Unused and Probably Unusable
http://unusedandunusable.powerblogs.com/
U & PU is a blawg by a Philadelphia lawyer. This is a linguistically-inclined blawg; we also do general legal commentary, political and social current events, and any senseless rants or worthless posts are hereby disavowed and disclaimed. Some rights reserved. All* comments welcome.
*Not all comments welcome. Flippant, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.en-us2007-06-10T11:06+00:00A fascinating footnote in a routine order
http://unusedandunusable.powerblogs.com/posts/1181473471.shtml
Judge Walton allowed 12 law prawfs to submit a brief. Routine, even in a high-profile case like the one against convicted felon Scooter Libby? (His conviction isn't final yet, and the...Eh Nonymous2007-06-10T11:06+00:00
But, in the one-page order, available online thanks to Howard Bashman, also see the post at White Collar Crime Prof Blog, "Did the Prosecutor Have Jurisdiction in the Libby Case," there's a fascinating paragraph-long footnote.
In the course of allowing briefing on the issue of jurisdiction, U.S. District Judge Reggie B. Walton drops this startling (to me) statement:
1 It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
What a neat, neat thing to do. Well played, Your Honor. Well played.]]>What's LOLcat for Lawyer?
http://unusedandunusable.powerblogs.com/posts/1181327805.shtml
I didn't want to go down this road. Like most folks interested in language and linguistics, I read Language Log, and like most folks aware of internet memes, I'd visited...Eh Nonymous2007-06-08T18:06+00:00Language Log, and like most folks aware of internet memes, I'd visited I Can Has Cheezburger, which was first discussed on LL in a post titled Kitty Pidgin and Asymmetrical Tail-wags. As discussed, LOLcats involve image macros, i.e. pictures of [cats] with text that fits a meme or macro overlaid. Text of the form "I can has X?" or "I'm in your X, Ying your Z" or whatever. Only spelled worse, and with bad grammar. Intentional misspellings and bad syntax, that is. Engrish and worse. See the useful wikipedia page on Lolcats for more information.
Anyway... it didn't stop at cats. As Mark Liberman of LL recently pointed out, there are PhiLOLsophers. There's pictures out there of any given cute or uncute thing, with images of the same sort overlaid.
And... I had to jump in.
Here follow my contributions. Is it LOLlaw? LOLlawyers? Or can someone come up with something better?
The best three first, and then one that didn't come out as well. Click for larger versions. No rights reserved. Please credit Unused & Probably Unusable.
A local Philly piece of history:
From Hamdan v. Rumsfeld:
Thurgood Marshall on the steps:
And the first version of the above, with a different caption:
All images made with ROFLbot, http://wigflip.com/roflbot/.]]>ACLU-beating: a game anyone can play
http://unusedandunusable.powerblogs.com/posts/1179955730.shtml
HB of How Appealing posts the following:...Eh Nonymous2007-05-23T21:05+00:00posts the following:
"The American Liberal Liberties Union: The ACLU is becoming very selective about what it considers 'free' speech." Today in The Wall Street Journal, Wendy Kaminer has an op-ed (free access) in which she writes, "One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality."
Posted at 08:47 AM by Howard Bashman
Well, I don't know Wendy Kaminer. I do know the WSJ, and its famous hostility (at least on the Editorial and Op-Ed pages) towards liberties of any sort other than economic or pro-conservative.
Wendy may be right. The ACLU's failure to act in this case may mean... something.
I'm just going to stop thinking there. I am going to bet otherwise.
People... in general... who comment on the ACLU's beliefs, tendencies, trends, or nature because of their SILENCE and INACTIVITY in a given situation are usually blowing smoke.
The ACLU is not a government. The ACLU is not a nanny. The ACLU does not owe you anything, and if you don't support it, then much like a job or a relationship, it will go away.
The ACLU takes on cases - not all cases - in which important considerations of constitutional liberties are at stake, and the case is either winnable, or should be hard fought.
If the ACLU thinks that a case is being adequately managed, it will generally not waste its (finite) resources. If the ACLU for whatever reason thinks a case should not be won, then it will do the same. If the ACLU is just too busy to work on a case, even an important case, because there are more important cases, the same.
If the ACLU fails to act... that says precisely nothing about anything other than the very fact.
In contrast, when the ACLU does act, speak, participate, or litigate, you can draw your own reasonable conclusions from their affirmative behavior.
Failure to get involved in a case pitting important 1st Amendment considerations against the rights of schools? I mean, they've done that case. Their position is known. Other people can argue that case. Would an amicus from the ACLU clarify something that wasn't known before? Should they be telling people that this involves free speech?
People who criticize the ACLU often have valid reasons. I always wonder, though, when the reasons they state, are not valid ones. What is it about liberty, free speech, or constitutional protections that these critics hate? Or is it just that they aren't paying attention, or being disingenuous, trying to win political points despite knowing better?
This is another way of asking, "Fool or knave?" Again, this isn't about Ms. Kaminer. For all I know, she's put her finger right on the big problem with the ACLU, and I'm not going to waste my own time reading anything in a WSJ op-ed criticizing the ACLU. Wake me up when it's a story in a reputable source ("having some integrity") about the same thing.
And with that, I'm done wasting my time about that post on HA, period.]]>The Reasonable Man and racial harassment
http://unusedandunusable.powerblogs.com/posts/1176633753.shtml
I was bothered by this quote in a LA Times story:...Eh Nonymous2007-04-15T10:04+00:00
"Jordan could not have reasonably believed that the isolated co-worker's statement, not directed to [him], and not related to the workplace, created an unlawful hostile work environment," they wrote.
"Could not have reasonably believed." Now, what the argument should have said was, "We think it's unreasonable if he did believe," because it sounds less insulting that way. They mean that no matter what his actual belief (threatened or not, offended or not, whatever) it wasn't the sort of situation where a reasonable person (hypothetical) in his shoes would have believed X, where X is the necessary condition for the lawsuit.
In other words, Jordan allegedly heard a white co-worker say, in front of him, that people who look like Jordan, but are not Jordan, should be imprisoned and caged, not like animals, but along with animals in order that they would be sexually brutalized by them. But it would have been unreasonable if he had taken it personally.
Now, that kind of clever lawyering makes me want to have an impolite response. Something like, "People who look like those lawyers, but are not actually those lawyers, and are guilty of offending my sensibilities, ought to be imprisoned in a jail along with murderers and sex offenders who would treat them roughly."
I know they're just making a legal argument. But I'm offended by the law of the case. Here's hoping the Supreme Court takes it... and decides not to side with the panel or en banc majority.]]>Football; and jurisdiction in the Supreme Court
http://unusedandunusable.powerblogs.com/posts/1175080910.shtml
That's two separate topics. Semicolons separate two things which can stand on their own. Colons, in my limited experience, are for when the thing following the colon is an exemplification or...Eh Nonymous2007-03-28T11:03+00:00"proves, clarifies, explains or simply enumerates elements of."
First, flogging The Green Bag (an entertaining journal of law). No, really, that's the subtitle on the masthead.
I highly recommend an article in the current issue to hit mailboxes, the Second Series * Winter 2007 ish that just came out, Volume 10 Number 2. By one William A. Birdthistle, it's titled "Football Most Foul," and is a rousing read for them what likes their legal studies leavened by a bit of athletic competition, or prefer to read about their football (read: soccer) with a heavy dose of footnotes, references to the text of the law (or in this case, the Laws of the Game), comments about the present state of refereeing and suggestions for altering said arbitrage to improve perceived problems, and similar sexy topics.
I was a soccer referee in a past phase of my life, so there was some personal interest there, but the article is clear and interesting in any case.
For those who don't have any inclination to go subscribe to the Bag outright, I can only recommend what appears on the page facing the back inside cover: "When you need back volumes & issues, Turn to Hein! ...Complete sets to date... [and] we can also furnish single volumes and issues." Try www.wshein.com or mail at that domain name to inquire.
(There's also a really good bit about former Associate Justice Benjamin Curtis, who wrote the best dissenting [and therefore best] opinion in Dred Scott v. Sandford, as well as writing a pamphlet explaining that two of Lincoln's actions had exceeded his authority and thus been unconstitutional [suspending habeas and issuing the Emancipation Proclamation], as well as defending President Andrew Johnson at his impeachment trial. A noteworthy career, that one.)
Secondly, jurisdiction.
In Aaron Streett's latest serial issue of the (just-mentioned) ever-growing, best-selling "SCt Today" e-mail bomb, he brings us up to date on the two new issued decisions, one of which, Rockwell v. United States is the focus of my attention. The other issuance involves Guamanian debt, a topic close to many of our hearts. There are also two grants, one of which involves both potentially salacious material and free speech on the internet, in the form of the 11th Circuit Court of Appeal's ruling that the Protect Act was unconstitutionally vague and overbroad, potentially criminalizing a hypothetical email from a grandfather, innocently (and accurately) titled "Good pic of kids in bed".
Anyway: jurisdiction! (see, colon.)
The bite in Rockwell wasn't that the company hadn't in fact left itself potentially open to 26 counts under the false claims act; the U.S. Government in fact had reason to complain of environmental frauds. There is a procedural twist: the case was brought not by the U.S., but by a fired former employee in a qui tam action. These actions are beyond the scope of this post...(see Wikipedia on Qui Tam for a brief explanation).
In any case, the fired Mr. Jones had a reason to believe that the "pondcrete" made by mixing toxic runoff from the nuclear weapons plant with concrete would in fact disintegrate, causing dangerous contamination. He later amended his complaint to reflect information that became publicly available, including 25 different counts. But he had the actual reason for the pondcrete problem wrong, and he had not in fact had information at the time he left that there was a present problem. He had made a prediction, nothing more. Disintegration began after he was fired, and for a reason he had not predicted.
So, what about his claim? Was he the kind of qui tammer the False Claims Act was intended to benefit? Or was he just a weird kind of lucky? The majority, in an opinion written by Scalia but nevertheless defensible, is that there is no logical connection between his original claim, which he had information to support, and the amended complaint based on public information. This is crucial, because there's only the payoff for original sources of information. You can't win a payday by reading the newspaper and then filing suit with no facts unknown to the public.
The relevant "allegations," then, are those of the most recent version of the amended complaint.
The dissent, per Justice Stevens, would have come out the other way, because allegations most naturally in his view means those in the original complaint (which Stone certainly had direct knowledge of) and Stevens felt that FCA jurisdiction should be based on the original complaint, and then, follow this, then the bit in Aaron's e-mail which bit me:
citing the general rule that jurisdiction is ordinarily determined then, and chastising the majority for forcing courts to reassess their jurisdiction with every amended complaint.
See what happened there?
Plaintiffs often want jurisdictional rules to come out their way. (It's only possible to stay in court, which is often-if-not-always what a plaintiff wants, if the court has jurisdiction to hear the case.) Unlike defendants, I presume. Anyway, a defendant might reasonably argue that amending the complaint until it no longer contains any counts providing the necessary kind of allegations required in the False Claims Act means the plaintiff has lost their jurisdictional "hook," and now should be tossed out of court. It's a logical argument.
A plaintiff might reasonably argue that if a claim has jurisdiction to be heard at the time it is filed, and that changing information requires amendment, then so long as the subject matter of the complaint is congruent, and the parties are the-same-or-similar, or whatever other degree of closeness one might want, then so long as the case isn't brought in bad faith or something there's no reason the court can't proceed to the merits.
Now, Stevens cited a "general rule." And in fact, many cases are decided where jurisdiction absolutely existed at the time suit was commenced, and probably didn't by the end, but the court decides the case to get it over with, presumably because we're talking not ability-to-hear-and-decide-the-case jurisdiction (subject-matter jurisdiction) but prudent jurisdiction, where the court can exercise its judgment about whether or not the case should be heard at all. The first cannot be avoided, the second can. Different rules for the constitutionally required (Article III) kind of jurisdiction, than for the kind created by the court - meaning the Court.
I guess this one comes down to the picture you choose. Was Jones' good-intentioned attempt to blow the whistle and report a false claim close enough, or was he just barking at the right tree without having any reason to know there was in fact a false claim up there? One side seems to be concerned that people who try to report false claims won't be rewarded if the complaint is amended too much; the other side seems to be worried lest the rule become a windfall to "whistle-blowers" who lack actual information, sort of on the theory that if a thousand dogs start hollering under a thousand trees, one of them will wind up under the right tree even if his nose doesn't work worth a damn.
And that's my take on today's baseball.
As always, I am indebted to Aaron for speedily summarizing, snarking, and sending his invaluable Report on the goings-on at 1 First Street.]]>Heinlein unFriday: Gender and Change, coming soon
http://unusedandunusable.powerblogs.com/posts/1175001380.shtml
To quote another legal epistolary writer (Aaron Streett; the extra T at the end is probably for Terrific), "Greetings, sportsfans!" See here, for the first March issue of his periodic...Eh Nonymous2007-03-27T13:03+00:00See here, for the first March issue of his periodic chatty Supreme Court opinion, order and grant roundup. I highly recommend it to all SCOTUS groupies. Prawfsblawg reprints them, but you can get them delivered straight to your inbox by mailing him at the link at the end of that post. Streett, an associate in Baker Botts' Houston office, provides all the inside baseball commentary one could want, in a breezy and entertaining tone. Oh look, there's links to all of them at Baker Botts.
Anyway. Hello to those who enjoy watching athletic events. How's your NCAA tournament treating you? Thought so.
I had an intention to write about Gender and Change in Heinlein's writing. So that'll be my next topic, because I think it's got more juice for me right now than the grim-seeming discussion of war crimes that I had planned. I'd planned to unroll that one in mid-August 2006, and then the topic so disheartened me that I went and did things I felt like doing more instead.
So: forthcoming, a discussion of gender-bending, gender roles, stereotypes, cross-dressing, a bit about sexuality (although that's not the focus), and gender as a mutable characteristic in the works of R. A. Heinlein. Because after all, if I can't write what I feel like, what am I doing out here in the blawgoverse, anyway?
Other posts I'm brewing up: a quick perusal of the controversial No Child Left Behind act, which has been heavily criticized as elevating testing, and particularly apparent improvement in testing, over real education, as well as skewing priorities in educating students - like, how much to test-prep vs. other skills, how much to the bottom quintile vs. the next vs. the next. My favorite example of unhappiness was the NY Times article about an excellent school that had been deemed a failure under NCLB. I might do a more searching review of what's being said about it. Wikipedia now notes in the No Child Left Behind Act article that "a new Congress has already started considering major revisions, as one group of 50 Republican senators and representatives introduced legislation in March 2007 that would provide states much greater freedom from NCLB's controls and punishments." - but as always, trust Wikipedia only so far. How do we KNOW that they introduced such proposed legislation unless we go looking through THOMAS ourselves?
Also, a possible HF post on addiction, and another on wealth and power.
Until next time, that's today's unused & unusable inside baseball! (Again, a tip of the imaginary hat to this guy.)]]>A jury does its duty...
http://unusedandunusable.powerblogs.com/posts/1173239745.shtml
... and convicts when the case made by the prosecution is "overwhelming" despite having personal sympathy for the defendant. See NYT, March 7, 2007, "Libby Guilty of Lying in C.I.A....Eh Nonymous2007-03-07T03:03+00:00"Libby Guilty of Lying in C.I.A. Leak Case," Neil Lewis.
One of the 11 jurors who spoke publicly after the verdict said that there was great sympathy for Mr. Libby in the jury room, but that the case presented by the prosecution was overwhelming.
Of course, the line "The verdict meant the end of a nearly four-year investigation into the leak of the identity of the Central Intelligence Agency officer" was quite incorrect. The case isn't even over. The jury's duty has been completed, but as the article makes clear, the action continues.
Counsel for the defendant will file post-trial motions to grant a new trial, and will seek appellate relief when that fails (as is likely). Before that, the sentence needs to be handed down, on June 5. The article quotes uninvolved experts as estimating a Guidelines sentence of 20-27 months, but of course in the brave new post-Booker world, the Federal Sentencing Guidelines are advisory, not mandatory. A departure (upwards or downwards) does not have to be justified by extraordinary circumstances. However, most Circuit Courts of Appeal have been far more willing to approve upward departures than downward departures, looking at the latter with great skepticism and reversing such sentences, stating that the sentencing judges did not give adequate reasons for the departure. Upward departures, meanwhile, are routinely approved as being reasonable. Doug Berman of Sentencing Law Prof has done so much good work on the issue that it's unnecessary to marshal up the evidence on one's own. See, for example, this post, in which he notes the Fourt Circuit's reversal of an upward departure:
I'm not interested in gloating over Libby's downfall, but I do feel some satisfaction that a felony conviction came out of this investigation into one of the more public and shameful examples of treasonous politics ("So Novak's Talking: Thoughts on the Plame Mess" posted here on 8/1/05) in recent history.]]>Back from hiatus? Posner's a sneaky arguer.
http://unusedandunusable.powerblogs.com/posts/1158933530.shtml
Popping my head up. Several thoughts....Eh Nonymous2006-09-22T13:09+00:00
Happy New Year to those who celebrate starting tonight.
The new Heinlein/Spider Robinson collaboration is great. I'll have a review up shortly.
Heinlein Friday was driving me to distraction. For my own good, I'm suspending the practice, and substituting it with a new programme, tentatively entitled, "Post when you have something to say."
Linkage continues apace at my beloved Del.Icio.Us page, findable by typing http and then :// and then del.icio.us and then /eh_nonymous and then hitting enter, or touching return. Please do check it out - new (and old) links, webpages, and blogs appear there all the time.
Posner's a sneaky, sneaky debater. Check out this paragraph:
Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don’t think so) when he said that “The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it.” But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.
What's wrong with Posner's screed? Well, he's telling Geoff Stone (in a debate about "Not a Suicide Pact," his new book) that we mustn't be so fuzzy and abstract, putting a thumb on the scales of decision, and preferring civil liberties over other values.
In other words, you can't assume that privacy or individual rights or civil rights are of more value than something else, until you compare them.
Then Posner spins, spins, spins. He writes that he would rather be searched at random without a warrant than be killed by terrorists.
Well! Shut my mouth! Of course, I was thinking the exact opposite, that I'd prefer to die than have my liberties infringed!
Posner's disingenuous to write this sentence, because he's making a number of logical fallacies and he should by gum know it.
Appeal to emotion.
Red herring.
False choice.
Grave consequences unless you agree with him.
I know, I know, he keeps arguing, that's just the setup.
But he's still spinning, and increasingly wildly. Why not assume that violating my Miranda, Brady, Mapp, or other rights will *not necessarily* be more likely to preserve my life, unless there's some evidence for it? Instead, Posner assumes, as a default, that every limitation on freedom, liberty, and individual rights will result in greater safety. If safety is an overarching value, as he says, then the inquiry is over.
He is putting a rabbit in the hat. The rabbit is that safety always trumps. This is precisely the kind of failure to reason and pragmatically compare which he accuses Stone of. Consider Kip's vitriolic (and entirely deserved) scorn directed at subway searches in New York City, as presently laid out. We lose freedoms; we gain nothing. There is NO POSSIBILITY that those (ought to be unconstitutional) searches can deter, vex, or obstruct terrorists. There's no barrier. There's no benefit - and when there's no benefit, it's hard to do a CBA (cost-benefit analysis) that concludes anything other than the practice is a waste of time.
I'd have more scornful things to say about Posner, but others are doing a fine job. He's a shrieking hysteric, and it's disturbing that he's prejudging outrageous actions to be fine and dandy - as a legal and as a pragmatic matter - in the fight against terror.
Consider his hypothetical example of assigning an FBI agent to follow each and every Muslim, on foot. I wonder, though, why that would provide any benefit, as some terrorists are not Muslim. Better, perhaps, if he recommends a policeman stand behind each of us, with a loaded gun. That might achieve his desired goals better. But he is just mentioning it to show that it would be legally unproblematic.
Of course it might be, you ninny, if you formulate it wrong - care to ask a civil libertarian if it's unproblematic? The problem's not whether a particular right is violated, although that's there too, potentially. It's that it would be completely useless, and thus not even bear a rational relationship to the goal to be achieved, viz greater safety. Argh!
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