Monday, April 30, 2012

Today's lesson in law practice:

How not to leave a law firm.

Cereal and the nature of reality: "natural" does not equal "organic."

The USA Today, a paper Homer Simpson described as "the only paper in America that's not afraid to tell the truth, that everything is just fine,"  has a story about how some folks are distressed to learn that Kashi cereals are "natural" but not "organic." 

Friday, April 27, 2012

The Minnesota Legislature also knows how to disappoint children.

A few days ago I posted about how Wisconsin ended up with a state dog.  Perhaps unhappy that Wisconsin received some attention for disappointing children,  Minnesota's legislature has decided to get in on the action.  According to Vicki Froslee's opinion piece in the Minneapolis Star Tribune, a group of first-graders from Andover, Minnesota was rebuffed in their efforts to name the black bear Minnesota's "state mammal."  Among other indignities, the kids were promised a hearing before one of the committees in the Minnesota House of Representatives but the hearing never took place.  According to Ms. Froslee the hearing was "held up by House leaders."   

You will like this even if you think you won't.

The New Yorker recently unlocked these fantastic pieces of writing by Robert A. Caro.  I heartily recommend them.

Thursday, April 26, 2012

Something I have never heard of before: a Federal district court judge files for bankruptcy.

The Wall Street Journal Law Blog reports that Judge Otis D. Wright II, a United States District Court Judge for the Central District of California, has filed for bankruptcy.  The post says that Judge Wright's bankruptcy petition (which was filed late last year) lists assets of $833,426 and liabilities of $895,292. Evidently the judge and his wife have more than $70,000 in credit card debt, including $12,740 on a Nordstrom card, according to the filing.  The post says that Nordstrom is suing the Judge and his wife over the debt.

He parked where?

Excellent post, Mr. Torvik; speaking of law-related books, I am reading Justice Brennan: Liberal Champion by Seth Stern & Stephen Wermiel.  The book has been a good read so far and I recommend it.  I am just at the part where Warren Burger replaces Earl Warren as Chief Justice.

"...smiles, coquetry, shrugs, sauciness..."

I recently moved into a new office that has a small "library" in the common area. This library has a number of very old books in it. One of them is called Cross-Examination of Witnesses, first published in 1929. Since I was preparing for a trial, I decided I'd see if this tome had any useful nuggets in it.

Well, not exactly.

Wednesday, April 25, 2012

It is official, Connecticut has banned the dealth penalty.

The Wall Street Journal reports that Connecticut Governor Dannel Malloy has signed into law a bill banning the death penalty in Connecticut.  We posted about the proposed ban here.  Governor Malloy's statement said the signing should prompt "sober reflection, not celebration."

In my post on this topic, I noted that Connecticut has only executed one person since the Supreme Court reinstated the death penalty in 1976.  Governor Malloy's statement points out that in the twelve years prior to Furman v. Georgia (the United States Supreme Court cases that led to a moratorium on the death penalty between 1972 and 1976), Connecticut also executed one person.  That is, Connecticut actually carried out the death penalty on two people in the last 52 years.  Apparently in both cases the prisoner dropped his appeals and requested execution.  Governor Malloy points to the fact that death penalty cases involve a lot of appeals as one of the reasons for abolishing the death penalty (as opposed to abolishing the appeals).  The governor also notes that the eleven men currently on death row in Connecticut (the new law does not repeal the death penalty for them) "are far more likely to die of old age than they are to be put to death."

To be fair, Governor Malloy also mentions moral opposition to the death penalty as well as concerns over putting an innocent person to death.  Both of these concerns are legitimate reasons to oppose the death penalty.  Is a lengthy appeals process on par with these other concerns?  I am skeptical.  After all, one would think that the length of the appeals process might help alleviate the concern over mistakenly putting an innocent person to death.

"Hot Dog, yep that's me. I've got no shame in my game."

Thus spoke Wayne County, Michigan Circuit Judge Wade H. McCree.  What prompted Judge McCree to discuss the lack of shame in his game?  He was asked by Detroit's Fox News affiliate to discuss this picture

Tuesday, April 24, 2012

Unanimity (in judgment) on the Supreme Court

As any Supreme Court reporter/pundit will tell you, the Supreme Court is hopelessly divided into 5 conservatives crushing the little guy versus 4 liberals trying to keep America safe for individuals as opposed to corporations and/or the government.  The exception to this storyline, the pundits tell us, is the rare occassion when Justice Kennedy decides to vote with the four liberals.  This storyline is often wrong.

Friday, April 20, 2012

My (novel?) defense of Obamacare's constitutionality

As reader(s)™ of the Blog know well, I am kind of obsessed with the constitutional challenge to the individual purchase requirement of Obamacare. I think I have a pretty good handle on all the arguments, pro and con. But today, as I pondered the eminent Ronald Dworkin's take on the subject, an argument in favor of its constitutionality occurred to me—an argument that I haven't seen anyone else make. Here it is, in its most distilled form:

1) The individual purchase requirement says that everyone (with some inconsequential exceptions) must purchase health insurance or pay a penalty that will be withheld from any income tax refund that would otherwise be due.

2) By its very terms, then, this requirement applies only to people who have earned income in the previous tax year. A person who earns no income, or even some income but not enough to create federal income tax liability, can choose not to buy health insurance without penalty.

3) Everyone who earns income has participated in interstate commerce (as that term of art is broadly defined under long-established Supreme Court cases such as Wickard v. Fillburn).

4) Therefore, the individual purchase requirement is an exercise of Congress's power to regulate interstate commerce because it is merely a condition imposed upon citizens who choose to participate in interstate commerce. No one who refrains from participating in interstate commerce is affected by the legislation.

Here are some objections that occur to me, with my counter-arguments:

Facts, R.I.P.?

The Chicago Tribune has published an obituary of Facts:
To the shock of most sentient beings, Facts died Wednesday, April 18, after a long battle for relevancy with the 24-hour news cycle, blogs and the Internet. Though few expected Facts to pull out of its years-long downward spiral, the official cause of death was from injuries suffered last week when Florida Republican Rep. Allen West steadfastly declared that as many as 81 of his fellow members of theU.S. House of Representatives are communists.
The Gillette-Torvik Blog has done its part covering this story in its Poolitzer-Prize-winning series entitled, "The Nature of Reality."

Thursday, April 19, 2012

More on Wisconsin's state symbols.

Yesterday, I posted the story of how Wisconsin named the American Water Spaniel its official state dog.  Mordecai Lee, one of the players in that story, subsequently emailed me with his thoughts on the post.  I asked Professor Lee for permission to post his email on the blog and he graciously said yes.  I stress that Professor Lee emailed me directly rather than post on the blog.  I don't believe that Professor Lee intended that the email get published here. I think he was just trying to give me some more background for the post. As such, and for reasons that should be obvious, I am sure that Professor Lee is not seeking to have a debate with our Reader(s)™ about something that happened almost 30 years ago.   

Newt Gingrich sells donor list to ... identity protection racket

Newt Gingrich's campaign is having some financial problems, as detailed in this excellent piece at Politico. Elsewhere, Molly Ball at the Atlantic reveals that the information was purchased by LifeLock, an identity protection company, which sent Newt's supporters an email trumpeting "A Special Offer for Newt Gingrich Fans!"

This is brilliant marketing. I can't think of any better way to promote identity-protection services then an unsolicited email from a company that you've never heard of saying, in effect, "you don't know us, but we know you." This really puts the protection into the identity-protection racket.

A poll to end all polls, Part Two

This poll is making the rounds, and causing pundits to express exasperation with the American people:

The most amazing Supreme Court chart. Maybe ever. - The Washington Post
I will take this opportunity to remind everyone of something I said about a year ago:
The next time you find yourself shocked by the ignorance/stupidity/racism/perfidy of the American people, as revealed by the results of an opinion poll, remember this one, which purports to show that most Americans are unsure whether Donald Trump is a natural-born American citizen.

Wednesday, April 18, 2012

Wisconsin state legislators mock children.

For anyone who thinks that Wisconsin's propensity for unpleasant politics is a new thing that resulted from the GOP taking over all three branches of Wisconsin's government last year, I bring you the sad story of how Wisconsin got its official state dog.

Tuesday, April 17, 2012

"No matter what one makes of associational rights, friendship cannot have greater status than political speech."

At least, not according to Judge Easterbrook.

Which do you think has greater status, Mr. Gillette: friendship or political speech?

Does the Nuge's opinion have an effect on persuadable voters?

Ted Nugent, exhibiting the same lyrical skills that helped him write songs like "Wang Dang Sweet Poontang," spoke at the National Rifle Association's annual convention this weekend.  According to a report from the Seattle Post-Intelligencer, Mr. Nugent was trying to get NRA members to vote against President Obama.  Given the setting, I assume this is roughly as difficult as shooting fish in a barrel.

Judge barred from courthouse


Judge Brim pleaded not guilty to the charges, discussed below, in her first appearance. The Sun-Times reports that her alleged tirade was "racial in nature."

ORIGINAL POST 3/13/2012:

Justice Kagan on the Mets

Today, the Supreme Court decided Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S. Justice Kagan authored the opinion for a unanimous Court. The case is Supreme Court red meat—although in the abstract it deals with a complicated statutory regime governing the approval of generic drugs for non-patented uses, the case ultimately boils down to statutory interpretation, specifically of the word "an." Seriously:
Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context.  “Not an” sometimes means “not any,” in the way Novo claims.  If your spouse tells you he is late because he “did not take a cab,” you will infer that he took no cab at all (but took the bus instead).  If your child admits that she “did not read a book all summer,” you will surmise that she did not read any book (but went to the movies a lot).  And if a sports-fan friend bemoans that “the New York Mets do not have a chance of winning the World Series,” you will gather that the team has no chance whatsoever (because they have no hitting). But now stop a moment.  Suppose your spouse tells you that he got lost because he “did not make a turn.”  You would understand that he failed to make a particular turn, not that he drove from the outset in a straight line.  Suppose your child explains her mediocre grade on a college exam by saying that she “did not read an assigned text.” You would infer that she failed to read a specific book, not that she read nothing at all on the syllabus. And suppose a lawyer friend laments that in her last trial, she “did not prove an element of the offense.”  You would grasp that she is speaking not of all the elements, but of a particular one. The examples could go on and on, but the point is simple enough: When it comes to the meaning of “not an,” context matters.
As interesting as this general discussion of "not an" is, what caught my eye was the sports talk. Justice Kagan is, famously, a Mets fan. I do not take her use of the Mets example—"the New York Mets do not have a chance a winning the World Series"—to be an empty hypothetical example. I take her to be opining that, in fact, the Mets do not have a chance of winning the World Series. She even slips in the reason—"because they have no hitting."

This is a unanimous opinion remember, so I take it the entire Court is on board with this prognostication. Come October, we'll find out if the Court can maintain its famed legitimacy in matters related to baseball.

Monday, April 16, 2012

Using guns, drugs, and strippers does not necessarily make for biased judging.

Back in 2010, we posted about Jack T. Camp, a senior United States district court judge in Georgia who made the news due to some (mis)adventures with cocaine, guns, and a stripper.  Judge Camp is back in the news.

Sunday, April 15, 2012

Lawyers behaving badly

UPDATE 4.15.2012:

In its typically deliberative (that is slow) fashion, the Wisconsin Supreme Court has gotten around to imposing "reciprocal discipline" on attorneys Stephan Addison and Benjamin Butler, whom the Illinois Supreme Court previously suspended for 60 and 30 days, respectively. The court reluctantly agreed to impose the same discipline in Wisconsin. As usual, there are dissents.

As detailed in the original post below, both men pleaded guilty to the felony of second-degree reckless endangerment. The recklessly endangering conduct was having sex with a woman on the hood of a car, though the woman originally alleged a sexual assault. According to Butler's attorney, the felony is based on the peril of car sex: "Someone could've fallen off and gotten hurt." (Though one wonders, then, why the woman wasn't equally culpable.)

In dissent, Justice Roggensack argues that these brief suspensions are woefully inadequate punishment for the admitted conduct. As she points out, the reckless endangerment conviction rests on an admission that both Butler and Addison engaged in "conduct that creates an
unreasonable and substantial risk of great bodily harm" and that they were aware of the risk. She cites other cases in which Wisconsin attorneys were suspended for years for seemingly less serious conduct such as drug possession, mail fraud, or retail theft.

To be fair, both Butler and Addison appear to have suffered mightily for their criminal indiscretions. They are convicted felons. And they lost their high-paying big-firm jobs. But, at the end of the day, they remain lawyers.

Saturday, April 14, 2012

Friday, April 13, 2012

"F*ck Wisconsin"

An amusing jeremiad.

The Saggy Pants Judge claims he let the guy off easy.


In a comment to this post about a man being jailed for three days for wearing saggy pants to court, Mr. Torvik wrote "that perhaps Mr. Ramsey got off easy" because he was jailed for three days but not fined.  Mr. Torvik pointed out that some towns including Albany, Georgia, are fining people who wear pants that sag more than three inches below the top of the hip.  The link in Mr. Torvik's post didn't work for me but I did find this article from the Albany Herald.

Does Gmail's spam filter discriminate against Republicans?

I am on the mailing list for both the Republican and Democratic parties. This is kind of nice, because I always know what talking points each party thinks are going to fire up its own base. For example, just in the past couple of days I've received emails "from" Joe Biden, Barack Obama, and Jim Messina (Obama's chief campaign guy):

Today I went into my Gmail spam folder just to make sure there was nothing important in there. (Mr. Gillette does this daily; I do it about every six months.) I noticed something curious: several of the Republican political emails were in there:

As you can see, multiple emails from the RNC have been identified as spam, but no emails from Democratic shills have been (at least in this time frame).

So, is Google discriminating against Republicans—trying to quiet their political speech?

Thursday, April 12, 2012

Does Facebook own "book"?

Yesterday, I noted Apple's successful opposition to the registration of "Video Pod" as a trademark. Since I was on the topic of tech companies and trademarks, I decided to follow up on a post I did back in August of 2010 about a lawsuit pending here in the Northern District of Illinois by Facebook against a startup called

Facebook originally sued the Chicagoland-based in the Northern District of California. successfully moved to dismiss the case for lack of jurisdiction.

That victory was short-lived, however, as Facebook immediately re-filed the case here in Chicago's Northern District of Illinois. went back to the well with another motion to dismiss, this time on the merits, arguing that the complaint failed to state a claim for which relief could be granted.  The court denied that motion in a thorough opinion. If you're interested, the opinion gives a nice primer on trademark law in general. has yet to file an answer, though it has received several extensions of time to do so. Extensions of time to file an answer are often evidence of settlement discussions. We will keep you posted.

T-Rex in Space

Dinosaurs may not be extinct. According to scientists, they "may in fact be living in highly evolved civilisations on other worlds—quite possibly with their own interstellar exploration programmes."

And they may be ... hungry.

The New York Times editorial board spreads lies about Wisconsin and equal pay

Here. I'm not going to spend any more time debunking this stuff, but this is why I try never to read newspaper editorials.

UPDATE 4/24/2012:

The Times doubles down, with another editorial today in which it falsely states that Scott Walker "this month signed a law repealing a 2009 state wage discrimination law." The Equal Pay Enforcement Act was not a wage discrimination law. More proof that Facts are dead.

Should attorneys marry their clients and misappropriate trust funds?

The State Bar Court of California says such conduct will get an attorney disbarred.  Ms. Lowney is, or perhaps more accurately was, an attorney practicing estate planning law in Pacifica, California.  The court has recommended that Ms. Lowney be disbarred for moral turpitude, failing to comply with the law by filing a false document, and maintaining an unjust action.

What did Ms. Lowney do?  Well, in 2000, Thor Tollefsen, an 81-year-old man, hired Ms. Lowney to help him plan his estate.  In 2002, Ms. Lowney prepared for Mr. Tollefsen a pour-over will and a revocable trust.  The value of the trust was $340,000.  The trust names some of Mr. Tollefsen's relatives in Norway as beneficiaries and successor co-trustees. 

By August 2005, Ms. Lowney—who was in her fifties—and Mr. Tollefsen became romantically involved.  Ms. Lowney promised Mr. Tollefsen that she would take care of him as he suffered from emphysema and terminal cancer.  Mr. Tollefsen then transferred to Ms. Lowney, as his attorney, the $340,000 for use in caring for him.  To accomplish this transfer, Mr. Tollefsen asked for and received permission from his relatives in Norway to transfer the money.  The relatives in Norway understood that any money left over at Mr. Tollefsen's death would be returned to the trust. 

Mr. Tollefsen's condition worsened and he agreed to marry Ms. Lowney at her request.  Because Ms. Lowney did not want Mr. Tollefsen's relatives or her own daughter (who was under 18) to find out about the marriage, she and Mr. Tollefsen arranged to have a confidential marriage.  (As an aside, I don't believe I have ever heard of a confidential marriage.  Some critics, for example this article, suggest that confidential marriages are favored by bigamists because the marriage records are under seal.)  One requirement of getting a confidential marriage license is that the applicants have to state they have been living together.  Mr. Tollefsen and Ms. Lowney falsely stated that they were living together.  They were married in early 2006.  Notably, Mr. Tollefsen refused to name Ms. Lowney as a beneficiary after their marriage.

By the fall of 2006, Mr. Tollefsen felt that Ms. Lowney was not doing a good job of taking care of him and complained to his relatives in Norway about her.  In January 2007, Mr. Tollefsen moved into a senior care facility.  He died before the month was over while on a weekend visit to his home.

After he died, Ms. Lowney transferred the trusts funds into three separate accounts and had Mr. Tollefsen cremated against his express wish to be donated to medical science.  Ms. Lowney also tried to remove Mr. Tollefsen's relatives as trustees of his trust despite the fact that she had no standing to do so.  After that removal was denied, she claimed she was Mr. Tollefsen's spouse and therefore entitled to a share of his estate.  When a trial court denied her claim that she was Mr. Tollefsen's spouse, Mr. Lowney appealed.  The California Court of Appeals was so troubled by her actions that it asked the California State Bar to decide whether a disciplinary action was needed.  The end result was the recommendation that Ms. Lowney be disbarred.

The order notes that Ms. Lowney practiced law for 32 years without being disciplined.  I am not sure what to make of this.  Are we to believe that Ms. Lowney's misappropriating client funds, making false statements, and pursuing bad faith litigation, were all her first brush with violating the rules of professional conduct?  If so, I guess Ms. Lowney believes in the maxim, "go big or go home." 

The order also states that Ms. Lowney must comply with Rule 9.20 of the California Rules of Court.  Rule 9.20 sets forth what steps a disbarred attorney must take in regards to notifying courts, clients, co-counsel,  and opposing counsel of the disbarment.  The rule also requires that the disbarred attorney file proof of compliance with the Clerk of the State Bar Court.  What penalty will Ms. Lowney face if she does not comply with the rule?  Disbarment, of course.  One might think that threatening a disbarred attorney with disbarment is an ineffective punishment.  But, I am sure the court knows what it is doing.

Wednesday, April 11, 2012

Wearing saggy pants in the courtoom: is a fashion statement worth three days in jail?

"Autauga County is a friendly community in the Appalachian foothills with gently rolling land, outcropping of mountains and valleys."  So says the Autauga County, Alabama website.  However, woe be to the scofflaw who wears saggy pants in front of Autauga County Circuit Court Judge John Bush.

Apple owns "pod"

[Note: Blogger ate this post when I first tried to publish it, so I am redoing it. You might notice, however, that my heart is no longer in it.]

As I happen to know from personal experience, Apple aggressively defends its trademark rights. One example is its opposition to a startup company's attempt to register the mark "Video Pod" to cover a small video projector.

The company, Sector Labs, first filed for the mark all the way back in 2003. Eventually the USPTO allowed the mark and published it for opposition. Apple opposed, claiming that: (1) the mark is merely descriptive, and therefore not eligible for registration on the principal register; and (2) the mark is confusingly similar to its "iPod" marks.

After years of litigation at the Trademark Trial & Appeal Board (TTAB) the case finally went to trial earlier this year. On March 19, the TTAB issued its decision, and it is a complete victory for Apple.

The descriptiveness issue was a slam dunk for Apple. "Video" is clearly descriptive, so the question was whether "pod" added anything suggestive. But Sector Labs had admitted in discovery responses and in depositions that the word "pod" was meant to convey the projector's pod-like shape and appearance. Only after Apple began taunting Sector Labs with these admissions did they change their tune and claim to have been "inspired by the parallels between [the inventor's] dream of a family of video products and 'pods' of whales, or even a scene involving an 'escape pod' from the movie '2001: A Space Odyssey.'" The TTAB was not amused: "We find these tardy explanations to be most unconvincing. "

But the victory on the likelihood of confusion issue is actually much more important for Apple. The Board found that "iPod" is a famous mark, and therefore entitled to broad trademark protection. Apple can now use this precedential decision to hammer anyone who tries to use what Apple calls a "pod formative mark."

Sector Labs can appeal the decision to federal court, but its prospects would be grim. It's time to just give in and admit it—Apple owns "pod."

Tuesday, April 10, 2012

If you ever wondered who gets taken in by email scammers, here is one answer.

Most days I take a look at my spam filter to make sure that no legitimate emails get caught by the filter.  The spam filter is a wonderful thing.  For the most part it effectively eliminates a type of email scam that is targeted to lawyers.

The way the scam works is that you get an email from a woman (it is almost always a woman) saying that she has obtained a settlement or judgment of several hundred thousands dollars and needed a local attorney to help her collect.  Usually there is something about the email that is a little off.  For example, the email address sending the email is different than the email address one is told to use to email the potential client.  

If one agrees to help with the collection matter, one is given the contact information of the judgment debtor.  In reality the judgment debtor is in on the scam.  The judgment debtor/co-conspirator readily agrees to pay the judgment and gives the lawyer a check made to the lawyer in that amount. The check, of course, is no good.  The hope is that the lawyer will pay the client the judgment amount from the lawyer's account before learning that the check the lawyer received was no good.

I sometimes wonder if any lawyers actually believe this scam.  The Minneapolis Star Tribune has a story today that shows some lawyers do fall for the scam.  The story is here.  The Minnesota law firm Milavetz, Gallop & Milavetz has sued Wells Fargo claiming that Wells Fargo is responsible for the fact that the firm lost nearly $400,000 in one of these scams.  The complaint in that lawsuit is here

I do not have an opinion on the merits of the complaint.  However, a couple things about the complaint seemed noteworthy.  First, paragraph 55 of the complaint identifies an associate attorney, "CS", as the attorney who read the scam email and "accepted the case for [the firm] and was the responsible attorney."  CS is described as an "associate attorney" at the firm.  The only attorney with the initials CS on the firm's website is Chad Schulze, a lawyer with the firm since 2002.  The firm is representing itself in the lawsuit.

The other thing that I noticed is that the firm claims a copyright on the complaint.  Mr. Torvik wrote about copyrighting briefs here.  The practice apparently extends to complaints as well.  I wonder what one charges as a royalty rate on a complaint.

PolitiFact Wisconsin on Wisconsin's "Equal Pay" repeal

The fact-checkers at PolitiFact Wisconsin have been busy shooting down claims by Wisconsin Democrats that Scott Walker and his allies have repealed equal pay protections for women.

First, back on March 12th, PolitiFact addressed Rep. Cory Mason's claim that the bill being repealed ensured "that women cannot get paid less than a man for doing the same job." It charitably labeled that claim "mostly false."

Second, today PolitiFact checked gubernatorial candidate Kathleen Falk's assertion that the repeal makes it so a woman can't do anything about pay discrimination. That claim is labeled "false."

Of course, the Gillette-Torvik Blog has debunked these claims more than once. Indeed, back in February we specifically called out false statements by both Falk and Mason. For some reason, however, Falk and Mason were unchastened by the Blog's reporting. It remains to be seen whether PolitiFact has any more clout.

Newt Gingrich is a Survivor


See below for my original post on 80s-band Survivor's lawsuit against Newt Gingrich. Last Friday, the judge ruled on Survivor's motion to strike the affirmative defenses:
Plaintiff's motion to strike affirmative defenses [24] is granted in part and denied in part. Affirmative defenses 6, 7, 8, 9, 10, and 11 in the amended answer are stricken because they consist only of bare legal conclusions. Plaintiff's motion is denied as to affirmative defense 3, which is better dealt with based on a more complete factual record, and as to affirmative defense 13, which may be duplicative of defense 12, but if so plaintiff is not unduly prejudiced by that.
And the show goes on. However, now that Gingrich's campaign is more or less over, I suspect that the lawsuit will settle soon.

ORIGINAL POST (3/7/2012):

Mr. Gillette recently noted that Newt Gingrich is running for president but will never be president. Last night, however, Gingrich won the Republican primary in his home state of Georgia. Take that, Mr. Gillette!

Mr. Gillette also noted that 80s "one-hit wonder" band Survivor has sued the Gingrich campaign for copyright infringement for using "Eye of the Tiger" at campaign events. Usually, the candidates just roll over in these disputes and promise not to do it again. For example, former Florida Governor Charlie Crist practically got down on his knees to apologize to the Talking Heads' David Byrne for using "Road to Nowhere" without explicit permission.

Monday, April 9, 2012

"Kill the head and the body will die."

Pro football has been kind of a joke for a while now. For one thing, it is impossible to believe that steroid use is not widespread. The only alternative explanation for the breathtaking expansion in player sizes is some sort of out-of-control evolution, perhaps caused by the radiation from a distant supernova.

Another problem is the increasing awareness that the modern game, with the modern breed of gigantic players, has morphed from ritualistic warplay into ritualistic suicide. Autopsies of former players are revealing that the game turned their brains into applesauce. And it is only getting worse.

Then there is the culture of the game, recently unmasked in the "bounty scandal" involving the New Orleans Saints. Defensive coordinator Gregg Williams's pre-game instructions before their playoff game against San Francisco—in which he instructed his players to attempt to impose specific injuries on specific players—shock the conscience.

For the past couple of years, I have become increasingly uneasy about being a fan of this sport. I have thought that if it weren't for (1) the Packers having such great seasons, and (2) fantasy football, I might have left the game behind.

At this point, I'm ready. I want to declare myself publicly done with pro football. Not a boycott, because I'm not lobbying for specific changes. I think it's too far gone. Brutality is really the essence of American football. You can't get the brutality out of the game without turning it into some other game. Maybe ultimate frisbee.

However, the inestimable Paul Clement has convinced me that I cannot leave pro football behind. As he argues, "once a Packers fan, always a Packers fan."

Friday, April 6, 2012

The uses and abuses of federal power

A nice synopsis:
While federal agents were raiding a medical marijuana dispensary and the nation’s first pot trade school in Oakland, run by one of California’s most prominent legalization advocates, less than a mile a way, a gunman was murdering seven people at a Christian nursing school. The feds couldn’t have predicted the rampage, but it’s hard to imagine a starker illustration of misplaced law enforcement priorities.

I am inclined to believe that the so-called "Republican war on women" is a sham

Wisconsin governor Scott Walker signed a number of bills yesterday, including a bill that repeals a bill passed just three years ago that goes by the name of the "Equal Pay Enforcement Act." That bill had increased the kinds of damages allowable in employment law cases under Wisconsin state law. Now Wisconsin is back to the employment law regime that it had in place for the sixty-five or so years before 2009. So Walker has sent Wisconsin employment law back to the dark days of the early Obama years.

As I previously explained in a couple of posts, many people have mistakenly claimed that this bill eliminates the requirement of equal pay for women in Wisconsin, or that it eliminates the enforcement mechanism of the equal pay law. That is false. This bill has nothing to do with equal pay, and nothing specifically to do with discrimination against women. It applies to all employment discrimination claims.

This mistake is surely caused by the curious title of the bill being repealed, the "Equal Pay Enforcement Act," which calls to mind the federal "Equal Pay Act" which does enshrine the principle of equal pay for equal work. But the federal Equal Pay Act and the Wisconsin Equal Pay Enforcement Act actually had nothing to do with each other, and equal pay for equal work remains the law in Wisconsin.

Still, if you search for commentary today on Walker signing the repeal bill, you will find much false rhetoric that Walker has somehow repealed the principle of equal pay for equal work in Wisconsin, or that this bill is a step back for women's rights. For example, Democratic candidate for governor Kathleen Falk says Walker has "turned back the clock for women across Wisconsin."  Again, he's turned the clock all the way back to the bad old days of 2009.  

As I mentioned in a comment to my earlier post, it seems to me what's going on here is a pointless partisan volleyball match. Democrats passed a pointless bill to appease their constituents back in 2009, and Republicans have more or less pointlessly repealed it to please their constituents now that they're in power. Side out. The bill was unnecessary, but it was probably unnecessary to repeal it. My own preference is for fewer pointless laws, so I don't have a big problem with what the Wisconsin Republicans have done.

What I do kind of have a problem with is the "war on women" rhetoric surrounding this. Democrats have made this a rallying cry for their 2012 campaign. This is one supposed front in the alleged war, and it's the only one I've taken the time to investigate. And when I did, I found that I was being shamelessly lied to. I am therefore inclined to believe that all of the "war on women" rhetoric is false.

Obamacare: the untold story of what the Pope thinks.

Given that this is Good Friday (as opposed to other Fridays, those are usually just good ); and that we have been doing a fair amount of posting on Obamacare; and that a majority of the Supreme Court justices are Roman Catholic; and that some conservatives, like Rick Santorum, believe that one's faith should influence how America is governed, I wondered what the Pope thinks about Obamacare (I am not positive, but am pretty sure this is the longest sentence I have ever written).

Thursday, April 5, 2012

Connecticut is going to repeal its death penalty.

CNN reports that the Connecticut Senate voted yesterday to repeal the death penalty.  The bill is expected to pass in the Connecticut House of Representatives.  Connecticut Governor Dannel Malloy has said he will sign the bill if/when it reaches his desk.

If it repeals the death penalty, Connecticut will join New Jersey, New Mexico, New York, and Illinois among states that have abolished the death penalty in the last five years.  Californians will vote on whether to abolish the death penalty in November. 

Opponents of the death penalty will undoubtedly be cheered by this news.  On the other hand, it isn't like Connecticut is Texas.  Since 1976, the article reports, Connecticut has handed down 15 death sentences and executed one person.  Texas, according to the Texas Department of Criminal Justice, has 299 people on death row today (assuming I counted correctly).  The Department's executions website, indicates Texas has executed 481 people since 1982, including 2 in March.  As an aside, the website I linked to allows you to see the last statements, if any, all 481 people.  They are interesting reading. 

In any event, Connecticut Senate President Donald Williams Jr., called the bill a "vote of conscience."  This question of conscience does not apply to people currently on Connecticut's death row because the bill is prospective.  That is, the death penalty wasn't abolished for anyone in Connecticut who is currently sentenced to death.  This is probably because of the Petit family murders, the horrific murders of three female family members by two men.  Both men are on Connecticut's death row.

There are, of course, arguments on both sides for whether the death penalty should be abolished.  This purpose of this post is not to debate that issue.  Instead, the point of the post is that acts of "conscience" that do not change any one's circumstances are the easiest acts of conscience that one can perform. 

Tuesday, April 3, 2012

Feeling Randa-y

Longtime reader(s) of the blog may recall Judge Rudolph "Hitler Analogy" Randa.

He seems to run an entertaining courtroom. The Proof & Hearsay blog reports his most recent monologue:
As he ran through a convicted pimp's long record of misbehavior last week, a federal judge in Milwaukee got to the fact Sean Patrick owed more than $146,000 in support for 12 children he had by 10 women, who now won't have a father in their lives. 
U.S. District Judge Rudoph T. Randa looked up at Patrick with disgust and a bit of curiosity. 
"How do you satisfy 10 women?" he asked. "I can't even satisfy my wife."
Judge Randa went on to explain that what he meant was merely that he could not keep up with his wife's insatiable desire for bling. He went on:
For God's sake, Hitler conquered an entire continent, but he could barely handle even one part-time girlfriend. He did love his dog, though.

My sources are reporting that I made up portions of this post.

H/t to Mr. Gillette

A very strange idea.

In journalism, to bury the lede is to "begin a story with details of secondary importance to the reader while postponing more essential points or facts."  Pardon me while I bury the lede in this post.

The BBC provided a great example of this when it buried the lede in a story about Paul McCartney's son, James McCartney.  The headline for the story is "Paul McCartney's son James on playing the Cavern Club."  The Cavern Club, as many fans of the Beatles will tell you, is famous for hosting many gigs by the Beatles prior to Beatlemania sweeping the world in the first half of the 1960s.  The club, which was underground, was closed and filled-in during the 1970s but in 1984 a new Cavern Club was built on part of the site and made to look like the Cavern Club in its heyday.

Anyway, the BBC interviewed James McCartney about playing at the Cavern Club, his musical relationship with his father, and a few other things.  Then, at the bottom of the article comes the little tidbit that James McCartney has apparently spoke with Dhani Harrison, Sean Lennon, and Zak Starkey about forming some sort of next generation Beatles.  Mr. Starkey, who has a legitimate career as a drummer, was apparently not receptive to the idea.  However, the article quotes James as saying "Sean seemed to be into it, Dhani seemed to be into it" and speculating that perhaps Jason Starkey, another of Ringo Starr's sons, would be interested in playing the drums.  No word on whether anyone asked Julian Lennon.

Obviously a possible "Beatles Jr." band is a lot bigger story than the fact that James McCartney is playing a club that is an homage/rip-off of a more famous club of the same name. Even more obviously (if that is possible) is that "Beatles Jr." is a preposterously, stupendously bad idea.  However, it is also a thing that would probably make a lot of money.  For that reason, I won't be surprised when it turns out to be a real thing.

Did Scalia regurgitate Tea Party talking points during oral arguments?

I've seen many pundits accuse Justice Scalia of spewing "well-trod Tea Party cleverisms" during oral arguments. For example, Harvard Professor Charles Fried (who was solicitor general under Ronald Reagan in the 80s, but publicly supported Barack Obama over John McCain in 2008) "was appalled to see [Scalia and Roberts, etc.] repeating the most tendentious of the Tea Party type arguments. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it coming from the bench was depressing."

I take the charge to be that "Tea Party type arguments" are mere populist propaganda, devoid of intellectual content, spewed by the dirty Tea Party masses at their annoying marches and gatherings. Is the "broccoli argument" an example of this?

Not even close. As far as I know, the progenitor of the broccoli argument was a federal judge, the Honorable Roger Vinson, who first raised it at oral argument and then expounded on it in his written opinion striking down the act. 

Moreover, the broccoli argument was first raised at the Supreme Court in the merits briefs by the Solicitor General himself! (See page 6 of the government's reply brief.) Indeed, Chief Justice Roberts was actually quoting this passage when he asked Mr. Verrilli about the broccoli argument. So lets be very clear what Fried, Lithwick and others are doing when they criticize the broaching of the broccoli argument: they are criticizing the Justices for asking questions about arguments explicitly raised in the merits briefs.

So, my advice to Professor Fried is to take some Prozac, because your depression can't be blamed on Justice Scalia.

Automatic amusement machines

It may interest you to know that automatic amusement machines—including "any device which utilizes a video tube to reproduce symbolic figures and lines intended to be representative of real games or activities"—are heavily regulated in Waukegan, Illinois. Don't even try to make "secondary use" of more than three of them, unless you operate a "recreational facility, hotel, or motel."

Manual amusement machines reamin unregulated.

Monday, April 2, 2012

President Clinton has some ignorant thoughts on the Obamacare case

In an exclusive interview with ABC News, Clinton complains that the conservative justices on the Supreme Court "didn’t make the plaintiffs, the people that want to strike the law down, prove their case":
“Nobody asked, for example, do they want to overturn a case called Wickard v. Filburn in 1942,” Clinton said. “Where in the beginning of World War II, where we were still coming out of the Depression, a farmer was told and the Supreme Court upheld the ability of the federal government to limit his ability to grow food on his own farm for personal consumption. Because they said it affected the aggregate amount of food consumed in interstate commerce and the price of food.”
This is a pretty odd statement, as it rests on the idea that the litigants and justices simply forgot about the most famous commerce clause case. This is easily disproved. Wickard was specifically discussed several times in Tuesday's arguments, each time in cross-examination of the challengers of the law.  For example, here's Chief Justice Roberts questioning Paul Clement:
Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard -- again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating. 
Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it. 
MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market. 
No surprise, the case was also cited several times in each of the briefs.

So, even leaving aside the merits of Clinton's argument that Wickard is controlling (hint: it is not), it seems that President Clinton doesn't really know what he's talking about. Unless, of course, this is just politics.

Wanda Brown is tired of being called a racist.

Ms. Brown, a Repblican member of the Missouri House of Representatives, told the St. Louis Post-Dispatch, that the legislation that the Missouri House passed last week does not "speak of racisim."  Accordingly, Ms. Brown is, "tired of being called racist."  What is the legislation you ask?  A "birther bill" requiring presidential candidates to provide a birth certificate in order to be placed on the Missouri presidential ballot.  The Post-Dispatch notes, that "If approved, Missouri could become the first state to require such documents. It would go into effect in time for the 2016 election."  Given that the governor of Missouri is Jay Nixon, a Democrat, I am not sure what set of circumstances would allow the bill to become law.

As Groucho Marx might have said but did not, “I know Missouri is the Show-Me State, but this is ridiculous.”

Sunday, April 1, 2012

The Supreme Court has been wiretapped!

As I've mentioned a couple of times, Illinois's unconstitutional "wiretapping" law criminalizes the act of making an audio recording of a police officer in public. One of the justifications for this law is that it prevents citizens from altering audio recordings of cops to make them look bad.

Yesterday I posted about criticisms of an RNC ad that uses audio from the oral arguments in the challenge to Obamacare to make Donald Verrilli and, by extension, the entire law look bad. It's also easy to imagine unscrupulous people altering the audio to make even the justices look bad.

This cannot stand. I urge Congress to pass a law making it a felony to create these dangerous audio recordings.

I want you to know that the challenge to the individual mandate is not frivolous

As Mr. Gillette recently pointed out, I "predicted" back in 2010 that the Supreme Court would uphold the individual mandate under the Necessary and Proper clause of the constitution. As with all my predictions, this was more or less pure speculation. I'm no expert on the constitution or the Supreme Court—I only pretend to be to make this blog more interesting and, more importantly, to annoy Mr. Gillette.

In re-reading my prediction post, however, I was struck by its discussion of an exchange between professors Jack Balkin (of the Balkinization blog) and Randy Barnett (the intellectual architect of the constitutional case against Obamacare). In short, Balkin theorizes that Barnett's arguments that the challenge to the individual mandate is not frivolous are not just arguments, but "performative utterances":
Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.
Barnett surprisingly agreed that he and others were "trying to do exactly this."

At this point, it is beyond dispute that Barnett succeeded. No one can credibly claim that an argument that has produced a circuit split and reached the Supreme Court, where it received six scheduled hours of oral argument, is frivolous (at least not without resorting to pure cynicism).

Yet, incredibly, many respectable people do continue to insist that Barnett's arguments are beyond the pale (or, if you prefer, "garbage"). How can this be? I would suggest that Balkin's wisdom works in reverse. These accusations of frivolity are also "performative utterances"—an attempt to make the arguments frivolous by virtue of the fact that they, prominent legal journalists and scholars, are saying they are frivolous.

The two big differences are: (1) these people never admitted that they were "trying to do exactly this"; and (2) they failed.