February: Month in Review

February was a good month for this ol' blog. Posts appeared nearly every day, and there was some good discussion, even with another blog. Here are some of the highlights, in case you missed them:

• Gillette penned the month's most-viewed piece, "A pointless boycot?" about whether poor treatment of Jack Kirby, a famed comic book artist, justifies a boycott of the upcoming Avengers film.

• Not to be out-nerded, Torvik responded with his own comic book post, about how Marvel is seeking a ruling that X-Men are not humans.

• Torvik and Gillette also exchanged posts about the rights of non-humans, specifically the most ferocious of sea mammals: ORCA. Gillette argued that it was okay to enslave an orca; Torvik told Gillette to watch his back.

• Torvik had two posts on trademarks: one about Pretzel Crisps™ and one about Linsanity™. I revealed that trademark law is a special interest of mine.

• Gillette took noted Scotusblogger Tom Goldstein to task for his speculation about Obama's next Supreme Court pick.

• Gillette wondered why anyone would view internet pornography at work. Torvik answered the question, unfortunately.

• Torvik "shredded" Nick May's post about some Wisconsin Republicans' legislation concerning employment law. In doing so, he discovered that some Democrats (and others) had been perhaps untruthful about the bill, and Torvik got all self-righteous about it. Then some sparks flew in the comments, finally.

• Finally, Gillette ended the month with a palindrome post.

Step on no pets

The Mercury News in San Jose, California has a story about an emerging field in family law practice - custody disputes over pets.

According to the article, 25% of respondents to a survey by the 1,600-member American Academy of Matrimonial Lawyers said that pet custody cases have increased noticeably since 2001. Breakups in same-sex marriages, civil unions and domestic partnerships are among reasons pet custody fights have become more common.

The article quotes family law attorney David Pisarra, who says pet custody cases have grown as much as 15 percent in his office over the last five years. Mr. Pisarra not only litigates these cases, he lives them. Mr. Pisarra shares custody of his dog with his now remarried “ex.” The article says that the ex's remarriage has “introduced a step-dog” in addition to the dog the “ex” shares with Mr. Pisarra. I use the term “ex” because that is what the article uses. The article is vague as to the gender of the “ex.” The article is unclear as to whether Mr. Pisarra's marriage was a traditional marriage or a same-sex marriage (not that there's anything wrong with that).

Mr. Pisarra has even written a book about “co-parenting a pet with an ex” titled “What About Wally.”

Lest our readers think that the article or this post are simply infomercials for Mr. Pisarra, the article also quotes Silvana Raso, a New Jersey family law attorney, for the proposition that people have begun viewing pets as family members rather than possessions. As a result, Ms. Raso says, people are willing to fight for custody of a pet in a way that people would not have during the Neolithic age known as the Twentieth Century. The downside to this, of course, is situations where one spouse uses the pets as a weapon. Ms. Raso had a case where an estranged wife killed her client’s two dogs.

Obviously, it is a good thing when people like Mr. Pisarra and his “ex” are able to amicably work out a custody/visitation arrangement for pets. Conversely, I feel safe in saying that killing a pet as a way of punishing a spouse is a terrible idea and, I suspect, illegal just about everywhere. Neither of these observations are what prompted me to write this post.

The reason I wrote the post is that it illustrates my belief the law is wonderful because there is always something new to learn. To quote Solon, thanks to the law “I grow old ever learning many things.” It had never occurred to me that custody arrangements for pets would be an actual thing. It also never occurred to me that “step-dog” is a thing. However, this may be because “step-dog” isn’t a thing. A search of the term on Google and Bing suggests the term isn’t used by anyone other than the writer of the article. Finally, it also hadn’t occurred to me that one consequence of the rise of gay marriage is that reporters have not figured out what terms to apply to former spouses in same-sex marriages (which is not to say that Mr. Pisarra was in a same-sex marriage. The article's use of "ex" simply made me think of the issue).

Most Democrats think the individual mandate is unconstitutional

Gallup has come out with some rather shocking results from a public opinion poll about the health insurance reform bill. Specifically, the poll finds that 72% of Americans—including an astonishing 56% of Democrats!—think that the individual mandate aspect of the bill is unconstitutional:

The obvious question is: what does the average American know about the constitutional arguments against the individual mandate? Answer: Absolutely nothing, huh, say it again! But it does show, I think, that this aspect of the bill is pretty unpopular.

Double duped

Madison's Capital Times newspaper has been duped twice in the past week or so.

First, it bought the lie that Republicans in Wisconsin passed a "bill to repeal equal pay protections for women in the workplace" in an "assault on pay equity." As I pointed out here and here, that is false. The Capital Times editorial board made the mistake of trusting Kathleen Falk on this one. She is running for governor in the recall election against Scott Walker.

Second, it "posted on its website and on madison.com a story that falsely said that U.S. Rep. Paul Ryan and U.S. Sen. Ron Johnson were joining state Rep. Steve Nass, R-town of La Grange, in pressuring the Smithsonian’s National Museum of American History to purge its archives of posters from last year’s protests at the Capitol in Madison." The newspaper quickly realized that the article was based on a fabricated news release and took the article down. In this case it was duped by a political cartoonist, who fabricated the press release and sent it to a Cap Times staffer. Apparently the joke was lost in transit.

The common element in both mistakes is that the folks at the Cap Times were too eager to believe the worst about their political opponents. This is an endemic human flaw. And it's why we should be most skeptical about stories that reinforce our preconceived notions about the world. But that's a tall order, of course.

Rick Santorum will never be President.

George Gallup, pride of Jefferson, Iowa, virtually invented modern political polling. So, perhaps one should take heed of the recent Gallup/USA Today poll, which found that former Pennsylvania Senator Rick Santorum leads President Obama 49%-46% in a national poll and leads 50%-45% in a survey of the swing states of Michigan, Ohio, Virginia, Colorado, Iowa, Florida, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania and Wisconsin.

Despite this survey, I am going to go ahead and call it. Rick Santorum will never be president of the United States of America. There are 4 reasons why Senator Santorum’s campaign is doomed to failure.

"I think it would be better if I didn’t speak."

The Wisconsin Supreme Court has decided to stop holding its meetings about administrative matters in public. The title of this post was Justice Prosser's only comment during the discussion.

I confess the idea of court administrative meetings in public seems nuts to me. But given the shenanigans on that particular court, I'm not sure now is the best time for a change.

Right Here Right Now (or why Maryland just got more palatable)

If the work of David Simon has taught us anything, it is that Maryland is a hellhole. However, just as a blind squirrel sometimes finds a nut, Maryland sometimes gets things right.

Lost amid the carnage of the Wisconsin/Minnesota blawg war was the story that the Maryland legislature has passed a bill legalizing same sex marriage. Maryland's Governor is expected to sign the bill into law. Assuming that happens, Maryland will become the eighth state to legalize gay marriage. The happenings in Maryland contrast those in New Jersey where the Governor of New Jersey vetoed the New Jersey legislature's attempt to legalize same sex marriage (although the veto may be overridden). Meanwhile, Minnesotans will get to vote in November on whether to make Minnesota's ban on same sex marriage part of the Minnesota Constitution. Also, Judge Tonya Parker, a judge in Dallas, Texas has decided to turn down requests to perform marriages until same sex marriage is legal in Texas. Because of this the blawg Above the Law has named Judge Parker it's "Judge of the Day." (As an aside, the Judge of the Day is a weird honor. The most recent winner of the Judge of the Day before Judge Parker got the award because he was caught on video beating his disabled daughter.)

Whether you are David Boies or failed Iowa gubernatorial candidate Bob Vander Plaats, I think everyone can agree the fact that 16% of the states now allow same sex marriage is remarkable. The Defense of Marriage Act (DOMA) was signed into law on September 21, 1996. It was fast track legislation and passed with overwhelming majorities in both houses (85-14 in the Senate; 342-67 in the House of Representatives). Now, before the bill is old enough to drive in most states, it seems that laws prohibiting same sex marriage are being consigned to the ash heap of history.

The only law that I can think of that rivals DOMA in terms of being popular when passed but quickly becoming unpopular is the Eighteenth Amendment, i.e., the prohibition amendment. However, it was somewhat more controversial as it only passed 65-20 in the Senate and 282-128 in the House of Representatives. Those are certainly healthy margins but not as healthy as the ones when DOMA passed.

Anyway, my favorite professor once commented one knows one is witnessing an amazing historical event when something happens that seemed unimaginable shortly before. He was speaking of the fall of the Berlin Wall but the sentiment is applicable here. DOMA passed by such wide margins because politicians in both parties thought that voting for it was a surefire way to please voters. At the time it was hard to visualize the possibility that same sex marriage would become legal by any manner other than court intervention. Yet, Maryland, New York, Vermont, New Hampshire, Connecticut, and (depending on whether a referendum defeats the legislation) Washington have all used the legislative process to legalize same sex marriage. Obviously politicians no longer feel that banning same sex marrriage is a surefire way to please voters. I doubt supporters of same sex marriage in 2006, let alone, 1996, would have thought this would happen so quickly.

Finally, a word of caution to folks in Minnesota (and possibly Washington, Maryland, and New Jersey where anti-gay marriage groups are pledging to mount ballot campaigns to overturn the laws), you might want to stay out of pizza restaurants until after November.

Some legal background on Obama versus the bishops

Back when the issue was actually in the news, I did a little thinking about the Catholic bishops' objection to Obamacare's contraception-coverage mandate. This entailed reeducating myself on something I remember studying in law school: the Religious Freedom Restoration Act (RFRA). Since I went through the process of reeducating myself, I thought I'd try to reeducate you too, Mr. Gillette. (Probably hopeless, but worth a shot.)

More on Wisconsin's Mythical Repeal of its Non-Existent "Equal Pay Act"

This morning I posted about how Wisconsin Assemblywoman Kelda Helen Roys from Madison falsely stated that the Republican-controlled Assembly had voted along party lines to repeal Wisconsin's non-existent "Equal Pay Act."

In my original post I charitably assumed this was a mere mistake. But I now believe it's a concerted campaign to distort what the Republicans have actually done. Why? Because other Democrats are spreading the same lie. For example, Racine Assemblyman Cory Mason:

Every time I think this legislative session could not possibly get any stranger or more shocking, my Republican colleagues do something else to surprise me. On February 21st, in a stunning move, Assembly Republicans voted to repeal Wisconsin’s Equal Pay Act. That's right, instead of passing bills to create jobs, Assembly Republicans repealed the law that ensured that women cannot get paid less than a man for doing the same job.

Both of the emboldened statements are false. As noted in my previous post, what the Assembly Republicans voted to repeal was Wisconsin's "Equal Pay Enforcement Act," which actually just allowed additional monetary remedies under preexisting substantive law, and did absolutely nothing to "ensure[] that women cannot get paid less than a man for doing the same job." Pointedly, even if Governor Walker signs the repeal, equal pay for equal work will still be the law of Wisconsin (and, perhaps more importantly, the law of the entire United States).

So I'm no longer willing to give the benefit of the doubt and assume that these are just mistakes. I'm now convinced that this an orchestrated campaign by Wisconsin Democrats to purposefully sow confusion. It's shameful.

In Assemblyman Mason's own immortal words, "Are you for real?"

UPDATE:

As anonymous notes below, Governor Scott Walker has signed the repeal bill.

Linsanity™

UPDATE 2/24/2011:

Six more trademark applications have been filed for "Linsanity," bringing the total to eight. The big news is that one of the filers is Jeremy Lin himself.

ORIGINAL POST 2/16/2012

Bloomberg reports that two separate trademark applications have been filed for the term "Linsanity." As you may know, Mr. Gillette, Linsanity is the catchall term for the hoopla surrounding Jeremy Lin, a Harvard graduate (and Asian-American) who has suddenly become a unlikely star for the New York Knicks. Both trademark applications have been filed by opportunists who have no current connection to Lin, the Knicks, or the NBA. One application is based on mere "intent to use" the term in commerce; the other (later) application claims actual use in commerce already. Specifically, on this t-shirt:

The Gillette-Torvik blog will be keeping an eye on these applications.

Major League Baseball and the nature of reality

Ryan Braun, the Milwaukee Brewers slugger and reigning National League MVP, will not be suspended for violating Major League Baseball's policy on banned substances. Normally, the lack of a suspension would not be news because allegations of a failed drug test are supposed to be confidential until the penalty is imposed. So, in the normal case, either a suspension is announced or nobody ever knows anything happened. In this case, though, the allegation that Braun failed a drug test was leaked to ESPN while the process was pending. Under those circumstances, Braun and his circle were perfectly happy to publicize the fact that he had been #exonerated.

A brief reply to Mr. May, or Blawg War III

As Mr. Gillette points out, Mr. May has a thoughtful post responding to my earlier piece about his attack on Wisconsin and all things holy. It's worth a read. I have only a couple of things to say in response.

Mr. May admits, as he must, that employment laws have costs to employers. But he argues that "taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired." I don't think that's right. The argument is that these laws do impose costs, and therefore can theoretically increase unemployment by increasing how much every employee costs an employer on average. So my point is only that it's not silly, as Mr. May said it was, to justify repeal the Equal Pay Enforcement Act as a pro-jobs bill.

But that is not to say either that the repeal will create jobs or that all regulations must be repealed in order to have an optimal labor market. Instead, some regulations will be a net gain, some will be a net loss, and some will impose real costs but be worth it for other (e.g., moral) reasons. Ultimately, there's a balance to be struck, and different people will have different opinions on where to strike it. The Republicans are trying to push it one way, and the Democrats are trying to pull it the other way. But neither party can ignore that one of the variables potentially at stake in that push-and-pull is jobs.

Mr. May makes one other argument that I think misses the mark. He says, "One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place." This is in fact false, simply because there are non-meritorious discrimination claims. In such cases, the employer has no choice but to pay the attorneys fees and costs to fight the claim, even though the employee was never actually discriminated against.

That said, I can see why Mr. May would make that argument because, as far as I know, he has never handled a non-meritorious claim. And I doubt he ever will.

Wisconsin v. Minnesota Blawg War Smackdown Round II

Nick May replies here to Mr. Torvik's argument as to why Wisconsin employers should be allowed to do whatever they want whenever they want because they are job creators (I'm paraphrasing).

Wisconsin v. Minnesota Blawg War Smackdown

Speaking of Wisconsin, Minnesota, and Minnesota legal blogs, our pal Nick May has an entertaining and informative post over at his excellent Minnesota Employment Law blog entitled, "Another Reason Minnesota is Better Than Wisconsin." That said, I am now going to tear it to shreds.

Compare and contrast

Check out Slate's article about the jury that convicted George Huguely of murdering Yeardley Love. Then read Elie Mystal's account of being on jury duty in New York. Or vice versa. In either order they are both interesting reading.

Why would anyone do that?

We don't blog much about Minnesota. In fact, before this post we had as many posts tagged Milwaukee as we do Minnesota. I won't speak for Mr. Torvik, but one reason that I don't blog about Minnesota much is that I generally feel like the folks at Minnesota Litigator have the ground covered.

That said, I did have a thought about this recent Minnesota Litigator post. The post concerns a recent discovery order in a sexual harassment case. The plaintiff's computer forensics expert was allowed to examine the alleged harasser's work computer and discovered that the alleged harasser spent a lot of time during working hours looking at pornographic websites on his work computer. I assume that this information is relevant to the sex harassment claim because the employer is not involved in the pornography business.

I do not consider myself naive and this isn't the first time that I have heard of this sort of activity. I once attended a deposition where the printouts of the thumbnails for the number of pornographic websites an individual looked at work ran to over 400 pages. However, every time I hear about something like this I ask myself what kind of an idiot looks at this stuff at work. Setting aside any moral issues one might have with pornography, why would anyone think that these are the sort of websites one should look at at work? Why would anyone think such behaviour was a good idea?

Mr. Torvik, do you have any desire to perform a feat of zealous advocacy and give our readers a good reason to look at Internet porn at work?

Note to readers: Do not threaten Judges in the comments. We don't want to get sanctioned.

As KAAL-TV reports, Carver County Judge Richard Perkins has ordered portions of the Carver County Corruption blog shut down. The blog seems to focus on the child custody proceedings of Lea Banken, the blog's host. Judge Perkins is overseeing those proceedings.

Apparently, Judge Perkins was unhappy with some of the comments posted on the blog. Among other things, one comment stated that the judge "should be castrated, tortured and bleed to death." Other comments stated that the judge should be hung. However there was some dispute over whether the hanging should be in downtown Chaska, Minnesota or from the nearest tree. According to the article Judge Perkins has also fined Ms. Banken $10,000 for contempt of the order.

We have previously pointed out that suggesting that judges should be killed is a bad idea. However, in that case the person threatening the judge was punished, not the person providing the forum for threatening the judge.

Of course, Ms. Banken posted about the Judge's order directing that the comments be removed. People commenting on the post responded with exactly the sort of reasoned discourse one might expect. A comment from Linn informs us that the judge is the "biggest DOUCH BAG EVER." (capitalization in original.) Linn asks "how the hell does this man function with no soul!!!??" (exclamation point and question mark usage in original.) Linn also informs us that "HELL HAS A SPECIAL PLACE FOR people" like the judge. (capitalization in original.) Linn also makes it clear that she wants "SEE A MENTAL EVALUATION DONE ON THIS SICK JUDGE!!" (capitalization and exclamation point usage in original.)

While it is possible that Linn is a writer for "IRISH ARGUMENTS WEEKLY," if I were to make a list of ways to ensure that a "mental evaluation" is not done on someone, making that request in all caps would be high on the list—perhaps even in the top 5.

In any event, the Carver County Corruption blog and the Court's orders are a sad reminder that family law cases are often very bitter disputes. Reviewing the CCCB's comments also made me thankful that the people (person?) who comment on this blog keep the discourse at a higher level. We are nearing our two-year anniversary and we have yet to be fined of held in contempt because of a comment made on this blog.

Lawyers make big money from Menards

Devoted follower(s) of the Blog may recall my post on the Wisconsin Supreme Court's decision in Sands v. Menard, Inc.

In short, Dawn Sands became the general counsel of the Menards chain of home-improvement stores, but continued to be paid a measly $56,000 per year (though the previous, and male, GC got about twice that much). Eventually she sued under the Equal Pay Act, etc., and won an arbitration. The arbitration ordered not only back pay, but also reinstatement to her position as the company's chief lawyer.

Eventually the case went to the Wisconsin Supreme Court, which vacated the reinstatement portion of the arbitration award on the theory that it was against public policy to force a company to hire a lawyer it hates. (This raises the question of whether a company can hate, and more importantly the question of who the corporate attorney's client is—but see the previous post for my thoughts on that.)

That old post is one of my favorites because it presaged the blog's coming fixation with the turmoil on the Wisconsin Supreme Court. I stand by my original opinion that the dissent made a good argument in 25 pages that would have been better made in a single paragraph, and that the remaining 24 pages only showed how ridiculous and petty the infighting on that court had already become. Subsequents events have, ahem, proved my point quite satisfactorily.

Anyhow, in lieu of reinstatement, the Court ordered the lower courts to make an award of front pay. As I noted recently in an update at the end of the original post, the circuit court eventually awarded about $600,000 in front pay and additional $600,000 or so in attorney's fees. Not a bad payday for the plaintiff, in addition to her $1.2mm in damages from the arbitration. And so the case finally came to a close.

Not so fast!

Menards has appealed!*

We bloggers can only hope the case gets back up to the Wisconsin Supreme Court.

*UPDATE: I should note that it may be that it is actually Sands who filed the latest appeal. She is indeed listed as the appellant, although Menards is listed as a cross-appellant. So apparently nobody was satisfied with the $1.2mm award.

FUTHER UPDATE (5.11.2013): On March 26, 2013, the Wisconsin court of appeals reversed the district court's decision. Essentially, the Court found that the circuit court judge should have considered whether to hold an evidentiary hearing on the front pay issues. So the case has been remanded for the court to reconsider that issue.

Another affirmative action case...

It looks like the Supreme Court is going to decide another case about whether affirmative action is appropriate in the university setting.

This was all but inevitable after the Court's split in the Gratz and Grutter cases back in 2003. (I wrote my unpublishable law review note on those cases (when they were pending), so it is kind of a sore spot for me.) Justice O'Connor approved affirmative action to further a compelling state interest in promoting diversity but famously speculated that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

At the time, this gave me an great idea for the title of a law review article:  "Admissions Impossible: This Opinion Will Self-Destruct in 25 Years."

Turns out we might get a premature explosion.

Pretzel Crisps™

The New York Times has an interesting article about a trademark battle between Frito-Lay and a small food company that innovated those tasty and oh-so-dippable Pretzel Crisps.

Specifically, Frito Lay opposes the effort to register a trademark for the term "Pretzel Crisps" because, they argue, it generically describes the snack category. Generic terms cannot be trademarked, even if they acquire distinctiveness (or secondary meaning).

The article sets this up as a David vs. Goliath story, with Big Food using spurious IP claims to crush a scrappy snack entrepreneur. But that's not quite right. After all, it is the little guy here who is trying to stake an IP claim by registering the trademark. (They got out of the funnel cake business because "anyone can make a funnel cake . . . You can’t trademark or patent it.") And "Pretzel Crisps" seems pretty generic to me.

Anyhow, as always the Gillette-Torvik Blog will be keeping an eye on this case as it proceeds through the Trademark Trial and Appeal Board.

Dancing with the devil

President Obama recently decided to embrace so-called "super PACs" for his reelection campaign. This despite his prior position that such groups should be outlawed, on the argument that—as Justice Ginsburg recently implied—they "give rise to corruption or the appearance of corruption."

Given this, I think at least one of three things must be true:

1) President Obama is corrupt;
2) President Obama is apparently corrupt; or
3) President Obama doesn't really believe that this kind of money gives rise to corruption or the appearance of corruption.

Which do you think it is, Mr. Gillette?

My own guess is number three. But at least one prominent campaign-finance reformer has lambasted Obama for "dancing with the devil" by employing this "corrupting tactic": Russ Feingold.

"The Obama administration has quietly unleashed a multi­agency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush."

A foolish drug war without end, apparently.

When contemplating these matters, it is hard not to remember that President Obama himself has admitted to smoking a lot of pot and doing cocaine (when he could afford it) in his younger days. Is this not staggering hypocrisy, Mr. Gillette?

President Obama's next Supreme Court Justice pick.

SCOTUSblog has a post speculating on who will be President Obama's next nominee for the Supreme Court. The post also, helpfully, speculates as to who the nominee will be replacing given that there are no vacancies on the court.

The post informs us that "the odds are good that Justice Ginsberg will retire in the third year of the second Obama term." The post specifically declaims that Justice Ginsberg's bouts with cancer are the reason for this as-yet-unannounced plan to resign. Instead, Justice Ginsberg (who is Jewish) will retire in 2015 because Justice Brandeis (the first Jewish supreme court justice) retired at 82. Also, both Justice Ginsberg and Justice Brandeis were appointed to the court at the age of 60. So, I guess they have to retire at the same time. I am not sure if the retirement would be an homage to Justice Brandeis or if the retirement is dictated by either statute or talmudic law.

In further support of the retirement prediction, the author writes, "Justices tend to retire strategically to permit ideologically sympathetic presidents to name their successors." The article doesn't point to any examples of this. Probably because it isn't true. If one looks at the list of Supreme Court Justices , there have been a total of 112 justices on the Supreme Court. Obviously, 9 of those justices are still serving. So, we have a total of 103 justices who left the court.

49 of those justices didn't leave voluntarily, they died while serving. I am going to assume that justices that died during the presidency of an "ideologically sympathetic president" did not die in order for that president to appoint a successor. After all, if those justices wanted to let that president get a nomination they only had to resign, not kill themselves. I leave to Mr. Torvik to uncover evidence of presidents having ideologically sympathetic justices killed.

Of the 54 justices who didn't die in office, how many resigned during the tenure of an ideologically sympathetic president? The shorthand way of looking at this is to look at the political party of the president who appointed the justice and the president who appointed the replacement. The problem is that this approach doesn't account for people like David Souter, a Republican-appointed justice whose views might be regarded as being more ideologically sympathetic with the person who appointed his replacement, President Obama. Nor does that approach take into account people like William Brennan, a Republican-appointed and Republican-replaced justice who is considered to be a liberal and so his resignation arguably didn't coincide with the term of an ideologically sympathetic president. It also doesn't cover John Rutledge, whose recess appointment to chief justice was rejected by the Senate.

However, in the interest of brevity, I will adopt the general approach that party membership suggests ideological sympathy (excluding Rutledge as, like death, his rejection was beyond his control). Of the remaining 53 resignations or retirements, 26 were made during the tenure of a president that belonged to the same party as the president who appointed the justice. That means 27 resignations occurred when the presidency was in the hands of a different party than the one that appointed the justice. From this, I don't see how we can say that it is a "trend" for justices to retire shortly before the end of an ideologically sympathetic president's term.

If anything, the examples of Hugo Black, William O. Douglas, Stephen Field, Oliver Wendell Holmes, Jr., Thurgood Marshall, and others indicate that justices don't step down until their poor health makes them.

As for the speculation as to who is going to be President Obama's next nominee, the author thinks it will a woman belonging to an ethnic minority. You and I, Mr. Torvik, are out of luck.

Meanwhile in Nevis....

Justice Breyer and others were robbed at machete point (machete tip?). There is absolutely no reason to believe that the robber was inspired by the Danny Trejo movie.

"I think that you've got to understand that if you save even one life, you are saving the whole world."

This is what Illinois Governor Pat Quinn said when signing a bill to allow "speed cameras" to robotically ticket people for speeding in Chicago.

I just want to point out that his quote is nonsense. If followed even one step towards its logical conclusion this principle would absolutely require the abolition of all automobiles. After all, thousands and thousands of people are killed by automobiles every year. Why stop with the "speed camera" or "red light camera"? Why not outlaw cars? Or even roads?

Perhaps the answer is that some other principle is at work here. Maybe something about raising money from traffic tickets. Just a wild guess.

Are X-Men Human?

Bringing together two recent themes on the blog—the rights of non-humans and comic books—consider this: are X-Men human?

Marvel's lawyers are insisting that the mutants are not human. This is not a part of a plan to enslave them; it's merely a matter of international trade. Apparently U.S. law imposes a lower tax on the importation of toys if they represent non-humans than if they represent humans. So Marvel is trying to get an interpretation that X-Men toys such as Wolverine do not represent humans.

This of course puts Marvel's tax lawyers at odds with the moral push of its own comic books, which tend to argue that the mutant X-Men should have the same rights as non-mutants. Awkward.

But perhaps the most puzzling question is why the US taxes human and non-human toys differently. What's the possible justification for that?

Orca's Revenge

Mr. Gillette, you are treading on dangerous ground in joining the crusade against full rights for killer whales.  Consider yourself warned:

Leaving aside the danger that Orcas will now hunt you down to the ends of the earth, I think your reasoning is also mistaken.  You say "the only logical stopping point to PETA's argument would be that no animals could be kept by anyone for any purpose." I disagree.

I think it's possible, though not easy, to draw some lines here. Start with the obvious: there are significant differences between a termite and a killer whale, particularly in their mental capabilities and complexity. This is why we smile when children use magnifying glasses to blow up ants but frown when they hit the dog with a baseball bat. Dogs are much more like us than ants, and anyone who treats them the same is probably a psychopath.

Taking it further, it's arguable that some animals share the qualities that we think make human beings entitled to special protection under the law. Among these qualities are sentience, intelligence, and ability to experience complex emotions (including negative ones like suffering and depression). Some philosophers, such as Peter Singer, argue that many of the higher mammals do share these qualities, and that our enslavement of them is therefore unethical and frankly barbaric.

To take the principle to its ultimate extreme, imagine that earth is visited by sentient extra-terrestrials. On one hand, they meet our loose legal definition of "animal": all non-human animals. But would it be constitutional to enslave them, even if they could protest and articulate arguments in English as to their suffering? That's frankly unfathomable. (Come to think of it, the movie and TV show "Alien Nation" took up some of these issues. I recommend it.)

So I don't think that "humanness" alone can be sole determinant of whether the 13th amendment prevents a life-form's enslavement. Then what is? This is where it gets sticky. One nominee would be "sentience," but not all humans are sentient (e.g., infants and mentally disabled people may not be sentient).

For me, there's a pretty slick resolution to this. A species is entitled to equal protection under the law if at least one of its members is able to petition, in a language that we can translate and understand, for protection under the law. This covers the "Alien Nation" situation, and it skirts the issue of non-sentient humans.

In other words, we're waiting for Caesar.

Feel free to enslave an orca.

On the rare occasions that we aren't ruminating on the nature of reality, we sometimes discuss the Constitution. As far as I can recall, we yet to discuss the applicability of Reconstruction Amendments to animals. I can't speak for Mr. Torvik, but the reason that I have never posted on this topic was that it had never occurred to me that the Civil War was fought over animals rights. This is not to say that animals weren't involved in the Civil War. According to this, more than a million horses died during the conflict.

Yesterday, Judge Jeffrey T. Miller, United States District Court Judge for the Southern District of California, ruled that Tilikum. Katina, Corky, Kasatka, and Ulises, five orcas at Sea World San Diego, were not entitled to sue Sea World under a theory that Sea World has enslaved the orcas in violation of the Thirteenth Amendment. A copy of the order is here.

The Thirteenth Amendment essentially says that "Neither slavery nor involuntary servitude . . . shall exist in the United States, or any place subject to their jurisdiction." The sole exception to the amendment is if the slavery or involuntary servitude is a punishment for being convicted of a crime. Some people will think that of that as being on a chain gain. Others might think of this episdoe of "Seinfeld." But I digress.

The 5 orcas brought suit seeking a declaration that they were being held by Sea World in violation of the Thirteenth Amendment. Apparently, each of the orcas was capture in the wild and brought to Sea World. The orcas, through PETA which filed the suit on their behalf, allege that they are being deprived their, and I am not making this up, "cultural traditions" as well as their "ability to make conscious choices." One thing that may surprise readers, according to the order, orcas in captivity live around 8.5 years, while orcas in the wild live 65 years.

Judge Miller found that the Thirteenth Amendment didn't apply to non-humans. To reach this conclusion, the judge looked at a dictionary from the time the amendment was written. Order at 5. In 1864, Noah Webster's dictionary defined slavery as "the state of entire subjection of one person to the will of another." Also, in the Slaughter-House Cases the Supreme Court stated that involuntary servitude, can "only apply to human beings." The judge also noted that the Emancipation Proclamation discussed slavery only in the context of persons. (Order at 6.) Finally, the judge noted that the references to punishment for a crime also indicated the amendment applies only to humans because only humans are punished for crimes. (Order at 5.) Although the judge didn't mention it, not being able to be punished for a crime arguably benefited Tilikum who killed a Sea World trainer in 2010 and apparently also helped drown a trainer in 1991. (if you are wondering how Tilikum has been at Sea World for over 20 years when orcas only live 8.5 years in captivity, that is not explained in the order. Perhaps they only live 8.5 years on average).

Recognizing this problem, PETA argued that the court should find a new right for orcas in the Thirteenth Amendment. (Order at 6.) To make support this argument, PETA pointed to several famous civil rights cases, Griswold v. Connecticut (recognizing humans have a right to privacy in the context of using contraception), Brown v. Board of Education (racial segragation in schools violates the Fourteenth Amendment), United States v. Virginia (state run college cannot refuse to admit women), Thompsen v Oklahoma (Eighth Amendment prohibits the execution of children under 16), and Miranda v. Arizona (police must notify suspects of their right to remain silent and right to counsel). People who like sex, African-Americans, women, children, and criminal suspects, can argue amongst themselves as to who should be more offended about being compared (perhaps unfavorably) to an orca.

The judge rejected these arguments by analogy because he felt that the various amendments at issue were more susceptible to an "expansive interpretation" than the Thirteenth Amendment which deals with a single issue. (Order at 6-7.) I would have rejected this argument by analogy because the rights expanded in the other cases were rights given to (or perhaps held by) humans.

While PETA's complaint was only trying to create "new rights for orcas," I don't think their attempted limitation makes any sense. Sea World San Diego has a lot of different animals. Why would enslaving orcas be a constitutional violation but enslaving bottlenose dolphins, beluga whales, sharks, sea lions, and others be acceptable under the Constitution? Moreover, what would be the distinction between orcas at Sea World and guide dogs or other service animals. Those animals don't exercise a conscious choice either. While the complaint certainly makes it seem like the orcas are kept in pretty horrible conditions (I've never been to Sea World San Diego so I don't have any firsthand knowledge of the place), the only logical stopping point to PETA's argument would be that no animals could be kept by anyone for any purpose without violating the Thirteenth Amendment. I suspect that the lack of a logical stopping point was on the judge's mind when he decided to dismiss the case.

The Seventh Circuit disbars high-profile Milwaukee criminal lawyer for client abandonment

The Proof & Hearsay blog has the scoop.

Note: the Seventh Circuit will not be ignored!

A pointless boycott?

Early on in our run at the Gillette-Torvik blog we did a couple of posts about how comic book publishers sometimes try to steal from comic book creators. This is a problem as old as Superman.

Today on Slate, comic book artist James Strum suggests that people should boycott the new "Avengers" movie. The Avengers, for those who don't read comics books, is the name given to a superhero team composed of characters owned by Marvel Comics. The most notable members of the Avengers are Captain America, Iron Man, Thor, and the Hulk. One reason that these are the most notable members is that each has been the subject of at least one major movie release in the last couple of years.

Mr. Strum is unhappy with the way that Jack Kirby was treated by Marvel. Mr. Kirby was the main artist at Marvel when its various superhero comics really took off in the early 1960s. Among other things, Mr. Kirby helped create Captain America, the Fantastic Four, and many others. Mr. Kirby had a very distinct artistic style and Marvel undoubtedly owes a lot of its success with those characters to Mr. Kirby.

Unfortunately for Mr. Kirby, he signed a contract acknowledging that his artwork was done as works for hire. This meant that he didn't own any part of the copyright to the characters he created. This meant that while Stan Lee, the publisher of Marvel and Mr. Kirby's co-creator on many characters, was earning a fortune on licensing the characters, Mr. Kirby wasn't earning anything other than his fee per page of artwork. Mr. Strum, perhaps understandably, thinks this is unfair.

As a result of this unfairness, Mr. Strum has decided to boycott "The Avengers" (a movie he wants to see). According to the article, Mr. Strum is not the only person boycotting the movie for this reason.

Frankly, I don't get the point. As Mr. Strum notes, Mr. Lee--the guy who arguably did Mr. Kirby wrong--no longer owns Marvel Comics. Mr. Lee sold Marvel to Disney. Disney didn't do anything to Mr. Kirby. The reason that Mr. Strum thinks that Disney should be punished because it defended the agreement that Mr. Kirby made with Marvel comics that his works were works for hire. Mr. Strum suggests that Disney should feel shame for defending the agreement (an agreement that was undoubtedly part of the reason Disney paid $4 billion dollars for Marvel). What is the larger principle that Mr. Strum is arguing for? That Mr. Kirby owns part of the copyright? Well, that was true until Mr. Kirby signed the agreement with Marvel that his work was a work for hire. The article notes that Mr. Kirby apparently refused to sign an initial agreement that Marvel wanted him to sign. Instead, Mr. Kirby signed a different agreement. This suggests that Mr. Kirby knew what he was negotiating and this wasn't some sort of coercive contract. Is the principle that corporations shouldn't honor contracts? That can't be the larger principle as without contracts organized society ceases to function. Mr. Strum certainly would have sued if Slate breached its contract with him and not paid him for his work. Is the principle that corporations like Disney that make a lot of money off of a work for hire should give some of that money back to the creators? What happens if the movie tanks? Would we say that some of the risk was Mr. Kirby's (or more accurately, his estate's)? Moreover, why is Disney, who wasn't involved in the contract, on the hook for any injustice done long before it purchased the company? Help me out, Mr. Torvik, why isn't Stan Lee (who presumably got the money on the sale to Disney) the appropriate target of these protests?

Finally, given the subject matter, I found it somewhat amusing that the picture that Mr. Strum drew of people protesting Marvel's treatment of Mr. Kirby.

I am not sure if Mr. Strum is spoofing the stereotype that only young men care about comics or reinforcing it.

Justice Thomas stands up for the little guy

Recently, the Supreme Court decided the case of Pacific v. Valladolid.  It is a decidedly unsexy case, and its ruling did not provoke any headlines in the New York Times. The unsexy issue: whether the Longshore and Harbor Worker's Compensation Act extends to an employee who died on land rather than at sea, if the death had a "substantial nexus" to his work at sea. According to the Supreme Court, it does.

Why is this bloggable?

First, the opinion was unanimous.  There was no ideological split, though Alito and Scalia did file a separate opinion concurring in part and concurring in the judgment.

Second, the case came up from the Ninth Circuit, which the Supreme Court famously likes to smack down.  And the Ninth Circuit's opinion was in conflict with two other circuits which had decided the issue, so it may have seemed ripe for a smackin'.

Third, the losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to.

Fourth, the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout."  This would seem to refute the argument that textualism is just a smokescreen that judges use to get the results that they subjectively prefer.  (For another example, see this prior post.)

In other words, this case should make you question your cynicism.

Hollywood and the subjective nature of reality

Above is David Boies. Below is George Clooney

Below Mr. Clooney is Theodore Olson

And this is Martin Sheen

What is the connection between these four men? According to the Wall Street Journal Law Blog Mr. Clooney and Mr. Sheen are set to portray Mr. Boies and Mr. Olson, respectively, in a Hollywood version of the play "8." Sometimes, actors get parts because they look a lot like the historical character they are playing. I think we can all agree this is one of those times. No word on whether Mr. Sheen and Mr. Clooney will reenact this scene:

Appellate Courts and the nature of reality

It appears that the curious case of Gallop v. Cheney is over. The case is one filed by "Truthers," people who believe that the events surrounding the 9-11 attacks are not what most people believe.

April Gallop, a soldier working in the Pentagon on 9-11, filed a complaint in the United States District Court for the Southern District of New York, alleging that a plane did not crash into the Pentagon on 9-11. Instead, Vice-President Cheney and other senior civilian and military leaders arranged for explosive charges to be detonated in the Pentagon to give the false impression that a plane had crashed into the building. As an aside, Ms. Gallop apparently agrees that planes actually did hit the World Trade Center. However, Ms. Gallop believes that the government officials she sued knew about the attacks in advance and did not stop them because they wished to "enact and implement radical changes in the policy and practice of constitutional government." The attack at the Pentagon was designed to conceal the revelation that $2.3 trillion in congressional appropriations could not be accounted for by the Department of Defense.

Unsurprisingly, the district court dismissed Ms. Gallop's complaint as frivolous. Then, to borrow a phrase from the late Hunter S. Thompson, the going got weird. Ms. Gallop filed an appeal. The Second Circuit Court of Appeals affirmed the district court's dismissal of the case. However, the appellate court also sanctioned Ms. Gallop and her attorneys because the appeal was "brought without the slightest chance of success." You can read that opinion here. In making the sanctions decision, the court told Ms. Gallop and her attorneys to figure out who of them was responsible for the appeal.

It evidently did not take too much time to figure out who was responsible for the appeal because during the period that was supposed to being taking place Ms. Gallop requested that the Second Circuit here the case en banc. She also asked that the judges who initially ruled on her appeal recuse themselves and that any members of the Second Circuit who "shared the feelings" of the initial judges also recuse themselves. That led to this order, where the Second Circuit sanctioned one of Ms. Gallop's attorneys again.

In October, the Second Circuit issued it's sanctions order. It is here. In it, the Second Circuit declined to sanction Ms. Gallop but found that her attorneys should jointly be sanctioned $15,0000. The sanction didn't go over too well with her attorneys and they asked the sanction order also be considered en banc. Today, the Court issued its decision slightly modifying the sanctions order. It is here.

In one sense, the decision is a win for at least one of Ms. Gallop's attorneys. The local counsel, Mustapha Ndanusa was not sanctioned. However, that didn't mean that the sanction amount was lowered. Instead, the remaining two attorneys, Dennis Cunningham and William Veale, were on the hook for the entire $15,000.

The Second Circuit rejected the use by Mr. Cunningham and Mr. Veale of what Mr. Torvik might label the "Isaiah Lewis Defense." Put another way, Mr. Cunnigham and Mr. Veale argued they shouldn't be sanctioned because they truly believe that the government planned the attack on the Pentagon. That belief turned out to be irrelevant for the sanctions motion because the Second Circuit sort of moved the goalposts. The sanctions were not being imposed for the original appeal. They were being imposed because of the recusal motion. Essentially, the court said since there was no authority for the proposition that an entire circuit should recuse themselves for sharing the beliefs of the orignal panel, then the recusal motion was therefore sanctionable.

I suppose that Mr. Cunningham and Mr. Veale might feel vindicated that their views on 9-11 were not the source of the sanction. As a general rule it is probably a good thing if courts don't sanction folks simply for being reality-challenged. On the other hand, this sanction sort of feels like cheating. A review of the orders suggests that Mr. Cunningham and Mr. Veale didn't think (or perhaps didn't understand) that the requested result of their recusal motion was the thing they were supposed to being defending to the court. This sort of makes the sanctions order feel like the result of a hyper-technical argument or trick. What do you think Mr. Torvik, did the court use a "gotcha!" approach in order to impose sanctions?

Is it a felony to videotape a police officer on the job in Illinois?

The short answer is yes.

Should it be?

Consider this, one of my favorite Supreme Court passages (from City of Houston v. Hill):

The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

That case struck down a law that made it a crime "for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty," which had been used to justify the arrest of a bystander for "verbal challenge [of a police officer] during an investigation."  The specific "verbal challenge" was: "Why don't you pick on somebody your own size?"

It seems to me that if there is a right to shout at the police—and there is—there should also be a right to document their official activities in public.

UPDATE:

See here for an update regarding judicial and legislative action on this law..