Programming note

My access to the Internet is going to be spotty until 2013 so the posting about hanging may be my last one of the year.  Happy New Year to our Reader(s)™!

My Christmas Present

I promise a review by next Christmas.

It was 150 years ago today. . .

that the largest mass-execution (or just plain execution, I assume) in United States history took place.  38 men were hanged in downtown Mankato, Minnesota of all places.  It was a mass hanging, so all 38 men were placed on a giant scaffold and hung at the same time.  Some reports say that the men held hands before the gallows dropped.

Tidings of great joy (some restrictions apply).

Verses 7-14 of the second chapter of Gospel of Luke read as follows (in the King James version of the Bible):

The greatest gift of all.

For at least one 4-year-old in 1970, it was this:

Famous criminal gangs

It used to be that there were a lot of famous criminal gangs.  Ones that easily leap to mind are: (1) the Dalton Gang; (2) the James-Younger Gang; (3) the Wild Bunch; (4) the Dillinger Gang; and (5) the Barrow Gang. Note that all of those gangs come from the Nineteenth and Twentieth Centuries.  We need a Twenty-First Century Gang.  I bring you-courtesy of the New York Times-the Maple Syrup Gang.  They really like pancakes or maybe waffles.

Torvik on Gillette on Posner on Punishment

Great post, Mr. Gillette. I find it cosmically amusing that you started out your post talking about the first case we read in law school, because I read about this Posner concurrence earlier today and it reminded me of the first thing I remember reading about in Crim Law—a case that involved whether to impose sentences that keep people imprisoned into the senescence. For whatever reason, the case always stuck with me. With the issue in the news I thought, "I should look into that and do a post about it."

Well, I just pulled out my old Criminal Law textbook and found the case (with the help of my Crim Law "outline," which, yes I still have). The case is U.S. v. Jackson, 835 F.2d 1195 (7th Cir. 1987). Incredibly, the memorable part of that case is a concurrence by—you guessed it!—none other than Judge Posner:

Posner on punishment

Mr. Torvik may have a different memory but I am pretty sure that the very first Torts class we had went like this.  We were assigned to read the Case of the Thorns (or Hulle v. Orynge 1466. Y.B.M. 6 Edw. IV, folio 7, placitum 18 for citation freaks). After taking roll,  our professor asked us to identify the "procedural posture of the issue for decision."  He simply went around the room asking that over and over.  It was like the Paper Chase.   People were eventually reduced to blurting out random words and someone, probably Mr. Torvik, finally said a demurrer.  Sometimes, maybe often, the procedural posture is not the most interesting thing about a decision. 

A failure of the bureaucracy might result in some justice.

We continue our coverage of the trial of Major Nidal Hasan.  You might recall that Major Hasan's trial for murder in connection to a shooting at Fort Hood has been delayed while the issue of whether Major Hasan should be forced to shave for his trial was appealed.  The end result of the appeals was that the judge who ordered Major Hasan be shaved was removed from the case.  Yesterday, Major Hasan appeared in front of his new judge for the first time.  Let's see how that went.

10 years for stealing cell phone pictures.

Yesterday we established that it was a bad idea to take, store, and show people nude pictures on one's cell phone.  At least I think we established that.  What about stealing nude pictures off someone else's cell phone?  That is also a bad idea.

You can't quit, you're fired.

Although I am still feeling pretty unsettled about the shooting in Newtown Connecticut on Friday, I assume that our Reader(s)™ want a diversion from the bad news.  Perhaps something from the judges do the darndest things file.

The grim satisfaction of being correct.

I emailed Mr. Torvik yesterday that I expected to see some fool on TV arguing that the problem with massacres like yesterday is that the adults at the school were unarmed.  TV did not disappoint.

Late yesterday I got a bellicose email from another attorney about a case.  This struck me as wildly inappropriate given the events of the day.  I am pretty sure the Minnesota legal community shut down on September 11, 2001, and it seemed like legal wrangling could have waited until Monday.  But then it occurred to me that if the lawyer had held off on his email, it would requires engaging in some sort of macabre calculus over how many people have to die in a senseless tragedy.

What do you think Mr. Torvik, should lawyers go about business as usual on days like yesterday?

A bad day for organized labor.

One sometimes hears-or reads-people complain that there is not any real differences between the two major political parties and so it does not matter which party wins elections.   We have discussed this fallacy on several occassions.  To add another example to our list, it is hard to see how anyone could look at the news coming out of Michigan and say to themselves there it does not matter who wins an election. 

The Commeowrce Clause

Descendants of Ernest Hemmingway's six-toed cats are subject to regulation by the USDA because they substantially affect interstate commerce.

Reductio cat absurdum.

The range of negotiations.

The Associated Press and the ABA Law Journal have the story of an unusual order to mediate.  Judge Stephen Dunn, an Idaho state court judge, has ordered that the prosecution and the defendant to mediate a death penalty case.

When pettifogger is not good enough

Next time you are looking for a pejorative for lawyer, you might try one of these:

Nigmenog;
Bowyer: or
Snaffler.

How did I learn of these words?  A world famous lawyer was once called them.  Specifically, Charles Schulz used them in a Peanuts comic strip on this date in 1981.  You can read the strip here.  A snaffler is one who purloins by devious means.  A nigmenog is a silly or incompetent person.  I am not sure tell why a bowyer-evidently a maker of bows-is an insult for lawyers but I assume that Mr. Schulz knew what he was talking about.

Rooting for laundry

The university I received my undergraduate degree from beat the university where Mr. Torvik earned his at men's basketball yesterday.  Other (possible) Gillette-Torvik grudge matches were discussed here and here.  This might be more satisfying if I actually cared about basketball.  Mr. Torvik's twitter account is strangely silent about this news.  Perhaps he cannot tweet through the pain.

Some people just can't stay out of trouble.

Michigan judge Wade "no shame in my game" McCree is back in the news.  We have previously covered the exploits of Judge McCree here and here.  

Life Imitates Art

Rob McCuen, one of the finest musicians and songwriters I know, has a great song called Life Imitates Art.  You can watch it below.  The song was called to mind because of a recent criminal law case imitating art. 

Uber Car Service Faces Serious Challenges in Chicago

Uber is a service that allows people to use their smartphones to order—and pay for—a "black car" (limo) or (in some places) a cab. I have never used it, but it gets a lot of good press and seems like a good idea. Uber is essentially an electronic dispatch service between passengers and licensed car or cab drivers. When you need a car, you press a button in the Uber app on your phone (which knows where you are because of GPS) and then Uber gets one of its participating drivers to come get you. When the ride is over, your credit card gets charged by Uber, and Uber pays the driver.

But the service has run into significant legal and regulatory blowback. The taxicab business is a highly regulated cartel in most American cities, so it is governed by rather exacting regulations. It also consists of people and companies who have generally paid good money to get a stake in the cartel. They are not so keen about technology startups that disrupt their money-making processes. So they pressure local authorities to change regulations to make the Uber service illegal. Or they sue Uber directly. Or (as in Chicago) both.

Although Uber is fighting back these challenges in some places—Washington D.C., notably—it faces the full gamut of challenges here  in Chicago: regulatory, legal, and the plaintiffs' bar.

First, Chicago's Department of Business Affairs and Consumer Protection recently proposed regulatory changes that would essentially shut down Uber's limo service in Chicago by preventing it from using a "device" (such as GPS in a smarthpone) to charge by distance traveled or time spent in the car. The regulations seem tailored specifically at Uber, and only Uber.

Uber has responded by urging its users to pressure the powers to be, and to sign a petition. Similar tactics were successful in DC, so there is some hope.

Second, the cab and livery services in Chicago have sued Uber in the Northern District of Illinois claiming that the service violates the unfair competition protections of Lanham Act and Illinois state law. Something notable about the complaint is that it is the first complaint I've ever seen that features embedded tweets. (See paragraphs 7, 32, and 43.)

Uber has retained the Quinn Emanuel firm and moved to dismiss the complaint for lack of standing and failure to state a claim. (The motion was presented today.) The standing argument is that Uber is not a direct competitor of any of the plaintiffs because it is a licensed radio dispatch service and plaintiffs are "taxi licensees, taxi affiliations, and a livery service." The idea, apparently, is that a dispatch service does not directly compete with the actual providers of transportation services, and the plaintiffs therefore cannot possibly prove the direct competitive harm required to have standing in unfair competition cases.

As long as we're talking about Twitter, Uber's lawyers might want to take a look at Uber's Chicago twitter feed, because it currently hails Uber service's as "'Everybody's Private Driver,' an on-demand transportation service." Thus, at the very least, Uber seems to be holding itself out as a provider of transportation services, even if it doesn't actually own any vehicles or employ any drivers.

Third, Uber has been sued in a putative class action in Cook County. That lawsuit alleges that Uber misrepresents the nature of the 20% "gratuity" for the driver added to every taxi bill because, in fact, Uber takes a cut of this gratuity. Uber denies any wrongdoing. Based on the cryptic online docket, it appears that Uber has moved to dismiss or strike the complaint, and a hearing is scheduled for February 15th.

Lawyers: keeping things interesting.

Anyhow, this is all just a dry run for the day when robot cars take over.

Even delays come to an end.

Back in October, we did a post on how Nidal Hasan, the man charged with killing thirteen people and wounding more than two dozen more in a shooting rampage at Fort Hood, had his trial indefinitely delayed by not agreeing to shave his beard.  That delay tactic may not work much longer.

Top 10 Things I Learned as a Judicial Extern (in 2001!)

I am kind of a digital packrat. I have saved and kept accessible nearly  every file I created in college and law school (though some of them are now in unreadable file formats). Today, for reasons best left undisclosed, I took a trip deep into the archives.

One thing I stumbled across was a long-forgotten "journal" from my days as "judicial extern" to Hennepin County Judge John Holahan. This was a for-credit internship during the summer of 2001 that allowed me to serve as a proto-law-clerk for Judge Holahan. Part of the deal was that I had to keep this "journal."

It is interesting reading, although there are, of course, many wince-inducing passages.  The journal ends with the following top ten list, which I found pretty amusing:

Top Ten Things I Learned in my Judicial Externship

10. Not all judges wear robes. [I believe this was in reference to Judge Jack Nordby, who wore a three-piece suit.]

9. Copying machines these days have this fancy mechanism that allows you to insert a stack of papers and it will just gobble them up and copy them like magic. 

8. Court reporters and clerks of court wield unbelievable power if they should decide to use it. 

7. There is a surprising amount of domestic abuse in lesbian relationships. 

6. Speaking of homosexuals, I learned that their ineligibility for marriage really screws them over because they have no legal recourse when it comes time to get divorced. 

5. Good lawyers beat bad lawyers in trial. 

4. Excited utterances are an exception to the hearsay rule—that'll come in handy when I take evidence this semester! 

3. "In the end, it's giving that makes you happy."  --Judge Holahan 

2. It's good to be the judge—but you do have to deal with a lot of stupid crap. 

1. The Court of Appeals is a gaggle of idiots!

I can't say that I necessarily recommend that law students sprinkle their writing assignments with phrases like "a lot of stupid crap" and "speaking of homosexuals," but that's the way I roll.

A Dumb New Rule for a Dumb Sport

Apparently the USGA and the R&A have decided to outlaw the use of anchored putting in golf. Steve Stricker—Madison's favorite PGA son and great (conventional) putter—supports the rule change.

I don't really care about the rules of golf, but this is ridiculous. Exhibit A:

"There was no empirical data to suggest a long putter made golf easier."

In other words, every argument in favor of the ban is based on nothing but speculation and gut feelings.

So why ban the anchored long putter? Stricker says:

"Any time you can take your arms and hands out of it, especially your hands, I think when you can anchor it in your chest, (it) is a huge advantage. I'm not a big proponent of long putters."

OK, fine, but you know, that's just, like, your opinion, man. Who cares? If it is such an advantage, why don't you do it, Strick? Why don't 90% of pros do it? Just because they are too macho? Gimme a break. Millions of dollars are on the line. If pros really thought anchored putting was an advantage, they'd do it. And if golfers were really macho they'd be playing a real sport. You know, one with athletics involved.

Here's my theory. A country-club culture pervades golf, and the snobs in charge just think anchored putting looks funny. "Why, Millie, this is the worst thing since cargo shorts!" If these people were in charge of basketball they'd have outlawed the jump shot. ("Any time you elevate yourself, especially your hands, in the process of shooting, it is a huge advantage." Cf. Stricker's statement.)

[Cross-posted from Adam[ Chorlton's] WI Sports Blog]

National Security Conservatives

You really must read this blog post over at the Volokh Conspiracy by Stewart Baker, a self-styled "national security conservative." In the post, entitled "Sex Secrets of the Security Line," Baker describes his recent insight into the behavior of men in the security line at the airport. It boils down to this: men see the security process as an opportunity to display their ruthless efficiency and, in so doing, sexually arouse any women in the vicinity. Seriously.

I feel a kind of competitive pressure to keep the line moving. I’m not happy to see more than about six inches of distance between my luggage and the bags in front of me on the belt. Every delay in pulling out my laptop or my liquids, every last minute bit of change I have to throw haphazard into the bin, every stutterstep as I realize it’s a whole-body scanner, not a metal detector, so belt and watch have to come off too –- all detracts from the performance.

* * *

In part we do it to keep our place in the hierarchy of guys.  But in the end, what we’re really hoping for is an Alice Munro moment — that our easy concentration and economical movements will set up in someone “a procession of sparks and chills,” followed a few pages later by, well, what we deserve for all that demonstrated competence.

(The reference to Alice Munro is to a post-opening epigraph from a Munro story in which a female character is titillated by observing her man's competence at the stove. "What we deserve" is sex.)

Baker's insight is not the source of his own motivation. Rather he claims to now understand why so many other people (men, at least) are frustrated with the TSA. Their stated frustrations carry "a distinct whiff of testosterone," Baker says, and this is because they find their inability to display competence in the security line to be emasculating. So they act out and go into "full high-school rebellion mode." Baker has a series of suggestions to alleviate this frustration.

Although I strongly disagree with Baker's take on the TSA, and probably even his take on the nature of reality, I enjoyed the post because it was an open look into an alien mind. It even gave me my own insight, which is this: I see now that every policy "national security conservatives" promote and everything they do—and I mean everything: the wars, the crackdowns, the mass incarcerations, etc—is part of a lifelong and sadly misguided effort to get laid.

Big Ten Expansion: The Legal Angle

As Mr. Gillette recently reported (in a Gillette-Torvik Non-Exclusive Breaking News Item of the Day), Maryland and Rutgers will be joining the Big Ten athletic conference.

One of the footnotes in this news is that the members of the ACC (Maryland's current affiliation) recently voted to impose a $50 million "exit fee" on institutions that leave the conference. (Until September, the fee was a mere $20 million.) In the press conference announcing the decision to go over to the Big Ten, Maryland's president was somewhat dismissive of this requirement, implying that the fee would get whittled down in negotiations: "As far as that exact amount of that sum, that is something that we will discuss in private with the ACC."

Well, the ACC has taken things very public by suing Maryland in North Carolina state court to recover the $50 million. I haven't reviewed the contract between Maryland and the ACC, but I presume the exit fee is styled as "liquidated damages" for the harm caused by Maryland's breach. Such provisions are generally permitted under contract law so long as they don't amount to a penalty. I expect that Maryland will argue that the fee is an excessive penalty that is not meant to recompense the ACC for any damages but rather to penalize it for jumping ship.

Maryland's best argument, it seems to me, is the recent and sudden increase in the fee from $20 to $50 million. Is there any basis to believe that the reasonable approximation of damages suddenly increased 150%? It seems much more reasonable to believe that the conference realized that $20 million wasn't enough to make it uneconomical for members to leave for greener pastures. In other words, it became evident that the fee wasn't punitive enough to prevent breach. Seems like a penalty.

A Gillette-Torvik Prediction™:  Maryland and the ACC will soon settle this suit for an undisclosed sum, "in private." That undisclosed sum will be around $25 million.

UPDATE: They settled for $31 million, publicly.

Seventh Circuit strikes down Illinois's unconstitutional "eavesdropping" law

UPDATE:

The Supreme Court denied cert. in this case, so the decision of the Seventh Circuit stands, and the aspect of the Illinois wiretapping law that criminalizes the recording of police officers in public is unenforceable in Illinois.

ORIGINAL POST (5/8/2012):

In an opinion issued today, the Seventh Circuit Court of Appeals ruled unconstitutional, on First Amendment grounds, the Illinois law that makes it a felony to make audio recordings of police officers in public. Richard Posner (the man, not the kidney) dissented.

Previous coverage here, here, and here.

Congratulations to "Minnesota Litigator"!

In case any Reader(s)™ somehow missed the news, Seth Leventhal's blog, Minnesota Litigator, has been selected by the ABA as one of the 100 best legal blogs in the known universe.

The Gillette-Torvik Blog, of course, is uninterested in accumulating awards, or attention, or readers. Still, we're happy for our sister blog (like ships and sovereign states, blogs are female) and extend our totally non-envious congratulations to Seth and his co-bloggers for this well-deserved recognition.

Cursive will disappear in our lifetimes.

I have horrible handwriting.  Actually, calling my handwriting horrible is probably not accurately describing the awfulness of my handwriting.  I may have the worst cursive handwriting in the world. 

Is this news?

The New York Times wants you to know that presidential elections matter when it comes to judicial appointments.  Adam Liptak's story is here.  I am glad to see that someone pointed out that elections have consequences.

It seemed like a good idea at the time.

The Daily News of Bangor, Maine has the story of two local TV newscasters who quit their jobs on-air last night.  Cindy Michaels and Tony Consiglio announced their resignations from sister stations WVII and WFVX last night at the end of the 6 p.m. newscast.  Neither told anyone of their resignations before the newscast.

Kill someone and get sentenced to 10 years of church attendance?

To complete my religion trilogy, the Washington Post has an article about an Oklahoma judge who sentenced a 17-year-old boy to, among other things, attending church for ten years.  The other requirements of the sentence are attending welding school and completing high school.  No word on which part of the sentence the youngster regards as the most onerous.

Was anyone denied Confirmation?

Read the initial post on this story here.

According to the website LifeSiteNews, Father LaMoine denies that he refused to confirm Lennon Cihak.  Instead, Father LaMoine says that Mr. Cihak decided not to be confirmed.  However, Father LaMoine goes on to say that had Mr. Cihak chosen not to be confirmed, Father LaMoine would have refused to confirm him.  The story quotes Father LaMoine as saying, “You can’t have people out there saying things that are so contrary to the central teaching and doctrine of the Catholic faith, and going through Confirmation.After he put it out in the public, we would have looked like a bunch of hypocrites in confirming him.”  So if one believes Father LaMoine's version of events, Father LaMoine would have denied Mr. Cihak confirmation if Mr. Cihak had let him.  Decide for yourselves whether this is an improvement.

I want to assure our Reader(s)™ that the Catholic Church is not monolithic on this point.

What sort of sick joke is this?

Sports Illustrated reports that the University of Maryland and Rutgers University are discussing joining the Big Ten.  It's fair to say that Maryland and Rutgers are neither Leaders nor Legends.  I can't say for sure, but I suspect that either team joining the Big Ten will be the push I need to give up on college football entirely.

The Catholic Church: still messing with children.

This is not a post about recent news of a Roman Catholic priest sexually abusing a child.  Although it would be pretty easy to do a post about that.

Fewer judicial vacancies?

Yesterday, President Obama nominated 7 people to fill vacant federal judgeships.  You can read the White House press release describing the nominees here.  We have previously discussed the issues surrounding President Obama's nominees--or lack of them--here and here.

Even with the 7 new nominations, there are still 41 seats for which no one has been nominated.  Minnesota does not have any vacancies, but I note that Wisconsin, Illinois, California, and Puerto Rico have open seats.  Mr. Torvik are you ready to serve if your president asks?

Throwing a Holiday Party in Evanston?

Terrific! If you intend to dispense any "holiday cheer," however, the City of Evanston would just like to remind you about a few regulations to keep in mind:

The City of Evanston would like to remind residents that a One-day Liquor License is required to serve alcohol at special events, holiday parties, office parties and other events. Additionally, the city requires alcohol awareness training. A One-Day Liquor License is a temporary license issued for the service of alcohol or beer and wine at special events. Only individuals, businesses or organizations residing in Evanston may obtain a One-Day Liquor License.

The requirement is for all events involving the sale, service and consumption of beer and wine in the City of Evanston and failure to do so may result in a penalty ranging from $500 to $1,000.

The basic regulations regarding Special One-Day Liquor Licenses for special events are as follows:

• Class F:  Authorizes the sale or service of beer and wine on non-city-owned property. Cost is $150.00.
• Class F1: Authorizes the sale or service of alcoholic liquor, beer and wine on non-city-owned property. Cost is $150.00.
• Class X:  Authorizes the sale or service of beer and wine at certain city-owned facilities (Chandler-Newberger Center, Robert Crown Community Center/Ice Rink, Ecology Center, Evanston Arts Center, Noyes Cultural Arts Center, Levy Senior Center,  Fleetwood-Jourdain Community Center and the Evanston Public Library. Cost is $75 (residents) and $265.00 (non-residents).
• Class X1: Authorizes the sale or service of alcoholic liquor, beer and wine at certain city-owned facilities (Chandler-Newberger Center, Robert Crown Community Center/Ice Rink, Ecology Center, Evanston Arts Center, Noyes Cultural Arts Center, Levy Senior Center, Fleetwood-Jourdain Community Center and the Evanston Public Library. Cost is $115 (residents) and $340.00 (non-residents).
• No more than twelve (12) Special One-Day (Class F) Liquor Licenses shall be issued to any sales address or applicant in any one calendar year.
• The sale of beer and wine shall only take place from 10:00 a.m. to 10:30 p.m. Sunday through Thursday, and from 10:00 a.m. to 1:00 a.m. Friday and Saturday, provided also that food is made available during those hours.
• The Special One-Day (Class F) Liquor License shall be issued to and valid only for the “sales premises” described on the application.
• The organization applying must obtain liquor liability insurance for the period of time during which beer and wine will be sold. Specific requirements vary depending on type of license.
• A member of the responsible organization must have completed the State of Illinois Liquor Control Commission’s Beverage Alcohol Sellers and Servers Education and Training (BASSET) program and be present at the event.

The above is not an exhaustive list of the requirements. For a full description of the license requirements, see the City of Evanston Municipal Code, Title 3, Chapter 4.

 I can't wait for the holidays (sensibly regulated)!

Two tiers of citizenship.

A citizen of another country who wishes to become a citizen of the United States has to, among other things, take this oath.

In a Cashless Society, There Would Still Be Crime

A very interesting article by Miles Kimball advocates for replacing paper dollars with electronic dollars as the "unit of account" in the United States. Mr. Kimball's motivation for advancing this cause is that this electronic-dollar regime would allow the Federal Reserve to charge negative interest rates, which would allow it to fulfill its full-employment function without having to resort to exotic (and controversial) activities such as "quantitative easing."

I don't generally blog about monetary policy, of course, but another reason for moving from cash to electronic dollars is that it makes crime much more difficult and less worthwhile. In a cashless society, economic exchanges always create a paper trail—so illicit exchanges become much more difficult to pull off without getting caught. And much other crime, such as robberies and bank heists, become far less lucrative. There's no point in robbing a bank if that's where the money isn't. Would-be bank robbers are presumably smart enough to figure that out, eventually.

Mr. Kimball's proposal, in which paper money would still exist, just not as the "unit of account," reduces these anti-crime benefits significantly. But presumably cash would still become less and less useful, and less and less common (as it already has become, frankly).

Anyhow, I thought of this anti-crime benefit of electronic money today when I read that, for the second straight day, masked men in Evanston had robbed a pizza delivery man at gunpoint. Of course, they stole the driver's cash and wallets, etc., so you might think that this is the kind of crime that abolishing paper money would eliminate. But, in each case, they also stole the pizzas. The lesson may be that even in a cashless society there will be crime—as long as there is pizza.

The Code of Silence ...

... is alive and well—and costly—in Chicago.

The price of winning

MPR News has an article about how much Michele Bachman paid to retain her seat in the United States House of Representatives.  According to the article the cost per vote of winning was $65.19.  Her opponent, Jim Graves, spent $8.70 per vote.  Of course, he lost by 4,297 votes.  Since he could have lost for a lot less than that, I suppose Mr. Graves overspent on his votes.

Senator Charles Grassley does not let things go.

Earlier this year we posted about how Iowa Senator Charles Grassley was unhappy that the United States Court of Appeals for the Ninth Circuit was having a judicial conference in Maui.  Senator Grassley thought the conference was too expensive.  In response, the Ninth Circuit politely suggested that Senator Grassley put a sock in it.

The single most important question of our lifetime.

Given the existence of graham cracker pie crust, why are other pie crusts still used?

Judge Brim Faces Charges

Yesterday I blogged about how Cook County Judge Cynthia Brim was retained by Cook County voters despite being on indefinite suspension and facing pending criminal charges.

Today Judge Brim appeared in Court—as a criminal defendant.

Apparently the prosecutor has floated the idea of dropping the charges in exchange for Judge Brim stepping down from the bench. According to her lawyer, however, resigning is something Judge Brim "will never do."

The Tribune article has some important information that explains why Judge Brim and others are able to retain their judgeships despite widespread criticism from the bar and media:

Brim was backed by the Cook County Democratic Party as well as the Committee for Retention of Judges in Cook County, a campaign committee funded by judges.

So there are two main factors: the Democratic Party and solidarity.The unfortunate fact is that, in Cook County, judgeships are handed out as political patronage. This is a one-party town, of course, and the Party does not turn its back on its own. Once on the bench, the judges are of course deeply invested in not being kicked out. So it's one for all, all for one.

Overall it is probably a good thing that the Cook County bench isn't experience a lot of turnover every two years. But we are clearly seeing the downsides of a system that makes turnover all but impossible.

The Outer Limits of the First Amendment

Out in California, they sure do vote on a lot of stuff.

For example, Los Angeles County had a ballot initiative this year about whether actors in pornographic films should be required to wear condoms. The idea, apparently, is that this will improve the public health by reducing the spread of sexually transmitted diseases. However, county lawmakers opposed the measure because it will require the creation of a new bureaucracy:

The county has said the law, pushed by AIDS activists concerned about disease outbreaks, forces the establishment of a new bureaucracy, complete with inspection schedules, a permitting process, a training program for dealing with bodily fluids and a special vault for evidence seized from movie sets. County employees could even be called upon to screen X-rated titles for condom compliance.

What's more, not even public health officials in Los Angeles county supported the measure:

County officials said they were in favor of condom use, but didn't support new local action because the state had jurisdiction for workplace safety and, in any case, enforcement would be too difficult. Dr. Jonathan Fielding, the county health officer, wrote in a report this summer that it would be challenging to identify "underground, inconspicuous, intentionally non-compliant filmmakers." County lawyers also said they worried that the measure violated the 1st Amendment.

Nonetheless, the measure passed and, as County supervisor Zev Yaroslavsky said, "People voted for it, and they're entitled to have it on the books. It's a challenge we're going to have to confront."

Pornographers, of course, are in an uproar and are threatening to take their business elsewhere:

The passage of the law created an outcry Wednesday in the adult entertainment industry. Porn producers have long said consumers will not purchase movies in which actors wear condoms and on Wednesday, executives and directors once again threatened to move from long-time production sites in the San Fernando Valley to other California counties, Las Vegas or Hungary, Europe's center of adult moviemaking.

Some thoughts:

1) I never thought I'd see the day where government officials in an urban county would oppose a law on the basis that it would create too much bureaucracy but then the people would go ahead and overrule them by saying, in effect, "we want more bureaucracy!" Truly, we get the government we deserve.

2) It seems to me that the lawmaking system that permits such a thing to occur is sub-optimal. In other words, it is too easy to get these kinds of measures on the ballot in California.

3) I am looking forward to the First Amendment fight over this new law. Porn has often been at the center of First Amendment jurisprudence. Indeed, under the standard set forth in Roth v. United States, the Supreme Court was constantly reviewing pornography to determine whether it was "obscene" and therefore beyond the First Amendment's protection. This led to one of the Supreme Court's great moments, in Jacobellis v. Ohio, when Justice Stewart admitted that he could formulate no legal standard to separate obscenity from protected material but "I know it when I see it." The current standard on obscenity, set out in Miller v. California has essentially ended such investigations and allowed hard-core pornography to proliferate freely. But the proliferation is partly because neither the pornographers nor the prudes want to test the boundaries of the law, for fear of enshrining an unfavorable regime. In other words, the prudes are waiting for their moment. Maybe this is it. (But probably not.)

All the Cook County Judges Are Retained, Once Again

Speaking of judicial retention elections, the Circuit Court of Cook County is a bit of an embarrassment for supporters of judicial retention elections. In order to remain on the bench, judges in Illinois must survive a retention election by getting 60% of the votes cast. But since no one is running against them, this is pretty easy to do. Indeed, no Cook County judge has been thrown out in a retention election since 1990 (though, admittedly, six judges were not retained that year). This despite the efforts of bar organizations and newspaper editorial boards to educate voters and call out unqualified judges for non-retention.

For example, we've blogged here about the controversy surrounding Judge Cynthia Brim, who was barred from the Courthouse and indefinitely suspended after allegedly assaulting a sheriff's deputy—an episode during which a court-appointed psychiatrist later found her to be "legally insane." (Though one questions whether in so opining the psychiatrist was practicing law without a license). Even before this outburst (which has led to criminal charges) Judge Brim was on the various bar associations' chopping block. She was deemed "not qualified" in both 2000 and 2006, yet was retained both times.

Judge Brim was up for retention again this year. For the third time, she was retained. And so were all the other Cook County judges.

By the way, in searching for a news article about how Judge Brim had been found "legally insane," I came across this—which is a news article about a different Cook County judge (Judge Susan McDunn) who has apparently gone insane. She has also been quietly suspended from the bench. Among other things, Judge McDunn has "suspicions that powerful people including officials from the Archdiocese of Chicago have 'ruined [her] life.'" One can only wonder whether Catholic Knight Witch Hunters are involved.

(Judge McDunn was not up for retention this year, but she was not recommended for retention when she last went before voters in 2010.)

Of course, to the extent that the erratic (or worse) behavior of Judge McDunn and Judge Brim is because of genuine mental illness, it is sad, and we can only hope they recover their faculties. But it is difficult to come up with the right adjective to describe the system that allows them to continue to hold the position of Cook County judge despite being widely labeled "unqualified" long before any mental illnesses cropped up. All I can come up with is an noun: democracy.

Alas, democracy doesn't always give you that warm and fuzzy feeling.

What about the Iowa Supreme Court?

Despite the fact that noted idiot Steve King was re-elected, Iowa voters demonstrated more sense this election than in 2010.  This time anti-gay marriage forces were unable to convince voters to unseat Iowa Supreme Court justice David Wiggins.  Mr. Torvik's prediction was two years early.

Kyle's Election Prediction: Going out on a Leftward Limb

Based on some shit I read about a change in early voting dynamics in Florida... and some utterly non-scientific observations/inferences from my own early voting experience in Nashville, TN.  Go O!

2012 Presidential Election: Electoral Map: This map displays the projections of the sender and does not reflect the opinions of 270toWin.

Gillette-Torvik Election Predictions: Torvik

Here's my prediction for the electoral college: Obama, 281; Romney, 257. On the popular vote, I'll take Obama 50.1%, Romney 49%. Reader(s)™ please feel free to share your predictions in the comments.

The FiveThirtyEight blog currently predicts that Obama will get 307.2 electoral votes and 50.6% of the vote. I'll take the under on the electoral college.

My state-by-state map:

On Probabilities, College Basketball, and Elections

As Mr. Gillette alludes to in his programming note, Nate Silver—the author of the fivethirtyeight blog—has become quite famous for his election prognostications. He's also become quite controversial.

The controversy stems from his model's assessment that Barack Obama has about an 80% chance of being reelected next Tuesday. Many pundits, particularly Republican ones, think this is crazy (or worse). They point to the fact that national polls have been tied or given Mitt Romney a narrow lead for weeks and say the race is as best a tossup.

Silver's defenders—and Silver himself—respond with some variation of, "the math is the math." They point to the state level polls, which Silver's model relies heavily on, and which currently show Obama with a small but clear and sustained lead in enough swing states to take the Electoral College with relative ease.

In a way, both sides of this argument are right. I think Silver's model's estimate of an 80% probability of Obama winning is highly plausible. But I also think it's fair to label that a "tossup."

To understand why, you need to understand that Silver comes from the world of sports. In particular, he's among the line of people applying "advanced stats" to baseball and other sports to yield stunning new insights: Bill James; sabermetrics; "Moneyball"; kenpom.com; etc.

Let's talk about Ken Pomeroy. His superb website (kenpom.com) has for many years been applying advanced, tempo-free statistics to college basketball. His model allows him to create a "win probability" for every game of every season. This win probability largely tracks the Vegas betting odds. It's pretty amazing.

But here's the thing—it turns out that teams with an 80% win probability lose all the time. Not every time, of course, or even most of the time. But they lose with almost clockwork regularity. In fact, they lose about two out of every ten games.

Here's a painful example from last season. Wisconsin versus Marquette, at the Kohl Center, on December 3rd. Wisconsin came into the game 6-1, having utterly destroyed some inferior competition (e.g., an 85-31 victory over Kennesaw State) and having just lost, on the road, by 3 points to preseason #1 North Carolina. Marquette was undefeated but untested. There was cause for worry, as they had just narrowly scraped out a 59-57 win over lowly Norfolk State.

Considering their relative performances and Wisconsin's significant home court advantage, Pomeroy's computer gave Wisconsin an 83.2% chance of winning. Yet Marquette led almost the entire game, opened up a double-digit lead at half-time, and won going away, 61-54. In other words, the 83.2% favorite got whipped.

(I would link to the Pomeroy data, but it's behind a paywall. I encourage you to pay the $20 to get access to it.)

This is important because Nate Silver's model is fundamentally similar to Ken Pomeroy's model. Neither is predicting what is actually going to happen. Rather, both use historical data to spit out a probability that something will happen in the future. And if you follow Ken Pomeroy's model closely, you will know that an 80% favorite is not really a very "big" favorite. Because you will have experienced your favorite team losing as an 80% favorite many times. Indeed, last year Wisconsin lost twice to Iowa, games in which Pomeroy's computer said it had a 98.3 and 81.9 percent chance of winning. Given those percentages, Wisconsin had a 99.7% chance of winning at least one of those games. (This is hard to swallow, given that Wisconsin would have won a share of the Big Ten title if had managed to win just one of those games.)

There is a psychological difficulty in taking this concept of win probabilities and transferring it to elections. In sports, there are often dozens of games going on every single day—particularly in college basketball. So the "probability" aspect of Pomeroy's model makes some intuitive sense because you can watch it play out in front of your eyes over the dozens of results. But there is only one presidential election at a time. So it is not very intuitive to think of the result probabilistically. You have to start thinking about multiple universes, or something.

Anyhow, here's my conclusion based on my experience as a college basketball fan: Obama is the favorite, but he's a precarious and narrow one. His team better show up on game day.

Today's Lessons

Two lessons for our Reader(s)™ this morning.

(1) If you leave your car running in the middle of the road for 25 minutes, it might get stolen.

(2) When you are planning a robbery, it is important to get the details right. For example, if your plan involves lots of text messages with your accomplice, make sure you've got your accomplice's phone number right. Otherwise, you might accidentally send your guilt-proving texts to a 12-year old, who will then turn them over to the police, who will then arrest you.

Programming note

I'm going to be travelling a lot November 2-9 and will probably not post during that time.  Mr. Torvik will undoubtedly pick up the slack while I am gone.  By the time I get back we will know whether or not Nate Silver is still a genius.

Cook County Mails Voter Registration Information to Wrong Addresses

According to the Evanston Patch:

An unknown fraction of about 1,500 people were sent someone else's voter information due to a clerical error at the Cook County Clerk's office. The Clerk's office says the info is incomplete and harmless.

Well, I am just shocked.

He fled on a what?

When I spent a summer as an extern for one of the greatest judges of all time, I got to see a few bank robbers get sentenced.  I came away with the conclusion that trying to rob a bank is one of the stupidest things one could do.

On Actually Voting in Illnois

I grew up in Wisconsin, where it is very easy to vote. You show up at the polls with some proof of your address, and you vote. Then I moved to Minnesota, where it was much the same.

Now I live in Illinois. It's harder to vote here. You have to register in advance. And, as my wife found out today, your registration can be rendered "inactive" by some bureaucrat without notice. If you show up to the local polling place with this "inactive" registration, you will be turned away. [BUT SEE UPDATE.]

Here's the story, set forth in emails between me and the Cook County clerk's office.

When did America decide it wanted more Star Wars movies?

I missed the meeting when we voted on this but it turns out that there will be "at least" three more Star Wars movies.  The Onion AV Club has the scoop. 

Upon further reflection, Justice Stevens still thinks he is right.

The Wall Street Journal Law Blog reports that retired Supreme Court Justice John Paul Stevens is still unhappy about being on the dissenting end of two cases from the 1990s.  However, Justice Stevens is not just sitting there wallowing in defeat.  Instead, Justice Stevens is proposing an amendment to the Constitution.

Justice Scalia's advice to law students: just say no to frills.

The Caspar, Wyoming Star Tribune has a report about a speech that Justice Scalia gave to students at the University of Wyoming law school.  The article mentions the advice Justice Scalia gave the students about what courses they should take.

Judge Posner: A Critical Critic

Reader(s)™ are familiar with my series of posts on the Posner–Scalia-Garner dustup. Recently, however, Judge Posner came out with another controversial and extremely critical book review, this time of Professor Akhil Reed Amar's new book called "America’s Unwritten Constitution: The Precedents and Principles We Live." A snippet:

WHEN YOU HAVE twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”

Perhaps my biases are showing, but I thought this particular hatchet job was pretty awesome. I decided to look for some other Posner attack-reviews. It turns out that the noncuratlex blog has already gone through the trouble of finding the best Posner book reviews. For example, here is Posner's take on Herman Melville's "Moby Dick":

. . . yet, in the final analysis, Melville’s tale of obsession rings hollow from an economic perspective, and thus, proves utterly unpersuasive.  Fairly early in the text, it becomes clear that Ahab could maximize his returns by pursuing other whales, instead of Moby-Dick.  True, Ahab lost his leg to the creature, but that is a classic sunk cost. (Can you see why?) That Ahab foregoes other, better opportunities for oil and ambergris in his hunt for the white whale represents a mystery that the author never satisfactorily explains . . .

For other excerpts, head over noncuratlex.

Shamed, or at least censured, by his game.

Reader(s)™ may recall this post from April in which we discussed how Wayne County, Michigan Circuit Judge Wade H. McCree told the media "Hot Dog, yep that's me. I've got no shame in my game" upon being shown a picture by the Detroit Free Press of the judge sans shirt that he had given to his bailiff.  The bailiff's husband was not amused.

The future is getting closer.

When I was a kid, the future contained two big promises.  First, that we would have jet packs.  Second, that the weapon of the future would be lasers (or possibly phasers).  Since jet packs were featured on the intro to the Wonderful World of Disney, it seemed like the public would get jet packs first. 

Rules are rules

The Chicago Tribune reports that man charged with killing thirteen people and wounding more than two dozen more in a shooting rampage at Fort Hood has had his trial indefinitely delayed.  Why has the trial been delayed?  The suspect will not agree to shave.

Did Richard Milhous Nixon win the popular vote in 1960?

A fascinating blog post by Sean Trende at RealClearPolitics says yes, although the real answer is that the question is incoherent because of the way Alabama voted for its electors.

Meanwhile, according to Nate Silver there is currently a 5.4% chance that Mitt Romney will win the popular vote but lose the election this time around (see "scenario analysis" in right sidebar at link).

And Ross Douthat wonders whether, in such an event, the Electoral College could survive.

I wonder, on the other hand, whether the Electoral College could ever be killed.

Something completely different.

I was in northwest Iowa this weekend and attended mass at Sacred Heart Church in Spencer, Iowa.    As anyone familiar with the Catholic mass knows, there is a part of the first Eucharistic Prayer that  states,

A source of shame?

The New York Times reports that the BlacBerry is so passé that it has become a source of shame and derision.  This may be evidence that people have a misplaced sense of shame nowadays. The article also points out that complaints from associates about being given BlackBerrys at Covington & Burling led to the firm agreeing to offer its lawyers an iPhone option.  I guess because it is totally rational to pick a lawyer based on what kind of mobile handheld device they use.

Another bad decision and another criminal sentence

I did a post recently about how a bad decision by a Wisconsin man resulted in him going to prison for 23 years.   With that in mind, consider the sentence given to Linda Hamm.

Strange math and strange predictions

George Mason University School of Law professor Ilya Somin has a post about how little coverage is being paid to the possibility that President Obama or Mitt Romney will get to pick a Supreme Court justice during the next four years.  Professor Somin writes

. . . this election could have a huge impact on the future of the Court. Even if a reelected Obama gets to relace two liberal justices with younger liberals or Romney gets to replace two conservatives with younger conservatives, that will still have a profound impact. There’s a big difference between a justice who is likely to be around for only a few more years, and one who could well serve for thirty years or more. Given increasing life expectancies, a justice who is in his or her early fifties when appointed could easily serve until 2050 or even later.

Note the could in the first sentence.  It might or might not have "a huge impact on the Court."  Perhaps that unknown is why few are discussing it.  However,  let's assume that the two appointments occur and that they do so in 2014 before both parties are gearing up for the 2016 presidential election.  Professor Somin assumes that these new justices might serve beyond the year 2050.  A fifty-year-old appointee in 2014 would have to serve until they are 88 in order to still be on the court in 2050.  Since professor Somin is assuming that Supreme Court justices serve until they are 88, which Supreme Court justices will be 88 during the next presidential term?

Don't steal Westlaw

Westlaw might be making money off your briefs, but if you use a Westlaw password without permission you might well find yourself getting disciplined by the bar authorities.

Undecided on Big Bird? Probably not.

The Volokh Conspiracy has a post about a survey in Virginia that asked people their opinions about President Obama, Mitt Romney, and Big Bird.  Professor Volokh notes that more people have a favorable opinion about Big Bird than have a favorable opinion about either President Obama or Governor Romney. 

Three houses, four houses, what's the difference?

Tommy Thompson, former four-term governor of Wisconsin and Secretary of Health and Human Services under President George W. Bush, has done pretty well for himself since he left government.  So well, in fact, that when he was asked how many houses he owns, he miscounted.  Daniel Bice of the Milwaukee Journal-Sentinel has the story.

He sits on the House Committee on Science, Space and Technology.

Because what other committee would a congressman who does not believe in evolution sit on?

This day in drug-using prosecutors

1) Nicholas Athanasiou, a former prosecutor, allegedly accepted cocaine as payment for legal services. Thus begins a new era in alternative billing: the snortable hour.

2) Jason Cantrell, a current prosecutor, was arrested by the police officers he was talking to when he took his hands out of his pockets and a marijuana joint fell out. The incident occurred in the courthouse. To top it off, his wife is running for city council. She is concerned: “I love my husband unconditionally and am very concerned for his health and well-being, and for that of our family. I hope that this incident will encourage Jason to seek the professional help.”

For Mr. May

My debate analysis, in picture form:

The Infield-Fly Rule

When we were studying the commerce clause (or perhaps "the dormant commerce clause") in law school, the professor asked the class, "What is the difference between Wisconsin and Iowa?"

The context was that long-haul truckers prefer to drive through Iowa rather than Wisconsin, so the answer was very clear: Wisconsin has hills, Iowa doesn't.

Still, such an open-ended question gets my jokey little brain going and, after a long uncomfortable silence where no one was willing to supply the correct answer, I found myself blurting out: "Wisconsin has a baseball team."

It got a pretty big laugh, but it also got me a homework assignment. I was to go to the library and seek out a famous law review article: "The Common Law Origins of the Infield Fly Rule." And I did. (It was actually kind of difficult because the article was too old to be found on Westlaw, so I had to pull an actual dusty book off the shelves. Ew.)

The article is hilarious. The very first word—"the"—is followed by a footnote to the OED definition of this definite article. (A not-so-subtle knock on persnickety law-review editors.) But it is also pretty informative and substantive. I recommend that anyone interested in the history of sports give it a read. It is also essential background information for evaluating John Roberts's claim that a judge is just an umpire. (Because it turns out that umpiring is more interesting and iterative than it may at first seem.)

Anyhow, the infield-fly rule is in the news because it played a significant role in the outcome of the one-game wildcard playoff game between St. Louis and Atlanta last night. It's unclear to me whether the correct call was made (though the Atlanta fans certainly made their position known), but I think it's great that this wonderful and confusing rule is in the news. Here's a nice read.

One bad decision leads to 23 years in prison.

The Journal-Times in Racine, Wisconsin has a story that shows how one instant can change everything.

Albert Paragamian was an 88-year-old World War II combat veteran who was pulling out of a parking stall of Wheaton Franciscan-All Saints hospital on his way to meet his wife of 47 years as she was transferred from the hospital to a nursing home.  Richard Lewis was a 23-year-old man, on probation and driving without a driver's license, when Mr. Paragamian's car bumped the car Mr. Lewis was in.  Neither car was damaged.

Is any publicity good publicity?

Some folks say that there is no such thing as bad publicity.  A Wisconsin attorney is evidently trying to find out if that is true.  As reported everywhere on the Internet, Kenneth Krause wrote to La Crosse, Wisconsin television personality Karen Livingston to tell her she was fat.  Ms. Livingston regarded Mr. Krause's communication as a form of bullying and did an on-air piece about it.  The result was that the story went viral and that most people seemed to conclude that Mr. Krause had been out of line.  Mr. Krause, perhaps recognizing that his fifteen minutes of fame were running, doubled down on his comments instead of apologizing. 

As a result of this controversy, a google search for "Kenneth Krause Wisconsin Attorney" yields mostly hits on the story rather than links to a website where one might find Mr. Krause's contact information if a person decided that a lawyer who calls a local celebrity fat is the sort of lawyer a person needs.  Thus, one might wonder if Mr. Krause is going to see a benefit to the story going viral.  What do you think Mr. Torvik will Mr. Krause's business pick up as a result of this story?

Mike McQueary sues Penn State.

His complaint is here. 

Prisons have vermin.

In case you were under the misapprehension that living with vermin is good for you, you should start reading this opinion around at page 6.

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.