Friday, August 31, 2012

Priests talking about non-violent murderers, seductive children, and gay marriage.

Sports Illustrated reports that George Huguely, the former University of Virginia lacrosse player convicted of murdering Yeardley Love, has been sentenced to 23 years in prison for the crime.  This Washington Post report says that Virginia law requires Mr. Huguely to serve at least 85% of his sentence which would be roughly 19 years and six months.  Mr. Huguely has already been in jail for about a year so he has around 18 years remaining on his sentence.  Both reports say that Judge Edward Hogshire deviated from standard practice by sentencing Mr. Huguely to less than the 26 years recommended by the jury that convicted Mr. Huguely.  It is not clear why Judge Hogshire went with a lower sentence.

Thursday, August 30, 2012

Bryan Garner is not rude.

The ABA's website has the transcript of an interview that Bryan Garner did with Justice Kagan. I was pleased to learn that—like all good Americans—Justice Kagan majored in history in college and that she continues to read a lot of American history. Sean Wilentz, Richard Hofstadter, and Edmund S. Morgan are among her favorites. I have not read anything by Mr. Hofstadter but Mr. Morgan is a fantastic historian as is Mr. Wilentz. 

Reader(s)™ might recall that Mr. Torvik and I recently discussed Mr. Garner's claim that Justice Scalia is the "Most Principled Justice."  Mr. Garner made this claim in the course of marketing a book that he wrote with Justice Scalia.  To recap, I think that the whole idea of a Most Principled Justice is ridiculous, Mr. Torvik disagrees and also thinks that the choice of Justice Scalia as Most Principled Justice is not a "ridiculous choice." 

Wednesday, August 29, 2012

They took away recess and they brought it back? has an article about how schools in Chicago-and elsewhere-are bringing back recess for kids in school.  I was surprised to learn that recess was making a comeback in public schools.  Mostly because I had no idea that recess had ever left.  

Dred Scott trivia

The Dred Scott decision (1857) is, of course, an abomination of the common "law." Among other travesties, it includes Chief Justice Taney's remark that blacks were "at that time [of the Founding] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race and . . . had no rights or privilege but such as those who held the power and the Government might choose to grant them." This remark is all the more terrible for being true.

Here's the trivia. Dred Scott was represented at the Supreme Court by one George Ticknor Curtis, who had formerly been the United States commissioner charged with the enforcement of the Fugitive Slave Law in Boston. There were two dissenting opinions in the Dred Scott case, including a very long one by Justice Benjamin Robbins Curtis—the brother of Dred Scott's lawyer. Although this presents a clear conflict of interest, there is no record that anyone objected or moved for Justice Curtis to recuse himself.

Shortly after the Dred Scott decision, Justice Curtis permanently recused himself—he resigned in disgust.

Monday, August 27, 2012

"I mind my own business and I don't eat junk food."

The quote in the title to the blog is probably the opposite of what I do.  Maybe the fact that this blog exists demonstrates that the first part of the quote does not apply to me.

Saturday, August 25, 2012

The Shaggy defense.

The Morning Journal reports that police in Lorain, Ohio are searching for a man who stole $400-600 worth of Reese's Peanut Butter Cups from a local Sunoco gas station.  While I am almost positive that I could easily eat that amount of Reese's, I wish to stress that I have never been in Lorain, Ohio.

Friday, August 24, 2012

No sex with zombies in Illinois

As I mentioned earlier today, 19 people were shot last night in Chicago.

Down in Springfield today, Governor Quinn responded in brisk fashion by signing Public Act 097-1072, which outlaws sex with zombies. This will reduce the likelihood that any living Chicagoans will be tempted to have sexual relations with all of the freshly dead Chicagoans, thereby preventing the creation of any half-human, half-zombie creatures.

Can a person be barred from employing "young people"?

That's my question after reading about New York State Assemblyman Vito Lopez, who "has been stripped of his committee chairmanship, barred from employing young people, and censured after an Assembly committee determined that he had sexually harassed two female employees this summer." The details are that he cannot hire anyone under the age of 21.

This seems kind of unfair to 19 and 20 year olds. Obviously it would be illegal to bar him from employing females, but it's hard to really see an ethical distinction here.

Here's a tip: if the guy is such a scoundrel that there is a whole class of people that he can't be trusted to employ, he's gotta go.

Depictions of violence in the newspaper

As you've no doubt heard, a gunman went on a rampage at the Empire State Building in New York City today. The New York Times' website currently has this vivid photo on its front page:

I cannot recall ever seeing such a frank depiction of violence in a newspaper. I assume this is a considered editorial decision to show the actual, bloody results of gun violence.

ADDED: Meanwhile, 19 people were shot last night in Chicago.

Lance Armstrong

As ESPN—and every other news organization in America—reports, Lance Armstrong has decided not to fight efforts by the United States Anti-Doping Agency to have Mr. Armstrong branded a cheater for using performance enhancing drugs when he was winning the Tour De France 7 times as well as a bronze medal in the 2000 Olympics.

Mr. Armstrong says that although he is innocent, he is stopping his fight because of the toll this has taken on his family and his foundation.  Mr. Armstrong says he is "finished with this nonsense."  Mr. Armstrong also says that the USADA's action against him is "unconstitutional."  I assume Mr. Armstrong raises that point because he lives in Texas and anything a Texan does not like is unconstitutional.  The claims of unconstitutionality ring a little hollow given that United States District Court Judge Sam Sparks rejected Mr. Armstrong's claims that he was being denied due process earlier this week. 

Another example of corporate speech (UPDATED)


The DC Circuit has affirmed (in R.J. Reynolds v. FDA, No. 11-5332) the decision discussed below, which ruled unconstitutional the FDA's attempt to force tobacco companies to add large, graphic images to their cigarette packaging. Mr. Gillette discussed another free speech case involving tobacco companies here.

ORIGINAL POST (3/6/2012):

We have talked a lot about whether corporations have a First Amendment right to spend unlimited amounts of money engaging in political speech.

But last week, a district court judge in Washington D.C. tackled another aspect of a corporation's First Amendment rights: the right not to speak.

The corporations in question are about the least sympathetic corporations you can imagine: tobacco companies. They filed suit objecting to new FDA rules promulgated under the Family Smoking Prevention and Tobacco Control Act, which President Obama signed in 2009. One of the provisions of the Act is a requirement that the FDA "issue regulations that require color graphics depicting the negative health consequences of smoking" take up the top 50% of both the front and back of cigarette packages. Eventually, the FDA published nine such images, including the ones that appear inline here.

The tobacco companies objected to these images as compelled speech, in violation of the First Amendment. The law is clear that freedom of speech includes the right to refrain from speaking at all and that "[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say." Pac. Gas & Elec. Co. v.  Pub.  Utils. Comm'n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion).  (The astute will notice that this decision long predates the Citizens United decision that supposedly established that corporations are people with First Amendment rights.)

Thursday, August 23, 2012

A Republican wants to raise taxes. Can you guess why?

According to Fox 34 News in Lubbock County, Texas, Tom Head, the county judge, wants to raise the tax rate in Lubbock County by 1.7 cents in the next fiscal year.  According to this, Judge Head is a Republican.  Given the modern Republican party is famously anti-tax, Judge Head must have a pretty good reason for wanting to increase taxes, right? 

Wednesday, August 22, 2012

A Special Place in Hell

I have lived in Chicago for about two-and-a-half years. One general conclusion I've come to is that I don't like Chicago politics. I'm a bit of prig in that I don't like open corruption.

Yesterday, one Chicago politician—Cook County Board President Toni Preckwinkle—got in hot water for an "inflammatory" remark she made about dead Illinois-native Ronald Reagan. She said that Ronald Reagan deserves a "special place in hell" for his role in "making drug use political."  The remarks came in the context of discussing Chicago's new (suspiciously sane) policy of decriminalizing the possession of small amounts of marijuana.

Ms. Preckwinkle may be my new hero.

Now, I don't have any particular animus toward President Reagan. Every president in my conscious lifetime (which starts in 1980 with Mr. Reagan's defeat of Jimmy Carter) has cynically prosecuted the War on Drugs for political purposes. Each one of these men—Ronald Reagan, George H.W. Bush, Bill Clinton, Georege W. Bush, and Barack Obama—has allowed and encouraged the senseless imprisonment of thousands and thousands of (mostly, but not all) men for the sole purpose of consolidating political power. Their actions are despicable, and if I believed in hell I would like to think that each of them would share a special place there (in due course) for their sins.

I'm reminded of this story I read yesterday about another famous dead Illinois politician: President Abraham Lincoln. The story concerns President Lincoln's decision to commute the death sentences of hundreds of Sioux who had been found guilty of "murder and other outrages" and sentenced to hang after a bloody uprising in Minnesota during the Civil War. Although atrocities had been committed, it was clear that many innocent men had been swept up in the retaliatory proceedings. Lincoln had no political constituency clamoring for justice on behalf of the Sioux. On the contrary, it was pointed out to him that the politically savvy move would be to simply let the unjust death sentences stand. Lincoln sensibly responded, "I could not hang men for votes."

Compare and contrast.

Tuesday, August 21, 2012

Federal Court Rules that Poker is not Gambling Under Federal Law

Let the games—er, feats of "bluffing, raising and folding"—begin!

Don't be cheap.

This is probably the best advice (NonLegal™) that I can give: being cheap in your dealings with others will come back to haunt you.

Monday, August 20, 2012

Is Penn State the Tip of the Iceberg?

Pete Thamel at the New York Times has a revelatory story about Dan Dakich's stint as the head coach of West Virginia's men's basketball team. If you're like me, your first question is, "Dan Dakich was the coach of West Virginia's men's basketball team?" Yes, he was. But it is a bit like how Bobby Knight was once the coach of Wisconsin's basketball team—the marriage didn't last long. In Dakich's case, just eight days. But they were a tumultuous eight days, as Thamel reports:
Some of the most challenging items on Dakich’s list involved Jonathan Hargett, a top recruit from Richmond who had just completed his freshman season at West Virginia. 
Dakich said Hargett told him that he had been promised $20,000 a year for three years, and that he had not been paid the full amount.
So Dakich discovered that the WVU basketball team was not only promising to pay its players cash for playing, but that WVU didn't have the decency to actually come up with the money.

Dakich—whom I admire as a straight-talking (if sometimes dense) color guy on BTN broadcasts—went straight to the president of university, David Hardesty. Things, um, did not go well.
Dakich said he told Hardesty about Western Union receipts that seemed to show Hargett had received money in violation of N.C.A.A. rules. He also relayed Hargett’s comments that the university had not paid him money that had been promised to him.
Dakich recalls Hardesty telling him, “If you go any farther with this, we’ll destroy you.”
Hadesty calls Dakich's account "a gross exaggeration." Asked to clarify, Hardesty explained, "I didn't say I would destroy him. I said I would make his life such a living hell, that he would wish longingly for death. Come on, I was a university president, not a mob boss. I don't directly threaten to destroy people." To be clear, I made that last part up, but it is arguably less damning that what Hardesty actually said: "I did not intend to threaten him. At no time in this process did I do that. That would be so strange."

That would indeed be strange. It is hard not to note the lawyerly weasel words in Hardesty's explanation. (Sure enough, Hardesty is a law professor.) He does not say that he didn't threaten Dakich; he says he didn't "intend" to threaten him. Perhaps reasonable people can disagree about whether "we'll destroy you" is a threat or is so over the top that it can only be interpreted as an attempt at comedy. Either way, we can all agree that it was so, so very strange.

[Cross-posted at Adam's WI Sports Blog]

Note to the New York Times: Quit riding our coattails.

This weekend, the New York Times ran a piece about President Obama's failure to appoint judges.  The Gillettte-Torvik blog has done at least two posts on this topic.  We posted on that topic back in March and again in July.  Strangely, the Times neglects to cite us.

Friday, August 17, 2012

“Your honor, first of all, I’m not smoking crack."

When a lawyer has to utter the quotation above, the lawyer is probably not having a good day.  Above the Law has the latest from the Apple v. Samsung trial.  The judge trying the case suggested, jokingly I assume, that Apple's attorneys were on crack for making 75 pages worth of objections regarding witnesses that are unlikely to testify and wanting the order on the objections the next day.

Thursday, August 16, 2012

Trading—and Sleeping—With the Enemy

As the ABA Journal reports, officials at the Illinois Attorney Registration and Disciplinary Commission are seeking to disbar an Illinois attorney for smuggling Cuban cigars into the United States during the 1990s.

At first blush, this seems harsh. Yes, Cuban cigars are contraband under the "Trading with the Enemy Act" (co-sponsored by Rep. Julia Roberts, D-Hollywood). So the attorney certainly committed a crime. But jaywalking is a crime too. Moreover, this is a curious law that in modern times could be renamed "We Need Florida's Electoral Votes, And There Are Lots of Cuban-Americans There Act." As of 2008—when North Korea lost its "enemy" status—Cuba is the only country that comes under the law. So, in another sense, "Trading with The Enemy Act" is the perfect title for the law, because we have only one enemy now, and it is Cuba. Finally, it has always seemed odd to me that the U.S., capitalist dynamo that it is, has chosen to respond to the threat of Communism on that tiny Caribbean island by refusing to trade with it. Isn't it the capitalists who think trade is good and civilizing?

Why do heavy metal guitar players dislike President Obama?

Back in April, we did a post about how Ted Nugent does not want President Obama to be re-elected.  The Motor City Madman is not alone in his anti-Obama views.  The Onion AV Club posted video of Megadeath leader (and former Metallica guitarist) Dave Mustaine explaining to an audience in Singapore that President Obama "staged" the recent shootings in Aurora, Colorado and Oak Creek, Wisconsin so that President Obama's administration could "pass a gun ban."  Mr. Mustaine did not elaborate on how such a measure would get through Congress.  Nor did Mr. Mustaine explain how such a ban, if passed, would survive an inevitable Supreme Court challenge.  For that matter, Mr. Mustaine does not explain how the shootings were "staged."

Tuesday, August 14, 2012

Things you know exist but do not actually know.

From time to time a person makes the news for holding some kind of record that I did not realize existed.  However, if I think about the particular record, I realize that there has to be someone who is the record holder.  After all, someone was the tallest person.

Thursday, August 9, 2012

Tommy Thompson can do more push-ups than you.

Former Wisconsin governor Tommy Thompson is running for the Wisconsin's United States Senate seat.  I tend to doubt that he will win the Republican nomination because Republicans today really are not interested in furthering the ambitions of career politicians.  Also Governor Thompson is a well-known advocate of government spending money on trains and Wisconsin republicans no longer like trains.

However, I am pretty sure that Governor Thompson can out push-up any of his opponents in the election.  The Milwaukee Journal Sentinel has footage of Governor Thompson dropping and doing 50 push-ups at a reporter's request.  The footage is here.  The story notes that Governor Thompson placed his feat against the wall to get some support.  However, anecdotal evidence (in the form of me doing push-ups with my feet against a wall and not against a wall) suggests that the benefit derived from the wall is less than 10 percent.  At a minimum, Governor Thompson can do 45 unaided push-ups.

To put this in perspective, Governor Thompson, at the age of 70, can do almost double the average number push-ups a 40-year-old man can do according to  If fitness in elected officials is important to you, than maybe Governor Thompson deserves your vote.

Wednesday, August 8, 2012

People with nothing better to do.

A couple weeks ago we posted on the punishment Penn State received from the NCAA.  This was punishment that Penn State agreed to.  Nevertheless, ESPN reports that former Penn State football players are appealing the punishment.  The letter from the player's lawyers notifying the NCAA of the appeal is here.

Tuesday, August 7, 2012

Monday, August 6, 2012

Ninth Circuit to Senate: It is your fault.

Back in May, we posted about how the United States Court of Appeals for the Ninth Circuit was not going to let a couple of senators push them around about where the Ninth Circuit decided to have a judicial conference. When the senators asked about the costs associated with having a conference in Maui, the Ninth Circuit told them to buzz off.

Thursday, August 2, 2012

21st Century Service

Every once in a while I get an idea. Here this year's:

Every business entity should be required to maintain a registered email address for receiving electronic service of process.


In a detailed discussion of the Seventh Circuit's opinion in Flava Works, Inc. v. Gunter, blogger Eric Goldman rips into Judge Posner and the Seventh Circuit:
Judge Posner drafted this opinion, which means that (as usual for him) it reads like a barely edited first-draft. As usual for Seventh Circuit opinions, it makes a number of questionable and undefended offline analogies, makes assumptions about factual questions that could/should be remanded to the district court, barely engages with or cites to other legal precedent, raises and addresses issues that the litigants never raised, and is filled with gratuitous digressions (e.g., an uncomfortable discussion that gay ethnic pornography might be illegal, a contention neither party advanced; and an odd discussion about the reputational capital benefits of sharing content). If I were Flava Works, I would be hopping mad about the manifest procedural defects in the opinion (and motivated to seek en banc review). As a result of the opinion’s characteristic affectations, parsing this opinion is needlessly difficult, so I can only do so much to deconstruct the legal principles in it.
For some more of Judge Posner's "characteristic affectations," see my post from earlier today about another opinion Judge Posner authored.

In fact, as long as I'm talking about that opinion, I was struck by Posner's assertion in that case that the court's willingness to interpret the limits of Illinois law depends on whether the case got to federal court because Plaintiff filed it there or because the defendant removed it there:
The plaintiffs are asking us to innovate boldly in the name of the Illinois courts, and such a request is better addressed to those courts than to a federal court. If the plaintiffs had filed this case in an Illinois state court and it had been removed to the federal district court, they would have had no choice, and then we would have been duty-bound to be as innovative as we thought it plausible to suppose the Illinois courts would be. But the plaintiffs filed this suit in the district court originally — they chose the federal forum.
Judge Posner cites a couple cases to support this idea that the Seventh Circuit is not "duty bound" to figure out what Illinois law requires when the Plaintiff chooses federal court as the forum, so maybe it's a well established principle. But that doesn't make it any less strange.

"Although it is well known that every human being defecates, no adult human being in our society wants a newspaper to show a picture of him defecating."

Speak for yourself, Judge Posner.

Wednesday, August 1, 2012

A sitting state supreme court justice lost a primary?

Remember when Texas Governor Rick Perry was considered to be a serious candidate for president? If not perhaps one of these links will refresh your recollection.