On Voting

People are always asking me: "Bart, how should I decide who to vote for in the upcoming presidential election?" In the future I will refer these people to this blog post.

My advice is simple, but surprisingly controversial: "You should vote for the candidate that you actually want to become president." This is controversial, it turns out, because it seems to give people license to vote for a candidate other than a Republican or a Democrat.

A race to the bottom

Tommy Craggs lets folks know what the dispute between the NFL and its referees was really about. 

Bipartisanship at its finest?

President Obama and Mitt Romney agree on something.  Is this a sign that the age of reflexive oppositional politics is over?  Or perhaps this agreement is evidence that Governor Romney is not a true conservative.  Tune into your local talk radio station to find out.  Or better yet, don't.

A storied rivalry? Maybe not.

Sports Illustrated.com reports Notre Dame is opting out of its annual football game against Michigan.  The story is presented as the end of a rivalry that "dates to 1887."

Time Flies

Hard to believe it's been a year since this all-time-great post from Mr. Gillette.

"[J]udges are ill suited to resolve social problems."

Dahlia Lithwick has a column at The Nation entitled, "One Nation by and for the Corporations." The unsurprising thesis is that the courts, most notably the Supreme Court, are bought and paid for by business interests. According to Lithwick, this campaign is insidious and damaging:

There is ample language in the Court’s recent rulings to demonstrate that judges are ill suited to resolve social problems, that such efforts should be constrained and monitored and fundamentally mistrusted. But it’s one thing to trim the sails of the judicial branch; it’s quite another to transfer power that once rested with the judiciary directly back to groups that hold power already. Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

It is ironic to see that the liberal position has become that judges are ill-suited to solve social problems. But perhaps judges are ill-suited to resolve social problems only when their resolution is favored by conservatives. Or perhaps, as some say, liberals should not hate the players, but rather hate the game (even though they made up the rules).

New York lawyers can slander each other during depositions.

In New York a lawyer can slander opposing counsel with impunity or at least with immunity. This guy got slapped when he called opposing counsel, ""uncivilized, ignorant and incompetent," during a deposition. Then he got sued.

Required pro bono work; coming soon to an area near you?

Reuters has a story about how, beginning in 2015, the state of New York will require 50 hours of pro bono work from lawyers who wish to take the New York bar exam.  The Wall Street Journal Law Blog predicts that this requirement will spread to other states.  What do you think Mr. Torvik, is this a good idea?

How do you not notice your pinkie finger has been severed?

Or perhaps the question should be, how drunk do you have to be to not notice your pinkie finger has been severed.

Posner v. Scalia & Garner: Scalia Speaks

Justice Scalia says that Judge Posner told a lie about Justice Scalia.  Now you know.  This story has more sequels than Die Hard.

Madison Teachers, Inc. v. Scott Walker

The Reader(s)™ have spoken—they want me to opine on the recent Dane County Circuit Court case striking down major provisions of Scott Walker's public-union busting law, Act 10. These people are nuts, but ... well, okay.

A Supreme Court pundit promotes his books in the Twin Cities.

The Minneapolis Star-Tribune has an interview with Supreme Court pundit Jeffrey Toobin.  Mr. Toobin is coming to town to promote his new book.  He is arguably most famous for predicting that Obamacare was doomed after the second day of the Obamacare oral argument back in March.  As we pointed out at the time, this was a ridiculous prediction.  We have also discussed Mr. Toobin's punditry here, here,  here, and here. 

Chuck E. Fail

A jury returned a swift GUILTY verdict on Katherine Holmes' "attempted murder for hire" charge yesterday in Judge Fishburn's Criminal Court division here in Nashville, TN.  Reportedly, the jury was only out one and a half hours to make the decision. Stunning.

Ms. Holmes had presented evidence early in the trial that she had performed the role of Chuck E. Cheese in high school. Coincidentally, yours truly has that same claim to fame... and will certainly remember Ms. Holmes' sad example that jurors don't seem to find it too compelling! A sad day for Chuck E.'s everywhere...

The jurors reportedly picked up on a certain cockiness on Ms. Holmes' part during her testimony, and discounted her credibility accordingly. And this without the Judge letting them find out that she was [allegedly] leading a CVS-Ebay shoplifting ring while awaiting trial on the murder charge! (And, btw, while working as loss prevention for CVS...).

Seriously though, a truly disastrous outcome for Ms. Holmes.

Take care, Ms. Holmes. It's a long road ahead at the Tennessee Department of Corrections.

Dane County Judge Strikes Down Wisconsin Collective Bargaining Law

... as applied to county and municipal workers, apparently on grounds that it violates the constitutional rights of free speech, association, and equal protection.

I think we can all guess where this is going: an emergency stay from the Wisconsin Supreme Court. And fisticuffs.

UPDATE: Here's the opinion.

Do not post pictures of your client's underwear on your Facebook page.

You might think that the (non-legal) advice found in the title of this post was obvious to everyone.  You would be wrong. 

Is Chief Justice Roberts a playmaker?

Garrett Epps, a law professor at the University of Baltimore, has a piece at the Atlantic entitled "Does Scalia Still Mater?".  The answer according to Professor Epps is—SPOILER ALERT—no.  Someone needs to tell Richard Posner, Bryan Garner, and Justice Scalia that they can stop their feud. 

Another Posner-Garner Fact Check

Continuing my quest to discover the truth in even the most trivial of matters....

Garner defends the accuracy of his case explanations by describing the cite-checking process they used:

Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book.

Posner responds with disbelief:

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. 

Since I have the book now, I decided to turn to the acknowledgements page. It includes this:

At Law Prose, Inc. in Dallas, we had the benefit not only of a fine law library but also of several accomplished legal researchers: Tiger Jackson, Jeff Newman, Becky R. McDaniel, Heather C. Haines, Timothy D. Martin, and Eliot Turner.

This group presumably includes Garner's cite-checking lawyer-colleagues. Very odd.

Incidentally, I count 101 "persons" (including one corporate person, William S. Hein & Co.) thanked on the acknowledgments page—not 96, as Posner states. Is it just a coincidence that 101 minus 96 is five, and that Posner seems to have missed the five legal researchers at Law Prose? (*See update for my mistaken lawyer math.) Or is Posner actually looking at a different version of the Acknowledgements that left them out? That is the only scenario in which Posner's accusation that Garner is lying is defensible. But that scenario seems very unlikely, particularly since the paragraph thanking the Law Prose researchers goes on to thank several other Law Prose "staffers."

UPDATE: An astute reader informed me that I left out Timothy D. Martin from the list of Law Prose legal researchers, so there are actually six of them, not five. As a result, the "multiple Acknowledgments" theory doesn't hold water.

President Obama and female judicial appointments

We have had some discussion on the blog about how many federal judgeships are vacant under President Obama's administration.  Given our criticism, it seems appropriate to point out that President Obama has reportedly appointed more women to the federal bench than any other president.  The ABA Law Journal has the story here. 

Posner Comes Out Against The Drug War

Having declared Judge Posner the loser (for now) of the Posner-Scalia dust up, I'd be remiss if I didn't point out that Posner recently said some stuff I agree with wholeheartedly:

I don’t think we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana... I can’t see any difference between that and cigarettes... But also I’m skeptical about the other drug laws. The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs — I don’t think that’s sensible at all. [Drug laws are] responsible for a high percentage of our prisoners. And these punishments are often very, very severe. It’s all very expensive... [Drug laws] waste of a lot of high quality legal minds, and it’s also a waste of people’s lives who could be as least moderately productive with having to spend year after year in prison. That is a serious problem.

More Posner v. Scalia (and Garner)!

On its website, the New Republic has published Bryan Garner's response to Judge Posner's review of his and Justice Scalia's book and a further response from Judge Posner (Posner's response starts a bit down the page at the link).

One of the main areas of contention is whether Posner is right that Scalia and Garner misrepresent the cases they use to illustrate their interpretative canons. Posner points to six cases that he says they misrepresent; Scalia partisan Ed Whelan takes on all six examples. As I mentioned before, it is impossible without real study to make a reasoned decision about who has the better of it.

But I got a strange urge to do that real study here, thinking it would be a satisfying intellectual exercise to determine for myself who's being sloppy or worse here. I decided to look into one of the cases that Posner says Scalia misrepresents, and then doubles down on in his response to Garner's riposte—Commonwealth v. McCoy.

Here's what Posner says about the case in his original review:

Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.

I won't bore you with Whelan and Garner's response, or Posner's response to their response, because from this one excerpt of Posner's review—the only one I even began to investigate—I was able to determine to my satisfaction that it is Posner who is being too sloppy to take seriously. So I called the whole thing off.

Here's why. I decided I would start by reading this McCoy case. All I had was the case title (Commonwealth v. McCoy) and a quoted portion of the statute at issue ("from any location into any occupied structure"). So I typed "Commonwealth v. McCoy 'from any location into any occupied structure'" into Google Scholar. Here's what I got:

Nothing. Hmm.

You may notice that Google, ever helpful, had a suggestion: "Did you mean: Commonwealth v. McCoy 'from any location into an occupied structure"?

Why, yes—it turns out that is what I meant. Because it turns out that Posner misquoted the case (and the statute) in question, twice, in the span of a single paragraph.

Posner is accusing Scalia and Garner of misrepresenting and misreading cases. That means he damn well better get his own case citations right. In the only citation I looked up, he failed.

That's enough for me to conclude that Posner did not use any particular care in cite-checking the Scalia-Garner book or in crafting his review. Ultimately, it's enough for me to conclude that, indeed, his review is a tendentious hatchet job.

(Note: It's possible that Posner simply repeated a misquote that Scalia and Garner made in their book. Possible, but false. I went ahead and bought the Kindle book. Scalia and Garner quote the case, and quote it correctly. Posner introduced the error.)

Joe Biden is a ... Strange Man

Story here.

Andrew Shirvell Ordered to Pay $4.5 Million to Gay Student Leader

Former Michigan prosecutor Andrew Shirvell has lost, big time, in a defamation suit brought by Chris Armstrong, the University of Michigan student on whom Shirvell developed a bizarre fixation. According to Armstrong's attorney, Shirvell "wrapped himself in the First Amendment" at trial. I guess the First Amendment suffocated him. He's left with a $4.5 million judgment against him and no job.

For previous coverage, see here.

Is Saturday the most important day in the history of Western Civilization?

As everyone knows, tomorrow is the most important college football game of the season, if not the century.  Specifically, Iowa and Iowa State renew their fabled rivalry by playing for the Cy-Hawk trophy.  As we noted last year, the Iowa Corn Growers Association attempted to turn the Cy-Hawk Trophy into a sort of advertisement.  The attempt failed.

Judge Jones replies "Oh, it's on." Or something like that.

Unhappy with being told he was a partisan hack, Judge Jones has responded to the drubbing he got from Judge Reinhardt.  You can read the response of Judge Jones here.  Essentially Judge Jones answers Judge Reinhardt's charges by saying that Judge Reinhardt is everything that Judge Reinhardt says Judge Jones is. 

"No, I'm not.  You are." is not the most effective form of argument.  A better approach might have been to explain the delays between being assigned the case and hearing the motion.  Perhaps also with an explanation as to why an additional hearing was scheduled on a date that Judge Jones knew would give the plaintiffs the win they were seeking but would not allow the defendants to appeal.  The best approach, as it often is, would have been for Judge Jones to remind himself that he has lifetime tenure and not respond further.  But, of course, taking the high road is often no fun.

What is going on in Nevada?

Did the Chief Judge of the United States District Court for the District of Nevada try to game the judicial system to make an appeal from one of his order moot?  Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals certainly seems to think so.

Notorious B.A.G. responds to J.Dick-Po

Noted legal lexi-con man Bryan A. Garner (a.k.a. Notorious B.A.G), fresh off his niche hit "Reading Law, feat. MC Scalia," has entered the fray to defend the collaboration against fellow Central Time Zone wordsmith Judge Richard Posner (J.Dick-Po). Quoth B.A.G.:

Yo, check it, for real. The trendatious atrocity of J.Dick-Po's review in The New Republic, containing elocutions of perverse adiposities to the new B.A.G.‑A-Scales book, came as a stupefing surprise—a most disappointing one. 

Read the whole thing.

Is Paul Ryan the fastest politician to run a Marathon?

He is not if you disqualify his made-up time.  Slate.com has a feature that allows users to see how long various famous politicians took to run a marathon.  Paul Ryan's actual finish time in the 1990 Grandma's Marathon puts him in fifth place. Who had the fastest marathon time?  John Edwards ran the 1983 Marine Corps Marathon in 3:30:18.  The fastest Republican is George W. Bush.  He ran the 1993 Houston Marathon in 3:44:42.  Check out the site to see who had the slowest time and also see where Sarah Palin fits in the mix.  The results may surprise you.

The Freedom to Own Slaves?

Prof. Dale Carpenter points out that St. Thomas University School of Law Professor Robert Delhunty is using a slavery analogy to argue (implicitly) in favor of a constitutional amendment banning same-sex marriage in Minnesota. Prof. Delhunty's premise is that whenever one party gets freedom, the freedom of another party is necessarily constricted:

[W]henever the law expands the freedoms of one person or group, it necessarily contracts those of another. When the U.S. Supreme Court raised the bar to success in libel suits brought by public officials, it expanded the freedom of the press but diminished the freedom to serve in public office without fear of being defamed. Freedom to publish narrows the right to safeguard a reputation.

Fairly cogent points. But, alas, he goes on:

[T]he constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both. 

It is rare, but perhaps occasionally wonderful, to see an argument reduce itself to absurdity. Prof. Carpenter breaks it down:

So slaveowners lost what Delahunty calls a “freedom” — “the freedom to own slaves” — when they were forced to live in a world where they could no longer own slaves. It’s just that slaves gained more freedom from their freedom than slaveholders lost from losing the freedom to own other people.

I am going to put this in the bottom ten percent of arguments I've seen against same-sex marriage.

Posner-Scalia feud heats up

As Reader(s)™ know, Justice Scalia wrote a book with Bryan Garner about canons of interpretation. Reader(s) also know that Judge Richard Posner has recently had some choice words for Justice Scalia. Today, these two threads of Gillette-Torvik Blog coverage come together to weave a cocoon of horror. Judge Posner has written a review of Justice Scalia's new book.

The review is not positive. It is also exceptionally long—some 5000 words. I confess I quit reading less than half way through, so I cannot recommend it. Luckily, however, Ed Whelan (a former Scalia law clerk) has written what amounts to a review of Posner's review at the National Review Online. It, too, is rather long, but at least Whelan had the good sense (and bandwidth, I guess) to publish his review in three parts (I, II, and III), so he was able to build up some suspense.

According to Whelan, the core of Posner's attack on Scalia is a charge that Scalia misrepresents six cases that he relies on to illustrate his interpretive canons. Whelan says this is false, and that it is in fact Posner who is misrepresenting the cases and misrepresenting Scalia's use of them. Of course, it's impossible to come to an informed opinion about who's right without reading the book, the reviews, and the cases—and I'm not going to do that because I have clients to represent and sports to watch. But Whelan's case against Posner (and for Scalia) appears rather convincing on its face.

Whelan pulls no punches, ending with a direct attack on Posner's standing as a public intellectual and his performance as a judge:

Over the years, a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge. I had a similar reaction to his badly flawed book about judging. Nonetheless, Posner clearly has somehow acquired a reputation that inclines folks to credit his judgments. 

It is no small matter that Posner has abused his reputation to smear Scalia and Garner with his incendiary and ill-founded charge that they have broadly misrepresented the cases that they discuss. (It would, of course, not be a surprise if Scalia and Garner turn out to have made a small number of errors among the more than 600 cases they cite, but Posner has uncovered none.) Posner owes Scalia and Garner a prominent retraction and apology.

Intriguing.

ADDED:

More here.

Paul Ryan is a liar.

Slate.com points out that Paul Ryan has been lying about his time running the marathon.  Politicians lying about their politics or their political acccomplishments is one thing.  Lying about running, however, is beyond the pale.  After all, some things are important.

Eating less is one thing, but this is ridiculous.

There are simply some things I will not do to live longer.

A Gillette/Torvik Grudge match?

This afternoon the football team of the university located in the town I grew up in plays the football team of the university located in the town where Mr. Torvik grew up.  These accidents of geography sometimes form the basis of a rivalry.  Whether they do here depends on whether Northern Iowa can somehow pull off an upset or at least lose by less than the 30.5 points by which Wisconsin is favored.