Intercepting emails is a federal crime

As affirmed in this recent opinion by the Seventh Circuit.  Chief Judge Easterbrook sets the scene, almost too pithily:

David Szymuszkiewicz was in trouble at work. His driver’s license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers’ homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client. She discovered a “rule” that directed Outlook to forward to Szymuszkiewicz all messages she received. Szymuszkiewicz was convicted under the Wiretap Act for intentionally intercepting an electronic communication. See 18 U.S.C. §2511(1)(a). 

 Intrigue at the IRS.

Is polyamory the next great civil rights movement?

The answer is no.

But the lawsuits are probably coming.

The invisible chief?

Linda Greenhouse has an article about how only 28% of Americans can identify John Roberts as the Chief Justice of the US Supreme Court -- even when fed Roberts, John Paul Stevens, Harry Reid, and Thurgood Marshall in a multiple choice question.  Fifty-three percent simply didn't know; 28% got it right; the rest (20%) got it wrong.  (Though, depending on how you count the votes, maybe everybody got it right.)

Greenhouse finds this surprising.  I don't.  But it reminded me of a recent snippet I read from Tony Blair's new memoir:

The single hardest thing for a practising politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh...., before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll..... 

This is doubly true for the politics of the Supreme Court, I would think.

"Things Could Be Worse"

That is is the title (or headline) of an op-ed by Paul Krugman comparing the state of the US economy to Japan's.  You would think his thesis might be that "things could be worse" in the US because, hey, we could be in a 20-year funk like the Japanese.  But no.  His argument is that things could be worse in Japan--it could have Republicans, but thankfully it does not.  At least that appears to be the argument.

Scalia speaks at Marquette Law School

Justice Scalia went to Marquette to emphasize the importance of law teaching.  He did not, however, emphasize the importance of hair combing. 

Reached for comment, Scalia had this to say:  "Vaffanculo."

Evanston City Code, Part 2

A while back I blogged about some of the more "interesting" ordinances in my new home town, Evanston, Illinois.  I thought of this again today when I was at the grocery store buying two six-packs of beer.  One of the nice things about where we live is that we are just a five-minute walk to two grocery stores, both of which sell beer and wine.  So help is never far away.  But both stores require that we put six-packs and wine into grocery bags, based on their stated belief that it is illegal in Evanston to walk around the city with six packs of beer, etc.  When I was researching the code last month, I took a brief look at the alcohol ordinance and saw nothing to prevent this.  Today, after again being forced to transport my six packs in grocery backs, I decided to settle this once and for all.

Here is the text of the relevant ordinance: 

Does the new pleading regime of Iqbal and Twombly apply to affirmative defenses?

Most litigators know (at least they should) that a pair of recent U.S. Supreme Court cases (Iqbal and Twombly) effectively heightened the standards for pleading causes of action in a complaint.  In the old days (i.e., the early 2000s), a plaintiff's lawyer could just throw together a complaint with a skeletal set of conclusory assertions to match the elements for each cause of action.  Now the Supreme Court has interpreted Rule 8(a) of the Rules of Civil Procedure to require that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."  This "plausibility" requirement sent shockwaves through the plaintiffs' bar.

New business plan?

"Copyright troll."

I like the tag.

Way to avoid a reference to Kool and the Gang, Bart. The Second Circuit has one opinion and the Minnesota Human Rights Department has a different one. Of course, the Second Circuit is considering the Equal Protection clause, and the the department was interpreting Minnesota's Human Rights Act.

Considering the opposite conclusion reached by these two entities, begs the question of why the plaintiff chose to sue under the Equal Protection clause instead of a state or federal public anti-discrimination law. At first I thought it might be because the plaintiff, Den Hollander was not represented by an attorney and, therefore, was unaware that New York City prohibits discrimination by businesses (I know, New York State probably does too but it is late and finding that statute is unnecessary to my point). However, it turns out that Mr. Hollander is an attorney. One whose whole practice is apparently devoted to being an (or perhaps the), "anti-feminist lawyer". Given that he is a lawyer, his unwillingness to invoke anti-discrimination in public accommodation laws is perplexing.

One thing on Mr. Hollander's website that I think all attorneys can relate to is this: on each of his loses in his "trilogy of cases" he blames the judge rather than a weakness with his case or advocacy skills.

Ladies' Night Constitutional

The Second Circuit has rejected an Equal Protection challenge to a private nightclub's policy of regularly charging men a higher cover charge.  This policy is known as "Ladies' Night."  The Court ruled that the Equal Protection clause did not apply because private nightclubs are not state actors.

Leaving aside the constitutional question, I am calling on all men to boycott institutions that employ these discriminatory practices.  But, then again, a successful boycott by men would only increase the proportion of women-to-men at such institutions, which is the goal of Ladies' Night .  So, on second thought, I demand that men boycott all Ladies' Nights, particularly in the Evanston, Illinois area.  Alas, the only way for me to enforce gender solidarity on this issue is to patrol the nightclubs myself.