Torvik and Gillette are smarter than Klein and Toobin‽

The Supreme Court has upheld Obamacare.  Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority.  I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did.  I am too lazy to look.).  Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong. 

In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous.   Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.

Judge Easterbrook‽

Eugene Volokh points out that a recent Seventh Circuit opinion (authored by Judge Frank Easterbrook) appears to include an interrobang:

We have mentioned that Booth Trust and Gross did not make a demand on the directors before filing suit, and that neither plaintiff nor any other investor (in his role as investor) suffers antitrust injury. Plaintiffs say that investors still can gain from this suit, because removing interlocking directors from the board will eliminate any chance that the United States will file a §8 suit to remove them. We don’t get it. In order to avoid a risk of antitrust litigation, the company should be put through the litigation wringer (this suit) with certainty‽

I confess that after reading this paragraph several times I actually have no idea what it is supposed to mean, and I haven't read the whole opinion to find out. So I can't say whether the interrobang was intentional or a bizarre typographical error. But the italics (in original) make it seem intentional.

And that's a good thing‽ 

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.

Sex by surprise?

I'll confess I haven't been following the manhunt relating to WikiLeaks founder Julian Assange very closely.  I knew that he was wanted for some kind of sex crime in Sweden. And I noticed that he had been arrested in England. But my interest wasn't really piqued until I noticed the headlines and blurbs that seemed to imply that his alleged crime is "sex by surprise."

Sex by surprise‽  Supposedly, the offense had something to do with a broken condom, which somehow constitutes a sex crime in crazy Sweden.

But apparently not.  According to an op-ed by Jessica Valenti in the Washington Post, at least, this "sex by surprise" thing was made up by Assange's lawyer in an attempt to belittle the seriousness of the charges:

Let's get this out of the way: Sweden does not have a "broken condom" law. WikiLeaks founder Julian Assange was not arrested because his contraception failed mid-coitus. Nor is he charged with "sex by surprise."

* * *

The allegations against Assange are rape, sexual molestation and unlawful coercion. He's accused of pinning one woman's arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom. But the controversy seems to center on the fact that both encounters started off consensually. One of his accusers was quoted by the Guardian newspaper in August as saying, "What started out as voluntary sex subsequently developed into an assault." Whether consent was withdrawn because of the lack of a condom is unclear, but also beside the point. In Sweden, it's a crime to continue to have sex after your partner withdraws consent.

So, thankfully, it appears that "sex by surprise" is not necessarily a crime in Sweden or anywhere else.  Merry Christmas, everyone!