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Monthly Archives: January 2007

Proving Once Again the Dangers of a Law Degree

typewriter.jpgHere’s a great story about a lawyer who apparently learned a little too much in class at the University of Michigan law school. He is bringing claims against two parties, starting with the law firm, Morris, Nichols, Arsht & Tunnell, which fired him during the his second-summer associateship. Adrian Zachariasewycz claims that the firm manipulated his employment record to offer a pretext for firing him and then had him escorted from the building. He claims that his firing was defamatory and prevented him from securing another firm job (I’m sure this lawsuit will help).

But, the more interesting piece is the claim against the University of Michigan Law School, which Zachariasewycz alleges stacked the deck against poor typists. He claims that the exams, which were typed, relied — in part — on the student’s typing skills to do well. The complaint reads that “certain exams … required students to be skilled touch-typists in order to produce a competitive response resulted in borderline failing grades by virtue of the low volume of prose [the plaintiff] could type in the time allotted as compared with other students.” He continues:

The cumulative disadvantage was so stark, and the resultant effect on the overall law school grade point average so significant, that such cumulative disadvantage effectively may have destroyed some, most or all of the economic value, as measured by expected future earnings potential as well as by other metrics, of any such law student’s degree, if eventually obtained.

Dude, seriously: You should’ve just taken a typing class.

(Hat Tip: The WSJ Law Blog)

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The QuizLaw Celebrity Legal Round Up

nikitaylor.jpgIn celebrity legal news, Brandy — a singer of many notable R & B songs that I’m not familiar with — is being sued for $50 million. TMZ has the legal documents, which concern a lawsuit filed by the parents of a woman who was killed in a car accident Brandy was involved in. The lawsuit alleges that Brandy was driving recklessly — at the time of the accident, traffic slowed and Brandy’s car rear-ended that of Awatef Aboudihaj, who was killed. The California Highway Patrol is also recommending that Brandy be charged with misdemeanor vehicular manslaughter. Brandy was not under the influence of anything, nor was she speaking into a cell phone. Apparently, she’s just a bad driver. Brandy’s last gig was as a judge on “America’s Got Talent.” Good luck bilking her for $50 million, Aboudihaj family.

Elsewhere, Bruce Willis has settled an extortion lawsuit that he brought against a childhood friend, a lawsuit about scrap booking that we discussed earlier. The suit, which was apparently based on a “misunderstanding,” has been “amicably resolved.”

Finally, (super?) model Niki Taylor is suing E! Entertainment, claiming intentional infliction of emotional distress. She claims that E! convinced her to film a documentary, which she thought was going to be based on her current success as a business woman. However, after she caught a glimpse of the footage — which was to focus on Taylor’s hardships, including a car crash that left her in a coma— she decided to sue for fraud, invasion or privacy, and breach of contract, in addition to emotional distress. The show is meant to be an episode on an E! series entitled, “Boulevard of Broken Dreams,” to which Taylor responded: “My life is far from a boulevard of broken dreams.”

And, personally, I’m just wondering if Niki Taylor ever watched E! Entertainment before agreeing to be a part of any show associated with the channel. She’s lucky if Perez Hilton doesn’t do the narration. That’s, uhm, quality programming over there.

The Daily Memo - 1/31/07

check.jpgBlawg Review #93 is bent on world domination. (Cyberlaw Central)

check.jpgA lawyer on his way to pick up a client busted for drunk driving…wait for it…gets busted for drunk driving. (Law.com)

check.jpgNo matter what we do, we just can’t get rid of Richard Hatch - his case is going before a federal Court of Appeals next week. (Reality Blurred)

check.jpgBorat’s getting sued again, in Israel this time, for allegedly stealing “wa wa wee wa.” (FindLaw)

check.jpgTwo frat brothers have been thrown into the clink for 2 years after hazing a kid by beating his ass with a wood cane to the point that he needed surgery. (CNN)

check.jpgTom Waits has settled a lawsuit against a car company which allegedly used an imitation of his voice in a commercial. (The Trademark Blog)

check.jpgAn inventor has patented a system that can selectively censor naughty words from your TV. (Engadget)

check.jpgLevi’s is taking up many fights to try to protect it’s pocket-stitch trademark. (NY Times)

Reality has become a commodity

wikip.jpgEarlier this week, the NY Times reported that a “simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre.” In fact, over 100 judicial rulings since 2004 have cited to Wikipedia for some supporting point. And while the Supremes haven’t done it yet, there have been 13 citations from federal Courts of Appeals, so it’s only a matter of time before the Scalia is citing to the Garden Gnome Liberation Front.

Judge Posner, a well known Seventh Circuit guy, says that Wikipedia is a “terrific resource” which is both convenient and “very accurate.” A New York tax attorney disagrees, saying:

citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.

So on one side, we’ve got folks say it’s a reliable tool. And on the other side, we’ve got folks saying it’ll bring down the judicial branch as we know it. I gotta’ go with the latter opinion here. I mean, look at some of the ways courts have been using Wikipedia: (i) to help come up with a working definition of “beverage;” (ii) to explain what a Jewish marriage ceremony is; (iii) to show how one defines “booty music” in connection with wet T-shirt contests (this case comes from, of course, Florida!); (iv) to explain what a Jewish marriage ceremony; and (v) my favorite, an Iowa opinion explaining that “jungle juice” is “the name given to a mix of liquor that is usually served for the sole purpose of becoming intoxicated.”

Clearly the type of things which “undermine” the judicial system. I mean, sure, jungle juice could undermine the judicial system, but more in the “lawyers showing up drunk on the jungle juice” way.

The title of this post, by the by, comes from “The Colbert Report.” Colbert has recently taken to commanding his audience to fuck with Wikipedia, and earlier this week he wanted the site’s entry for “reality” changed to explain that “reality has become a commodity.” And for a moment, until the Wikipedia uppity-ups put the kibosh on such shenanigans, such a change was made:


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Paris Hilton Finally Gets Some Exposure


Here’s a new twist on a very old story: Paris Hilton is involved in a lawsuit. Only this time, she’s on the plaintiff’s side. Details are still sketchy, but she is purportedly joining forces with smut-fucker Joe Francis (he of “Girls Gone Wild” fame) to file a civil action against Bardia Persa, the proprietor of the website, parisexposed.com, which — as of this moment — is currently not up and running anymore (though, it has been moved to another site, now:

The website came about because Hilton failed to pay the monthly fees on a storage facility she had, which contained numerous photos and videos of Paris and friends in, er, unwholesome situations, as well as medical records about an abortion, prescriptions for various drugs (including anti-herpes medication), evidence of bigotry, and a few love notes. But, most incriminating was this video, which features the banal exploits of Hilton’s life, including several revealing shots of Hilton, a man vacuuming coke off his chest, and Joe Francis groping Hilton. Her friends are not left unscathed either, as there are pics of Nicole Ritchie eating cocaine off a plate, as well as unflattering naked photos of other notable folks.

Despite filing the lawsuit, and Joe Francis’ admonishment of Persa, there are is a lot of lingering speculation that Paris, herself, is secretly behind ParisExposed, in another attempt to publicize herself. I’m certain that once the suit is officially filed, The Smoking Gun will publish the complaint, which we’ll bring you as soon as it’s up.

The Daily Memo - 1/29/07

check.jpgA 10-year old who directed and starred in a short movie at the weathered age of 9 is now suing to get creative control of the film so it can be seen by the masses. (Cinematical)

check.jpgHe may not get a chance to be next week’s Super Bowl MVP, but at least Tom Brady gets to be a trial witness next month (his former offensive coordinator and current Notre Dame head coach, world class fatty Charlie Weiss is suing some doctors who allegedly botched his failed gastric bypass surgery). (Bostonist).

check.jpgSix Tennessee high school girls have been charged with a conspiracy to kill classmates, teachers, Tom Cruise, Oprah and the Energizer Bunny(!). (CNN)

check.jpgJustice Ginsburg is lonely without her homegirl O’Connor around the Supreme halls. (USA Today)

check.jpgSo wait, that lawyer who was charging me the lowest rates ever wasn’t actually a licensed attorney? (May It Please the Court)

check.jpgLA’s legal advisors have told the city that it lacks the authority to ban trans fats. (The Mercury News)

check.jpgPhilly, meanwhile, has decided that it may be time to jump on the banning-trans-fat bandwagon. (PennLive.com)

All the world’s a stage, and all the men and women merely lawyers.

ministry.jpgCourtesy of Nicole over at Sui Generis comes this video about lawyers, lawyers everywhere. I guess this is from a Comedy Central show called “The Hollow Men.” I like the premise of this video well enough, but the execution feels a bit too schmaltzy and campy - sorta’ like the skits you would see in a law school revue.

Not to mention the fact that it’s a blatant “Monty Python” rip-off in style, appearance and design.

But it’s a Monday morning, and anything beats working, so take a gander:

Just sounds like advanced capitalism to me

coke.jpgIt’s been a while since we had a good Florida story, so let’s get a new one on the books.

Ronald Evans Senior is an enterprising Floridian. He and his wife would go to homeless shelters and recruit folks to work at the two migrant labor camps they owned. They would pay these new employees minimum wage (see, they’re not bad people - they complied with the wage laws!) to work out in potato and cabbage fields all day. At the end of a busy day toiling on the fields, the formerly addicted and homeless employees could then go shopping at the little commissary the couple set up.

Sounds like everything would’ve maybe been ok, but since this story comes from Florida, you know there’s something off. And in this case, that something would be the fact that the this little commissary was selling crack, cocaine, smokes and beer, all at marked up prices.

Seems reasonable to me. Nothing motivates workers more than highly-priced after-work drugs and hooch. But the state of Florida just had to come down on our enterprising entrepreneurial couple. Last August, Ronald was convicted of 57 (!) charges, including running a criminal enterprise and dealing drugs and contraband, and his wife was convicted of 49 charges of her own. Both of the labor camps have been forfeited to the government and the couple also owes the state over $1 million. Ronald was just sentenced to a nice little 30 year stint in the clink, and his wife is due for sentencing next month.

I bet Ronald will be able to put his contraband selling to quite a profitable turn in prison. I mean, sure, he’ll have to muscle in on whatever group is already doing such business, but it sounds like Ronald has been preparing for this endeavor his whole life. Good luck Ronny, good luck!

The Weekend Memo - 1/28/07

check.jpgWal-Mart has settled out of the lawsuit concerning its failure to pay enough overtime, agreeing to cough up $33+ million. (Yahoo! News)

check.jpgThe ACLU has offered to help an art teacher fired after the school board learned of an online video showing him painting with his ass and man-parts. (TimesDispatch)

check.jpgFox wants to know what sumbitch is putting its precious TV shows on YouTube. (TV Squad)

check.jpgA Ninth Circuit judge says it was okay for a lawyer to wear a “confrontational” t-shirt at a video deposition. (The Legal Reader)

check.jpgLegislators in the home of tobacco, Virginia, are actually considering an indoor smoking ban. (NBC4)

Stupid and greedy criminals are the best kind of criminals

atm.jpgLate last Sunday night, a Milwaukee man fell into an unfortunate situation - his car war rear-ended and when he pulled over, three dudes jumped in car and said they had a gun and wanted some cash.

The man apparently didn’t have any money on him, so he drove them to an ATM and gave them $200. But them be some greedy bandits and wanted more money, so the man drove to a second ATM and gave them another two hundred. For those keeping track, that meant these dudes now had $400 between them, which ain’t bad for a minimal-amount-of-work jacking.

Two of the hoods were happy with this and hopped out of the car. But the third dude was a greedy little bastard and wanted mo’ money, mo’ money, mo’ money. So the driver took the car to a third ATM and had the robber wait in the car while he went to get some more cash.

Thing is, that third ATM weren’t no ATM. It was the local police station! Needless to say, our friendly robber was promptly arrested and now faces charges of larceny and idiocy.

The Daily Memo - 1/26/07

check.jpgWashington state legislators want dogs in their bars. (Newsday.com)

check.jpgJust a quick heads up to our procrastinating friends out there - your taxes won’t be due until April 17, 2007 this year. (UPI)

check.jpgDidja’ know there’s a legal kerfluffle over the Unabomber’s writing? (Slate)

check.jpgJustice Kennedy, the Scalia, and former Justice O’Connor all say they had no choice but to make Bush president back in ‘01, and the Scalia adds: “get over it.” (Law.com)

check.jpgChristian activists in Philly are pissed and plan to appeal the dismissal of their lawsuit claiming free speech violations when their anti-homosexual protesters were blocked out of a gay festival. (Philly.com)

check.jpgDirecTV’s hogging of more sports programming could unleash the Congressional flood. (Football Outsiders)

check.jpgA Detroit Lions player is being sued by a male flight attendant for allegedly knocking the flight attendant across an aisle. (SI)

Engadget welcomes our new ant farm overlords

ants.jpgSometimes trademark attorneys are a real pain in the ass. And as a former trademark attorney who also happens to be a former pain in the ass (and who might, depending on who you ask, still be a pain in the ass), I speak from whence I know. The latest folks to learn what a pain in the ass trademark lawyers can be are the good peeps over at Engadget.

On Wednesday, Engadget posted an entry about a weird-ass little gadget, the mini-Antquarium, a portable little ant farm. In discussing this bizarre bugger, they said the following:

While we can’t exactly say toting an ant farm around our waist is on our list of hopeful accomplishment….

Let’s play a game - what’s the problem with that half-sentence? Anyone? Bueller? Bueller?

Well, turns out that “ant farm” is actually a registered trademark belonging to Uncle Milton Industries, Inc. The trademark registration identifies the relevant goods and services as “ant vivaria” which are, you know, ant farms. So Uncle Milton sent Engadget a kindly little e-mail yesterday, requesting that the references to “ant farm” be removed and replaced with some generic phrase (they suggested “ant habitat”). Engadget basically told them to get bent, and that’s where things are.

Now Uncle Milton is, of course, totally in its right to send a cease and desist letter like this. And if Engadget continues to take the “get bent” approach, Uncle Milton will be totally in its right to sue Engadget (and considering my use generic use of “ant farm” in this post, me too, I suppose). But I, for one, am highly skeptical of Uncle Milton’s likelihood of success in defending this mark.

In their e-mail to Engadget, Uncle Milton claims that “[t]he phrase is not generic.” It’s all well and good for them to say it ain’t generic, but just ‘cause they say it doesn’t make it so. Let’s remember what a generic mark is - as our own definition explains, a generic mark is one that “cannot be protected as a trademark because it describes a group of goods or services and cannot distinguish one product in the group from another, providing any indication of source.” The best way to show that their mark continues to serve a source-identifying function, the very heart of trademark law, would be through the use of survey evidence. Now, what percentage of folks would say that, to them, the term “ant farm” indicates a specific source/supplier of ant habitats? And how many would, instead, say that they simply thought “ant farm” referred to any contraption with sand and mazes and what-not which holds ants? I’m guessing this survey would skew waaaaay against good ol’ Uncle Milton.

But the bigger question here is, how much value can there still even be in the “ant farm” trademark? Are they making any money from it? Or maybe they’re just waiting for ant farms to get hip and cool again. If that’s the case, methinks they have a long wait ahead of them – hell, pet rocks haven’t even come back into fashion yet.

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So wait, you expect me to, like, want to work and stuff?

compScreen.jpgEmmalee Bauer recently filed a request in Iowa for unemployment, after getting fired from her hotel job. Her request was denied, so things moved to a state hearing before an administrative law judge. Unfortunately for Ms. Bauer, the ALJ also denied the unemployment request, all because of a particular piece of evidence submitted during the hearing.

That evidence? A journal Bauer kept on the computer at her old hotel job. A journal which she kept while she was supposed to be working. A journal which detailed her efforts to avoid doing the work she was supposed to be doing. It was the discovery of this journal by a supervisor which led to Bauer’s firing, and now the journal’s struck again, being the linchpin in her failed attempt to get unemployment.

Bauer claimed the journal helped her deal with her frustrations and anxiety, but the judge wasn’t biting.

Now look, people, how many times do we have to tell you? Don’t tell your boss you hate him, don’t piss in the company coffee pot and don’t leave a written trail about your slacking off. It’s just bad form.

The Daily Memo - 1/25/07

check.jpgChalk up two more Borat lawsuits. (The Hollywood Reporter, Esq.)

check.jpgA New Hampshire judge has been reprimanded because, after learning that he and the defense counsel in a murder case were both dating a courtroom employee, he waited fourth months to drop out of the case. (The Legal Reader)

check.jpgThat asshat who tried to blame his 12-year-old daughter for his wife’s stabbing death has been convicted of first-degree murder. (CNN)

check.jpgA Florida family is considering suing their son’s school because his teacher punished him by putting him into a “body sock.” (Local6)

check.jpg“Why do people need lawyers?” (Dorf on Law)

check.jpgAn Arizona trial court likes internet anonymity. (Likelihood of Confusion)

check.jpgLA’s City Counsel is going to propose a new tax to help fight gangs. (LA Times)

Maybe Congressmen should only earn the federal minimum wage

fedMW.jpgYesterday, the Senate voted on a bill which would increase the minimum wage, over the next two years, from $5.15/hour to $7.25/hour. It still wouldn’t be enough for most folks stuck earning minimum wage, but it would certainly be better than nothing, especially since there hasn’t been a federal minimum wage hike in a decade. But the bill failed. Why for, you ask?

Well, the Republicans were the ones who got in the way, so I’ll give you one guess.

Yup, shocking as it may be, they wanted tax breaks built into the bill, to help relieve the poor business that will have to pay these higher wages. ‘Cause, you know, it’s not enough that they’ve been able to get away with cheap labor for a decade.

And it’s pretty unclear what will happen now. The Senate Dems have now put forth another bill, still raising the minimum wage to $7.25, but also including $8 million in tax relief. However, this bill may have trouble in the House because of the House Dems, who say that all tax bills are constitutionally required to come from the House, may block it. Of course, we all know that no matter who wins these various pissing matches, the real losers are the folks who actually need this money.

I’ll leave you with this chart showing the depressing decline of the minimum wage’s real world value:


Homeless Man Gets Last Laugh

homeless.jpgWell this story is a touchy-feely one. A warm and fuzzy entry to get you through the afternoon.

It concerns a tale of unrequited love, of unexpected almost-reunions, and of brown paper bags wrapped around a nice, big bottle of hooch. It involves Elsie Sparks, who learned by watching an episode of “Live with Regis and Kelly Lee” that her long lost husband Roger Greenlee was still alive. It warms the cockles, don’t it? Greenlee was featured on “Regis and Kelly” because a Madison Avenue store owner, Karl Kemp, was bringing a lawsuit against him for $1 million, because Greenlee and three other homeless people parked their asses in front of his store and engaged in “anti-social” behavior, which didn’t do wonders for his business. The specific “anti-social” behavior wasn’t detailed, but I’m sure it had something to do with malt liquor, the free flow of urine, and rambling proclamations concerning Greenlee’s love for Enchiladas. I think Greenlee is going to have to do an awful lot of pan-handling to generate his share of the $1 million, though.

Sadly, Greenlee — who hasn’t seen his wife and two children since the 1970s — refused to reunite with Sparks. Described as a man with a “bipolar kind of personality,” I’m sure Greenlee has other concerns, like offering to tie the shoes of passersby and baying at the moon. Sweet, isn’t it?

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The Daily Memo - 1/24/07

check.jpgLaw school ain’t work out for a hobo, neither. (Overheard in NY, hat tip to Sui Generis)

check.jpgThe WSJ Law Blog is bummed that no actor playing a lawyer was nominated for an Oscar. (WSJ Law Blog)

check.jpgKiera Knightly is filing a lawsuit against the “Daily Mail” because it published an article about how thin she was and, according to Kiera, suggested that she’s lied when denying that she has anorexia or some other eating disorder. (The Superficial)

check.jpgA man accused of killing his wife testified that their 12-year-old daughter actually stabbed the woman to death. (CNN)

check.jpgMySpace has filed a lawsuit against the Spam King. (ZDNet)

check.jpgApple’s being sued over the iPod’s click wheel allegedly infringing someone’s patent. (Gizmodo)

check.jpgA Texas court has ruled that a website can be liable for copyright infringement if it deep links without permission. (The Register)

Well that’s a fine “hidey ho”

hankey.jpgKathleen Ensz is a 63-year-old retired French professor from the University of Northern Colorado. She’s been trying to enjoy her retirement years, but it seems that the local politicians were getting in the way. In particular, Ensz, a Democrat, was getting more and more pissed off at all the mailings she was getting from a local congresswoman, Representative Marilyn Musgrave (a Republican). It got to the point that Ensz was so mad, mad as hell if you will, that she couldn’t take it anymore.

So our kindly old retired Professor went into her backyard, scooped up some dog shit, wrapped the dog shit in one of Musgrave’s mailings, and left the poo-present at the Representative’s office. At the time, Musgrave thought it was a political “dirty” trick, and demanded apologies from her opponent. But now that the truth has come out, the matter has moved from the political arena to the court, as Ensz faces a misdemeanor charge for the “use of a noxious substance.”

The trial date is set for May 15, but Ensz’s attorney is already pleading her case, saying it was Ensz’s constitutional right, protected by the First Amendment, to leave that poo. Sure, she acknowledges, it was “probably crude and boorish.” (Probably?) But, the lawyer says, it’s common these days to equate a disliked or distasteful person with shit.

Meanwhile, the highlight of the story comes, again from this fine attorney, during a hearing in the matter last week:

At a hearing Tuesday, she also cited Mr. Hankey, an animated, talking piece of human excrement depicted on “South Park,” as evidence that it is commonplace to use feces to express disdain.

And now? …poo videos:

(Hat tip to Overlawyered)

As the (Online) World Turns

montgomery.jpgJesus — here’s yet another reason to be wary of online relationships and the damn Internet, in general. Brian Barrett — a nice 22-year-old Buffalo fella who coached Little League baseball — was shot three times at close range and killed in September of last year. His body was found two days later, and the killer remained a mystery until a lot of investigation revealed the sordid details.

It started like this: Forty-seven-year-old Thomas Montgomery was engaged in an online relationship with an 18-year-old girl, who had sent him lovely pictures and lingerie. Montgomery (pictured) had claimed himself to be an 18-year-old Marine who was to be deployed to Iraq, which I guess added a dose of immediacy to the affair. However, Montgomery’s wife soon intercepted a package from the woman, found out about the online affair, and contacted the woman via a return address label, resulting in an end to that affair.

The 18-year-old girl remembered that Montgomery had mentioned, a few times, a co-worker by the name of Barrett. So she started chatting up Barrett online, asking him if the story about Montgomery being an older, married man was true. This, of course, led to further communications, eventually leading to Barrett and the woman being fully engaged in their own online tryst.

After learning of this, Montgomery got jealous. So jealous, in fact, that he adorned a ski-mask, dressed in camouflage, and shot Barrett three times with a .30 caliber rifle. Nice guy, right?

The catch: The 18-year-old woman was actually a 47-year-old West Virginia mother who was sending pictures of her daughter to both men.

Man. These interwebs are all sorts of messed up.

The Daily Memo - 1/23/07

check.jpgParis Hilton has pled guilty although, unfortunately, it’s not to being a no-nothing lazy-eyed coose. (CNN)

check.jpgBlawg Review #92 is out and about. (Legal Andrew)

check.jpgA despicable Florida woman (where else?) has been charged with putting her baby in an oven, and turning it on. (Examiner)

check.jpgAnother judge may let a game of “rock, paper, scissors” decide the outcome of lawyer bickering. (Law.com)

check.jpg“The Visionary” is always thinking about estate lawyers. (Non Sequitur)

check.jpgLarry Charles’ return to a Philly courtroom, not as a defendant but as an attorney representing others, a week after getting caught nekkid with a 14-year-old-girl, made for an eventful day. (The Legal Reader)

check.jpgA mistrial has been declared in a case where a juror was nipping some vodka during the trial. (CNN)

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Supreme Court Decision Update - Cunningham v. California

prisoner.jpgThe Supremes’ final decision from yesterday was Cunningham v. California (PDF of the opinion). We’re a bit late on our update, but that’s the way the ball rolls. This case is yet another instance where the Supremes invalidated sentencing guidelines, California’s system, this time, because of Sixth Amendment violations.

QuizLaw Analysis: The Supremes like guidelines that are discretionary, giving judges broad discretion. But if there isn’t such broad discretion, the facts supporting a larger-than-normal sentence need to come from the jury, not a judge. Since California’s system lets the judge decide facts in support of a greater sentence, the whole thing’s a no-go. So the Court tells California to go back to the drawing board and fix its sentencing system.

What’re we talking about here? John Cunningham, a scum bucket, was tried and convicted in California of continuous sexual assault of a kid under 14. In 1977, California enacted the determinate sentencing law (the DSL), which says that this crime is punishable with one of three sentences - 6 years in the clink, 12 years in the clink or 16 years in the clink. The DSL says that the 12 year sentence should be used in this case unless a judge determines that there were one or more aggravating circumstances justifying the larger 16 year term. The judge in this case, based on a post-trial sentencing hearing, found by a preponderance of the evidence that there were six aggravating facts, and smacked Cunningham with the 16 year sentence.

Now it’s important to understand that, as with Cunningham’s situation, for most offenses the DSL provides rather strict guidelines, with three optional precise terms, as opposed to a range of terms (i.e., 6, 12 or 16 years, rather than anything between 6 and 16 years). The rules giving judges guidance on applying the DSL list some of the aggravating factors that can support a greater sentence and, as outlined by the Supremes’ majority opinion, “the California Supreme Court has repeatedly referred to circumstances in aggravation as facts.” So, with this in mind, the issue here is whether California’s DSL violates the Sixth Amendment based on prior Supreme Court ruling about sentencing and the jury’s role in deciding facts. And the Supremes, in a 6-3 opinion penned by Justice Ginsburg, find that the DSL does indeed violate the Sixth and Fourteenth Amendments.

Why is the Sixth Amendment at issue here? Because, as Ginsburg says:

This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Now, to understand what’s going on in this case, it’s helpful to look at three other Supreme Court opinions - Apprendi, Blakely and Booker.

Tell me about Apprendi. In Apprendi v. New Jersey, the Supremes held that if there’s a fact, aside from prior convictions, which might expose a defendant to a sentence greater than the statutory maximum, the Sixth Amendment requires a jury to find that fact, not a judge. And it must be beyond a reasonable doubt, not by a preponderance of the evidence (which is an easier standard to meet).

And Blakely? The Supremes reaffirmed the Apprendi rule in Blakely v. Washington, looking at Washington’s Sentencing Reform Act. The maximum penalty for the crime at issue there was ten years, but the Washington Act said that the sentence had to be between 49 and 53 months unless the judge found additional facts warranting a greater sentence. So the defendant here, Blakely, was hit with a 90 month sentence because the judge found the crime to be deliberately cruel. The Supremes said this was no good, in violation of the Apprendi rule and the Sixth Amendment, because Blakely got a greater sentence based on facts decided by the judge. And this was true even though the sentence was under the maximum (10 years) because it was outside the proscribed standard range (49-53 months). The only way a judge could give a greater sentence, as the judge did here, was by finding additional facts - “[t]he judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee.”

And Booker? The Supremes again reaffirmed the Apprendi rule in US v. Booker, this time looking at the Federal Sentencing Guidelines. In this case, the facts
determined by the jury said Booker should get a sentence between 210 to 262 months in the clink. Under the Guidelines, the judge can’t go beyond that without finding additional facts - the judge in this case did find such additional facts and gave Booker a greater sentence. The Supremes said this was also a Sixth Amendment violation. However, the Supremes said that the Guidelines would be ok if they were advisory, instead of mandatory, because then it would just be the judge exercising “broad discretion in imposing a sentence within a statutory range.” So the Supremes then basically said the Guidelines should be understood to be advisory, meaning judges aren’t tied to the sentencing range:

But they would be obliged to “take account of” that range along with the sentencing goals Congress enumerated in the Sentencing Reform Act.

Can we get to this case now? Yes. Yes we can. Ginsburg says that California’s DSL looks much like the unconstitutional sentencing systems in Blakely and Booker. The middle term (the 12 year sentence in this instance) is relevant statutory maximum, not the higher term (the 16 year sentence) because that higher term may only be given when the judge finds aggravating facts. This “should be the end of the matter,” but it’s not thanks to the California Supreme Court. In another case, the California Supremes said that the DSL was fine, even in light of these Supreme Court cases. Ginsburg now says, not so much.

The California Supremes decided the DSL was ok by looking at the type of discretion the trial judge was given and by determining that the system was pretty fair to defendants. But Ginsburg says this is all a bunch of bunk because “[t]his Court’s decisions, however, leave no room for such an examination.” The California Supremes also said that the DSL was like the post-Booker Federal Sentencing Guidelines, merely advisory in nature. But Ginsburg says this is also bunk, because judges aren’t free to pick any sentence within a range - they can’t give anything between 6 and 16 years, only a specific sentence of 6, 12 or 16 years. And:

Fact-finding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.

So what happens to the California sentencing system now? Ginsburg ain’t saying. She says the ball’s in California’s court. They can follow some other states, keeping the determinate sentencing and simply asking “the jury - either at trial or in a separate sentencing proceeding - to find any fact necessary to the imposition of an elevated sentence.” Or they can have a new system which creates a range of sentences, giving the judge “broad discretion” within that range. It’s up to California.

Seems straightforward - what’s the dissent tweaked about, then? As we said, this was a 6-3 opinion. Justice Alito wrote a dissenting opinion, joined by Justices Kennedy and Breyer. in addition, Justice Kennedy wrote a separate dissenting opinion, joined by Justice Breyer. So, what’s Alito’s problem? He thinks that the California DSL is pretty much the same as the post-Booker advisory Federal Sentencing Guidelines and that, therefore, the DSL doesn’t violate the Sixth Amendment:

Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that discretion to appellate review for “reasonableness”; and both - the California law explicitly, and the federal scheme implicitly - require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury’s verdict.

So, essentially, Alito thinks that the California scheme gives the judge broad sentencing discretion, especially in terms of potentially aggravating and mitigating factors, and the Court has always said that broad discretion means the scheme doesn’t violate the Sixth Amendment.

And what was Kennedy’s other dissenting opinion for, if he joined with Alito? Well, he’s on board with everything Alito said. But he wanted to add an additional comment to note that he thinks Apprendi and its subsequent line of case are all wrong. Just wrong. But he’ll concede that there could be a rationale letting those cases still have some control and effect “while reducing the collateral, widespread harm to the criminal justice system and the corrections process now resulting from the Court’s wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.” Basically, Kennedy thinks the world of sentencing enhancements should be broken up into two categories, those that are based on the nature of the offense and those based on the nature of the offender. In Kennedy’s world, the Apprendi doctrine would apply to the “offense” enhancements, but not the “offender” enhancements.

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It puts the lotion on its skin, or else it gets the gavel again

gavel.jpgWell this headline really speaks for itself: “Woman sues Texas judge for ejaculating on her in chambers.”

So according to a complaint filed earlier this month, here’s the story (all allegations, remember). On a Saturday night in December 2005, at 8:30 p.m., Theresa Wooten got a call from a local Texas judge, Gary Mitchel Block. Wooten was a defendant representing herself in a case before Block. So during this call, Block said he could help her resolve the case and he wanted her to drive over to the courthouse. She met him there, and they went into Block’s private chambers. He had her sit on his sofa and offered her some booze, which she declined. Wooten says Block then started to talk about unrelated personal stuff and started massaging her shoulders. When she pulled away, he sat down next to her on the couch and tried to go down on her. When she pulled back again, he pulled his little gavel out and began jacking off. Then he grabbed her hand and continued to whack, eventually delivering his special judicial opinion on her. She fled to his private restroom, cleaned up, and got the hell out of there.

And so that’s the basis of her claims for assault and intentional infliction of emotional distress. But get this - when she filed her complaint, Block had already resigned because of unrelated sex scandals. A female attorney who often appeared before Block claimed that he got grabby with her: “He put his arm around me and he pushed me over to him and he just started feeling me.” There were alleged to be several complaints filed against Block between 2004 and 2006, and he resigned to avoid disciplinary action.

Block’s lawyer, of course, claims this is all just a nasty smear campaign, brought by “very potent political folk” looking to take down local judges.

Maybe it’s just me, but In light of Wooten’s ejaculation claim, maybe Block’s lawyer should steer away from talking about potency and smears.

Supreme Court Decision Update - Osborn v. Haley

feds.jpgThe Supremes’ second decision for today came in Osborn v. Haley (PDF of the opinion). The issues at play are procedural matters relating to when a federal employee is sued and the Attorney General steps in to certify that the employee was acting in the course of their official duties. This bounces the case to federal court, and the question here is whether the case can be bounced back down to the state courts.

QuizLaw Analysis: The opinion here is rather long, particularly because there’s also a dissenting opinion and two concur-in-part, dissent-in-part opinions, but the outcome is pretty straightforward. If the Attorney General certifies that the federal employee was acting in the course of official duties, the case gets sent up to the federal courts and cannot be sent back down to state court. Plain and simple.

What’s the story with all the opinions? Well there’s a majority opinion penned by Justice Ginsburg and joined by Chief Justice Johnny and Justices Stevens, Kennedy and Alito. Justices Souter and Breyer each joined some parts of Ginsburg’s opinion, but they also each filed separate opinions, concurring in part and dissenting in part. Finally, the Scalia filed a dissenting opinion, joined by his boy Clarence.

What are we talking about here? We’re talking about the Federal Employees Liability Reform and Tort Compensation Act of 1998, which is known as the Westfall Act. The Westfall Act says federal employees are immune from common-law tort claims where those claims arise from the employee acting the ordinary course of their official duties. When such a lawsuit arises, the Attorney General is empowered to provide a certification that the employee was acting in the scope of their duties. That certification is deemed conclusive with regard to removal of the case, which means that once such a certification has been made, the employee is dismissed, the US government becomes the defendant and the case is then automatically removed from state court to the relevant federal District Court.

And what’s the relevant background here? Here’s the short version. Pat Osborn filed a lawsuit in Kentucky against Barry Haley, a federal employee. Osborn alleged that Haley committed tortuous interference with here employment and tried to have her wrongfully discharged. The US Attorney, acting as the AG’s delegate, certified that Osborn was acting within the scope of his federal employment at the time of the conduct which Osborn alleged in her complaint, and the case was then removed to federal court. In District Court, the US Attorney denied that Haley did the actions Osborn alleged. The Court then rejected the AG’s certification leaving Haley as the defendant, and remanded the case to Kentucky. The case then moved to the Sixth Circuit, which vacated the District Court’s order, telling the court that it couldn’t remand to Kentucky and had to keep the case.

Did the Sixth Circuit even have jurisdiction to review the District Court’s order rejecting the AG certification? Well, that’s the first question Ginsburg turns to. And the short answer is yes. A decision is deemed a reviewable final decision where three factors are met, and this District Court decision meets all three factors: (i) the court conclusively decided the issue, firmly ruling that that AG certification wasn’t appropriate in this case; (ii) the issue is important, because it effectively denies the federal employee his statutory right to immunity, and the issue is separate and distinct from the merits of the case; and (iii) for all intents and purposes, this wouldn’t be reviewable later. Plus, all the federal Court of Appeals, Ginsburg notes, “are unanimous in holding that orders denying Westfall Act certification and substitution are amenable to immediate review.”

And did the Sixth Circuit also have jurisdiction over the District Court’s order to remand the case to Kentucky? Ginsburg spends a bit more time on this issue. And we should note that this is one of the sections that Justice Souter did not join (Breyer did join it, however). Federal law says that an order to remand a case to a state court isn’t reviewable on appeal. She then turns to the details of the Westfall Act and its discussion of removal and remand, to determine if that principle applies here. She determines that it does not. The Westfall Act specifically acknowledges that, where the AG declines to certify the matter, the employee can petition the state court for removal anyway - if the case is removed and the federal court then determines that the employee wasn’t acting within the scope of his office, the Westfall Act says the court must remand the action back to the state. But there’s no similar language for the case where the AG does certify and the court rejects the certification. Ginsburg says that this distinction “leads to the conclusion that Congress gave district courts no authority to return cases to state courts on the ground that the Attorney General’s certification was unwarranted.” If the court rejects the certification, it can simply reinstate the employee as a defendant and the case can continue on in federal court.

Ginsburg then explains that this outcome doesn’t cause any problems with Article III. Even if the court rejects certification, leaving the issue a state-law tort issue, there was “a significant federal question” at the beginning, namely, whether there should be Westfall Act immunity. Article III gives the federal court discretion to keep the state law claims, since it had jurisdiction over the case at the outset, so there is no problem.

Well that seems to cover all the jurisdiction stuff, so what’s left? There’s still a question of what happens where, as was the case here, the federal employee denies that the alleged acts even happened. It’s been argued that there can’t be a valid certification in such an instance.

So can the AG certify when the actions are denied? Yes. Before we get into this, let’s note that Souter is back on board, joining Ginsburg. However, this is where Breyer parts ways from the majority. Anyway, Ginsburg says the purpose of the Westfall Act isn’t just to shield federal employees from liability, but from having any part in the lawsuit. So it makes sense to allow protection, via the AG certification, even when the alleged acts are denied, so long as the employee was acting in his scope at the time of the alleged incident. And this also means that the government, when it takes over as a defendant following the AG certification, can continue to deny that the alleged incident ever took place.

Ginsburg says that she recognizes that there’s another issue “tugging against” this ruling, namely, a question of “who decides” the underlying case - a judge or jury. If the court determines that the federal employee was, in fact, engaged in conduct within the scope of his employment, and that there was no tortuous conduct, the plaintiff would lose on the merits without ever getting to a jury. Ginsburg says that “[u]nder the Westfall Act, however, Congress supplanted the jury in covered cases.” Once the case is certified, the action is against the US, and the right to a jury trial in cases based on the common law doesn’t apply to cases against the government. So when the court reviews the certification issue, the plaintiff has no right to a jury trial anyway.

And that, as they say, is that.

What’s Souter’s beef-in-part? As noted, Souter dissents from Ginsburg’s decision that the Sixth Circuit had jurisdiction to review the District Court’s remand of the case back down to state court. For him, the legal standard that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise” is the end of the road, even if the remand was based on an obvious legal error.

And what’s Breyer’s beef-in-part? Remember, Breyer didn’t join with Ginsburg with regard to when the employee and/or government denies the alleged incident ever even happened. He believes that “the Westfall Act permits the Attorney General to certify only when accepting, at least conditionally, the existence of some kind of ‘incident,’” and that the incident must have taken place within the scope of the employee’s employment. He then goes onto a long analysis about facts that aren’t even part of this case, so it’s not just a dissent, but dicta, and I’m not wasting my time or your time with it.

And finally, the Scalia - what’s his beef? Scalia, joined by Thomas, dissents from the whole thing. He loves strict interpretation of statutes, as you may or may not know, so it all basically boils down to this:

Few statutes read more clearly than 28 U.S.C. § 1447(d): “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise….” That bar to appellate review is a venerable one, dating back to 1887…[and it is] not just horatory; it is jurisdictional.

To Scalia, this is a clear “Court-limiting command” which Ginsburg is eviscerating. And he wants no part of it. This case should’ve never gone up to the Sixth Circuit, end of story. So says the Scalia.

Supreme Court Decision Update - Jones v. Bock

The Supremes are off and running this week, coming right out of the gate on Monday with three new opinions. This first one, the shortest of the bunch, is Jones v. Bock (PDF of the opinion). It’s the only unanimous opinion of the day, penned by Chief Justice Johnny, and it deals with some requirements that a prisoner must meet in filing a grievance lawsuit against the department of corrections.

QuizLaw Analysis: The Court basically smacks around the Sixth Circuit today, telling the Sixth it’s been too strict. So things are a little easier now for pissed-off prisoners - they still have to go through the prison grievance process, but once they do that, there are less hoops to go through if they want to bring the lawsuit up to the courts.

What’s the Prisoner Reform Act of 1995? Referred to as the PLRA, it was passed by Congress to help unclog the federal courts from all of the prisoner litigation. One of the ways it tried to do this was by setting up an “exhaustion” requirement, which says that before a prisoner brings a lawsuit, they have to exhaust any local prison grievance procedures. The lower courts disagree on three different aspects of this provision, and the Supremes are here to settle it all.

What are the three issues the lower courts disagree on? First, there’s a question of whether it’s the prisoner’s burden, in filing a lawsuit, to plead and show that they exhausted the prison grievance procedures, or whether it’s an affirmative defense the prison can raise later. The Sixth Circuit, and some other lower courts, says the onus is on the prisoner, who must plead and demonstrate exhaustion.

Second, there’s a question of how much a prisoner must do to properly exhaust their claims in the prison grievance procedures. Specifically, the Sixth Circuit and some other courts say that any party named as a defendant in the lawsuit must have been named in the prison grievance process from the very beginning; otherwise, the case can be thrown out. Other courts are a bit more liberal about this.

Finally, there’s a question of what to do when a prisoner lawsuit includes some claims that have been exhausted and others that haven’t. The Sixth Circuit is very strict and says that if even one claim wasn’t exhausted, the whole case gets thrown out. Others are more liberal, allowing the lawsuit to move forward or allowing the complaint to be amended so that the unexhausted claims are removed.

So who’s got the burden for establishing exhaustion? Roberts says that the Sixth Circuit and its minority rule, putting the burden on the prisoner/plaintiff, is wrong. The Federal Rules of Civil Procedure just require a plaintiff to include, in their complaint, a “short and plain statement of the claim.” And since the PLRA is not generally the actual source of a prisoner’s claim, there is no reason a prisoner should have to include PLRA requirements in his complaint - in other words, whether or not the prisoner met the exhaustion requirement isn’t part of their claim. What the Sixth Circuit is doing is tantamount to creating a heightened pleading standard, and the Supremes frown upon this. Plus, in other instances, courts generally find that issues of “exhaustion” are affirmative defenses to be raised by the defendant, so why should it be any different here?

The Sixth Circuit also based its way of business on another requirement of the PLRA, which says that courts must conduct early judicial screening of prisoner cases, to weed out the ones that shouldn’t be there. So the Sixth Circuit said that making the plaintiff/prisoner plead exhaustion helps this, because the court can quickly review the complaint and know whether there’s been exhaustion and whether the case can stay or should go. But Roberts says the Sixth was wrong here too, because there’s no indication that Congress intended for things to be done this way, to change exhaustion from an affirmative defense.

And what about whether prisoners have to name everyone in their grievance, from the get-go? Strike two for the Sixth Circuit. The PLRA simply says that the prisoners have to exhaust whatever administrative remedies are available. It doesn’t say that all defendants have to be named. That may not even be possible in some situations - where, for example, the identity of the responsible party isn’t discovered until well into the grievance process. Plus, with regard to the grievances in this case, the Michigan Department of Corrections’ policy doesn’t have any provision requiring all defendants to be named in the grievance. It just requires the prisoners to “be as specific as possible” and that’s what happened here. In fact, the grievance forms actually require a specific administrative official to be named, so the prisoners didn’t improperly use the state’s grievance process by not naming someone as a defendant until later.

And what about the last issue - what happens where a prisoner complaint includes some unexhausted claims? Strike three for the Sixth. Roberts says that courts definitely shouldn’t deal with claims that haven’t been exhausted, but the Sixth is doing things wrong by simply tossing the entire complaint. The PLRA says that a prisoner can’t bring an “action” until there’s been exhaustion, and the Sixth figured this meant the whole complaint had to be exhausted, otherwise the PLRA would have said “claim” instead of “action.” But Roberts says this is bad reasoning, since the statutory phrase “no action shall be brought” is nothing but boilerplate language, used all over the place, and often referring to claims rather than full complaints/actions. And Roberts doesn’t buy any of the other policy arguments which would support the Sixth Circuit’s interpretation.

Can Adultery Mean Life in the Pokey?


Don’t you just love sarcastic judges who take the law to its logical extremes to prove a point and take personal digs at prosecutors? I know I do. And that makes Judge William Murphy of the Michigan Court of Appeals my new hero for the week.

Here’s the story: Apparently, there is still an antiquiated law on the books in Michigan which makes it a crime, punishable up to life in prison, for having an adulterous affair.

So, with that as context, the case in question involves Lloyd Waltonen, who traded prescription Oxycontin to a cocktail waitress for sex. A circuit court judge sentenced Waltonen to 20 years in prison for the offense, but dismissed four counts of criminal sexual conduct, based on the fact that the sex was consensual.

After that, Attorney General Mike Cox’s office triggered an appeal, asking for a harsher sentence based on a Michigan law which stated that sexual acts committed at the same time as a felony constituted criminal sexual conduct.

In Murphy’s court opinion, he (seemingly reluctantly) agreed, noting that although the statute was probably intended to apply to violent felonies involving forced sex, he was “curtailed by the language of the statute from reaching any other conclusion.” Murphy is a liberal, not keen on a strict interpretation, so he took a not-so-subtle swipe at Cox in a footnote. Last year, Cox admitted to an adulterous affair, so Murphy wrote that — technically — anyone who engages “in sexual penetration in an adulterous relationship” could be found guilty of first-degree criminal misconduct.

Although he didn’t include it in the footnote, I’m sure Murphy intended to include this proviso at the end of it: “Snap!”

Hat Tip to the Illustrious Bashman.

The Daily Memo - 1/22/07

check.jpgUpdating last Thursday’s Ron Mexico story, NFL league sources claim Vick didn’t have pot in the water bottle and that he’ll be exonerated. (ESPN)

check.jpgA lawsuit against Royal Caribbean, blaming the cruise line for a man’s disappearance, has been thrown out of court. (FindLaw)

check.jpgLadies and gentlemen, the Joe DiMaggio of lawyers! (Law.com)

check.jpgNew Hampshire legislators are considering a bill which would legalize the sale and use of pot - “Live free or die with the munchies.” (SeacoastOnline)

check.jpgCalifornia legislators, meanwhile, are considering a ban on child spanking, and Professor Dorf asks “whence the opposition.” (CBS 5 and Dorf on Law)

check.jpgChief Justice Johnny has recused himself from a case about whether members of Congress are immune to workplace lawsuits filed by their staff. (SCOTUSblog)

check.jpgInformation about a previously secret investigation shows that the DOJ is stepping up its attack against online gambling. (Gambling911)

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If Jeb Corliss jumped off a bridge, would you?

empireState.jpgJeb Corliss, a thirty-year-old professional stunt-jumper, tried to parachute off the Empire State Building last spring. But instead of notching another jump onto his belt (he’s got about 3,000 successful jumps to date), he found himself being prosecuted for first-degree reckless endangerment, a charge that caries a sentence of up to seven years in the clink.

The charge of first-degree reckless endangerment requires a showing that Corliss had a “depraved indifference” to the fact that his actions risked the lives of bystanders. However, Justice Michael Ambrecht said that there was no such depravity here because of Corliss’ experience and because of the preparations he took to ensure little risk to general public safety. For example, Corliss was sure to carefully plan things before the jump, including factoring in the wind conditions and even taking traffic-light patterns into account (to ensure he wouldn’t smack onto a moving car). So the charges have been dismissed and Corliss is free to jump again.

The cops and prosecutors were pissed with this outcome. A police spokesman asked “What if his chute didn’t open? He could have killed others along with himself.” And a DA spokeswoman added that the city still thinks it’s reckless to jump off the Empire State Building. But nevertheless, something tells me that Corliss will try again - when asked if he’d try another Empire State Building plummet, he said “No comment!”

(Hat tip to The Legal Reader)

Football and television are totally more important!

saints.jpgIn New Orleans, there was an asbestos-related case set to start its trial next Monday, January 22. However, the local football team, the Saints, are playing in the NFC Championship this Sunday, one day before the start date. It’s kind of a big deal, being the team’s first-ever Championship Game. So the defendants in the case filed a motion to move the trial’s start date forward two days, to January 24, “[i]n order to accommodate all fans, including the great majority of the jury pool, the parties involved in this case, and the counsel involved in the case, and in order to ensure that a full jury pool appears on the first day of trial.” And get this - the defendant’s attorney paid for this on his own: “The client is not paying for it…There’s no way I’m missing this game.”

The Court granted the motion, much to the relief of all involved. And I salute the Court - I’ve always known that football is more important than legal hoo-ha. And Deadspin adds:

A splendid idea, and you know what? They should suspend all relief efforts for the weekend too. Oh, they’ve kinda’ already done that.

uglyB.jpgMeanwhile, over in the House of Representatives, Congresswoman Hilda L. Solis, a Democrat from California, took the floor on Wednesday, not to talk about football, but to talk about TV. She wanted to salute America Ferrera for winning a Golden Globe for her titular role in “Ugly Betty” and for “breaking down barriers for Latinos in prime-time television.” It’s good to know that Congress doesn’t have anything more important to do than worry about race representation on prime-time TV!

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Holy Schnikeys! (updated)

mccain.jpgWonkette is reporting that Congress is currently considering a bill pushed forward by a couple of Republicans (Utah Senator David Vitter and Louisianna Senator Robert Bennett) that would require grassroots causes, even bloggers, who communicate to 500 or more members of the public on policy matters, to register and report quarterly to Congress the same way as the big K Street lobbyists.

Though bloggers aren’t specifically named in the bill, anyone who engages in grassroots lobbying would have to sign up with Congress if they try to influence the public, make more than $25,000 a year, and reach 500 people or more. It doesn’t take a brain surgeon to see that, at the very least, a handful of political bloggers would be forced to register with Congress, lest they face criminal penalties, including up to one year in prison.

The bill passed the Senate earlier this month. And it comes on the heels of another piece of legislation floating around Congress, sponsored by John McCain, which would fine websites and blogs $300,000 for offensive statements, photos and videos posted by visitors on comment boards.

Update: This stupid proposition has been voted down and stripped out of the lobby reform bill. The Republicans actually did something right for a change!

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The Daily Memo - 1/19/07

check.jpgDon’t forget to pay taxes to Tennessee for your illegal drugs! (Time)

check.jpgI just found out about this case and had to share - how can you go wrong when the world of copyright meets the world of model penises? (jeff seul’s techlawlife)

check.jpgA Wisconsin couple has been arrested for keeping their 13-year-old daughter “locked in a room for nearly two years, allowed out only for meals, chores and one-minute timed bathroom breaks.” (SF Gate)

check.jpgNew York is considering two different bills which would ban the sale of violent video games to kids: “It’s about time. We’re just sick and tired of all those whipper snappers, running amok in our deathmatches and stealing all our kills.” (Engadget)

check.jpgMySpace is facing more lawsuits from the families of underage girls who were sexually abused by folks they met on the site. (Blogging Stocks)

check.jpgWell, we’ve got our first person to be successfully prosecuted under the 2003 CAN-SPAM Act, a federal anti-spam law, and he faces up to 101 years in the clink. (The Mercury News)

Don’t forget that you can get some extra money on your tax returns this year

taxes.jpgLast May we told you how your phone bills were funding the long-since ended Spanish-American War. As you may recall, the IRS eventually relented and agreed to stop assessing this tax and, to help make amends, agreed to give folks a one-time tax credit. You must claim this credit on your 2006 tax returns if you want it. And who doesn’t want an extra $30-$60 from the feds, right?

So get to it: What is the Federal Excise Tax Refund Credit?

Attorney General Alberto Gonzales is a son of a bitch

agAG.jpgGonzales says that federal judges aren’t qualified to rule on issues of national security policy, i.e., terrorism cases. Instead, these rabble-rousing judges should just defer to the infinite wisdom of the President and Congress, instead of applying “an activist philosophy that stretches the law to suit policy preferences.”

Because, you see, only Gonzales and the Bush Administration can stretch the law to suit policy preferences, damn it!

Gonzales also says that the Bush Administration, in looking for federal bench candidates, is looking for folks who understand “the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments…That, for example, a judge will never be in the best position to know what is in the national security interests of our country” Apparently Gonzales has forgotten the fact that the federal judiciary is actually an equal branch of the government, not the bastard step-brother. Sure, judges shouldn’t be making flat-out policy, but many of the cases he would probably cite as “activist philosophies” creating policy are probably just applications of the law to Bush policies, finding those policies not so legal. Which, to Bush and his cronies (e.g., Gonzales), is no good.

Gonzales is still probably better than his predecessor, Ashcroft, but not by much.

A rare apology from the QuizLaw gang

oneApol.jpgApparently, we’ve been slacking on our housekeeping duties here at QuizLaw and have only just come to the realization that no comments have been publishing for months now. Instead, they were all being automatically scooped up into the ignored “junked comments” bin. So apologies to those of you who were commenting and thought you were being dissed.

Last night, I should have been laying on my couch watching the Thursday night NBC comedies and eating chips off of my belly. But instead, I dug through over 3,000 comments, publishing the non-junk. I’m sure I missed a couple, but I think I got the vast majority. A positive to this little project, however, was that I got to see lots of comments about Viagra, sexy singles, sexy swinging couples, more viagra, cash loans, diet pills and casinos. Plus many a compliment followed by junk links (said compliments including “nice site,” “great site,” “great design,” “awesome web layout,” etc.). I guess the thinking is that our junk filter will be flattered and publish the comment despite it being junk.

Anyway, once again, apple-ologies. We think things are better now, but we’ll keep an eye on it.


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This water’s giving me the munchies

ronMex.jpgOn Wednesday morning, Mick Vick (the Atlanta Falcons quaterback) was at the Miami International Airport trying to catch a flight back to Atlanta. Before we get to the meat of this story a quick aside - he was taking an AirTran flight. AirTran? Does he not make enough money to fly a real airline that doesn’t have airplanes with a reasonable chance of bolts falling off mid-flight? What the hell?

Anyway, he had a 20 ounce Aquafina water bottle and the security checkpoint folks wouldn’t let him take it through since, as everyone knows, no more than 3 ounces is allowed these days. He was hesitant to leave it, but eventually did so. This hesitancy peeked the screener’s suspicion, however, so she took the bottle from the recycle bin and told her supervisor. The supervisor gave the bottle a look-over and found that it had a secret compartment and in that secret compartment was a dark residue which smelled like pot. So the cops were called in and they’ve now taken the bottle for drug testing. If it comes back positive, Vick could find himself facing some charges. As always, The Smoking Gun hooks us up with the official police report.

So turns out Vick isn’t just a less-than-competent quarterback, he’s also a less-than-competent drug-runner. Next time, Mr. Mexico, remember to swallow it or stash it up your ass.

(As you may recall, “Ron Mexico” is the fabulous alias Vick used to use, as we learned about from the 2005 STD lawsuit filed against him.)

The Daily Memo - 1/18/07

check.jpgConnecticut’s Supreme Court will decide whether oversleeping and showing up to court late gets you out of punishment for contempt. (WCBS)

check.jpgA video game based on Ghostbusters is being held up by intellectual property issues. (Destructoid)

check.jpgThe DOJ has agreed to judicial oversight of the domestic wiretap program by the secretive Foreign Intelligence Surveillance Court, lessening the chances of the program getting Supreme Court review. (SCOTUSblog)

check.jpgCully Stimson offers “a half loaf of an apology…” (Concurring Opinions)

check.jpg…and Stimson doesn’t even have history on his side. (Is That Legal?)

check.jpgSullivan and Cromwell is being sued by a gay former associate for sexual orientation discrimination. (Law.com)

check.jpgA man wins a $400K jury verdict after being removed from an airplane just because he allegedly looked like the two guys sitting next to him. (FindLaw)

Nothing says “Martin Luther King, Jr. Day” better than…

billyPenn.jpgTurns out the Tennessee Police Chief I wrote about yesterday (the guy who steals from charity and keeps porn on his cop computer) isn’t really that bad in the grand scheme of things. After all, he could be 49-year-old criminal defense attorney Larry Charles.

On Monday, the Philadelphia courts were closed in honor of Martin Luther King, Jr. day. However, attorneys who needed to conduct business were allowed in to use the court conference rooms. So on Monday afternoon, a sheriff’s deputy was doing his regular rounds in the Criminal Justice Center when he found Larry Charles in one of the conference rooms. Naked. With a 14-year-old girl.

Charles was her godfather and, according to the girl’s mother, a family friend and trusted mentor. Uhm…so much for that.

A copy in the city’s SVU unit says that Charles had asked the girl for sex but, thankfully, there were no signs of what would amount to totally inappropriate nooky. Charles has been charged with solicitation and attempted statutory sexual assault, along with related counts.

No word yet on whether Charles is going to try to defend himself by saying this was caused by the Billy Penn curse and depression over yet another crushing post-season loss for the Eagles. …or by claiming that he’s the other Larry Charles and that he was just doing research for the next Borat flick.

Right Wing Talk Show Host Forced into Actual Debate; Eyeballs Erupt

schwarzenegger.jpgSquirrelly Ohio Congress and modern-day Eugene V. Debs, Dennis Kucinich has joined with Vermont Senator Bernie Sanders — who together form the lefty nut-job wing of the Democratic Party — to attempt to bring back the Fairness Doctrine, which was struck down by Reagan in 1987.

The doctrine requires that FCC-regulated broadcasters present all sides of a controversial issue. Presumably, it would have little affect on television networks, which generally try to maintain the spirit of the Fairness Doctrine (which is why there’s always that one loon in news broadcasts who, say, advocates the arbitrary massacre of Civil War re-enactors).

If passed, however, the regulation would wreak absolute havoc on talk radio broadcasters, like Rush Limbaugh, who would be forced to present reasonable-minded, intelligent, semi-sensible guests to counterbalance the knuckle-dragging, pre-evolutionary “pundits” that Limbaugh and his ilk bring on to support their positions on, say, whether Michael J. Fox is exaggerating the physical symptoms of Parkinson’s.

Limbaugh, naturally, has suggested it’s all part of a “Hush Rush,” campaign, though most experts agree that the Fairness Doctrine is unlikely to get past a presidential veto, even in the slim chance it is passed in Congress.

Personally, I’d have to agree with critics of the Fairness Doctrine — it’s a completely unworkable regulation. Besides, it wouldn’t eliminate right-wing talk radio (which, I suspect, is Kucinich’s hidden agenda), it would only make it even more unlistenable. Radio hosts, like Limbaugh, wouldn’t stop verbally ejaculating their fascist gibberish, they’d just do so louder, so that the opposing view would merely be drowned out by the blood-curdling conservative rhetoric. Imagine Anne Coulter in a forced debate with Kucinich, for instance: After seven minutes of bickering, Coulter would just rip his head off with her teeth and dance naked in his gory fluids.

Actually, strike that: Bring on the Fairness Doctrine. I haven’t seen a decent horror show in ages.

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Bad boy, bad boys, whatcha gonna do


A play, in one part.

[We open on a police station in Erin, Tennessee. Police Chief Tommy Parchman walks towards his office door, to find it locked]

Parchman: Hey, what the?

Officer 1: Oh, morning chief.

Parchman: Whassup with the locked door and all these things?

Officer 1: You a bad man, sir.

Officer 2: Very bad man, sir.

Officer 1: We had to change the locks to your door, sir.

Officer 2: You’ve been accused of stealing money from the Toys for Tots donations to buy things for yourself, sir.

Officer 1: And we found porn on your office computer, sir.

Officer 2: Pictures of naked ladies, sir.

Officer 1: And sketchy e-mails, sir.

Officer 2: So we had to change the locks to your door, sir.

Parchman: Well this comes as quite a surprise.

Officers 1 and 2: [In unison] It was a surprise to us, too, sir!

Parchman: You know none of it’s true. It’s…it’s…politically motivated. Yessir, politics! This 10-year veteran is getting some peoples’ panties in a bunch and they want me out. So they’re trying to besmirch my good name with these stories of theft and porn. It’s a sham. A farce!

Officer 1: That may be, sir.

Officer 2: But we’re going to have to ask you to leave anyway, sir.

Parchman: Dang.


Supreme Court Decision Update - Gonzalez v. Duenas-Alvarez

carthief.jpgWe’ve got one new Supreme Court opinion today, Gonzales v. Duenas-Alvarez (PDF of the opinion). On its face, it looks like a case about immigration and deportation. But in reality, it’s about when “aiding and abetting” a theft is akin to committing the theft itself. And, since it comes from the Ninth Circuit, it’s really about the Supremes, once again, telling the Ninth to take its opinion and shove it.

QuizLaw Analysis: Basically, this case solidifies the fact that aiding and abetting a theft is pretty much always akin to actually committing a theft. As a practical consequence, this opinion means that if an alien helps someone steal some shit, the Feds can tell them to kiss this country good-bye, and can deport them the hell out. The Neo Cons are pleased as punch.

So what’s the immigration and deportation part of this case? Back in 2002, Luis Duenas-Alvarez was convicted under the California Vehicle Code for helping someone steal a car. That California provision makes it a crime for anyone to take a vehicle that’s not theirs, and also for anyone to be “a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing.” The Feds looked at this “aiding and abetting” conviction as a “generic theft offense” falling under the Immigration and Nationality Act and started deportation hearings. The Bureau of Immigration Appeals affirmed the decision to deport Duenas-Alvarez, and the cased moved up to the Ninth Circuit.

Wait - what’s this “generic theft offense” business? Well that’s the heart of this case. See, the Immigration and Nationality Act lists a bunch of offenses which qualify someone for deportation (and, as mentioned, theft is one such offense). When courts have looked at whether someone’s conviction falls under one of these listed offenses, they use an approach detailed by the Supremes in 1990’s Taylor v. US.

And what was Taylor about? In Taylor, the focus wasn’t on immigration, but on the Armed Career Criminal Act, which said folks with prior convictions should be given lengthy sentences for subsequent violent felony convictions, including burglary. The issue in the case was whether a state conviction for behavior which was like burglary fell within the Act’s “burglary” scope. The Supremes said it did, because Congress meant “burglary” to include “the generic sense in which the term is now used in the criminal codes of most States.” So the court shouldn’t focus on the facts of a particular case, but on how the state statutes generally define the crime in question. Only where the crime is defined broadly should the court look further, to decide if the broad definition includes things that are generally considered outside the scope of “burglary,” looking at things like the document charging the original crime and the jury instructions (to see, for example, if the jury was charged with, and found, the elements that make up burglary).

And so how is Taylor relevant here? While the appeal was pending in the Ninth Circuit, the boys and girls at the Ninth actually looked at this California Vehicle Code in another case. There, they decided that the provision was, in fact, more broad than the generic sense of theft, since it allows one to be convicted for aiding or abetting a theft even though “generic theft” has an explicit element that the accused took or controlled someone else’s property. In other words, the Ninth figured that there could be a case where someone could be convicted of aiding or abetting a theft without actually taking or controlling the stolen property, and thus what they’ve done is not the same as “generic theft.”

The Ninth then turned to Duenas-Alvarez’s appeal and remanded the case in light of this decision. The Feds jumped in and asked the Supremes to look at the Ninth’s reasoning now, before the lower courts got involved.

And who’s today’s lucky author? This opinion was written by Justice Breyer, and joined by everyone but Stevens. Although, Stevens did join some parts of it, filing an opinion concurring in part and dissenting in part. In fact, Stevens joined in everything we’ve talked about so far, and only declined to join in the section where the Supremes explicitly discuss the Ninth’s rationale and, ultimately, reject it (and even there, he only kinda-sorta dissents).

Ok, so aiding and abetting is part of generic theft? Yes - everyone but the Ninth Circuit agree on this (even Duenas-Alvarez agrees on this). The definition of generic theft is where someone takes or controls another’s property with the criminal intent to deprive the owner of their rights or benefits of ownership, even if the deprivation “is less than total or permanent.” And there’s room in there for aiding and abetting, says Breyer, particularly since all state and federal law now treats the main thief and the aiders and abettors the same.

Now, Duenas-Alvarez didn’t challenge this point, admitting that theft generally does include aiding abetting. Instead, his argument was that the California Vehicle Code provision in question went beyond all this, to include crimes which are not part of theft. His argument relied on a California doctrine which says that if you’re convicted of aiding and abetting a crime, you’re not just criminally responsible for the crime you were intending to help, but for any crime which is the natural and probable result of your intended crime. But the Supreme say that no other states have found a problem with this doctrine by rejecting it, and that quite a few states (and federal courts, as well) have actually used the doctrine in various instances (or at least allowed the jury to make very similar inferences). Which means that, in order to win here, Duenas-Alvarez would have to show that this California doctrine was special in some way, “for example, that California in applying it criminalizes conduct that most other States would not consider ‘theft.’”

Duenas-Alvarez said that’s exactly what’s going on with California, since the law can make you criminally liable for some consequential offense even if you had no intent to cause that consequence, and even if you didn’t know it would/could happen. He cites some California cases intended to bolster his position, but Breyer doesn’t think these Cali cases “extend significantly beyond the concept as set forth in the cases of other States.”

Besides, asks Breyer, is there a realistic probability that California would use this “natural and probable consequences” doctrine to criminalize conduct that falls outside of generic theft? There’s no evidence that that’s happened here, or in any other instance.

Finally, Duenas-Alvarez raised two other arguments about the California Vehicle Code provision, but the Court declined to get into any of it since it was outside the scope of what the Supremes originally agreed to hear the case on, namely, “whether ‘theft offense’ in the federal statute ‘includes aiding and abetting the commission of the offense.’” And that’s all the Supremes are gonna’ look at. And, as discussed, they say it is included. So Mr. Duenas-Alvarez can go home.

So what’s the deal with Stevens? Well he joined in the discussion of the background and of Taylor and in punting Duenas-Alvarez’s last two arguments for being outside of the scope of things. But he doesn’t join in the Court’s discussion of the California law. But it’s not that he particularly disagrees with what Breyer says. Rather, he thinks that “we would be well advised to withhold comment on issues of California law until after they have been addressed b the Court of Appeals in the first instance.” In other words, to his mind, this issue hasn’t properly worked its way through the lower courts yet, since the Ninth remanded it and the Supremes should hold off on sticking their big noses into it.

The Daily Memo - 1/17/07

check.jpgPeople! How many times must we tell you? Do not take your pot to court with you! (The Decatur Daily)

check.jpgJury selection has begun in the Libby/CIA-leak trial. (FindLaw)

check.jpgSo wait - are you saying there is a speed limit after midnight? (Sui Generis)

check.jpg“Donuts! Is there anything they can’t do?” (Concurring Opinions)

check.jpgA Michigan court says that if you commit adultery, you could be sent to the clink for life! (Freep.com)

check.jpgDenver plows snow from the streets onto an already shoveled sidewalk and then tells a woman to shovel it again or pay a fine! (9News)

check.jpgTexas is considering the death penalty as a way to crack down on repeat sexual predators who piddle kids. (KRLD)

check.jpgIs the Michigan Supreme Court full of unprofessional and spoiled brats? (CNN)

Tag, I’m It!

Well, it appears that I’ve been tagged. To use the language of my tagger (Colin of Infamy or Praise), this is the modern-day chain letter. I’ve seen this showing up on various blogs for a little while now, and it works like this – now that I’ve been tagged, I’m supposed to share five things about myself that you probably don’t know. Then I tag five others who are supposed to do the same, etc. etc. Chain letters are evil, and this may not be much better, but I’ll play along.

1. When I was in little league, circa third grade, I was out in right field. Smack-dab in the middle of an inning, I proceeded to puke all over the joint. As I jogged back into the dugout, you could hear the Nerds jingling in my back pocket (said Nerds being one of the prime contributors to the now multi-colored right field).

2. The shortest job I’ve ever held was as a bus boy (or “dish fuck,” as my friends used to call it) at a local pizza joint. I worked there for four hours. They still owe me twenty bucks.

3. My third year of law school, I only attended two or three days of my U.C.C. class the whole semester. But that’s not the record among my friends, as one buddy didn’t go to a single class for his Bankruptcy course. Perhaps not so coincidentally, both classes were taught by the same professor.

4. I once told a college professor that I had knee surgery, to justify why I had missed three weeks of classes and, as a result, I had to limp in that class for the rest of the semester (I’m noticing a trend of bad studenting here – it’s a wonder I ever graduated college or law school).

5. I absolutely despise “American Idol” with all of the hatred I am capable of mustering, yet I continue to watch every bloody second of it.

5.5. In his e-mail to me, Colin noted that my last name isn’t on this blog, and suggested it could be one of my five items. Truth be told, there’s no reason my last name isn’t used, aside from the fact that I started posting without using my last name and it just sort of kept going that way. It’s not like some super-secret thing, like the anonymous Blawg Review editor crap. In fact, anyone could probably figure out my last in about five minutes if you snooped around the site a little and put two and two together (I think of two very easy ways to do it, just off of the top of my head). And while I would hope you have more important things to do, the fact that you’re still reading this may mean that you don’t. In which case, have at it, if that’s your wont.

Anyway. As for the five folks I tag. Don’t know if it’s cheating to tag a co-blogger, but you know I’m not letting Dustin get out of this. And here’s four more (and we won’t make ‘em all Legal Blogs, ‘cause that’s just boring): Dan Carlson at Slowly Going Bald, Dave Hoffman at Concurring Opinions, David Lat at Above the Law and just to have one non-D name, Adam Bonin of A List of Things Thrown Five Minutes Ago.

Barack Obama — Now a Pedophile?

obamaosama.jpgAfter months of speculation, Illinois Senator and hopeful Democrat Godsend, Barack Obama, announced the formation of a presidential exploratory committee today, widely considered the initial step before announcing one’s candidacy. In fact, he’s already announced that he’ll make his final decision by February 10th. Given Obama’s charisma, his voter-friendly religiosity, and his ability to not be Hilary Clinton, the announcement comes with little surprise.

However, what is somewhat shocking is just how low the Republicans have already stooped to sully his name and/or attempt to make less than flattering associations, mostly by pointedly mentioning that his middle name just so happens to be Hussein. Here, you can find a litany of attacks, including a Fox News broadcast that includes this statement: “Most people know very little about Barack Hussein Obama Junior’s uncommonly privileged life.” That doesn’t even include the accidental mislabeling of a graphic, by CNN, in which Barack Obama was not-so-subtly linked with Osama bin Laden and other high-level terrorists.

Still, though, this clip from a Fox Affiliate newscasts is almost genius in its subtlety:

Poor Obama. He hasn’t even officially announced, and his candidacy is already ultimately doomed.

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The Daily Memo - 1/16/07

check.jpgFelony charges against a Pennsylvania state trooper who allegedly posted naked pictures of his ex-wife on an internet bondage site have been dropped because the trooper wasn’t a hacker. (WGAL)

check.jpgWhy is a contracts professor eschewing Elizabethan drama to confuse his students “without guilt?” (Concurring Opinions)

check.jpgTurns out it ain’t all roses when you get your fancy new digs from “Extreme Makeover: Home Edition,” thanks to a little thing called taxes. (Freep.com)

check.jpgGood ol’ Cheney defends, shockingly, the unauthorized examination of bank and credit records of “suspects.” (Guardian Unlimited)

check.jpgThe best thing to come out of Meet the Fockers is this succinct copyright infringement opinion. (The Patry Copyright Blog)

check.jpgThe antitrust lawsuit against BAR/BRI moves forward. (Law.com)

SWF Seeking Pompous Self-Important Asshole

bicep.jpgAll you single ladies out there, listen up! If you want a pompous man, if you want a self-important man, if you want an asshole, head on down to Orlando, because the catch of the year is waiting for you to scoop him up!

That’s right, ladies, Kurt Spath, a 36 year-old insurance adjustor who loves cooking and outdoor activities almost as much as he loves himself, is waiting for you to take his breath away. He’s an insurance adjustor, what’s not to love women, what’s not to love?

Now you should be warned, ladies, Mr. Spath is a man of refined tastes and he won’t just settle for any old hag. Just ask The Events and Adventures Club, a singles group now being sued by Mr. Spath. The club promised Mr. Spath the chance to hook up with sophisticated and professional women, and he paid over a grand for this privilege. But lo and behold, none of the women were worthy of Mr. Spath’s refined attention and love.

A local reporter asked Mr. Spath if it was “safe to say you think you are better than everybody in this group?” But Mr. Spath is a publicly humble man and didn’t fall for this attempt to trap him: “I’d say I’m different. These people are not what I was looking for and what I was promised.” But trust me ladies, what Mr. Spath wanted to say was: “These women were dirty ugly skanks and not worth my time of day. I’m Kurt Spath, and I demand sheer beauty and excellence from my women.”

So if you have sheer beauty and excellence, respond now. We have a feeling Mr. Spath won’t be on the open market for long!

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My Mother Never Saw the Irony in Calling Me a Son of a Bitch

peyton.jpgI loves me some irony. In fact (and picking up where my colleague left off), I relished the irony over the weekend of the much-maligned Indianapolis Colts defense shutting down the Baltimore Ravens, which featured the NFL’s top-rated defense. The irony of watching my colleague suffer an Eagles loss while I delighted in their ability to cover the spread was not lost on me (or the $75 I won), either. [That’s not really irony, boy, it’s just schadenfreude. —Seth]

But, in legal-related news, here is the richest irony of them all: Motherhood, a retail outlet that specializes in maternity clothing, has settled a lawsuit brought against the company for … wait for it! wait for it! … pregnancy discrimination.

Indeed, Motherhood’s parent company, Mothers Work, Inc., has agreed to pay $375,000 to settle a lawsuit alleging that the company refused to hire qualified applicants because they were pregnant. The biggest hunk of the settlement will go to an assistant manager who noticed a pattern in Motherhood’s hiring practices that excluded pregnant applicants. She was fired for the discovery. Two other women will receive $20,000, after they were denied employment for being pregnant. A third woman, who was fired during her pregnancy, will receive the same amount.

Sadly, there is little irony in watching Peyton Manning — six days from now — get knocked out of the playoffs by the (fucking) Patriots for the third time in five years. Only abject misery. [And it will be my turn to bask in the schadenfreude. —Seth]

The Daily Memo - 1/15/07

check.jpg“Now I remember why I don’t miss law school.” You and me both, Nicole, you and me both. (Sui Generis)

check.jpgSega has unleashed its lawyers on the You’re The Man Now Dawg guys. (YTMND)

check.jpg“Are lawyers uniquely amoral?” (Dorf on Law)

check.jpgChief J Johnny says that judges shouldn’t act like law professors or English judges, and should focus on issuing more unanimous opinions. (Concurring Opinions)

check.jpgOne of Bush’s lackeys lawyers thinks it’s shocking that US law firms are representing Gitmo detainees. (WSJ Law Blog)

check.jpgSenator Doug Jackson wants to ban television and cable networks from advertising “Girls Gone Wild” or anything else he deems obscene or harmful to minors. (The Chattanoogan)

check.jpgA criminal defense attorney is in a bit of hot water for giving a judicial marshal a “peck on the cheek.” (NewsTimesLive)

check.jpgThe Senate actually made a good vote against the best interest of many of its members, approving a bill to take away pensions from Congressmen convicted of white-collar crimes. (Yahoo! News)

It’s hard out here for a Philly fan

f-da-eagles.jpgAs I’ve mentioned on this blog before, I’m an Eagles fan. And at the moment, I’m a bit of an angry and disappointed Eagles fan, which I’m sort of used to at this point - if Eagles fans weren’t left with a disappointing end to their team’s football season, it would be like dogs and cats living together - mass hysteria! (You can read this sad “annual feature” explaining the Five Stages of Eagles Grief to understand my pain and misery a little more.)

Anyway, as an Eagles fan, it’s my god-given right to hate all players on the New York Giants. But even if I didn’t have to hate the Giants, I’d hate their defensive end, Michael Strahan, anyway. He’s a gap-toothed son of a bitch. And that’s why I love this story so much, a story which helps to ease the pain of an Eagles’ Saturday night post-season defeat.

See, Strahan is separated from his wife, Jean Strahan, who he married in 1999. They’ve been fighting in court over money because, surprise, Strahan has been trying to jip her out of the money their prenuptial agreement says she’s entitled to. That agreement says that she is supposed to get 50% of their joint marital assets plus 20% of his yearly income from each year they were married. He tried to claim that he didn’t need to pay her that 20% because she didn’t ask for it each year. Which sounds like a pretty stupid, bullshit argument to me.

And the judge agreed, basically calling Strahan a big fat liar. He said that Strahan was “not credible in his claim that [his ex-wife] never asked for her separate funds.” See: “not credible” equals “big fat liar” equals “gap-toothed son of a bitch.” I told you!

So now Strahan has to pay his ex-wife $15.3 million dollars, in addition to hundreds of thousands of dollars in child support, which is more than half of his net worth. Fantastic. Couldn’t make me happier. And couldn’t make Jean Strahan happier either, apparently. Says her lawyer: “She’s grateful to the court.” Gee, you think?

…And I totally feel this guy’s NSFW rant. I feel you buddy:

The Daily Memo - 1/12/07

check.jpg“Everytime a lawyer dies, an agent gets his wings.” (Defamer)

check.jpgTwo men have pled not guilty to charges that they pulled an Italian Job type of traffic hack in Los Angeles. (Engadget)

check.jpgNew England Patriot Junior Seau is being sued for allegedly throwing drinks at two women while drunk in a San Diego bar last May. (SI)

check.jpgSha Na Na is behind a recent law which the NJ Senate approved, banning imposter bands. …So wait, some band wants to be a Sha Na Na imposter/cover band? (WBJB)

check.jpgWho owns the Burning Man? (CNN)

check.jpgEli Lilly doesn’t like the First Amendment, and they’ve convinced a judge that they’re right. (The Register)

check.jpgSony, Microsoft and Nintendo have been sued by a Texas company for alleged patent infringement relating to the joystick ports the three companies use with their gaming consoles. (Engadget)

check.jpgIn a Lowell, Massachusetts school, brown clothing has been banned because of a surging teenage gang known as the Brown Mafia. (Lowell Sun)

check.jpgIn Bangor, Maine, it’s now illegal to smoke in a car if there are kids in the car. (Breitbar)

WARNING: QuizLaw is not intended to be used as an anti-depressant or a cure for erectile dysfunction

qlPills.jpgM-Law is the Michigan Lawsuit Abuse Watch, which describes itself as “a non-partisan, grassroots organization [which] serves as a public watchdog over our court system.” One of the things the group does in furtherance of its watchdog role is run an annual “Wacky Warning Label Contest.” The purpose of the contest is to point out the stupidest, most obvious warning labels that have started showing up on products because companies are worried about lawsuits.

This year’s winner was a laundromat washing machine which bore the label: “Do not put any person in this washer.” My personal favorites, however, were the second place winner and one of the third place winners (there was a tie): a personal watercraft has a warning that one should “never use a lit match or open flame to check fuel,” while a cell phone came with a label warning “don’t try to dry your phone in a microwave oven.”

Now some would argue that the need for these stupid labels is simply the latest pain-in-the-ass thing to come out of our society’s ever increasing litigiousness. But the good folks over at Above the Law would like to point out that “there may be an upside to our culture of litigation.” The upside? Worried about potential lawsuits, the former president of the Council of Fashion Designers of America has said that there would never be a ban on skinny models in New York. Says Above the Law:

And who’d want to be on the receiving end of such a class-action lawsuit, filed on behalf of every runway model with a sub-18 BMI? If liability is established, damages could be astronomical. As Linda Evangelista famously quipped, those girls “don’t wake up for less than $10,000 a day.”

Here’s Something for the Recruitment Materials

shepard.jpgHere’s an interesting story out of Jersey today, concerning high-powered defense attorney with a list of clients that has included Queen Latifah and Iraqi soldiers charged with prisoner abuse.

Well, now it seems the defense attorney is going to have to muster a defense for himself, after prosecutors charged him with involvement in an elaborate Manhattan prostitution ring for the wealthy. The state brought charges of solicitation, money-laundering and misconduct against Paul W. Bergrin and two other defendants for their role in running an escort service known as NY Confidential, which catered – in part – to stockbrokers and professional athletes.

According to the NJ Star Ledger:

The indictments stemmed from Bergrin’s relationship with Jason Itzler, the owner of NY Confidential, who was arrested on an Ecstasy drug charge at Newark Liberty International Airport in 2001. Although both men had gone to Florida’s prestigious Nova University Law School, they didn’t know each other until Bergrin became Itzler’s attorney. But by 2004, the district attorney said, Bergrin had became deeply involved in his client’s escort agency.

Now wait a second, here. I’m not trying to be one of those elitist assholes who brags about the ranking of his law school (it’s #22 right now, slipping a couple of spots since 2006), but I do have to take issue with the Ledger’s characterization of Nova University Law School as “prestigious.” Maybe in a state that boasts Seton Hall and Rutgers Law (again, no offense to those fine institutions), Nova University Law School would be considered “prestigious.” But, out here in a real world that’s not run over with landfills and industrial waste, Nova Law is actually now known as Nova Southeastern University of Law, and the U.S. News and World Report puts it firmly in the 4th tier of law schools (median LSAT: 148-152) where it’s major draw is the fact that it’s been named “Most Wired Law School” in the United States. Twice. Additionally, for an annual tuition of $27,000 (plus fees and living expenses), a student is promised a whopping 61 percent chance to pass the Florida bar.

Does that sound prestigious to you?

Anyway, Bergrin — who has a long, checkered past that includes evidence-tampering charges and questionable conduct in a narcotics case (the key witness against his client was shot and killed, execution style) — had his bail set at $500,000.

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The Daily Memo - 1/11/07

check.jpgGood morning angels. Today’s task is to wrap your pretty little heads around Hollywood contracts. (May It Please the Court)

check.jpgEarlier reports of impending settlement appear to be wrong as Cisco is now, in fact, suing Apple of its use of the iPhone name. (WSJ Law Blog via Overlawyered)

check.jpgThe House has voted to raise the federal minimum wage from $5.15 to $7.25, so now it’s the Senate’s turn. (MSNBC)

check.jpg“Five months after the city ordered restaurants to stop selling foie gras, it’s liver and let liver in Chicago.” …sigh. (Yahoo! News)

check.jpgWhat’s the skinny with the final NY lawyer advertising rules? (Sui Generis)

check.jpgBush is coming to grips with the fact that he’s going to have to make concessions to the new Democratic Congress, and so he’s decided not to renominate four controversial candidates as potential appellate court judges. (Law.com)

check.jpgTexas has amended its bar exam rule, which used to limit folks to four chances - now, after a fourth failure, folks can seek a waiver to try, try again. (Legal Profession Blog)

check.jpgThings are getting ugly in the New Orleans juvenile courts, where a judge tossed a prominent public defender into the clink. (The Legal Reader)

I’ll take any excuse to talk about nipples!

mHarringt.jpgOut in Lincoln, Nebraska, Melissa Harrington has filed a claim against the city and its police department, seeking $75,000 in damages for lost business opportunities. Last March, Harrington got into some trouble for hosting a wet t-shirt contest at a local bar. The cops said she was topless, so she was charged with violating the local public decency ordinance. In August she was hit with six months’ probation.

Harrington says that she wasn’t actually in violation of the law because she had pink paint over her nips. But the bigger problem now, according to Harrington, is that the cops are intimidating local bars to keep them from hiring her for events. So she’s taking her pink-paint-covered nipples to get some help from the law.

And get this - Melissa says that if she wins, she’ll donate the money to charity. So she’s a topless bar girl with a heart!

Meanwhile, turning to topless bar girls without heart, Paris Hilton has pled not guilty to her drunk driving charges.


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Supreme Court Decision Update - Norfolk Southern Railway Co. v. Sorrell

railroad.jpgEvery time I think I’m out, they pull me back in!

I thought that once I was done writing up yesterday’s three Supreme Court opinions I’d be done for the day. But no sir! We’ve got one more from today, Norfolk Southern Railway Co. v. Sorrell (PDF of the opinion here). But most of you don’t need to worry about it much, as it really only applies to cases where there’s a negligence lawsuit between a railroad employee and railroad. Or rather, I assume most of you don’t need to worry about it - I guess it’s possible that many QuizLaw readers, unbeknownst to me, have strong ties to the railroad industry.

QuizLaw Analysis: When there’s a railroad workplace injury subject to a lawsuit under the Federal Employers’ Liability Act, the same standard of causation applies to determining whether the railroad is liable and whether the employee had any contributory negligence. Now as for what that standard actually is, the Supremes aren’t saying. “It must be the same,” say the Supremes, “but we’re not telling what it is, ‘cause much like Bobby Brown, it’s our prerogative.”

Railroad injuries? Yes sir. Timothy Sorrell was injured while working for Norfolk Southern Railway Company (he got in a truck accident in 1999, veering off the road and into a ditch). He sued in state court under the Federal Employers’ Liability Act (“FELA”), claiming that his injury was due to Norfolk’s negligence. Norfolk, meanwhile, claimed that it was Sorrell’s own negligence that was the root of the accident. Now FELA says that railroad companies are liable for employee injuries which resulted from railroad negligence, regardless of whether that negligence was in whole or in part. FELA also says that the employees themselves may be found to be contributorily negligent (that is, that their negligence played some part in the injury) and where that’s the case, the damages get reduced in proportion to the employee’s negligence. Most states apply the same standard of causation for both types of negligence. But Missouri, where this case was, does not. So during Sorrell’s trial, the jury was given instructions with different standards - Sorrell was to be found contributorily negligent if his negligence directly contributed to his injury. But Norfolk could be found liable if its negligence contributed in whole or in part to Sorrell’s injury. So the standard is more lenient as to the railroad company, since there’s no requirement that its negligence “directly” contribute.

Norfolk appealed these instructions because, unsurprisingly, it doesn’t like getting this looser standard while Sorrell gets the tougher one, and it believes that FELA requires that everyone get the same standard. The Missouri Court of Appeals affirmed the trial court’s rejection of this argument and the state Supreme Court then denied to review the matter, and so the case moved on up to the Supremes.

If we’re getting into the opinion, can you tell me who wrote it? This one comes from Chief Justice Johnny. Everyone joined him except for Justice Ginsburg, who filed a separate opinion concurring in the judgment. Justice Souter also filed a concurring opinion, joined by Alito and The Scalia.

Ok. So what’s Chief Justice Johnny have to say about this? Well before getting to the meat, Chief Justice Johnny says that Norfolk also wants the Court to say what, exactly, the standard of causation under FELA is. But the Supremes did not grant certiorari to decide what the standard is, they merely granted cert to address whether the standards should be the same. So the Court’s not going to go there for a variety of reasons, particularly because it is “typically reluctant to permit parties to smuggle additional questions into a case before us after the grant of certiorari.”

Now, whatever the causation standard is under FELA, it should apply equally to railroads and employees. To understand the elements of a FELA claim, Chief J Johnny says we should look to the common law. And this gets great weight unless the common law is expressly rejected by the actual text of FELA. And if we look to the common law at the time FELA was enacted, it’s pretty clear that the same causation standard applied to both negligence and contributory negligence. Nothing in FELA says we should look at this otherwise now, so that’s strong evidence that Missouri is doing things wrong. Plus, if Congress had departed from this common law practice, it would’ve been weird because FELA says the damages the railroad must pay should be reduced “in proportion” to any negligence of the employee. And it would be rather difficult to figure out that proportion if the employee’s contributory negligence is figured out in a different way from the railroad’s.

Norfolk says that there is a change from the common law because FELA says that the railroad can be liable “in whole or in part,” while there’s no similar language with regard to contributory negligence. But this distinction, says Chief J Johnny, is just common sense - “if the employee’s contributory negligence contributed ‘in whole’ to his injury, there would be no recovery against the railroad in the first place.” So it makes sense to use this language with regard to the railroad, to clarify that it could be liable even if it was only partially at fault.

So the case is ordered to back down to Missouri, where the Court of Appeals needs to look at whether this error was harmless or whether Norfolk is entitled to a new trial.

So what’s Souter’s concurrence about? Well as I said, Souter concurred and was joined in his concurring opinion by Alito and The Scalia. Souter agrees that the same standard applies in both instances. But he thinks the Supremes should have looked at what the standard actually is - even though the issue wasn’t covered in depth by the Missouri courts, the parties adequately briefed and argued it before the Supremes. He goes on to discuss a relevant Supreme Court case on this matter, from 1957, and how he thinks that plays into the whole issue, concluding that the standard is actually well established and left unchanged by the majority opinion.

And Ginsburg? She also filed a separate opinion, all by her lonesome, concurring in the judgment. She also agrees that the standards are the same. And she then explains, for slightly different reasons than Souter and company, that she also thinks the standard itself is well established by precedent and that today’s decisions does not “cast a shadow of doubt on the matter.”

50 Cent Ain’t Got Nothing on Joshua Bush

bmpopcds12.jpgWeeks don’t get much worse than the one 17-year-old Joshua Bush must have had. The Texas teen is facing attempted murder charges for his alleged involvement in an East Texas used-car lot burglary. Allegedly, Bush and some gang members attempted to shoot the lot owner when they were escaping with a few cars.

Unfortunately for Bush, the lot’s owner – Alan Olive – is a competitive target shooter. Olive allegedly shot Bush in between the eyes, lodging a bullet into his skull.

Lesson learned? Never fuck with a Texan; they own guns, and they can shoot dumb sons of bitches dead.

The good news for Bush was that the bullet, miraculously, didn’t kill him. The bad news, however, is that prosecutors are attempting to compel Bush to remove the bullet from his head, which they allege will tie Bush to the scene of the crime, making their attempted murder case a might bit stronger.

Bush, however, is having none of it. He says the bullet was a stray, which struck him in the head while he was sitting on his couch (he must have been watching “COPS” on one of those newfangled super-duper hi-def televisions).

You figure Bush has gotta want to get that hunk of metal out of his brain, and so, through his attorney, he offered to allow prosecutors to remove the bullet, but only if they agree not to pursue attempted murder charges and pick up the bill. Prosecutors are considering the offer, but have run into another obstacle: The bone has grown around the bullet, and removing the bullet may threaten Bush’s life. They are having a difficult time finding a medical establishment willing to take the risk.

You just have to think, though, that Bush is a rock star to all his fellow gang members right now. 50 Cent may have taken a couple of bullets to the jaw and the leg — but this guy has a goddamn 9mm slug in his skull, man. That’s street cred, motherfuckers.

(Hat Tip: How Appealing)

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The Daily Memo - 1/10/07

check.jpgWas the Harriet Miers nomination debacle the turning point for the Bush presidency and/or the Supreme Court? (Overlawyered)

check.jpgApparently judges aren’t meant to treat their criminal cases like a game show. (Law.com)

check.jpgIt took two and a half years for a case over a girl’s surname to work through the Oregon courts - the mother ultimately won, so daddy doesn’t get to pass on his last name. (Overlawyered)

check.jpgMeanwhile, a California man is going to court over his own surname issue - he wants his wife’s name at the same price women get. (ABC News)

check.jpgThe folks over at CNN posit that Bush may use his veto power more during the new Congressional term (he’s only used it once so far, to veto federal funding for stem-cell research). (CNN)

check.jpgMotorola is in some trouble for willfully violating court orders during its big $10 billion trade secrets trial from last year. (The Legal Reader)

check.jpgNew Jersey is thinking about taking the word “idiot” out of its constitution - all of Southern Jersey is concerned this means they’ll have to vacate the state. (CNN)

check.jpgJ Crew’s getting sued over penguins. (The Trademark Blog)

Supreme Court Decision Update - MedImmune, Inc. v. Genentech, Inc.

patents.jpgPatents, patents, patents. Is there anything more exciting than patents?

I say no.

The final of yesterday’s Supreme Court decisions was MedImmune, Inc. v. Genentech, Inc. (PDF of the opinion), which relates to this exciting world of patents. Specifically, it tells us whether a patent licensee can turn around and file a lawsuit challenging the patent’s validity without first terminating or breaching the licensing agreement. See - exciting!

QuizLaw Analysis: In a case such as this, where the licensee was essentially bullied into the license, and signed the license under protest, there is still a controversy between the parties, and that licensee can still sue. The big patent holders of the world worry that this means there will be lawsuits a-plenty attacking their patents. Everybody, on three…”awwwww.” So sad for them. In any event, I suspect this just means we’ll see many future patent licenses including an explicit “I promise not to sue and attack the patent’s validity” provision.

But all this patent talk is meaningless. The real impact of this case is the breakdown of the justices. The majority opinion was written by the Scalia and joined by everyone except…everyone except…Justice Thomas! The Scalia’s lapdog went off on his own. I’m telling you kids, Justice Thomas is all growns up now!

Uhm, so like, we’re going to have to deal with patents here? Yes, but we don’t have to get technical, because the issue isn’t really about what’s in the patent at issue. So it’s not as bad as it could be.

Oh, ok. Well, how bad is it? Not too bad - here’s the skinny. MedImmune and Genentech are both drug companies. MedImmune makes a drug called Synagis, which is used to treat child respiratory diseases. MedImmune entered into a patent license agreement with Genentech in 1997, for both a current patent Genentech held as well as a then-pending patent application. This agreement meant MedImmune would pay Genentech a license fee and, in exchange, could make, use and sell stuff covered by the patents.

In 2001, the pending patent application became a full patent (called the “Cabilly II” patent), and Genentech sent MedImmune a letter saying that it thought Synagis was covered by the Cabilly II patent. MedImmune didn’t think Synagis infringed the patent, and it also thought the patent was invalid and unenforceable. But since the letter sounded like a threat to terminate the license agreement and file a lawsuit, MedImmune began making royalty payments for Synagis (MedImmune was especially worried because if there was a patent infringement lawsuit later, and Genentech won, Genentech could be entitled to treble damages and attorney’s fees because of the letter it just sent MedImmune).

MedImmune then filed a lawsuit against Genentech, seeking declaratory relief. Genentech moved to dismiss the claim, and the District Court granted this motion, relying on a 2004 Federal Circuit case, Gen-Probe Inc. v. Vysis, Inc. In Gen-Probe, the court held that a patent licensees cannot file a lawsuit challenging the patent because there’s no case or controversy under Article III - since there’s a license, the court reasoned, the licensee doesn’t have any real apprehension that he could be sued for infringement.

Wait a minute, what did MedImmune sue for? Ah, good question grasshopper. MedImmune filed a lawsuit seeking declaratory relief. Think of it like an anti-lawsuit. You threaten to sue me for patent infringement. Well I turn around and sue you first, asking the court to declare that I am not infringing your patent. That’s what MedImmune did.

Although, there was a disagreement about the exact nature of MedImmune’s lawsuit, so the Court looked to that first. The issue was whether MedImmune was just claiming patent invalidity or whether there was also a contract claim regarding the license agreement (namely, a claim that MedImmune does not owe Genentech royalties because the patent is invalid and because Synagis doesn’t infringe the Cabilly II patent). Scalia explains that this really doesn’t touch on the subject-matter jurisdiction matter, but it’s good to be clear. Thus, Scalia explains that there are valid contract claims both because MedImmune’s amended complaint said it was challenging the contract and because MedImmune claimed that, despite language in the license to the contrary, it did not have to pay license fees towards an invalid patent.

Ok, whatever. Let’s get to the beef of the broth. Right you are.

It’s now accepted that many declaratory judgment lawsuits meet the case-or-controversy requirement of Article III. As the Court said in a 1941 opinion, the heart of the matter is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality” such that the Court should grant the parties some relief. And that, according to Scalia, is what we’ve got here. If MedImmune had stopped making royalty payments, Scalia says this wouldn’t even be a question. It’s only a pickle because MedImmune didn’t stop making payments, and by continuing to make payments it has ensured that Genentech won’t file a lawsuit to enjoin the sale of Synagis.

But Scalia says it just doesn’t matter. First, he says, look at government prosecution of a crime. When the government threatens to prosecute someone for breaking a law, the courts don’t require that person to actually violate the law, and thus expose themselves to liability, before seeking relief. They can take steps to comport with the law while still challenging the threat of prosecution (even though that threat isn’t imminent because they’ve taken steps to comply with the law). In other words, when there’s a “genuine threat of enforcement,” the Court doesn’t require “that the plaintiff bet the farm, so to speak, by taking the violative action.”

While there’s less Supreme Court precedent on this matter with regard to private parties, Scalia says the lower courts have accepted jurisdiction when it’s a private party, instead of the government, threatening some action to enforce their rights, even when the other party takes steps to avoid liability. There is one Supreme Court case which is quite close to this issue, though, and it fully supports this conclusion because it allowed a party to seek a declaratory judgment while paying royalties “under protest.” The Supremes allowed the declaratory judgment action there because the royalties where essentially coerced, on threat of legal action. And that, says Scalia, is just what we’ve got here.

Now Genentech tried to argue that any dispute was effectively settled when the parties entered into the 1997 license agreement, but Scalia’s not biting. First, the license agreement doesn’t include a provision saying or implying that MedImmune wouldn’t challenge the patents’ validity. Instead, MedImmune simply promised to pay royalties on all patents which weren’t held invalid, but this “does not amount to a promise not to seek a holding of their invalidity” (emphasis is all Scalia’s).

Similarly, there’s no meat behind Genentech’s attempt to rely on the common-law rule that when a party enters a contract it can’t challenge the contract’s validity and continue to get the contract’s benefits. That’s because MedImmune isn’t really challenging the contract’s validity - it’s just challenging the underlying patent and arguing that when you read the contract properly, they don’t think they own royalties on the Cabilly II patent.

Finally, there was another issue which Scalia ignores because it wasn’t raised in the lower courts. Genentech requested that the Supremes affirm the District Court’s decision to dismiss MedImmune’s claims because the courts are allowed to dismiss on discretionary grounds. But the District Court didn’t actually claim to be dismissing on discretionary grounds, so this isn’t something which the Supremes should get into. This matter, and anything related to the substance of the claims, goes back down to the lower courts. So sayeth the Scalia, so it be.

Well, if “so sayeth the Scalia,” how come it’s not also “so sayeth Justice Thomas?” While Thomas usually follows Scalia, he went off on his own here, filing a nice little ten page dissent. The gist of his argument is that if someone in MedImmune wants to challenge a patent which is part of a license agreement they should be required to first breach that agreement (by stopping royalty payments). Until they do so, any prosecution is “hypothetical or conjectural” and that’s not a viable Article III case-or-controversy:

I’m a big boy now, Scalia, and I’m making up my own mind. Rebellion! In fact, next I’m getting a mohawk and going punk, just to piss you off. I’m a new man!

That quote may or may not have actually been in the dissenting opinion. But you never know.

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Supreme Court Decision Update - Burton v. Stewart

The second of yesterday’s Supreme decisions was Burton v. Stewart (PDF of the opinion). This looked like it was going to settle an outstanding bit of business from the Court’s 2004 decision limiting judicial discretion in federal sentencing. But I’ll cheat and give you the answer here - it did not.

QuizLaw Analysis: The Supremes pulled a fast one on us. They didn’t go into the substantive issue here, whether 2004’s Blakely v. Washington applied retroactively, on collateral review, to criminal sentences issued before the 2004 opinion. Instead, they said the habeas petition in this case was improperly filed and should be thrown out. But they’ll get to the issue one day. They promise.

In the meantime, unless you care about the procedural issues related to second habeas petitions, you may just want to skip the rest of this.

What’s the deal with Blakely? In 2004, the Supremes looked at “exceptional” sentences issued on aggravating factors and ruled that the factors have to be proven to a jury before they can be considered in sentencing. The judge isn’t allowed to rely on the factors on his/her own if this isn’t done. Simple, you see.

Only, there’s a big issue as to whether this applies to sentences that had been handed down before the Supremes issued the Blakely decision. Nineteen states, including Washington, have said it does not, and have upheld earlier convictions. Folks thought that this case might give the Supremes a chance to put the matter to rest.

So why didn’t they put it to rest? Well, that’s a long story that relies on the details of how this case got before the Supremes.

You’re going to make me ask, aren’t you? Yes.

Ok. You suck. …how did this case get before the Supremes? Back in 1994, Lonnie Burton was convicted in a Washington jury trial of rape, robbery and burglary (not a good guy, you see). The judge then smacked him with a 562 month sentence. The court based this sentence on two different reasons. First, the individual sentences for each crime were within state guidelines, and they could be tacked on concurrently here (which is considered an “exceptional” sentence) because the court found that concurrent sentences would be too lenient, as he’d only get 304 months in the clink (for the rape charge). Second, the court decided that the sentences could be tacked together consecutively, but then the rape sentence should be a 562 month sentence, again because a shorter conviction would be too lenient.

Burton applied for a resentencing, and over a year later the court issued an amended judgment and sentence. Burton still got hit with 562 months in the clink, but the court relied just on the second reason (that is, Burton was sentenced to 562 months for the rape charge, to run concurrently with the other sentences). The state Court of Appeals upheld the conviction, and the state Supremes declined a review. However, the state Court of Appeals remanded for another resentencing, finding problems with the exceptional rape sentence with regard to an appearance of being vindictive and hurting his chances for early release. So the trial court then entered a second amended judgment and sentence. Burton still got 562 months in the clink but this time the court relied only on the first original reason (that is, that this was a total from the three sentences, which would run consecutively). This sentence was again appealed, but all the state courts rejected Burton’s appeal.

Now while the state review of this third sentencing order was pending, Burton filed a petition for a writ of habeas corpus in federal court. He used the standard application form, which has a nice plum warning on it - applicants are warned that they should not file until they’ve exhausted every possible state court remedy for whatever grounds they’re filing on and that they may be barred from raising any new grounds later. But Burton filed on anyway, challenging his convictions as being unconstitutional. He did not challenge the sentences (which were, remember, still pending appellate review).

So the District Court took the petition and denied any relief, and the Ninth Circuit upheld this decision.

Three years after originally filing that habeas petition, Burton went and filed a second petition, this time challenging the constitutionality of his sentencing (because, at this point, his state appeals had all been rejected). The District Court denied this petition as well, and the Ninth Circuit again affirmed. Now, while in District Court, the State of Washington actually argued that the federal courts didn’t even have jurisdiction over the petition because Burton didn’t get permission to file a second habeas petition, something required by federal law. But the District Court, and the Ninth Circuit, ignored this argument and ruled on the substance of Burton’s petition.

Ok, so now we’re at the Supremes? Yup. In a per curium opinion (which is, remember, unanimous and unsigned), the Supremes say that the lower federal courts got it wrong. Which is no surprise, since this is coming from the Ninth Circuit. Smack!

The relevant law here says that an application is “second or successive” when a prisoner is challenging his prison custody after already having challenged that same custody. Burton was originally convicted in 1994, and then reconvicted in 1998, and was being held under that judgment when he filed his first petition. And he was still in jail for that judgment when he filed his second petition, so he was challenging the same custody. Which means this was a “second or successive” application and Burton didn’t have authorization - he should have first gone to the appropriate court of appeals (the Washington Court of Appeals, in this case) to get an order granting the District Court authority to consider the application. But he didn’t do that. So no review for him.

The Ninth didn’t agree with this since, under their reasoning, he had a legit reason for failing to raise the sentencing challenges in his first petition, since they were still under review. The Supremes accept that this may be a legitimate excuse, but say it doesn’t matter because prior rulings have explained that a petition can include some claims which are still pending appeal (a so-called mixed petition) and when the claims pending appeal are dismissed, they can later be re-filed without being considered “second or successive.” But if someone files on just the exhausted claims, as Burton did with his first petition, they risk waiving later claims - that’s what the warning on the petition is all about (I told you about this warning above).

Now Burton also argues that there were actually two different judgments being challenged. See, he was first convicted in 1994, and that’s the judgment which was at issue in the first petition, he says. But there was a rejudgment in 1998, and that’s what was challenged by the second petition. The Supremes don’t buy this since the 1998 judgment actually came down nine months before the first petition was filed. So he was being held under that 1998 judgment when he filed both petitions. Which sort of deflates his argument.

Supreme Court Decision Update - US v. Resendiz-Ponce

The Supremes hit us with three new decisions today. In this first one, US v. Resendiz-Ponce (PDF of the opinion), they had to look at whether an indictment against an illegal alien included everything it should have. Although, as the dissent points out, that’s not what they originally said they wanted this case for. But anyway….

QuizLaw Analysis: In an 8-1 decision, the Supremes decided that, as far as criminal indictments are concerned, an allegation that someone “attempted” a crime includes an allegation that they intended to commit the crime and that they took some substantial step in furtherance of committing the crime. As Scalia points out in his dissent, the Court ignores the issue they actually granted cert on, whether a fault in an indictment gets “harmless error” review. The majority just doesn’t seem to care. And this makes Scalia sad.

So we’re talking illegal immigrants? Well, we’re talking one illegal immigrant, in this instance. In 1988, and again in 2002, Juan Resendiz-Ponce (let’s call him JRP) was deported, given the ol’ heave-ho. On June 1, 2003, he tried to get into the country again, using his cousin’s photo ID when he was stopped at an inspection area. JRP got busted and was taken into custody, charged with violations of a federal law banning the reentry of previously-removed aliens.

The original indictment against JRP, which is what the beef in this case is all about, accused him of knowingly and intentionally attempting to get into the US after having been thrown out, without any permission from the Department of Homeland Security. JRP argued that the indictment should be thrown out because it doesn’t specifically say that he took some overt act in furtherance of trying to illegally get into the country. And since that overt act is an essential element of the crime, according to JRP, this indictment is no good. The District Court told JRP to get bent, and threw him in the clink for 63 months. But the Ninth Circuit reversed, agreeing with JRP’s position. According to the Ninth, an overt act is an essential element to the crime, and the failure to include the essential element in the indictment is a “fatal flaw.” By not including the act, JRP wouldn’t know what specific act the Feds would try to prove at trial (that is, they could’ve been going after his action of stepping into the US, or using the bogus ID, or lying to the inspection officer, etc.).

Ninth Circuit, you say? I got a ten-spot that they’re getting overturned! Right you are. In an 8-1 majority opinion penned by Justice Stevens, and joined by everyone but Scalia, the case was reversed and remanded because, according to Stevens and company, the indictment simply wasn’t defective.

Why wasn’t the indictment flawed? Well, Stevens agrees that an essential element of the underlying crime is that the defendant must have taken some substantial step towards completing his goal of reentering the country, and Stevens also agrees that an indictment must include every essential element of the charged crime. But he thinks that, by saying that JRP “attempted” to get into the US, the indictment did, in fact, include the overt act. So all is good, as far as Stevens is concerned.

He argues that, in daily usage, “attempt” is understood to mean more than intent - it’s understood to mean intent and action. Plus, Stevens says that the law has often used “attempt,” for a long time, to mean intent and an overt act.

And just to go a little further, let’s look at the constitutional requirements of an indictment. They must include the elements of the offense, so the defendant knows what’s coming, and they must be clear enough so the defendant can use the indictment and an acquittal or conviction to avoid a second prosecution for the same crime. Stevens says we’ve got both of these elements here because the indictment included the time and place of the alleged reentry. In fact, this is even better than just listing an overt act. For example, if JRP tried to get in several times, and the indictment just said the act was trying to pass through the station, it wouldn’t say which time, so this is more specific, you see.

Now there was a second issue here, and it’s the reason the Supremes originally agreed to hear the case - namely, what standard of review should be used when looking at the omission of an element from an indictment. Is the omission of an essential element a fatal flaw, like the Ninth Circuit said, or can the courts see if the error was harmless? Well Stevens ain’t saying - since he thinks the indictment here was fine, this is a moot issue that he’s going to ignore, thank you very much.

But wait. You said Scalia dissented. I sure did.

He declined to take part in slapping the Ninth Circuit around and in supporting a ruling which would lock up a Mexican? Yes he did. He thinks Stevens and the majority got it all wrong, and that when there’s an indictment for an “attempt” to commit some crime, there must be allegations of both intent and an overt act. He thinks Stevens logic, throughout the majority opinion, is rather flawed illogical. Here’s just one example - he doesn’t care if “attempt” is always understood to include the intent and the act (which he disagrees with anyway), because an indictment must always be explicit:

Burglary, for example, connotes in common parlance the entry of a building with felonious intent, yet we require those elements to be set forth.

Now, because this indictment is faulty, to Scalia’s mind, it puts him “in the odd position of being the sole Justice who must decide the question on which we granted certiorari: whether a constitutionally deficient indictment is structural error, as the Ninth Circuit held, or rather is amenable to harmless-error analysis.” He doesn’t go into details, since he knows his opinion doesn’t matter here (and he’s said it all before), but he would find that the error is structural and, therefore, fatal. Thus, he would affirm the Ninth Circuit.

Scalia would affirm the Ninth Circuit.

Dogs and cats, living together.

Mass hysteria!

The Worst TV Pilot Idea … Ever!

barberlaw.jpgThere have been some truly awful television pilot ideas in the history of dumbass concepts. Take, for instance, “A Dog’s Life,” about a family of dogs, featuring actors in … dog suits. Or “NYPD Mounted,” a spec about NYC Cops on horseback. What about “Steel Justice,” a pilot about a cop whose son is tragically killed and reincarnated as … get this … a Robot Dinosaur. In 1999, Ben Stiller put into production a pilot entitled, “Heat Vision,” which would have featured Jack Black as a renegade NASA astronaut who gained superhuman intelligence after becoming exposed to inappropriate levels of the sun’s radiation. Kickass! Worse still: In 1997, CBS actually filmed a pilot of a live-action version of “The Justice League of America,” featuring the Green Lantern and Captain America.

Or what about this ridiculous concept: A talking trans-am that helps its owner fight crime?! Oh, wait: That was “Knight Rider.” Nevermind. My bad.

Anyway, as if the above pilot ideas weren’t ludicrous enough, Fox (who else?) has given the greenlight to a pilot for “Supreme Courtships,” a comedy that revolves around the professional and personal world of six Supreme Court clerks.

Genius, right? Six unattractive men and women, who haven’t been exposed to the sun’s rays in years, spend 18 hours a day on Lexis Nexis, researching ultimately mind-crushingly dull legal issues. The first episode will revolve around one of Justice Breyer’s clerks who fails in his efforts to make a pass at a colleague, after he attempts to test the limits of his new sexual harassment opinion. The second episode will deal with Justice Thomas’ head clerk, who has to cope with severe allergies and a nasal drip while composing the dissent for an opinion concerning RICO, while his lazy-ass boss watches soap operas. The season-long storyline, of course, will deal with Justice Scalia’s secret gay love-affair with one of John Paul Stevens’ clerks, who lashes out at Scalia by penning opinions in favor of homosexual unions.

Nielson is going to have to come up with a new rating system to account for the crazy, through-the-roof ratings “Supreme Courtships” will undoubtedly garner. Filming of the pilot, actually, has already begun. The above photo (courtesy of Above the Law) is a screenshot of Episode 3, which tracks four of the male clerks in their attempts to drunkenly woo the ladies by putting together a barbershop quartet. They are rebuffed, unfortunately, when the ladies at the local D.C. tavern don’t find the charm in their A cappella version of Color Me Badd’s “I Wanna Sex You Up,” and ultimately take out a restraining order.

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The Daily Memo - 1/9/07

check.jpgMeet your next White House Counsel - Fred Fielding. (NY Times)

check.jpgOprah is getting sued by an audience member who says she got injured in rushing to grab a seat….(TV Squad)

check.jpg…And this after a dude tried to extort $1.5 million from her. (TV Squad)

check.jpg“The Apprentice” discriminates against older contestants, says a 40-year-old rejected applicant, and Donald Trump and his friends are gonna’ pay for it. (Zap2It)

check.jpgA 73-year-old NJ sex offender has been tossed back into the clink after getting busted for posing as a doctor at a substance abuse center, where he piddled men’s genitals while they took piss tests and even spanked a man who failed his test. (WGAL)

check.jpgA boy who was involved in a car accident is suing his parents, at their behest and with their support, for their failure to properly buckle his car seat. (St. Paul Pioneer Press)

check.jpgIn Australia, three different people were busted for drunk-driving in the same vehicle on the same night, all within hours of each other. (ABC News Online)

check.jpgThere’s new Senate legislation which seeks to ban any taxation on internet usage (although it’ll let the 12 states that already tax internet access keep doing so). (Download Squad)

The Other White Meat

pork.jpgLast week the House passed a much-needed ethics requirement regarding earmarking, which is where these little spending provisions (known as pork) are tacked onto unrelated bills. This is generally done with very little fanfare, and it’s the way legislators funnel some federal funds to local projects, businesses, etc. back home. But it’s shocking how much this practice is used - “[t]he number of earmarks exploded in the last decade from 1,439 in 1995 to 15,268 last year, according to a Senate estimate.”

Under the new House regulation, there’s no stop to the pork, but representatives have to publicly disclose any earmarking and certify that they don’t have a personal financial stake in the issue. The Senate is set to consider a similar ethics measure this week, which would also require more open identification of when earmarking takes place. For once, Bush is actually on the right side of this issue:

White House Deputy Press Secretary Tony Fratto welcomed the House action but said it fell short of the president’s goal of cutting in half the number and cost of earmarks. “To make them transparent is important and should have a chilling effect on new earmarks,” he said, “but reducing the overall number of earmarks should be a goal as well.”

Absolutely right - there’s way too much porking going on, and they really need to put the kibosh on this shit. What’s the problem with it all, you ask?

The often secret nature of the process contributed to its explosive increase in recent years and led to scandals such as the one that ensnared former Rep. Randy “Duke” Cunningham (R-Rancho Santa Fe), who went to jail for accepting bribes from lobbyists seeking earmarks.
The number of earmarks exploded in the last decade from 1,439 in 1995 to 15,268 last year, according to a Senate estimate. They have been blamed for spawning a troubling culture on Capitol Hill that saw a dramatic rise in the number of lobbyists and some notorious corruption scandals.
Earmarks gained wider notoriety after the $223-million “bridge to nowhere” — connecting Ketchikan, Alaska, to an island with an airport and about 50 inhabitants — was slipped into the 2005 highway bill.
The Los Angeles Times reported recently that the new Senate Majority Leader, Harry Reid, earmarked funds for a bridge across the Colorado River that could affect the value of undeveloped land Reid owns in the vicinity. The Nevada Democrat has denied any wrongdoing.
The disclosure was one of many in recent months suggesting that lawmakers, including former House Speaker J. Dennis Hastert (R-Ill.), may have profited from their own earmarks. He denied any connection between his earmark for highway construction and the rise in the value of property he owned nearby.
In some other cases, the spending provisions look like rewards for campaign contributors and other supporters. Earmarks played a role in the scandal around lobbyist Jack Abramoff and Cunningham’s bribery conviction. They also led to a federal inquiry involving Rep. Jerry Lewis (R-Redlands), the former chairman of the House Appropriations Committee. The congressman has denied any wrongdoing.
The greatest power to earmark lies in the hands of appropriations committee members. Reid and Pelosi are both appropriations veterans and rose in power partly because of their ability to use earmarks as carrots or sticks with junior members of Congress. In addition, it helped them and other congressional leaders lure campaign contributions, which they then distributed to colleagues.

It’s just a shady, scummy practice that wastes tax dollars, calls legislative ethics and motives into question, and further damages the already sterling reputation the boys down in Washington have. This House ethics requirement is definitely a step in the right direction, but as Bush’s lackey says, they need to go further, and figure out a way to slow this shit down (since there’s no way we’re ever going to see the practice killed entirely, unfortunately).

You’ll take this money from my cold dead hands

heston.jpgIn January 2005, southern California suffered from torrential rains, which caused many mudslides. One such mudslide caused a fair amount of damage to the home owned by Jerome and Flora Heilwell. After fighting with their insurance company for two years in an attempt to recover their damages, they’ve turned their sights on a new target - Charlton Heston.

The Heilwells’ home sits downhill from Heston’s home, a house he built back in 1959 with Ben-Hur money. The Heilwells’ home was damaged by shit rolling down that hill, you see, and they claim that it’s Heston’s fault because there was “slope failure” on his property which caused said shit to roll downhill. Heston’s lawyer suggests that this lawsuit is BS, saying that Heston only owns 10% of the property on that hillside, and that the Heilwells actually own the rest of the property. The Heilwells are unwilling to comment on the suit.

When the 83-year-old actor himself was asked for a comment on the lawsuit he said “those damn dirty apes can go fuck themselves,” and then he fired two warning shots into the air.

The Daily Memo - 1/8/07

check.jpgIt’s funny ‘cause it’s true. (GoComics)

check.jpgApple done got itself sued for alleged anti-trust violations. (Download Squad)

check.jpgAnd Apple is also being counter-sued in a lawsuit over a clone of the iPod shuffle. (Gizmodo)

check.jpgCharges have been dropped against the 12-year-old special ed girl who was being prosecuted for peeing her pants, and the school superintendent admits “it was probably not a good idea.” ….Gee, you think? (International Herald Tribune)

check.jpgThe Supremes have agreed to hear a discrimination case revolving around a black employee who was fired by Coca-Cola. (FindLaw)

check.jpgA bipartisan bill has been introduced in the Senate to repeal the alternative minimum tax. (CNN Money)

check.jpgIP and the silence of John Cage. (The Trademark Blog)

check.jpgCould the RIAA soon be in trouble for “price shenanigans?” (The Inquirer)

Harvard Law School: You will never find a more wretched hive of scum and villainy

harvardLaw.jpgSo this probably won’t come as a huge shock to you, but celebrities get treated pretty well in our country. They’re pretty much the national royalty - as soon as one is spotted, many people and establishments go out of their way to appease and placate said spotted celebrity. And the celebrities who “deserve” such treatment don’t have to announce their presence or make a declaration of self. However, there are many other folks who think they’re celebrities worthy of such royal treatment even though folks don’t know who they are. When they’re not given immediate access to such lavish extravagance, they invariably pull out the “don’t you know who I am” bit. The answer to which is generally, “no, although now I know you’re an asshole.”

“Don’t you know who I am” has always been my favorite self-declaration made by the truly pompous, but I now have a close number two on that list.

Last Thursday, some Boston cops pulled over a car being driven by 25-year old Roger DePina. DePina initially caught the cops’ eye, according to the police blotter, because he and his passenger “were yelling and gesturing at [the] officers as they passed and continued driving while committing several violations.” The cops chased DePina, who initially refused to pull over. However, he finally stopped on the middle of an entrance ramp to one of the local highways. When the cops asked DePina for his license and registration, he pulled out this great line:

“You have no…right to pull us over, regular police can’t stop us on the highway, I know my rights, I’m in Harvard Law School!

I’m. In. Harvard. Law. School.

That’s bloody brilliant.

Needless to say, DePina doesn’t exactly know his rights so well, as the cops can absolutely pull him over. As a former state trooper explains:

[I]n Massachusetts a police with chapter 90 authority (authority to enforce motor vehicle law) can stop you on any public road in his jurisdiction. If you try to get away, he can keep trying to stop you, even outside his jurisdiction. And a state police officer can stop you anywhere and enforce any state law - even the ones that don’t have anything to do with motor vehicles.

So DePina was arrested and has been charged with refusal to stop for police and reckless operation of a motor vehicle. His passenger, who is probably his younger brother (based on the info in the blotter), was also arrested because, get this, he refused to get off of the on-ramp when instructed to do so by the cops, and he then assaulted the officers when they tried to move him out of the way of traffic. No word if, while being arrested, he said, “don’t you know who I am?”

(Hat Tip to Universal Hub)

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The Case of the Overzealous Police Department

davis.jpgCops can be such cruel bastards sometimes, you know? Take, for instance, the case of William Davis, a nice 75-year-old man with a Santa Claus beard and crazy geriatric eyebrows. He loves animals. I mean, he really loves animals; Norman Bates loves. Dead or alive, it makes no damn difference to him.

So, naturally, Davis was taken aback – shocked(!) even – when the authorities came to his home and seized his stash of animal carcasses. So what if Davis had 114 dead cats and a dead German Shepard (named Snowy) hidden in three freezers. Give the guy a break – it’s hard to let go when your pet dies. All 115 of them. Even if he also had 46 cats and one dog that were still living, which were also seized. When a pet dies, it hurts. Every single time.

And it’s not like it’s easy to keep a place spic and span when you’re caring for a couple a hundred pets. A half-inch of animal feces grounded into the carpet and a stench so powerful that it makes the average laymen gag when he breathes – well, that’s just a necessary byproduct of real devotion to animals. And it’s ridiculous to consider that “animal cruelty” - this is just some fancy lingo animal hating cops use to keep the man down.

Well, Davis is fighting back, goddamnit. Ain’t no fucking police gonna come into his (filthy, stinking, deplorable) home and take his animals away from him. Davis was keeping those animal corpses in freezers for safe keeping, see. He’d planned on building a pet cemetery to bury them and, you know, say a few words. And now that the pigs have deprived him of that right, he’s suing. For $1.5 million. And for the emotional pain and suffering that Davis must be suffering right now, $1.5 million is a freakin’ bargain.

If I were counsel for the Murfreesboro, TN police department, I’d just go ahead and settle now. Before Davis’ lawyer decides to ask for more.

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Shameless Self-Promotion

bloggies.jpgWell, boys and girls, the Seventh Annual Weblog Awards are in full swing right now, and while I’m not sure we have enough readers to get us an official nomination anyway, it sure don’t hurt to try, right? So we’re humbly on our collective knees asking you to take a second to roll over to the The 2007 Bloggies and nominate your old pal QuizLaw for “Best Topical Weblog” and, perhaps more fittingly, “Best-Kept Secret Weblog.” You can only enter one nomination (per e-mail address, anyways), so don’t worry about stuffing the ballot. But do it by 10 p.m. EST next Wednesday (January 5), or it’ll be too-little too late.

We have nothing to offer you by way of gratitude for this selfless act of yours, other than to say “purty please.” But it’ll make you feel good. And while you’re there, you can nominate all your other favorite blogs. If you’re curious, the one blog other than QuizLaw that I would make a big push for is Kissing Suzy Kolber for Best Sports Weblog. Those folks are some funny bastards, I’ll tell you what.

bednarik.jpgAnd yes, turning this discussion towards sports may just be another shameless way for me to say “go Eagles!” and show the great Bednarik/Gifford picture again, but that’s my prerogative. And on behalf of Dustin, I’ll even put out a “go Colts” for later this afternoon (not because I like the Colts so much, because I don’t, but because in a hypothetical world where gambling on football was legal outside of Las Vegas, I might have hypothetically put some money on the Colts).

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Maria Full of Flour

grace.jpgBack in 2003, Janet Lee was a freshman at Bryn Mawr College (a university in the ‘burbs of good ol’ Philadelphia). She was heading onto a flight to Los Angeles when she encountered a bit of a kerfuffle. Lee’s carry-on bag had three condoms filled with flour, which she was taking home to show her friends - apparently, these were “toys” used by the students to help relieve exam stress (I guess they’re like ghetto homemade versions of those little gel-filled stress balls). It will come as no surprise to you that the screeners were a little suspicious of these, although it came as a big surprise to Lee, who says she had no idea folks used condoms to transport drugs (“I was naive, really stupid,” she says).

Anyway, the screeners had a drug test done, and sumbitch if they didn’t come back positive for opium and coke. So Lee spent three weeks in the clink for trafficking charges, until further tests showed that the rubbers were, in fact, simply full of flour. Whoops.

The City of Philadelphia has now settled a lawsuit filed by Lee, on the eve of trial, for $180,000. The city of course says that this settlement is no admission of wrongdoing or liability. Because, you know, there’s no way it did something wrong in mistakenly determining that flour was opium and coke. Noooooo.

And speaking of Philly, go Eagles!!!


The Daily Memo - 1/5/07

check.jpgEmperor George Bush the Second believes that he has the power to open your mail, without any sort of, you know, warrant. (ABC News)

check.jpgCelebrity patents, featuring Eddie Van Halen, Jamie Lee Curtis and Michael Jackson, among others. (Engadget)

check.jpgLaw bloggers let loose! (Above the Law)

check.jpgA federal judge has ordered O.J. to freeze any money he got from his book about the murders he “hypothetically” committed, nudge nudge wink wink. (CNN)

check.jpgWith tax season almost upon us, keep receipts of those bribes you take! (MSN Money)

check.jpgA cop who “ran naked from his car after an accident” has been reinstated by a local judge, and his conviction overturned. (Courier Post Online)

check.jpgIt’s only recently illegal, in California, to ride around in the trunk of a car. (The OC Register)

‘Cuz the boyz in tha hood are always hard

busta-snoop.jpgYesterday wasn’t a good day to be a rapper of either the East Coast or West Coast variety.

Out East, Busta Rhymes got himself arraigned on misdemeanor assault charges. The former Mr. Trevor Smith, who is now out on bail, allegedly beat the shit out of a former employee. The two allegedly got into an argument outside Busta’s office about wages, and Busta then allegedly punched him to the ground and started kicking him. But you see, this took place on the day after Christmas, which our British readers know is Boxing Day, so Busta was just honoring the day. Although we have to make this assumption on our own because, in court, the only statement Busta would make was: “I plead da’ fifth…a fifth of courvoisier!”

Meanwhile, on the West Siiiiide, Snoop Dog’s youth football league (the creatively named Snoop Youth Football League Foundation) has been sued by the National Resources Media & Technology Group. The company made a deal with Snoop’s league for a reality show about Snoop and the league but the league already had a similar deal with 20th Century Fox for a feature called “Coach Snoop.” National Resources is seeking $250,000 in damages plus a year’s supply of Snoop’s stickiest green. The only statement Snoop has made so far is: “I plead da’ fifth/ here forthwith/ and now I’m saying so long/ and hitting this bong…turn up the beat Dre.”

The Batshit Triumvirate is Complete

gibson.jpgIt’s Crazy Bastard Day at Quizlaw, y’all. And no Crazy Day is complete without Mel Gibson, right? Well, The Guardian Unlimited is reporting that Gibson is being sued by Mexican director, Juan Catlett, who claims that Gibson ripped off several of his ideas for Mel’s Mayan epic, Apocalypto:

Juan Catlett claims that Gibson used scenes from his 1991 film, Return to Aztlan, in Apocalypto. The storylines basically cover the same ground, depicting the Mayan civilization imploding in a time of great drought.

Catlett alleges that Gibson asked for a copy of his film while shooting Apocalypto and that scenes from Return to Aztlan ended up in Gibson’s film. Catlett has now started legal proceedings against Gibson.

When reached for comment, Gibson defended himself by claiming that God spoke to him (via Pat Robertson) and suggested that he steal the scenes in question lest terrorist Jews revolt and launch an attack on America, which would result in “mass killings.”

Mike Tyson Appears in Rocky Balboa, Subsequently Arrested. Coincidence?

tyson.jpgSpeaking of crazy bastards, former heavyweight champion of the world and convicted rapist, Mike Tyson, appears to be headed back to prison. Tyson was charged yesterday in Phoenix, Arizona with drug possession and driving under the influence of drugs. The two felonies and two misdemeanors that Tyson is facing have the potential of putting him behind bars from between two and seven years. The charges stem from an arrest last Friday, in which Tyson was caught with two bags of cocaine.

Maricopa County Attorney Andrew Thomas said that Tyson had run out of second chances and that he was seeking a prison term. “A week ago, my kids and I were watching Rocky Balboa in the movie theater,” Thomas said, “and we saw Mike Tyson make a cameo appearance in the movie, and now here we are and he’s looking at going back to prison.”

Now, that’s power. You have no idea how many times I’ve wanted to arrest and then prosecute a celebrity after he’s appeared in a terrible film. Andrew Thomas: You’re my hero. If only you could find away to get to Larry the Cable Guy.

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The Wheel in the Sky Keeps on Turning

robertson.jpgYou know what’s awesome? Crazy bastards. You know what’s even more awesome? Crazy bastards with millions of devotees and the power to change the course of politics. And that makes Pat Robertson the awesomest!

Indeed, what the hell do we need with Nostradamus or the Farmer’s Almanac when former Presidential candidate and servant of hysteria Pat Robertson is getting the scoop straight from the Lord? According to God (via Pat), we’re all about to get on up and meet our makers, or at least a large smattering of us are. Why? ‘Cause the terrorist is all set for a “mass killing” of Americans, sometime late in 2007. It may not be nuclear, but it’s going to be something like that, so says God (via Pat).

Robertson also stated that God told him, on the DL, that the United States only pretends to care about Israel, when in fact we’re pushing them toward “national suicide.”

What I love about the predictions, which Robertson claimed to receive from the mouth of the Almighty during a prayer retreat, is that Robertson only puts out his annual “we’re all about to get extremely fucked” predictions with “humility.” Of course, he then states, “I have a relatively good track record. Sometimes, I miss.”

What do you mean, you miss? You mean that God is giving you bad intel? That the Supreme Being is fucking with you? That he’s like a deific tabloid you take with a grain of salt? Why would he do that, Pat? Shits and giggles? Does the Big Guy in the Sky like to occasionally pull a fast one on you?

Somebody hire this asshole in the Department of Homeland Security.

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The Daily Memo - 1/4/07

check.jpgRehnquist was a druggy? (Above the Law)

check.jpgPutting the “high” in High Court. (GoComics)

check.jpgA kid just got a sixty grand settlement from his old school district - not a bad payday for writing some rap lyrics. (Tampa Bay’s 10)

check.jpgThe first NJ civil union has been set for February 22, 2007. (Wills, Trusts & Estates Prof Blog)

check.jpgThe Seminole Tribe of Florida is being sued over its planned purchase of Hard Rock, under allegations that the auction leading to the sale was rigged. (The Hollywood Reporter, Esq.)

check.jpgAnna Nicole’s got until January 23 to get her baby daddy test taken care of. (CNN)

check.jpgDidja’ miss Justice Stevens on TV last night? (Above the Law)

check.jpgA special commission in NJ recommends that the state abolish the death penalty. (CNN)

Sleep tight…

bedbugs.jpgI’m typically a fan of anybody suing any member of the Hilton family at any time for any reason. But I’m not sure I can get entirely behind this lawsuit.

Opera singer Alison Trainer is suing the Hilton Hotel Corporation over her stay in one of their Phoenix hotels last November. She was there for 6 nights and, during that time, allegedly suffered over 150 bedbug bites all over her body. The experience was, according to Trainer, “horrific,” causing her to lose all sorts of weight and, worse yet, she claims that she’s now afraid to sleep in a bed (which begs the question: where, exactly, has Ms. Trainer been sleeping for the past two months). In fact, her lawyer says that she “looks like a piece of wood that has been attacked by termites.”

Ok. I can almost get behind this lawsuit. But here’s the problem I have with it - she stayed in the hotel for six nights. Her lawyer tries to explain it thusly: “She noticed the itching and the blood on the sheets right away, but she didn’t know that this was being caused by bedbugs.”

Seriously, read that again. So the logic went something like this:

Well looky-looky at all that blood. That can’t be good. And I’m itching like a mother fucker too. Itching and blood, that definitely can’t be good. But my options are, as I see it, the following. Option one - go to the front desk and complain about the fact that this room is causing me to itch and spontaneously bleed. Option two - go to a doctor to see if there’s a medical cause for the itching and spontaneous bleeding. Option three - stay here for the rest of the week and not think twice about the itching and spontaneous bleeding. …Well, I think I’ll go with option three. That makes the most sense.

And now she wants six million dollars for this? Now, I’m maybe ok with her getting compensation for her medical costs (which so far have consisted of little more than antibiotics and cortisone, although there may be some laser treatment of the bite scars), but she wants another $5 million because she took stupid option three? I can’t really get behind that, even if it is against the Hilton Hotels.

But this is where eye-for-eye justice would kick ass - making Paris and Nicky spend a week in bug-ridden beds would totally teach the Hiltons a lesson.

Although I guess a case could be made that Paris already spends every night in a bug-ridden bed. …good night folks!


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Happy New Year, Gitmo!

gitmo.jpgHoly BeJesus: Next time J.J. Abrams is trying to drum up an inventive interrogation/torture technique for one of his television shows or films, he need look no further for inspiration than the United States Government. In accordance with a FOIA request, the FBI has released documents related to aggressive interrogation techniques at Gitmo. And it’s not pretty. At all.

Among the many, many transgressions, there are reports of: 1) detainees chained hand and foot in the fetal position and left for long periods of time in their own feces and urine; 2) a detainee left in a room so hot and unventilated, he pulled out his own hair; 3) reports that an interrogator wrapped a bearded detainee’s face in duct tape (and laughed at him); 4) sleep deprivation, including strobe lights and loud music; 5) rumors of a interrogator giving a detainee a lap dance; 6) a detainee being baptized by a man dressed as a priest to “save” him; 7) wrapping an Israeli flag around a detainee; and 8) interrogators laughing and blowing cigar smoke in detainees’ faces, among many other foul interrogation techniques.

Worse still, in many of the above instances, the interrogators recorded that the techniques were approved by either the Department of Defense or Donald Rumsfeld. Agents at the FBI purportedly only witnessed these techniques, and were cleared of any participation.

Maybe the media, in general, has harped so much on the Gitmo detainee abuse that the entire country has more or less become desensitized to it, and without the benefit of Hi Def video footage, it’s unlikely that anyone will care anytime soon. But, it is worth noting that the Supreme Court ruled last November that Gitmo detainees were entitled to the protections under the Geneva Convention. Yet, of the approximately 740 prisoners brought to Guantanamo, 435 have not been released, the large majority of which who are being held indefinitely.

In other news, Barack Obama may need to watch himself, too, lest he be the next to end up in Guantanamo Bay, at least according to CNN.

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The Daily Memo - 1/3/07

check.jpgThe Alabama attorney general has settled with 18 strip clubs, and to comply with the state’s anti-nudity law the strippers are now making friends with flesh-colored latex. (Law.com)

check.jpgWe’ll always plug a legal story that references Mark Twain. (The Trademark Blog)

check.jpgOne-third of the contestants on the upcoming edition of “The Apprentice” are lawyers. (WSJ Law Blog)

check.jpgThe Massachusetts legislature voted to keep the proposed amendment banning gay marriage alive. (Bostonist and CNN)

check.jpgTwenty-three years later, a Pennsylvania judge is hoping that witnesses have good memories. (Yahoo! News)

check.jpgCourt TV’s contract battle with EchoStar has resulted in the legal channel getting yanked from the Dish Network. (The Hollywood Reporter, Esq.)

Even the Mummers know that QuizLaw is good times

mummer.jpgWe mentioned this last week in a post-Christmas Daily Memo, but since folks probably missed it (and, more importantly, because we love being self-congratulatory), we’re going to mention it again. The anonymous editor over at Blawg Review has named yours truly as the “Best Online Law Magazine using blog technology.” What’s that mean? ‘Dunno. But an honorific is an honorific and we’ll take it. Thanks mister anonymous Blawg Review editor guy.

In other Blawg Review news, the latest edition of the Blawg Review, #89, is up, hosted by the mothership. As a former Philadelphian who still has the occasional nightmare from watching the Mummers Parade as a wee lass, #89 brings back some haunting memories. But since I didn’t go home for the holidays, I missed out on the usual family-induced haunting memories, so this actually levels things out for me. So, again, thanks mister anonymous Blawg Review editor guy.

Mo’ Money, Mo’ Problems

roberts.jpgSince all the idiot criminals, celebrity lawbreakers, and political dumbasses have seemingly taken the day off to celebrate the life of Gerald Ford (the United States’ greatest unelected President!), we’re forced to start 2007 in a decidedly unglamorous fashion: Federal judge’s salaries.

Indeed, Chief Justice John Roberts devoted the entirety of his year-end report to the issue of meager salaries, which ranges from $165,000 to $212,000 (for the Chief Justice) annually. Roberts argues that the paltry sum restricts the federal judiciary to those who are so wealthy that ballpark $200,000 is meaningless, or to the real scum of the Earth: Those for whom judicial salaries represent an increase in compensation. Roberts writes that the issue of judicial salaries has “reached the level of constitutional crisis” and that the lack of salary increases is “grievously unfair.”

You know what’s unfair, Roberts? Take a look at these average salaries for government-funded occupations, and compare:

Police officer/Detective: $40,196
Sheriffs: $27,924
Public Transportation Attendants: $27,092
Firefighter: $36,764
Teacher: $46,597

Now, lookit Justice Roberts: I understand where you’re coming from. You made a lot of money in the private sector, and your family just wants to maintain its ability to keep its outdoor swimming pool heated all year round. That’s cool. But, think about it, man: The people charged with protecting and educating America are swimming in inflatable pools they had to blow up all by themselves.

But, you know what’s worse than someone who jumps at a federal judiciary position because it represents a jump in pay? Someone who would take a position on the federal bench because of the attendant salary. Because just what we need is some greedy asshole who cares more about how much he or she makes as a federal judge than trying the case.

Roberts argues that the low judicial pay threatens judicial independence. But, maybe the opposite is true: People who accept judicial positions with no concern for money may be less susceptible to accept money for certain verdicts, while people who do accept the position because it is high-paying may be more susceptible to corruption.

In either respect, it doesn’t instill a lot of confidence in the American populace to hear from the Chief Justice of the United States Supreme Court that, unless he and others in his position are compensated more, their judicial independence will be threatened. Are you trying to say something here, J Rob?

The Daily Memo - 1/2/07

check.jpgTurns out the California Court of Appeals does not like being called a “kangaroo court,” although I side with those who question whether this comment really threatens the integrity and independence of the judiciary. (WSJ Law Blog)

check.jpgAmid Apple’s stock option scandal we learn that Steve Jobs and company also have some lawsuits to deal with. (Engadget)

check.jpgChief Justice Johnny is continuing the push to try to get more money for federal judges, claiming that the issue “has now reached the level of a constitutional crisis.” (SCOTUSblog)

check.jpgThe new drunk-driving court in New York has been ruled constitutional. (Law.com)

check.jpgLA County is making a nice profit off of online access to court records, despite the fact that this is public information which some think should be free. (The Legal Reader)

Looking back so that we can look ahead

2007.gifOn the serious side of things, Slate’s Dahlia Lithwick takes a look back at the 10 most outrageous civil liberties violations of 2006. I won’t ruin the surprise of Lithwick’s number one item, but there’s certainly not much that could beat out her number two, the awful awful Military Commissions Act of 2006 (which I ranted about back in October).

While Lithwick provides a sobering look back, we can thank the New York Post for a look back at the more ridiculous elements of modern civics, in the form of a list of things banned by the New York City Council last year. While they haven’t banned thought, just yet, they have banned, among other things, trans-fats, cell phones in hoity-toity restaurants, foie gras, candy-flavored cigarettes and the Ringling Bros. and Barnum & Bailey Circus. …apparently the city council figures they’re fulfilling the circus role all on their own.

And finally, CNN gives us a little run-down of the best - and worst - in legal news for 2006. Barry Bonds, O.J., John Mark Karr, Mark Foley and Mel Gibson all make appearances. I’ll leave it to you to find out whether they fall on the “best” or “worst” side (and while one might assume they’re all on the “worst” side, I assure you that’s not the case).

Happy New Year boys and girls.