put Galileo on trial over Heliocentrism. Perhaps he wasn’t the best Pope). Since the order was suppressed in 1633, it seems unlikely that Trustee Manty is, in addition to being a lawyer, a Jesuitess.

4. “Across the country the court systems and particularly the Bankruptcy Court in Minnesota, are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church. Judge Dennis O’Brien is a Jesuit, Judge Nancy Dreher is a Catholic Knight Witch Hunter, U.S. Trustee Colin Kreuziger is a priest’s boy, and the infamous Chapter 7 Trustee Nauni Manty is a Jesuitess.” Although it is true that a majority of the justices on the United States Supreme Court are (or were raised) Catholic, I am unaware of any statistics showing that other courts are also composed mostly of Catholics. Online research into the phrase “Catholic Knight Witch Hunter” only leads to stories about the motion so I don’t think the Catholic Church has knight witch hunters (although one has to admit that it certainly sounds like something a church should have). Suffice to say that the mental image of “priest’s boy” is not one on which we should dwell. I sincerely hope there is no evidentiary support for that allegation.

5. “Debtor and its representatives have never experienced any justice at the hands of these inquisitors. Since Debtor has been vocal is exposing their dirty deeds, these dirty Catholics have conspired together to hurt Debtor.” The filing is vocal, I think we can agree about that. Also, on December 6, Trustee Maunty filed a reply motion on her motion for contempt. That motion directed the Court to a website where Ms. Isaacson has requesting an “URGENT INVESTIGATION” (we know it is important because it is typed in all caps) into racial discrimination by Catholics and Lutherans that started in Shawno, Wisconsin (by a mayor who is, confusingly, “CATHOLIC AND LUTHERAN”) and spreading across the country. The posting goes on to discuss how the Catholic Church murdered Abraham Lincoln (things I learned today—John Wilkes Booth converted to Catholicism) and how Ms. Isaacson expects to be “incarcerated and likely murdered.” The posting also says if Judge Dreher were impartial she would liquidate the assets of the Catholic Church. How the judge could order this in the absence of a bankruptcy filing by the Catholic Church is unexplained. So there will be some factual support about being vocal. Also the bankruptcy proceeding clearly isn’t going the way the company would like. The tricky part is whether that is because of Catholics.

6. “Both the Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger appeared at 1:00 p.m. and both the Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger ‘pretended’ to not know why Debtor’s counsel was not present for the hearing. Therefore, Nancy Dreher, the Catholic judge, proceeded with the hearing in Debtor’s absence and allowed the Chapter 7 Trustee Nauni Manty to argue her case as to why Debtor is in violation of the Court’s Order for Turnover dated October 7, 2011.[...] When Debtor’s counsel arrived for hearing at 1:20 p.m., no other parties to the case were present, and the Court’s clerk informed Debtor’s counsel that the hearing had been held at 1:00 p.m. The Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger had already come and gone. The Court’s clerk confirmed that the notice that was sent to Debtor indicated that the hearing was set for 1:30 p.m. but informed Debtor’s counsel that the matter had been continued to December 6, 2011.” As already discussed, it is true that there was a mix-up about the hearing time. Since the judge continued the hearing, I don’t think it is true that the trustee got to argue the motion.

7. “Shockingly, on November 18, 2011, however, Nancy Dreher, the Catholic judge, issued an Order that effectively already finds that Debtor is in violation of the October 7th Turnover Order. Such Order states Chapter 7 Trustee Nauni Manty is permitted to make a record at such hearing that meets the test for a finding of contempt. The November 18th Order further states that the Debtor representative is required to be present at the hearing. Given what these dirty Catholics are capable of and particularly since there is no law to protect the minority, Debtor is concerned about what their secret plans are for the December 6, 2011 hearing. Catholic deeds throughout the history have been bloody and murderous.” By continuing the hearing, the Court was not finding that the turnover order had been violated. If one considers the Crusades and the Inquisition as part of the history of “Catholic deeds,” then “bloody and murderous” is true. However, I am not sure there is any support for such contentions in, to be conservative, the 20th or 21st Centuries. It doesn’t appear that the concern about a secret plan is well-founded.

8. “For Nancy Dreher, the Catholic judge, to issue such an Order when she knew that the Debtor was not present due to being intentionally misled by Chapter 7 Trustee Nauni Manty is unfathomable. One can only conclude that Nancy Dreher, the Catholic judge, is part of the conspiracy to deprive Debtor of its due process rights since she went ahead and issued an Order when she clearly knew the reason Debtor’s counsel was not present at the hearing.” Continuing the hearing seems like poor evidence of a conspiracy. If the Court really wanted to deprive the Debtor of due process, it would have just issued the contempt order.

9. “Under normal circumstances, a Court would wait ten minutes in case some unfortunate mishap had befallen counsel to give her an opportunity to appear. What was the reason for the haste to hold this hearing? What secret discussions occurred during their secret meeting? Debtor has filed numerous pleadings which outline in detail its response to the Chapter 7’s Trustee Nauni Manty’s motion which clearly document that Debtor has produced all the records in its possession. Debtor has a right to be heard on that issue. The entry of the order is illegal and in violation of Debtor’s due process rights. In the interests of justice, this Order must be vacated.” It’s generally my experience that hearings don’t start until everyone is present. I haven’t had a hearing where counsel was late by a half-hour without calling the court, so I can’t say it is unreasonable that the judge and lawyers weren’t still there at 1:20. Given that the matter was continued, it doesn’t seem likely that there were any secret meetings.

10. “Given the track record of injustice in this case, it seems that Debtor will never see justice until the matter is addressed in an international court in Beijing, China.” There is an international court but it is not in Beijing. Also, the International Court in the Hague only hears cases between countries. So it won’t be giving any justice in regards to this bankruptcy proceeding.

As I indicated above, after these statements hit the news and received a lot of negative press. This did not dissuade Ms. Nett or Ms. Isaacson. Instead, on December 6, they doubled down on exposing the conspiracy. In a declaration she filed with the Court, Ms. Isaacson states: “I want the Court to know, President Obama to know, Attorney General Eric Holder to know, United Nations to know, foreign media to know, and the world to know that Chapter 7 Trustee Nauni Manty keeps bolding lying because the judges and Court are controlled by her own race and Catholic religion. In the United States, under the Constitution, church and state are supposed to be separate. But, now like the Dark Ages, the Catholic Church obviously is in control of the Bankruptcy Court and the media.” This marks the first time I have ever heard that Catholics control the media. If they do, why are the shows on EWTN so boring?

Anyway, on December 7, the Court decided either that continued exposure of the Catholic Conspiracy would be harmful to the conspiracy or that Ms. Nett and Ms. Isaacson were simply making bigoted and crackpot statements in motion papers. Whatever the reason, Judge Dreher issued two show cause orders. One is directed towards Ms. Isaacson and one towards Ms. Nett. The show cause orders require Ms. Isaacson and Ms. Nett provide reasons why they should not be sanctioned for the statements in the November 25 filing.

In some respects the orders are straightforward. They explain the missed hearing and they identify the 10 statements I mentioned above. The orders point out that both Ms. Nett and Ms. Isaacson are attorneys. They also mention Rule 9011(b) and the requirement that advocacy have factual support and not be for an improper purpose. The orders also say that the sanctions may include $1,000 fine for each of the 10 statements that lack factual support; an injunction prohibiting filings that disparage the trustees or the courts of the United States; and a public written apology to Judge O’Brien, both trustees (and possibly others). Ms. Nett , but not Ms. Isaacson, might also be required to attend 30 hours of ethics training in the next year. Ms. Nett also needs to explain whey she should not be removed from the roster of attorneys permitted to practice in the United States District Court for the District of Minnesota (if the Chief Judge of the district deems it appropriate to remove her).

The footnotes to the order, however, are a little odd. Footnote 1 to each order mentions that once Ms. Nett arrived for what she thought was a 1:30 hearing, the Court tried to have a continued hearing that afternoon but Ms. Nett wasn’t available at the time that the trustee was available. I do not understand why Ms. Nett’s unavailability later in the afternoon is significant. Footnote 2 to the order concerning Ms. Nett notes that she doesn’t carry professional liability insurance. As far as I know, Minnesota lawyers are not required to carry such insurance. So, I don’t understand why that is relevant to showing cause not to be held in contempt. The footnotes in both orders note that Judge Dreher has never been a Catholic. I guess the judge pointed this out to show that there isn’t any factual support for calling her Catholic. Is that an effective way to engage with someone who claims that Catholics are taking over the country? As President Obama discovered during the controversy about his birth certificate, people who make far-fetched allegations are not persuaded actual facts (another example would the folks who call themselves “Truthers”). The orders also point out that Ms. Manty and Judge Dreher are not members of the same faith because the Judge Dreher is “not of any particular faith.” This presumably goes to the point that it can’t be a Catholic conspiracy. But again, I don’t see how it was a good idea to engage on the point. Perhaps a conspiracy of people without a particular faith doesn’t sound as ominous. After all, when and where would they meet?

The hearing on the show cause order will be on January 4, 2012. It will be interesting to see if either Ms. Nett or Ms. Isaacson avoids getting sanctioned the full $10,000. My guess is that each statement will be sanctioned. It would also be interesting to see the factual support for the statements.

Anyway, it is hard to know what to make of this imbroglio. As a member of the legal community, I am embarrassed that a lawyer filed this sort of rubbish. On the other hand, it is certainly possible that these filings are the product someone who is ill. We should feel sympathy for such people and hope they get professional help with their illness. Then again, if these are not the ravings of a mentally-ill person but instead the product of bigotry, then does anyone think that a $10,000 fine and 30 hours of ethics class will reform bigoted thinking?

Saturday, December 3, 2011

UPDATE: Can an accused tax evader submit evidence of a good-faith belief without taking the stand to testify to it?


In the posts below, I discussed a district court order holding that Chris Kokenis, an accused tax evader, had to take the stand to assert the "good faith defense."  On the day before Thanksgiving, the Seventh Circuit Court of Appeals issued its opinion.  It finds that the district court was wrong to rule that Kokenis had to take the stand, because evidence of good faith can be proved by circumstantial evidence and hearsay statements of the defendant.  But the court goes on to conclude that the error was harmless because (1) there was no evidence at all of a good-faith belief in this case; (2) even the supposed good-faith didn't apply to all the charges; (3) the good-faith defense was in fact part of the charge, since the jury was instructed that Kokenis's conduct had to be "willful" and the good-faith defense is simply an assertion that the defendant did not act willfully.

ORIGINAL POST: 10/9/2010

Willfully evading federal income taxes is a felony. 26 U.S.C. § 72013. In the context of the tax laws, a “willful” violation is the “voluntary, intentional violation of a known legal duty.” United States v. Cheek, 498 U.S. 192, 201 (1991). But, under Cheek, failing to pay income taxes because of a genuine misunderstanding of the tax laws or a good-faith belief that no tax is due—even an objectively unreasonable misunderstanding or belief—is not a felony (though it may be a misdemeanor). Let’s call this the Wesley Snipes defense.

This is background for an interesting little order by the always-entertaining Judge Milton Shadur of the Northern District of Illinois in the case of United States v. Kokenis. A jury recently found Kokenis guilty on eight counts of tax evasion. He moved for a new trial, arguing that the judge improperly excluded evidence relating to his good-faith defense under Cheek. Judge Shadur denies the motion for an interesting reason: he says that Kokenis could not advance this defense because he did not take the stand to testify in his own defense:

David Prosser goes on the 30-day DL

As I reported shortly after he won reelection to the Wisconsin Supreme Court, David Prosser is old.  At the time, I predicted that he'd retire well before his ten-year term ended. Time will tell whether that prediction comes true, but early indications are support it.  We're just three months into his new term, and Prosser is already taking a health-related leave of absence.


Justice Prosser is dealing with a nasty bout of diverticulitis.  Hopefully he gets well soon.

Tuesday, October 25, 2011

Too many lawyers–or not enough?

An op-ed in the New York Times by Clifford Winston of the Brookings Institution proposes doing away with the barriers to entry–namely, law school and the bar exam–to becoming a lawyer:

What if the barriers to entry were simply done away with?
Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.
This is not a new idea, of course. But I thought Mr. Winston stated the case against lawyer regulation rather well.  Any thoughts in response, Mr. Gillette?

Tuesday, October 11, 2011

It's Alive!!

I was struck by a recent letter to the editor in the September 26, 2011 issue of The New Yorker.  In response to Jeffrey Toobin's profile of Virginia and Clarence Thomas, Albion M. Urdank of Los Angeles wrote in to criticize Thomas's originalist method of interpreting the Constitution:
In determining how many representatives Southern states might send to Congress, the [Constitution] provides that a black person, although disenfranchised, counts as three-fifths of a person.  To think that we are required to pay deference to the founders' views on this subject is absurd.  The Thirteenth Amendment, which abolished slavery, represents an updating of the Constitution in the light of history and experience. [Not to mention war. -- Mr. Torvik]  Amendments don't just complicate originalism; they refute it by establishing that the Constitution is a living document.
Perhaps you can explain this to me, Mr. Gillette, because I'm befuddled by it.  The idea of a "living Constitution," as I understand it, is that we can use interpretive methods to proactively update the meaning of the constitution to keep up with the times without the need for formal amendments.  I completely fail to understand how the 13th, 14th, and 15th Amendments "refute" originalism.  Indeed, if the Constitution were really a "living document," surely those Amendments would have been unnecessary, as the Constitution would have simply "grown" to leave slavery and the three-fifths clause behind after the searing national tragedy that was the Civil War.


Friday, October 7, 2011

Indiana attorneys should still not beat people up.

Back in December, we did a post on Olubunmi Okanlami, the Indiana attorney who was arrested and accused of beating up her boyfriend. Among the oddities of Ms. Okanlami's arrest was that she was wearing two bras at the time of her arrest and was carrying a switchblade in between the two bras.

Recently, Ms. Okanlami was found guilty of two felonies related to the incident (Indiana's online court records don't indicate whether Ms. Okanlami's case was actually tried or whether she entered into a plea agreement. Which ever the case, because Ms. Okanlami of the conviction, Ms. Okanlami will suspended from the practice of law effective in late October. The suspension will last until the Indiana Supreme Court decides on what further discipline, if any, is appropriate for Ms. Okanlami.

Under Rule 23(26) of the Indiana Rules for Admission to the Bar and Discipline of Attorneys, Ms. Okanlami must decline to undertake any new legal matters, notify her clients via certified mail of the suspension, find a new attorney for her clients during the suspension, and file an affidavit saying that she is complying with Rule 23(26). It cannot be any fun to have to do that. On the other hand I suppose her boyfriend didn't enjoy getting beaten up either.

Given the outcome, I think readers are well-advised to follow the advice in our initial post and not beat up their significant others.

Wednesday, October 5, 2011

Sometimes there are unanswered questions at oral argument.

Several media outlets are reporting about a death penalty case that was heard by the Supreme Court on Tuesday. The case, Maples v. Thomas, features some very odd facts. The coverage at Slate, Huffington Post, or the New York Times provides the pertinent background on the oral argument. One can also read the transcript of the argument here.

In reading the coverage, two questions occurred to me that are not directly about the merits of the appeal. First, however, some background.

Cory Maples was convicted in Alabama state court of two murders. Mr. Maples’s guilt is not in dispute. His court-appointed lawyers, who had apparently never tried a murder case before, failed to present mitigating evidence during the penalty phase of the trial and Mr. Maples was sentenced to death. Mr. Maples lost the appeals of his conviction.

Mr. Maples then began post-conviction proceedings claiming that he had received ineffective assistance of counsel during his trial. A large New York law firm, Sullivan & Cromwell, took his case pro bono and assigned it to two associate attorneys. The firm also, as was required by Alabama rules, associated itself with a local Alabama attorney for the case. The local attorney did not do anything on the file except move the admission of the New York attorneys.

For some reason, it took eighteen months for the district court to deny relief on the ineffective assistance of counsel claim. The court mailed the decision to each of Mr. Maples’s attorneys. Mr. Maples’s local counsel, who had not done anything on the case, did not provide the decision to Mr. Maples. This is not odd. How Sullivan & Cromwell treated the decision is odd. By the time the decision was issued, both of the Sullivan & Cromwell attorneys had left the firm. The lawyers had not informed the Alabama court they were leaving the case. Since neither lawyer worked at the firm, the mailroom at the firm, without opening the envelope, stamped the envelope “return to sender” and sent it back to the Alabama court.

Unsurprisingly under the circumstances, Mr. Maples missed the deadline to appeal the decision. Then, the second odd thing happened; the prosecutor in the case mailed the now-unappealable decision directly to Mr. Maples. Once Mr. Maples realized what had happened he tried to appeal the decision or excuse the failure to miss the deadline. The Supreme Court decision will decide whether Mr. Maples can get his ineffective assistance of counsel claim heard.

As to the first oddity, I do not understand how the Sullivan & Cromwell mailroom sent the decision back to Alabama unopened with a “return to sender” stamp on it. That makes absolutely no sense. How can it be that mail coming from a court is not opened by someone at the law firm to see what the court is writing about? The Eleventh Circuit's opinion on the case notes that Sullivan & Cromwell had internally assigned attorneys to take responsibility for the case and that under firm policy the order should have been forwarded to the new attorneys. The opinion however, only states that a “clerical error” cased the order to be returned, unopened, to the Alabama court. While I understand that mistakes happen, I don’t understand how this particular mistake could have happened. Why would a mailroom not open a letter from a court? Mr. Torvik, who—unlike me—has worked at a large law firm, may have some ideas on how this would happen. Or he may not. Even if this were not a death penalty case, not opening the envelope is a gigantic mistake.

The second oddity, the prosecutor mailing the decision to Mr. Maples, caught the attention of Chief Justice Roberts. On page 34 of the transcript Chief Justice Roberts asks “Why did he [the prosecutor] do it? Why did he do it, then? . . . What was the point of it?” After all, if Mr. Maples was represented, as Alabama is claiming to the Supreme Court, then the prosecutor’s letter violates Rule 4.2 of the Alabama Rules of Professional Conduct. Rule 4.2 prevents a lawyer from contacting a represented party. At the oral argument, Justice Scalia called sending the decision to Mr. Maples an “extraneous, volunteered statement to Maples instead of to his lawyers,” and said “I don't -- I don't know what that proves.”

However, the Eleventh Circuit’s opinion suggests what that proves. The Eleventh Circuit said that the prosecutor was providing the decision to inform Mr. Maples that, although his deadline to appeal had passed, Mr. Maples had “four weeks to file a federal habeas petition. [The prosecutor] gave Maples the address to file a federal habeas petition and informed him how to seek new counsel if he wished.” (Opinion at 4-5) (emphasis mine). That is, despite what Alabama is now claiming to the Supreme Court, the prosecutor didn’t think that Mr. Maples was being represented by anyone. It would have been nice if Alabama’s Solicitor General could have acknowledged this at oral argument.

On page 41 of the transcript, Justice Alito asked Alabama’s Solicitor General this question:
You can see from these questions that the arguments that you're making in this capital case, which is sui generis, are pushing the Court to consider rules that would have far-reaching effect, such as a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents in the case similar to the constitutional obligation to serve initial process in the case. And the question that I would like to ask is whether this -- the -- whether you as the Solicitor General or the Attorney General of Alabama have an obligation to push this matter in this way. This is a case where -- as I said, it's a capital case, as we all recognize Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances. Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not get a decision on the merits of that? Why push this -- this technical argument?
(emphasis mine.) Alabama's Solicitor General doesn’t really answer the question. However, I think the reason for this is found in the Supreme Court’s opinion in Bowles v. Russell. That was the case where a federal habeas petitioner missed a deadline for filing an appeal because the judge who denied the petition told the petitioner the wrong deadline for appealing. The Supreme Court, held that by missing the deadline the petitioner lost his right to appeal even though it was the court’s fault that the deadline was missed. After all, if a hyper-technical argument can win one Supreme Court case, it can certainly carry the day here, right?

Monday, September 26, 2011

"I want you to shut up."

That was what Judge Edith Jones, the Chief Judge on the United States Court of Appeals for the Fifth Circuit, told Judge James Dennis, one of her colleagues on the 5th Circuit. I have no idea whether it is normal for appellate judge to tell each other to shut up when they are not in court. Judge Jones, however was in court. In fact, Judge Jones told Judge Dennis to shut up at an en banc hearing. That is, she told him to shut up in front of all of their fellow judges on the 5th Circuit.

While the story has also been mentioned by the ABA Law Journal and Texas Lawyer, Above the Law does a nice job of setting the scene. In January, a panel of the 5th Circuit reversed a conviction on involving a conspiracy to sell marijuana. The case is called United States v. Delgado. One judge on the panel dissented. The Fifth Circuit voted to rehear the case en banc and the hearing was held on September 21.

At the hearing, the government's lawyer apparently spent the first seven minutes of the oral argument asking questions from Judge Dennis (who wrote the opinion that was being reheard). Chief Judge Jones seems to have found this exasperating. As Judge Dennis was starting to ask another question the following interlude took place (italics mine):
JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….


JUDGE DENNIS: … just on the basis of the amount of drugs …


JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….
Although I have been at appellate arguments where I wished this would have happened, I have never heard of anything like this happening before. As such, just the fact that it happened would probably be noteworthy. However, Chief Judge Jones made the news about a week ago for emailing a United States district court judge that he was being rude and uncivil to counsel appearing before him by inviting them to a "kindergarten party." Viewed in light of the email, Chief Judge Jones's remarks become some sort of weird ironic karma.

My first thought in reading about this was "why does she care how many questions one judge asks?" After all, the Court can make the government's lawyer answer questions for as long as it wants. While there may be an allotted time for the argument, its not like the argument ends when the allotted time ends. The only conclusion I can reach is that Chief Judge Jones is telling Judge Dennis to shut up not because she wants others to ask questions but because she just wants him to shut his yap.

My second thought is that by telling Judge Dennis to shut up, Chief Judge Jones was providing a great example of why one uses incivility in polite company. One uses it because it works. Judge Dennis was clearly asking a question when he was told to shut up. His response, after briefly arguing about whether he had to shut up, was to shut up. I suspect that Judge Dennis shut up because the use of incivility in that situation was so abnormal as to convince him that he had been talking too much and so he clammed up.

I couldn't help but compare Judge Dennis's response to that of my coworkers back when I used to work a production line in a factory. The factory environment is not widely known for its civility. There, if one of my coworkers had told me to shut up, I would have interpreted the request as one to talk more, and probably talk more loudly at that. I feel safe in saying that everyone of my coworkers at the factory felt the same way.

According to the reports on the matter Chief Judge Jones apologized by the end of the session. That was magnanimous of her. Of course, it is easy to be magnanimous when one gets what one wants.

Friday, September 23, 2011

Life and How to Live It

My favorite band broke up. The preceding sentence is true but also a woefully inadequate description of the importance of R.E.M. in my life. It sounds like hyperbole, but my life would be completely different if I had never heard R.E.M.

Friday, September 16, 2011

"I think it's got to be a mistake somehow."

That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the 
defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

Tuesday, September 13, 2011

A Gillette-Torvik Conversation™: End employment discrimination against the unemployed?

TORVIK: Mr. Gillette, what is your take on this aspect of Obama's new jobs bill proposal:
Ending Discrimination Against the Unemployed:   Recent reports have highlighted companies that are increasingly expressing preferences for applicants who already have a job. Specifically, some companies are posting job listings that include language such as “unemployed candidates will not be considered” or “must be currently employed” or “must be employed within the last 6 months.”  The exclusion of unemployed applicants is a troubling and arbitrary screen that is bad for the economy, bad for the unemployed, and ultimately bad for firms trying to find the best candidates. This is particularly true at a time when so many Americans have found themselves out of work through no fault of their own. New Jersey has passed legislation to address this practice, and members of Congress have also introduced legislation. The President’s plan calls for legislation that would make it unlawful to refuse to hire applicants solely because they are unemployed or to include in a job posting a provision that unemployed persons will not be considered.'
I understand the sentiment, but it seems like a bit of a hornet's nest to me. Currently firms work hard not to ask questions about "suspect classifications" to prevent any claim that someone wasn't hired on such a basis. But an employer has to ask about employment history!

GILLETTE:  Are you saying that the proposed claim is problematic because one can eliminate potential liability on a failure-to-hire racial discrimination claim by not asking about race (setting aside that some things, like zip codes, correlate strongly to race) but that an employer cannot similarly eliminate potential liability on a failure-to-hire- the-unemployed claim because they need to know job history?  If so, I don’t really see that as a problem with the bill.

Sunday, September 11, 2011

"Let's Roll"

The passenger takeover of United Flight 93 is the most moving act of heroism in American history. Having discovered that their hijackers’ plan was to use the plane as a missile, the passengers resolved to risk life and limb to retake control of the plane. As a result, they forced the plane to crash into an empty field in Shanksville, Pennsylvania, rather than its presumed target, the United States Capitol.

As inspiring as their self-sacrifice was, and remains, it seems to me we are ignoring its true lesson: this kind of hijacking will never work again.  We know this because it stopped working that morning.  Recall that because of then-existing airport security measures, the 9/11 hijackers had to hijack the planes with meager weapons such as box cutters and mace. The reason this worked was: (1) the crew and passengers believed that the hijackers were returning to the airport to seek some kind of ransom; and (2) the hijackers were able to gain access to the cockpits, which were not secured.

Never again will American passengers and crew accept a hostile takeover of an airplane with box cutters and mace. In fact, it's unlikely that any American airplane will ever be hijacked again, even with a bomb, unless the hijackers can succeed in killing or subduing the vast majority of crew and passengers and find some way to get through the now-reinforced cockpit doors.  The worst thing that can happen now, if airport security were to fail, is that terrorists could blow up a plane.  That would be a tragedy, but not a disaster.

But isn’t it better to be safe than sorry? Absolutely not. If it were, we would never leave the house. We certainly wouldn’t drive. And it would be absolutely crazy to imprison ourselves for hours in steel flying contraptions.

There is a safe-versus-sorry balance to make.  And when it comes to airport security, we are so far over the line into “safe” that it’s sorry.  As just one example, our airport security professionals are now searching vaginas – perhaps looking for liquids?

We should honor the heroism of the passengers of Flight 93 by using our heads and being smart about the tradeoffs we must make between security and liberty.  By failing to learn the lesson that they taught us, we make a mockery of their sacrifice.

Wednesday, September 7, 2011

Extreme Stealth Marketing?

I was reading a post at Minnesota Litigator this morning and clicked on one of the links in the post. The particular link was for the Wikipedia biography of Raymond Gruender, a judge on the United States Court of Appeals for the Eighth Circuit. Judge Gruender's biography includes the names, law school, and, apparently, the current employer of all of his former law clerks.

It occurred to me that I had never noticed a former law clerks section as part of a judge's Wikipedia page before. I wondered whether this was a new feature on Wikipedia. So, I decided to see whether the biographies for the other judges on the Eighth Circuit identified law clerks. Not counting judges on senior status, there are ten other judges on the Eighth Circuit. In no particular order, they are: Kermit Bye, William Riley, Diana Murphy, Roger Wollman, James Loken, Michael Melloy, Levanski Smith, Steven Colloton, William Benton, and Bobby Shepherd. You may be interested to learn that none of the biographies for these judges identifies their former law clerks. Listing former law clerks does not seem like a new feature.

Looking at Wikipedia's revision page for Judge Gruender, it looks like someone started adding Judge Gruender's former clerks in August 2007. Before August 7, 2007, Judge Gruender's biography looked a lot like the biographies of his fellow Eigthth Circuit judges. It appears to me that 15 different users made a whopping 52 entries regarding Judge Gruender's former clerks.

Given that no other Eighth Circuit judge has this information on their Wikipedia page, it seems to me that the former law clerks section of Judge Gruender's page was created by someone on the judge's staff or by a former law clerk. I wonder why someone would include this information. Does knowing the former law clerk give new insight into the judge's opinions? Is it some sort of thank you for a job well done? Is it some sort of odd marketing campaign? I guess I can imagine a situation where someone says "I want to hire a former law clerk of Judge Gruender. I'm going to look on Wikipedia to see if there is a list of his former law clerks." However, I don't think that situation is very likely. Is there another reason to list a judge's former law clerks? Finally, do you think the Wikipedia page for this former federal judge should list his former law clerks?

Saturday, August 27, 2011

Iowa Corn Growers Association felled by the Gillette Torvik Blog?

Last Saturday, August 20, the Gillette-Torvik blog pointed out that the new Cy-Hawk Trophy was, to put it mildly, not a very good trophy. Three days later, Craig Floss, CEO of the Iowa Corn Growers Association, announced that the trophy would be changed. If the name Craig Floss seems familiar to our readers it is because we reported that the same Mr. Floss said that trophy that the Iowa Corn Growers Association wanted to use was "literally a work of art" when he was trying to get people excited about statute of a baseball-hat-wearing man kneeling next to a basket of corn in front of a woman and two children.

Rather than admit total defeat by using the old trophy, the Iowa Corn Growers Association is going to design several new trophies and let people vote as to which one should be new Cy-Hawk Trophy. I assume this voting will be done via the Internet. I am sure that will work out great. After all, it is little-known fact that Michelangelo and Leonardo Da Vinci both used social media to determine what their works of art should look like. Moreover, it was online voting that led to such totally reasonable results like the time internet voters said that a bridge in Hungary be named for Stephen Colbert or when Ataturk was voted to be Time Magazine's most influential person of the 20th Century.

In any event, while so-called "Mainstream Media" has yet to acknowledge our role in causing the change of trophy, the timing of the decision makes it pretty obvious that our post is the reason that the new trophy was withdrawn. No need to thank us.

Friday, August 26, 2011

No charges in Prosser v. Bradley; Abrahamson proposes to make court conferences public

UPDATE: Mr. Gillette scooped me on this.  See the next post below for his remarks.

The special prosecutor appointed to investigate the Bradley v. Prosser fracas has decided not to press any charges.  (Amusingly, this story appears in the "Crime & Courts" section of the website. It is hard to think of a more appropriate section name.)

The Wisconsin State Journal has received and posted all the police reports and interview summaries (including accounts from all six of the justices who were present for the incident).

Unsurprisingly, the accounts differ.  I haven't yet read them in detail, but summaries are available here and here.  One interesting fact: the accounts appear to be anonymous unanimous that the incident did not take place in Bradley's inner office.  Instead, Prosser was standing in the office of Bradley's secretary, and the incident occurred when Bradley came out of her office to confront Prosser there.

Another tidbit.  Justice Gableman says that Bradley is taller than Prosser, that she rushed him and supposedly punched the air around his face, and that the scene reminded him of this famous photo, with Justice Bradley in the role of LBJ and Prosser in the role of Senator Green:

This reminds me of something my brother overhead someone say at a restaurant once:  "LBJ would have just killed that guy."

In other but related news, Chief Justice Abrahamson has proposed to respond to the justified crisis of confidence in her court by making court conferences open to the public.  These are the meetings where the justices argue about how to vote on individual cases.  Abrahamson's notion is apparently that making the conferences public would force the justices to be on better behavior.

Mr. Gillette, I'm curious what you think about this idea.  The first word that comes to my mind is: "ridiculous."

Special prosector attempts to save Wisconsin Supreme Court from itself.

As reported by Bloomberg, the special prosecutor assigned to determine whether criminal charges should be filed as a result of the incident between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley, has decided that no criminal charges will be filed. One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself.

However, I think that hope is forlorn. While Justice Prosser didn't respond to press inquiries regarding the decision, Justice Bradley did. Her response to the press was that her focus was on "workplace safety" and that "criminal charges alone would not have addressed our safety in the workplace and the special prosecutor’s decision not to file charges does not resolve the safety issue, either.”

My translation of Justice Bradley's response is that this isn't over. My prediction is that the Wisconsin Supreme Court is going to continue to embarrass itself for the foreseeable future.

Saturday, August 20, 2011

Should Prosser have recused?

The New York Times editorial board has weighed in on the dysfunction at the Wisconsin Supreme Court.  The only interesting aspect of the editorial, to me, was the Times' assertion that Justice Prosser should have recused himself from the collective bargaining case because "his vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending."

I think this is quite wrong. Prosser's reelection became a focal point for "left-leaning" folks around the country because it was the only thing going after Wisconsin's new Republican majority pushed through the anti-public-union measures earlier this year.  In other words, people wanted to send a message to Republicans that they'd overreached, and Prosser was their sacrificial lamb. "Right-leaning" folks responded in kind, which is why "anti-union" forces contributed to his campaign.

Prosser won. But everybody knew how he was going to vote on that particular case the moment it was filed. (Leave aside for the moment that the case was pretty clear on the merits, ideology aside.)  The fact that pro-union groups turned Prosser's reelection into a proxy war over the collective bargaining bill does not make any reasonable person question his impartiality (at least not any more than they would had the proxy war never occurred).

Moreover, the idea that Prosser is somehow beholden, or even seemingly beholden, to those campaign contributors is absurd. This is not the House of Representatives, where another election is right around the corner, and raising campaign cash is a full time job. Prosser is 68-years old and was just reelected to a ten-year term. The chances of him ever needing to raise or spend another dollar of campaign funds are nil -- even if his term isn't cut short for supposedly choking Justice Bradley.

Indeed, if it were the law that Prosser had to recuse in that case, it would only increase the partisanship and gamesmanship involved in judicial elections. It would give some issue advocates a no-lose opportunity: make an issue out of an upcoming case and (assuming the other side responds) at the very least you get rid of Justice you don't like for that particular case. The other side would have a no-win.  For example, it would have presented the anti-union forces with an impossible choice -- by seeking to participate in democracy (by influencing the likelihood of Prosser's election), they would undermine the democratic result they sought to achieve (Prosser's ability to decide the question at issue).

In short, there was an election. Deal with it.

College football season approaches.

In college football there are many rivalries. Some, like the Ohio State-Michigan game or the Iron Bowl, are known to even non-fans. Others, like the Friends of Coal Bowl, are glorified advertisements for a product and I doubt even the most ardent fans refer to the game by the purported title. And some are in-state or perhaps neighboring state games where the rivalry is only important to fans in the area.

The Cy-Hawk Trophy used to fall into the last category. There are a number of reasons for this. First, Iowa and Iowa State did not play each other in football between 1935 and 1976. So the rivalry is not very old. Second, the schools are not in the same conference so the game doesn't have much relevance to conference standings. Perhaps most importantly, there are a lot of years when neither team is very good. Iowa State is almost always in the bottom third of its conference and Iowa, while more successful than Iowa State, is usually not in the top third of its conference. Since the game isn't a match up of two powerhouses, it doesn't get a lot of attention.

What is unusual about the rivalry is that it has apparently decided to change itself from one of intrastate importance into a glorified advertisement for a product. How is it doing this? By changing its trophy. Since the rivalry restarted in 1977, the teams have played for this trophy:

[Picture no longer available. But it was a sight to behold.]

It is fair to say that this trophy did not rival the Little Brown Jug or Old Oaken Bucket in college football lore. It may even be fair to say that the trophy looks like a sixth grade shop class project. However, I thought it had a certain, amateurish, charm.

The Cy-Hawk trophy has been retired and replaced by this.

The new Cy-Hawk football trophy was unveiled Friday at the fair.

If you look at the picture, then I probably don't have to tell you that the reason for the trophy change is that the Iowa Corn Growers Association and the Iowa Corn Promotion Board are the new sponsors of the game/trophy. Some might suggest that this trophy looks like it was designed by Bob Vander Plaats or that it looks like a statute you might find at a garage sale. However, as the Des Moines Register reports, Craig Floss disagrees. Mr. Floss is happy to inform you that the new trophy is "literally a work of art representing the people and characteristics that are uniquely Iowan." It is unclear what about the picture is uniquely Iowan there are reports that non-Iowans grow corn, stand, kneel, and wear clothing. Perhaps it is uniquely Iowan to do all three.

Who is Mr. Floss? Is he a noted art critic? No, he is the chief executive officer of Iowa Corn. By pointing out his job title, I do not mean to suggest that he doesn't know anything about art. Note that Mr. Floss said the trophy was "literally a work of art." Mr. Floss did not say that that it was a work of good art.

I am still looking forward to the upcoming college football season. As a former Iowan who did not attend either of the two institutions, I hope that both Iowa State and Iowa have good seasons (neither is expected to win their conference). I just wish they hadn't turned their game into an advertisement for something besides their respective schools.

Disclosure: I believe, but am not completely sure, that one of my uncles was the president of the Iowa Corn Growers Association back in the 1970s. In any event, several of my relatives grow corn and I hope they continue to prosper doing so.

Sunday, August 14, 2011

That was fast.

As most Minnesotans will tell you, we really didn't have a governor between the 2008 presidential election and the 2011 swearing in of current governor Mark Dayton. The reason for this was that Tim Pawlenty, the ostensible governor, was either running to be the GOP vice-presidential candidate under John McCain. You may have heard that Senator McCain picked someone else. Once Senator McCain lost the election, Governor Pawlenty started running to be the GOP nominee for president. It would be an understatement to say that Governor Pawlenty spent a lot of time in Iowa.

Despite this, Governor Pawlenty did not capture the hearts of Iowans. He came in a distant third in the the Iowa GOP straw poll yesterday. Now, he has decided to drop out of the race. I don't know whether to commend him for being realistic, deride him for not having the courage to stand as a candidate until an actual, you know, primary or caucus, or simply point out that the GOP race is still full of people who will never, ever, ever, be the GOP nominee for president in 2012.

Friday, August 12, 2011

Retaliation claims are not the same as discrimination claims.

As reported back in May, a federal jury found for the plaintiff/employee on a wrongful termination claim against the Madison Area Technical College. Dr. MichaelDubin, a history professor at the college, claimed that he suffered religious discrimination based on religion as well as retaliation for opposing unlawful discrimination.

As the Courthouse News notes, Dr. Dubin, who is Jewish, was apparently called --among other things--a "litigious Jew" by his supervisor. However, the jury verdict was solely on the retaliation claim as the religious discrimination claim was dismissed on summary judgment. This should not lead the reader to conclude that it is okay to call people litigious Jews. It is not.

As the summary judgment order makes clear, the religious discrimination claim failed because Dr. Dubin's religion was not known to the people who made the decision to terminate him. Since they didn't know his religion, the folks who terminated him couldn't have decided to terminate him because of his religion. They did however, know that he had complained about discriminatory comments.

They jury, apparently persuaded by the fact that Dr. Dubin was the only professor to complain about discriminatory comments and also the only professor (out of 18) on a probationary period who was not hired at the end of the probation period, found for the doctor on his retaliation claim.

In addition to seeking back pay and emotional distress damages, Dr. Dubin also sought reinstatement at the college. As a reinstatement is an equitable remedy, the court gets to decide whether to grant reinstatement. Judge William Conley decided to grant reinstatement this week. He also affirmed the award of lost wages (plus prejudgment interest) and lowered the emotional distress damages award to reflect the fact that emotional distress damages on federal religious discrimination claims are capped at $300,000. In other words, Dr. Dubin won just about everything he could have expected to win at trial.

What should one take away from this case? First, terminating employees shortly after they make discrimintion complaints is a bad idea. Second, just because a discrimination claim is found to lack merit, does not necessarily mean that a retaliation claim will also lack merit. As this case makes clear retaliation claims are seperate and distinct from discrimination claims and can lead to a completely different result.

Tuesday, August 2, 2011

Humor from Justice Ginsberg.

Jess Bravin has posted a text of remarks that Justice Ginsberg recently made to the Otsego County Bar Association. Given that the New York Times reported earlier this year that Justice Ginsberg is, if one discounts Justice Thomas, the least funny Supreme Court justice, one might expect the remarks to be a little dry. However, perhaps in response to Mr. Liptak's reports, Justice Ginsberg opened with plenty of humor.

Specifically, Justice Ginsberg gave her audience a rundown of some questions her colleagues asked at oral argument this year. She also included citations to the various transcripts. Anyway some of the incisive questions posed by members of the highest court in the land included:

1. What did James Madison think of video games?
2. Isn’t evidence always destroyed when marijuana is smoked, isn’t it being burnt up?
3. Does al-Queda know this stuff?
4. Why are you here?
5. Why are we all here?
6. I know your client doesn’t care, but we still have to write an opinion. So what is the answer?
7. Is the snake covered?
8. Where is the 9000-foot cow?
9. What do you think about Satan?

These kinds of questions give a new perspective on why Justice Thomas doesn't speak at oral argument.

Sunday, July 24, 2011

Michele Bachman did not confuse the birthplaces of John Wayne and John Wayne Gacy

Let me get this out of the way: I am not a supporter of Michele Bachmann.

But she is getting a raw deal. Most recently there was a ridiculous hullaballoo about her taking medication for migraines. This was such an obvious non-story that a backlash ensued. But it's not the first time that a story disparaging Bachmann has been concocted.

An earlier example is the meme (as repeated today by Frank Bruni in the New York Times) that she "confus[ed] the Iowa birthplaces of John Wayne and John Wayne Gacy."

No, she didn't. What she did is confuse Winterset, Iowa (the actual birthplace of John Wayne) and Waterloo, Iowa (where John Wayne's parents made their first home before he was born). So Bachmann did err, obviously, by mixing up two Iowa cities that contain eight or nine letters and start with W, both of which claim a connection to the Real John Wayne.

Maybe that's an embarrassing gaffe. I don't think so. But the reason it was news was because it just so happens that John Wayne Gacy (the serial killer) lived in Waterloo for a while and committed his first crime there (though he didn't murder anyone there). The idea was that Bachmann mixed up John Wayne and John Wayne Gacy. How hilarious! What a ditz -- she can't tell The Duke from the Killer Clown!

But anyone who believes this -- that Bachmann actually knew about John Wayne Gacy's connection to Waterloo, and even if she did that it was the reason she claimed it as the Real John Wayne's birthplace -- is too eager to believe the worst about her. Notably, the common charge (that, as Bruni put it, Bachmann "confus[ed] the Iowa birthplaces of John Wayne and John Wayne Gacy") is obviously false: John Wayne Gacy was born in Chicago. So if it were really true that somehow Bachmann had the biographies of John Wayne and John Wayne Gacy cross-wired in her head, then she would have had to claim Chicago as the birthplace of John Wayne.

Bachmann did not have the actual biography of John Wayne Gacy in mind when she made her claim about Waterloo. Nor is it remotely likely that she had an incorrect version of his biography (one in which he was born in Waterloo) in mind at the time. No, the answer the clear: she simply got confused about the birthplace of the Real John Wayne, and confused Waterloo with Winterset. The idea that John Wayne Gacy's adolescent residency had anything to do with this flub is just ridiculous.

I'm not the first to point this out. But the fact that the charge is still appearing in New York Times op-ed shows that this "confused birthplaces" idea is becoming one of those entrenched political fictions. Don't believe it! And be skeptical of any anti-Bachmann story you hear. Because whatever her merits as a presidential candidate, the press is out to get her.


In other news, Mother Jones reports that Bachmann has been all-but-murdering teenagers in her Congressional district.

This isn't exactly fair, but the Mother Jones article implying a link between Bachmann's politics and an "epidemic" of teenage suicides in her district made me think of another Mother Jones article I read many years ago, when I subscribed to the magazine, implying a link between childhood vaccines and the epidemic of autism.

Just goes to show that conservatives have no monopoly on the anti-science mindset.

Friday, July 22, 2011

Lots of people have lots of thoughts about law school

The New York Times hosting a discussion called "The Case Against Law School" in its current "Room For Debate" feature.  Some highlights:

Bryan Garner -- famous teacher of legal writing -- argues that law schools should teach more legal writing.

Our friend George Leef also makes an appearance, arguing again that law school would be better if going to law school were unnecessary: "if [law schools] had to compete against other modes of legal education, costs would fall and efficiency would rise."  It is unclear to me why the hundreds of law schools and 50+ different state bars fail to create for the requisite competition.

University of Chicago Law School Professor Geoffrey Stone counters that one cannot possibly "learn to think like a lawyer" without at least three years of formal legal eduction.  (Interestingly, according to his bio, Prof. Stone graduated from law school in 1971, then clerked for two years (including one year for Justice Brennan) and joined the U of C faculty in 1973.  Thus, clerking aside, it is not clear that he has ever actually been a lawyer with clients, though he is definitely the man when it comes to teaching people how to think like one.)

Professor Kevin Millard thinks that law school is just too darn practical. Rather than teaching people how to be lawyers (or even necessarily how to think like them), Prof. Millard thinks law school "should emphasize educated citizenship." Remember -- this is a post-graduate education. One wonders what high school, much less college, is for.


Tuesday, July 19, 2011

Another example of poor reporting from the lamestream media.

Slate. com has an article which asks the question, "why aren't the oldest living people getting any older?" The article claims that "In fact, eight of the last nine "world's oldest" titleholders were 114 when they achieved the distinction. Here's the morbid part: All but two were still 114 when they passed it on. Those two? They died at 115." The article goes on to posit that 114 (or so) is the age people can't live past; that the body simply isn't made to survive longer. Depressingly, the article suggests that predictions that people will one day live to be 150 are akin to predictions made in the 1950s that people in the twenty-first century would have flying cars.

As an initial matter, I am not ready to give up on flying cars. Also, my research indicates that the author is wrong about the last nine titleholders. Three off them, Edna Parker, Maria de Jesus dos Santos, and Gertrude Baines, were 115 when they died. Moreover, the author's use of the last 9 titleholders is an example of the tricks one can play with math depending on when one chooses to stop counting. If the author had counted the last 12 title holders (five of whom lived in the U.S.A.), the title holders would have had 6 people who lived to 114, four who lived to 115, and two who lived to 116. 114 doesn't seem so compelling if half the group lives past 114. I note that counting the last twelve only gets us back to August 2004. We are not talking about a very large sample.

In any event, the biggest problem with the article is that it fails to take into account the possibility that these deaths are all the work of a very clever serial killer. After all, each time a person assumes the title there is a lot of publicity for the person. Then, within a very short time, the person is dead. Are we to believe these deaths are age-based coincidences? According to the author, we are. However, if TV shows like "Lost," "Fringe," "The X Files," and the reportage of Nancy Grace have taught us anything, it is that the simplest explanation is often wrong. Until provided with definitive proof that these deaths are not the result of foul play, I remain unconvinced.

Wednesday, July 6, 2011

UPDATED 7th Circuit issues preliminary injunction against Chicago's new gun law

UPDATE (7/6/2011):

Today the Seventh Circuit reversed Judge Kendall's decision (discussed below) not to issue a preliminary injunction blocking Chicago's new gun law, which requires citizens to train at a gun range to get a gun permit but simultaneously outlaws gun ranges.  In sum:
[T]he judge’s decision reflects misunderstandings about the nature of the plaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights.
If this decision stands (i.e., is not overruled by the entire Seventh Circuit or the Supreme Court) then it will likely be back to the drawing board for the Chicago City Council.  It will be interesting to see what happens without Mayor Daley around...


Court denies motion for preliminary injunction in lawsuit challenging Chicago's new gun law

In McDonald v. Chicago, the U.S. Supreme Court held that the Second Amendment prevents states from passing laws infringing on the individual right to bear arms announced (or clarified, if you prefer) in District of Columbia v. Heller.  In doing so, the Supreme Court struck down Chicago's gun ban.  Chicago passed a new gun law just four days later--and less than a day after most alderman had a chance to look it over.  (As one alderman said, "The details don't really matter, I mean, it's not like we're selling off the parking meters this time.")