When you gotta go...

According to the Seattle Post-Intelligencer, former Badger and current Seahawks offensive lineman John Moffitt has been banned from a Seattle mall for urinating in the parking lot. Yet he returned to the mall, and once again urinated in the parking lot:

According to police, Moffitt had been banned from Bellevue Square mall — and all Kemper Freeman properties — for a year starting on Jan. 21, 2012. But Moffitt returned to the mall on June 14, and was spotted by Bellevue Square security allegedly urinating near a vehicle parked near Paddy Coyne’s bar, according to an incident report. 

Security called police, and officers looked for Moffitt near the Washington Square condos, where he was known to often hang out, according to the report. Police found two “very large males” running along the street, and one officer yelled for Moffitt to stop, the report states. Moffitt allegedly looked directly at one of the pursuing officers, then ran into the building. 

A week later, police showed photos of Moffitt to the Bellevue Square security officer who said Moffitt had urinated near a car, and made a positive identification of Moffitt as their alleged perp. Moffitt was later charged with criminal trespass and obstruction, both misdemeanors. 

Court records also indicate that Moffitt was caught trespassing again on Aug. 25, this time at Lincoln Square mall in Bellevue — another Kemper property. In that incident, officers escorted Moffitt out of the bar at Pearl restaurant without incident before taking him into custody., and now faces charges of trespassing and disorderly conduct.

There is really only one explanation:



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

Whatchu talkin'bout Perfessor?

I have been reading The Passage of Power: The Years of Lyndon Johnson, Robert A. Caro's fourth volume in his biography of former President Lyndon Baines Johnson. It is fantastic as are the other three volumes that have been published so far.

On page 352 of the book there is a scene in which President Johnson gets angry at Horace Busby. Mr. Busby was a longtime aide of President Johnson. What had Mr. Busby done?  He had questioned the conclusions reached by two economists on President Johnson's staff, Kermit Gordon and Walter Heller. Unlike Mr. Busby, Mr. Gordon and Mr. Heller did not work for President Johnson before he became president. Instead, Mr. Gordon and Mr. Heller were brought into government by President Kennedy. President Kennedy favored hiring people from Harvard because he felt "you can't beat brains."

Hoping for a speedy recovery.

A friend of mine is an obsessive worrier.  If anything good happens to him, he immediately begins to worry about what bad thing might come along and wreck the good times.  I have not directly asked, but I think thing is based on a belief that low follow highs in life the way they seem to with the weather.

My friend will undoubtedly point to David Lillehaug as an example of this.  As we noted back in March, Mr. Lillehaug was recently appointed to the Minnesota Supreme Court.  He is to start his duties as an associate justice on Monday.  A pretty high moment in a person's career, right?  Here comes the low, MinnPost has the story today that Mr. Lillehaug has been diagnosed with throat cancer.  Mr. Lillehaug's statement says that the disease has been caught early and that the treatment will not prevent him from taking a seat on the court or performing his duties ans associate justice.  I hope those things are all true and I hope that Mr. Lillehaug makes a speedy recovery.  Although there is never a good time to be diagnosed with cancer, I imagine that the diagnosis and treatment will take some of the luster off the excitement one normally would feel at starting such a prestigious job.

The Future is Here

In case you were wondering, flying cars exist—and they are crashing into things.

Sexting Scandal on Evanston Township High School's Baseball Team

My local Twitter feed blew up today with news that the Evanston Township High School (ETHS) baseball team has canceled the remainder of its season because of a sexting scandal of some sort:

On the eve of regional playoffs at Evanston Township High School, the athletic director told parents in a letter that the baseball team would forfeit the season, following allegations that players were sending indecent photographs via text message.

I don't really know what to make of this. Is sexting really so terrible? Even if it is, why not just suspend the evil-doers? Why "forfeit the season"? What is the lesson here?

I don't care at all about local high school baseball, but this possible overreaction to teenage sexuality seems like a troubling trend.

Penny Pritzker is Rich Beyond Your Wildest Dreams

President Obama has nominated Penny Pritzker to be Secretary of Commerce. She has a reported net worth of $1.85 billions dollars. That's billion, with a B. Her wealth is mainly inherited, as she is a member of the famous Pritzkers of Chicago, who made their fortunes in the hotel industry—specifically Hyatt Hotels.

But Ms. Pritzker is not merely an heiress. She makes tons of money on her own. In fact, she makes so much money that, in filings with Congress, she accidentally understated her income over the last decade by 80,000,000 dollars. To be clear, she didn't understate her net worth; she understated her income. The mistake was chalked up to "a clerical error," and she has corrected it.

So, how did Ms. Pritzker make all this money? Basically, it looks like she got paid a fortune for managing the fortune:

Documents released last week show Pritzker received $32.2 million for a decade’s worth of consulting on the restructuring of domestic trusts. The filings released yesterday show she earned at least $80 million for that work, according to Bloomberg’s compilation of the data. The revised total is in addition to the amount reported last week, according to Anderson.

Pritzker, whose family founded Hyatt Hotels Corp, ... disclosed last week that she earned $54 million in consulting fees last year for a similar restructuring of trusts based in the Bahamas, also over 10 years. The Bahamas’ income wasn’t changed in the amended disclosure document.

* * * 

“Ms. Pritzker was engaged by the U.S. trustee of trusts for the extended Pritzker family for advice on restructuring trust investments for the purpose of dividing assets along individual family lines,” Anderson said. They included investments in Hyatt, Marmon Holdings Inc., Union Tank Car Co. and non-hotel real estate investments including the Hyatt Center office tower in Chicago, she said.

So, if I'm reading this right, Pritzker has "earned" about $165,000,000 over the past decade for "managing various trusts." [CENSORED.]

About the only controversy regarding Ms. Pritzker's nomination is that her family owned bank failed back in 2001. She testified that "ya know, I feel very badly about that." But she asserts she had no management role in the bank so bears no responsibility. Honestly, what could she have done? She was too busy earning $31 per second (every second of every day of every year for a decade) managing those pesky trusts.

The Green Mountain State

The state motto for Vermont is "freedom and unity."  The motto raises the (unintentional) question about whether one is free to not be part of the unity in Vermont.  One thing that judges in Vermont are not free to do is serve as long as they are able.  Like many states, Vermont has a mandatory retirement age for judges.  For most states the mandatory retirement age is either 70 or 75.  Vermont, however, has a mandatory retirement age of 90.  That is a somewhat interesting choice by the Vermont legislature given that it is 11 years longer than the average life expectancy for someone living in Vermont.  I could not find anything that showed how many Vermont judges, if any, have served until they were 90.  But I guess that it is good that Vermont judges have more freedom to chose how long they serve than judges in our states.

Apple's taxes

Tim Cook, Apple's CEO, testified in front of Congress the other day about Apple's tax-avoidance strategies. One of the main topics was the so called "Double Irish" scheme, which Joe Nocera describes:

This strategy, which was the primary focus of Tuesday’s hearing, involves setting up a shell subsidiary in an offshore tax haven — a k a Ireland — and transferring most of Apple’s intellectual property rights to the dummy subsidiary. The subsidiary, in turn, charges “royalties” that allows it to capture billions of dollars in what otherwise would be taxable profits in the United States. In Ireland, according to Apple, it pays an astonishing 2 percent in taxes, thanks to a deal it has with the government.

Nocera thinks this is bad business for Ireland, somehow:

Question for the government of Ireland: Do you really want your country to be known as an offshore tax haven? Indeed, at a time when your citizens are dealing with the pain of an austerity program, how can you justify allowing Apple to pay virtually no taxes on a subsidiary established solely to avoid taxes in the United States? Just wondering. 

These kind of rhetorical questions often mask stupid arguments, and that is true here. In fact, Ireland has nothing to lose by allowing Apple to do this. As noted in Nocera's column, Apple has no employees and no offices in Ireland. Yet it pays taxes there! Nocera says it is "an astonishing 2 percent," which he later calls "virtually no taxes." But two percent of a very big number is a very big number. Apparently Apple pays 2 percent of its IP royalties to the government of Ireland. I would say that is astonishing indeed—and a great deal for Ireland.

So to answer Nocera's question directly: Ireland can justify allowing Apple to pay virtually no taxes because virtually no taxes is better than actually no taxes. Isn't this pretty obvious? Just wondering.

Is king of latex a desirable nickname?

Continuing our coverage the misadventures of Michigan circuit court judge Wayne McCree (see here, here, here, and here) we report, thanks to Mlive.com, that Judge McCree's judicial misconduct trial has started.  According to the testimony, Judge McCree when presented with a claim that he impregnated his mistress responded by saying he was the "king of latex."  I assume this means that Judge McCree used condoms and not that he dressed like the gimp in Pulp Fiction.

Umbrella Umbrage

A few days ago, Mr. Gillette posted about a sort of strange photograph taken of a Marine holding an umbrella for President Obama during an outdoor press conference. Mr. Gillette mused:

[T]he first thing I thought when I saw the picture was, why do they use a member of

the United States Marine Corps to hold an umbrella over the President?  I'm reasonably confident that the President himself doesn't decide who holds an umbrella for him.  I wonder how it was determined that umbrellas should be held by members of the Marines?

It turns out, however, that the President does indeed choose his own umbrelladiers. The Washington Post reports:

Slogging through a drizzly Rose Garden news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, President Obama took a break to ask for some rain protection.

“I am going to go ahead and ask folks, why don’t we get a couple of Marines — they’re going to look good next to us — just because I’ve got a change of suits but I don’t know about our prime minister,” he said as two Marines appeared at the lecterns with umbrellas. “There we go. That’s good.” He gestured to the soggy press corps, adding, “You guys I’m sorry about.”

According to the Post, conservatives are unhappy about the President's little joke. For example, Lou Dobbs tweeted:

Obama expects our troops to hold damn umbrellas rather than go inside: It's disrespectful, inconsiderate, classless.
— Lou Dobbs (@loudobbsnews) May 17, 2013

There also appears to have been a breach of protocol because apparently male Marines are not allowed to carry umbrellas. That said, title 10 of the U.S. Code also states that Marines are to "perform such other duties as the President may direct." So perhaps the conscription into umbrella duty was an appropriate exercise of executive power after all.

The Gillette-Torvik Blog will continue to cover this breaking story, which I've code-named "Umbroglio."

Judge Schiltz on Lawyers

I randomly stumbled across a very interesting and readable old (1999) article written by Judge Patrick Shiltz entitled, "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."

It's long, and somewhat outdated in its particulars, but it holds up rather well. It touches on some themes I've discussed here, but Judge Schiltz has perhaps a better explanation than I do for the apparently irrational profit-maximizing behavior of lawyers:

Why do you suppose sixty year old lawyers with millions of dollars in the bank still bill 2200 hours per year? Why do you suppose lawyers whose children have everything money can buy but who need the time and attention of their parents continue to spend most nights and weekends at the office--while continuing to write out checks to the best child psychologists in town? Why do you suppose one big firm partner I know flew into a rage after learning that his year-end bonus would be only--only--$ 400,000, while the bonus of one of his rivals in the firm would be $ 425,000? Why do you suppose that another lawyer I know (a lawyer making $ 1 million a year) came within a whisker of quitting his firm after losing a bitter dispute with one of his partners (a lawyer making over $ 2 million a year) over a $ 10,000 payment?

It is not because these lawyers need the money. Any of these lawyers could lose every penny of his savings and see his annual income reduced by two-thirds and still live much more comfortably than the vast majority of Americans. What's driving these lawyers is the desire to win the game. These lawyers have spent their entire lives competing against others and measuring their worth by how well they do in the competitions. And now that they are working in a law firm, money is the way they keep score. Money is what tells them if they're more successful than the lawyer in the next office--or in the next office building--or in the next town. If a lawyer's life is dominated by the game--and if his success in the game is measured by money--then his life is dominated by money. For many, many lawyers, it's that simple.

The whole thing is worth a read.

--Bart Torvik

I guess the White House doesn't have interns anymore.

The Minneapolis Star Tribune has a story about President Obama vowing to take action regarding the IRS and protecting diplomats.  This picture accompanies the story and was taken by Charles Dharapak for the AP.

What about bearded Spock?

Matthew Yglesias ranks the best of everything Star Trek.  His list of best episodes contains a startling omission.  As the saying goes, opinions are like ears, everyone has a couple.  Whether Mr. Yglesias's are worthy of your consideration given this omission is a different matter.

Does judge-shopping exist in criminal law cases?

If you read his online biography, you will learn that Wisconsin Representative James Sensenbrenner likes to watch the Green Bay Packers in his free time. If you read the biography closely you might realize that Representative Sensenbrenner has been in elected office pretty much from the moment he graduated law school. Representative Sensenbrenner graduated law school in 1968 and was promptly elected to the Wisconsin Legislature. After serving there for 10 years, he was elected to the United States Congress and has been there ever since. It does not appear that Representative Sensenbrenner has ever practiced law or  had a full time job that wasn't a political office.

But will they go to Hell?

The Minneapolis Star Tribune reports that the Minnesota Senate has passed a bill legalizing same-sex civil marriage. As we noted on Friday, the Minnesota House of Representatives has also passed the bill.

There They Go Again

News broke last week that the IRS targeted Tea Party groups for special investigation prior to the last presidential election. The IRS has apologized, initially blaming overzealous "low-level employees" (aren't they all?) for the program. Although subsequent reports have revealed that the IRS higher-ups have known long about the program, I would never doubt the zeal of low-level IRS employees. For two great examples of the great things they can accomplish when they put their minds to it, see this post: "Dumpster-diving, movie-watching, newspaper-reading, relentless ... IRS agents".

Is Minnesota creating a new class of bigots?

The Minnesota House of Representatives passed a bill yesterday that allows same-sex couples the right to civil marriage.  The bill now goes to the Minnesota Senate. The St. Paul Pioneer Press article on the passage is here.  The article contains a statement from Minnesotans for Marriage. The group is not really aptly named because the only type of marriage they are for is heterosexual marriage. The statement is intended to encourage the Minnesota Senate to block the bill.

Can The Liberator Be Stopped?

Yesterday I linked to a Farhood Manjoo piece in Slate about the Texas law student to came out with a 3D-printed gun ("the Liberator"). Mr. Manjoo's take is that, even if you're the kind of person who might worry about this, you shouldn't because government will not allow it to happen:

Even non-repressive regimes can impose harsh penalties to limit the spread of certain information. The United States couldn’t stop WikiLeaks from distributing secret diplomatic cables, but it did manage to strike a terrible blow to the group when it cut off its funding sources. In the same way, by imposing strict penalties for the distribution and possession of child pornography, Western governments have severely limited its spread online.

The rise of file-sharing seems to support the 3-D gun movement’s claims—people share movies and songs illegally online, and no government has been able to stop them. But note that doing so isn’t completely safe; if the authorities set their mind to it, they can bankrupt you for sharing songs online. Countries where guns are already strictly curbed could impose similarly harsh measures against the distribution of plans for 3-D guns—and if they enforce them strictly, they might well limit their availability.

To the extend Mr. Manjoo is basing these arguments on U.S. law, the analogies to crackdowns on pirated music / movies and child pornography are way off-base.

First, the analogy to piracy fails because there will be no copyright issue. Mr. Wilson and his kind will be distributing these plans, which are their own intellectual property, freely and without restriction. It is only copyright law that prevents distribution of movies and music, and it is only copyright that allows the government to enforce the standards Mr. Manjoo mentions. Given that there will be no copyright on these gun-printing blueprints, no one will have the legal right to prevent their distribution. Congress would need to pass a law to make such plans illegal, but that law would almost certainly be unconstitutional under the 1st Amendment, the 2nd Amendment, or both.

Second, the child porn analogy fails for a similar reason. Laws preventing dissemination of child porn are allowed on a very narrow exception to the First Amendment, and there is no reason to believe that dissemination of these gun-plans would fit any exception.

That is not to say the U.S. government is without recourse. In fact, it's already taking action. The U.S. State Department wrote Mr. Wilson a letter demanding that he take the plans down from his website on the theory that they may violate export regulations under certain arms control treaties. Mr. Wilson has complied with the request pending the State Department's review, although he believes that the regulations do not apply to his non-profit enterprise. This also raises issues whether the government can regulate anything published on a website as an "export" and whether treaties pertaining to exports can override constitutional rights. But we'll leave those questions for another day. I will just note that you can buy the "Anarchist Cookbook" on Amazon.

Is a Crypto-Anarchist Fit for the Bar?

Cody Wilson, a second-year law student at the University of Texas, has successfully created a 3D-printed gun and fired it. Here's the awesome video:



Mr. Wilson is apparently an extreme libertarian who, according to Farhad Manjoo, describes himself as a "crypto-anarchist":

Crypto-anarchism (or crypto-anarchy) is a cyber-spatial realization of anarchism. Crypto-anarchists employ cryptographic software to evade prosecution and harassment while sending and receiving information over computer networks, in an effort to protect their privacy and political freedom.

Prospective lawyers generally must establish their "character and fitness" to be bestowed with the privilege of practicing law. I wonder whether a person who openly avows anarchy could be found fit to practice law—that is, to become an officer of the court sworn to uphold the constitution and laws of the United States. This question itself may have an unsavory aftertaste, given that it calls to mind similar questions asked of Communists during various Red Scares. But that's how I roll.

Mr. Wilson seems to have broken no law with his 3D-printed gun, and even took active steps to comply with federal law by inserting a non-functional piece of metal into the final product. And I actually can't find any evidence to back up Mr. Manjoo's assertion that Mr. Wilson describes himself as a crypto-anarchist. (All I can find is an interview in which he expresses enthusiasm for cryptocurrencies, such as Bitcoin. It's quite possible that Manjoo just made up this anarchist stuff, because as you'll see in my next post he makes laughably wrong assertions regarding the law in the very same article.) But, assuming for a moment that Mr. Wilson is openly anarchist, it seems fair to at least explore whether such beliefs are consistent with swearing the lawyer's oath of admission.

Troubling Trends

I've noticed a troubling trend, lately: there are a lot of stories about how one thing or another is a "troubling trend."

I don't know where all these trends are taking us, but one thing I do know is that they are troubling.

How many Star Trek references are too many?

Speaking of Mr. Spock, United States District Court for the Central District of California judge Otis Wright issued an 11-page order yesterday with at least 13 references to Star Trek (there may be more, I am not up on all the various TV shows related to the original series).  I have to believe that this is a record for Star Trek allusions in a single order. Maybe this is some sort of weird promotion for the latest Star Trek movie.

Posner on Privacy

Judge Posner has been making some waves recently after he published an op-ed on his skeptical view of privacy. In Posner's view, "there is a tendency to exaggerate the social value of privacy":

I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

To understand Posner on privacy,you need to know only one fact: Judge Posner has made public (by publishing!) literally every thought that has ever crossed his mind. (Here is his 170-page CV.)

He has published most of his thoughts many times. His views on privacy are a good example. As he points out, he first started making this argument about how privacy is just a euphemism for concealment 35 years ago! And if you just do a Google search, you'll find a transcript of a Big Think interview from 2007 where he says, well, pretty much the same stuff word-for-word:

No. I value my privacy as much as anyone.  But I think as a social good, a social aspect, I think privacy is greatly overrated because privacy basically means concealment.  People conceal things in order to fool other people about them.  They want to appear healthier than they are, smarter, more honest and so forth.  I mean I’m exaggerating some, but I think it’s very much a double-edged sword, from a social standpoint.  That’s number one.

Another example: Not too long ago Mr. Gillette posted about a recent Posner opinion on the wisdom of imprisoning old people, and it reminded me of a case I read in law school. When I went to look it up, sure enough there was Posner, 25 years ago, writing essentially the same opinion.

Point is, Posner is not normal. He has chosen a ridiculously public life. His views on privacy are about as relevant to me as Mr. Spock's. And Mr. Spock doesn't even exist.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

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.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

Should we reconsider our view of Maryland?

As we have noted before, there is some evidence to suggest that the state of Maryland is a hellhole (or perhaps a Hell Hole). However, as a counterargument to the Maryland-haters out there, one might point out that today Maryland became the 18th state to abolish the death penalty. According to this, Maryland is the sixth state that has abolished the death penalty in the in the 21st Century.