Do the best lawyer's have "slow" brains?

Probably.

Peterson has always struck me as "scummy," but this doesn't sound right.

Drew Peterson convicted of murdering his third wife. Based on what I know, which isn't much, he sounds guilty, but this doesn't sound right:

"The trial was the first of its kind in Illinois history, with prosecutors building their case largely on hearsay thanks to a new law, dubbed "Drew's Law," tailored to Peterson's case. That hearsay, prosecutors had said, would let his third and fourth wives "speak from their graves" through family and friends to convict Peterson."

It's a bad thing to pass "special laws" to "get" someone.

It's even worse, if those special laws are then available to go after the rest of us, who are probably guilty of committing three felonies a day that we don't even know of.

From "A Man for All Seasons."

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

From the "Truth is Stranger than Fiction...

...because Fiction has to be Plausible" Department.

Lawsuit: Defendant Breached a Duty Not to Shoot Bottle Rockets Out of His Anus.

College frat guys, naturally.

The pertinent allegations are:

8. [Defendant] was highly intoxicated on this date and time, and decided in his drunken stupor that it would be a good idea to shoot bottle rockets out of his anus on the [Alpha Tau Omega fraternity] deck, located on the back of the ATO house.

10. [Defendant] placed a bottle rocket in his anus [and] ignited the fuse, but instead of launching, the bottle rocket blew up in Defendant's rectum, and this startled plaintiff and caused him to jump back, at which time he fell off of the ATO deck, and he became lodged between the deck and an air conditioner unit adjacent to the deck.

13. Per the applicable codes ... the deck in question should have had a railing, which comported with said codes.

16. ATO owed plaintiff a duty to provide a safe deck, including a railing, and ... a duty to supervise its guests and its own fraternity members, such as Defendant, and other under age persons, from consuming alcohol on its premises, which leads to stupid and dangerous activities, such as shooting bottle rockets out of one's own anus.

18. [Defendant] also owed plaintiff ... a duty of care not to drink under age, or to file bottle rockets out of his anus.

19. [Defendant] breached this duty when he both drank under age ... and attempted to fire a bottle rocket out of his anus while under the influence. The act of firing a bottle rocket, within Huntington City Limits, was also a crime.

22. Plaintiff asserts that the activity of underaged drinking and firing bottle rockets out of one's own anus constitutes an "ultra-hazardous" activity which exposes both of these defendant to strict liability

Here is the pdf of the complaint if you need to put it into your form file.

Mom and Dad must be so proud.

The Word Nerd Cometh.

In legal practice, "tax" can be a confusing word. As applied to the costs that are recoverable after a party wins a lawsuit, to "tax costs" means either the amount that a prevailing party is permitted to recover from the losing party or it means the amount that the losing party can subtract from the prevailing party's cost bill.  For example, Federal Rule of Civil Procedure, Rule 54(d)(1) provides:

"(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action."

On the other hand, California law recognizes that the losing party can file a motion to "tax costs", i.e., challenging particular items in the prevailing party's cost bill.

Undoubtedly, this confusion has something to do with semantics of taxation as it is experienced in regular life; taxes take things away from us; they do not give us anything.  So, to "tax costs" seems to mean that something is being deducted or taken away from costs.

On the other hand, the etymological roots of "tax" include things like "enroll" or "enlist."  The Online Etymological Dictionary advises:

tax (v.)


late 13c., from O.Fr. taxer "impose a tax" (13c.), from L. taxare "evaluate, estimate, assess, handle," also "censure, charge," probably a frequentative form of tangere "to touch" (see tangent). Sense of "burden, put a strain on" first recorded 1670s; that of "censure, reprove" is from 1560s. Use in Luke ii for Gk. apographein "to enter on a list, enroll" is due to Tyndale. The noun is recorded from early 14c. Tax shelter is attested from 1961; taxpayer from 1816.

Wordorigins.com supports the notion that "to tax costs" is to add costs to the amount levied on the losing party:

tax


Word History

Date of Origin 13th c.

Tax originally denoted ‘assess an amount to be levied’; the notion of ‘imposing such a levy’ is a secondary development. The word comes via Old French taxer from Latin taxāre ‘touch, assess, appraise’, a derivative of tangere ‘touch’ (source of English contact, tangible, etc). From taxāre was derived the medieval Latin noun taxa ‘tax, piece of work imposed’, which passed into English via Anglo-Norman tasque as task (13th c.).

However, given the confusion of the word "tax," it might be better to avoid it entirely and use the word "recover" in the former situation and "object" in the latter.

An interesting sidenote is that the name of the vehical that takes us to the airport is derived from the word that signifies government oppression:

Etymology of taxi, tax.


The word taxi is shortening of the taximeter cab (introduced in London in March 1907), from taximeter (automatic meter to record the distance and fare) [1898] from the French taximetre, from the German Taxameter (1890), which was coined from the Latin taxa (tax, charge) from taxo (to evaluate, to put in an order, to fix the value of a thing, to rate, to tax, to touch), from the Greek verb tasso (to put in an order, to fix the value of a thing; τάσσω).

From the same root:

English: taximeter, taxation, tax- (-collector, -free, -payer etc), taxis, taxology, taxonomy, task.
French: taxer, taxation, taxe, taxi, taximetre, taxiphone, tache
Italian: tassare, tassazione, tasso, tassi
Spanish: tasar, tasacion, tasa, taxi, taximetro
German: taxieren, Taxierung, Taxe, Taxi, Taxameter

This makes some sense in light of the notion that "taxing" signifies "adding up," and not, as we normally think, "taking away."

In other news...

....jury awards $1.2 million in damages for wrongful termination of Walgreen's pharmacist.

The Assumption in the Title Seems Accurate.

"Why the Supreme Court cares more about elites."

Homosexual marriage is having the same corrosive effect on the legal system as abortion has had.

This is an essay that is a useful reminder about what being a lawyer is supposed to be about.

Same-Sex Marriage and the Assault on Institutional Integrity by Matthew J. Franck:

 After publishing articles recently in the Washington Post and First Things, both arguing that the defenders of conjugal marriage between a man and a woman should not be tarred as irrational bigots, “haters,” or “theocrats” by the advocates of same-sex marriage, I received e-mail messages from likeminded friends hailing me for my “courage.” I was grateful for their appreciation, but a little mystified at what I took to be overstatement. I find little reason to hail the “courage” of someone who defends the consensus view of the whole history of human civilization—that marriage is a bedrock social institution that unites a man and a woman in order to make a family—as rational and well intended. But one of the kind notes came from a friend who was about to leave for Cuba to help beleaguered Christians there, persons of whom the word “courage” can be used without embarrassment. So what was going on?


It was simple: my correspondents were academics, writing from within the establishment of American higher education, where it can be very uncomfortable to speak out against the idea of same-sex marriage. Are people’s jobs on the line if they dissent? This is harder to say with certainty, and the circumstances will not be the same everywhere. The deadly combination of unchallenged liberal presumptions and casual intimidation of dissenters is probably at its worst in the most prestigious universities, which set the tone for the rest of the country, on this issue as on many others. But in all except the most resolutely religious colleges, there is no doubting that the default position of the American academy is to dismantle the institution of marriage and remake it on a new basis. The result is a good deal of self-silencing—self-exile into the “new closet” on issues involving sexuality—not just by students but by faculty, too. The path of least resistance turns out to be the path of no resistance. For institutions that claim to be homes of diverse views and free inquiry in the pursuit of truth, this creeping orthodoxy is a sign of wounded institutional integrity and failed leadership.

The same harm to institutional integrity, and the same ethical failure of institutional leaders, is now publicly on display in the most elite precincts of the legal profession. On April 18, the press reported that Paul Clement, former solicitor general in the last administration, would take up the cause, so contemptibly abandoned by the current administration, of defending the Defense of Marriage Act in federal litigation, with Clement’s firm, Atlanta-based King & Spalding, engaged by the House of Representatives.

One week later, on April 25, King & Spalding’s chairman Robert Hays announced that the firm was withdrawing from its representation of the House, apparently leaving DOMA’s defense without legal counsel in federal court. Notwithstanding the blandishments of Mr. Hays about “inadequate” vetting of the decision to take the case, it was evident to everyone that this retreat was made under pressure, with the gay advocacy group Human Rights Campaign leading a concerted political and economic campaign to bring the firm to heel. Within an hour or two on the same day came the news that Clement was decamping from King & Spalding to take new employment at Washington’s Bancroft law firm, and intended to continue his representation of the House, and of the interests of the United States, in the DOMA litigation. In his letter of resignation from King & Spalding, Clement describes his conduct as the only “honorable course,” saying he was driven by “loyalty to the client and respect for the profession” of law. “Defending unpopular positions is what lawyers do,” he wrote, adding that the “adversary system of justice” and “the rule of law” itself are at stake. Clement finished by quoting the late Griffin Bell, once a King & Spalding partner as well as attorney general in the Carter administration: “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation.”

Supporters of the Defense of Marriage Act were quick to hail Paul Clement’s courage, and he certainly deserves praise for his unhesitating decision to do the right thing. But it detracts not at all from Clement’s rectitude to remark that there was nothing heroic in it. He did what any lawyer would do who conformed his actions to the time-honored ethical norms of his profession. Lawyers and law firms accept and reject clients for all sorts of reasons, including moral affinities and moral objections, political sympathies and ideological opposition. But once a lawyer has been engaged as a client’s advocate, a relationship is created for which words like “duty” and “honor” are exactly the right ones. Clement rightly understood that this duty demanded he sacrifice any competing claims on his loyalty of his law partners, and leave the firm. What this cost him we cannot know, but again, his action was an ordinary sort of courage, not an extraordinary sort.

What is extraordinary, and therefore worthy of more of our attention, is the behavior of King & Spalding and the leadership of its chairman Robert Hays—as well as the behavior of the political activists at the Human Rights Campaign and elsewhere who embarked on an open campaign of intimidation that is morally reprehensible in a constitutional republic.

It appears, from other cases taken on by King & Spalding, such as its pro bono representation of unlawful enemy combatants detained at Guantanamo, that the firm’s politics lean leftward. But again, lawyers and law firms accept and decline clients and causes for many reasons, and political ideology is not an illicit ground of such choices. Knowing this might inform one’s judgment if one of its partners ran for public office, or were nominated for attorney general, and it might incline certain clients to seek representation there or to go elsewhere. But it is not in itself blameworthy to undertake the representation of clients and causes of whom others disapprove. As Paul Clement himself said, this is what lawyers do—and what someone in the profession must do, if the adversary system of justice, central to our rule of law, is to function well.

What is blameworthy—indeed, squarely inimical to the norms of legal practice—is for a firm’s leaders to buckle under political pressure and abandon a client they have agreed to represent. King & Spalding’s withdrawal may even have violated various codes of legal ethics. But even if no codified norms were breached, the firm’s decision to bug out on advocating the constitutionality of DOMA is deeply troubling as a failure of institutional responsibility. And it is not merely the law firm as an institution that should concern us here, although the firm is one kind of institution (and the larger it is, the more “institutional” any firm looks). It is the institution of the law itself that is at stake. Mr. Clement might seem to have been engaging in hyperbole when he remarked in his resignation letter that the rule of law was harmed by the firm’s decision. But he was not.

Those of us who are not lawyers, hope never to need one, and enjoy a good joke at the profession’s expense might be loath to admit it, but the rule of law depends to a great degree on the probity of lawyers and judges. Law graduates, when admitted to the bar, become “officers of the court,” and this is no quaint honorific like “esquire.” Each time they assume the burden of advocacy for a client, they also take on a duty to the court of the jurisdiction in which they practice on the client’s behalf. The lawyer is the conduit through which the client’s interests are communicated to the court, and, in the opposite direction, through which due process is meted out to the client. Just as the judge is expected to have no conflicts of interest in the case before him, the lawyer representing a party is expected to have no interest whatsoever that can be distinguished from those of his client. The judge must be disinterested in the outcome, but the advocate must have, and appear to have, an identity of interest with the client and cause on whose behalf he advocates. Once assuming this burden, his own private, competing impulses to separate himself from his client must vanish from his calculations, for his duty is a public one, vital to the provision of due process, and, for that reason, is of the utmost solemnity.


Thus the King & Spalding skedaddle is more than an unseemly ditching of a client in order to escape the heat of political pressure. It is a blow to the institutional integrity of the legal system, and this would be true even if the abandoned party were not the United States itself. The firm will rightly suffer in reputational terms, but is no doubt big and established enough to survive the self-inflicted wound.

But what is behind this unexpected caving of such a large and well-esteemed law firm? If King & Spalding’s leaders exhibited cowardice and a failure of integrity, it is worth our noticing that they were bullied into it by the organized enemies of DOMA, led by the euphemistically named Human Rights Campaign (HRC). It is increasingly clear that the movement for same-sex marriage has no regard for the ethical norms of institutional integrity that ordinarily govern the processes of republican self-government in the United States.

The day after King & Spalding was reported to be taking the DOMA case, the HRC launched a high-pressure campaign to force the firm to reverse its decision. This was too much even for the liberal editors of the Los Angeles Times, who oppose DOMA but recognize a principle when they see one. Ditto the editors of the Washington Post, who chastised HRC after the success of its campaign of intimidation.

But intimidation—“mau-mauing the flak-catchers,” Tom Wolfe memorably called it—is now the default tactic of same-sex marriage advocates. What else, for instance, explains the antics of now-retired federal judge Vaughn Walker, who wanted to broadcast the Proposition 8 trial in California, and then broke his promise—and his legal duty—to keep the trial’s video record from public view? What else explains the instantaneous denunciation of all opponents of same-sex marriage as “haters”? Resistance to such intimidation, in the name of the ethic of institutional integrity, is fast becoming the duty of all persons in positions of institutional responsibility, whatever their private views on homosexuality or same-sex marriage. When we witness such principled resistance, as in the case of Dean Evan Caminker’s decision to stick with Ohio Senator and alumnus Rob Portman as the commencement speaker at the University of Michigan’s law school—despite the outcry of those who object to Portman’s 1996 vote for DOMA as a House member—we should applaud it heartily.

A sage older colleague of mine is fond of saying that integrity is something you can have just by deciding to have it. But you do have to decide. It’s that easy, and that hard. But those who would sacrifice ethics and the integrity of our institutions to the victory of a political cause must be sharply rebuked by fair-minded conservatives and liberals alike.

Apparently, it is important to some clients that they can rely on their attorneys not to drop their case because of political considerations.

The State of Virginia fires the King and Spaulding law firm for dropping its Defense of Marriage Act client:

Ken Cuccinelli, the Attorney General of Virginia now has dumped King & Spalding as special counsel (it's not clear in what), as reported by The Washington Examiner (via Powerline). Here is the text of Cuccinelli's letter, which reads in pertinent part (emphasis mine):

We seek to do business exclusively with law firms that do more than merely aim to perform the bottom of the barrel ethical obligations and do just enough on behalf of their clients to avoid trouble for themselves. We seek law firms that will actively protect our interests, even when that may be uncomfortable for their firms.

Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes, that I, or my office, or

Virginia as a whole, may not support. But, it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups.

Virginia seeks firms of commitment, courage, strength and toughness, and unfortunately, what the world has learned of King & Spalding, is that your firm utterly lacks those qualities. As the official in Virginia responsible for ensuring that the legal needs of Virginia's agencies are well met, I cannot leave UV AMC in the hands of a law firm of such weakness.

Man faces charges for reading wife's e-mails.

The only reason I'm posting this is because this issue came up with my partner last week, and I said the idea was "ridiculous."

Are superpowers protected by the Second Amendment?

In case you were wondering, there's a blog covering the developing area of "Law and Superheroes."

Public Service Announcement: "Some men might feel that chivalry obligates a man to say yes, but the law does not."

Sorry, guys, but you can't use the excuse that you slept with your attractive female co-worker because it was required by law.

Issue: can a man ever view a sexual proposition from an attractive woman as "unwelcome"?

The trial court in Equal Employment Opportunity Commission v. Prospect Airport Services came pretty close to saying 'no.'

Apparently, Rudolpho Lamas, a recent widower, was propositioned by a married co-worker Sylvia Munoz. He said no and something about being in mourning and his Christian convictions and the fact that she was married. She persisted in her pursuit of this poor guy for months and eventually enlisted fellow workers in a campaign of calling Lamas homosexual. The company took no steps to protect Lamas.

The district court granted Prospect's motion for summary judgment .⁷² The district court concluded that as a matter of law Munoz's conduct was not severe and pervasive enough to amount to sexual harassment objectively for a reasonable man, noting that “Lamas admits that most men in his circumstances would have ‘welcomed’ the behavior he alleged was discriminatory, but that due to his Christian background he was ‘embarrassed.’ “⁷³ The court emphasized that Lamas had never filed a written complaint, and management had told Munoz that her behavior was inappropriate.

Because, obviously, only a crazy Christian with Christian "issues," or gay guy, would pass up on an opportunity to commit adultery with an attractive woman.

The Court of Appeals disagreed:

It would not make sense to try to treat welcomeness as objective, because whether one person welcomes another's sexual proposition depends on the invitee's individual circumstances and feelings. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.

Actually, that is a pretty comprehensive list of reasons to avoid having sex.

Also, note how the Court dates itself by using "Marilyn Monroe" as the standard unit if female sexual allure. I was explainin the case to my secretary and restrained my impulse to use "Farah Fawcett" as an example.  I tried to reach for someone more current and went blank. 

So, who is the contemporary "Marilyn Monroe"?

Legal Hagiography and the Gravitational Attraction of America's Elites.

Now that Justice Stevens is retiring, he is being lauded by the mainstream media as a thoughtful, independent thinker.  The truth, though, is that Stevens stopped being an independent and interesting thinker somewhere in the 80s, and became, sadly, a doctrinaire liberal.

When I was in law school in the early '80s, I enjoyed reading Stevens, even if I did not agree with his results, because he seemed to come at the legal issues from a refreshing and novel perspective.  Over the course of time, my interest in Stevens declined as he seemed to merely parrot the standard legal-left line.

Apparently, I'm not the only person who noticed - and was disappointed by - Steven's "growth."  Writing in the Daily Journal (Subscription Required) Joerg Knipprath - a professor of law at Southwestern Law School in Los Angeles - notes:

The retirement of Justice John Paul Stevens has produced a temporary cottage industry in encomia to the long-serving jurist. Some of the praise is well-deserved; some is not. Some of it, however, is rather odd and appears to be the result of a narrative that he has sought to create over the last several years.


The core of that narrative is that Justice Stevens is just a staunch conservative steadfastly resisting the forces of rightward change swirling about him the last quarter century. It rests on an interesting counterpoint to the usual explanation for a justice's increasingly liberal decisions over time, namely, that he or she has "evolved" as the office has imbued the justice with greater wisdom than he or she presumably had being, for example, a mere court of appeals judge.

While Justice Harry Blackmun's move from wobbly centrist conservative to dependable liberal is accepted as substantive change on his part, Justice Stevens' "move" is said to be a kind of jurisprudential parallax. He has not changed substantively, but his views appear to have changed. Fresh as that explanation might be, it is also wrong. Or at least much exaggerated. There is no doubt that the Supreme Court has become more conservative in a few areas of constitutional law since the end of 1975, from the standing doctrine to state action analysis to federalism to establishment clause cases. Of course, there are also plenty of counter-examples, from separation of powers to substantive due process to sex discrimination.

In its jurisprudential journey, the Court has generally followed the political mood in the country, though in more incremental and halting fashion. American elites' political views have moved in the opposite direction, so that polls more and more find great divergences between the American mainstream and the political elites. For the latter two, Justice Stevens has been their man on the Court.

Knipprath cites a number of areas where the modern Stevens is in diametric opposition to the early Stevens, inlcuding affirmative action, the First Amendment and abortion:

Then there is the abortion switch. Early in his tenure, he supported parental consent or notification laws (Planned Parenthood v. Danforth - 1976) and agreed that the government need not fund non-therapeutic abortions under Medicaid (Maher v. Roe - 1977). Since then, Justice Stevens not only has changed his mind about parental notification laws, but he is a reliable vote against even the most limited restrictions on abortion.

Knipprath concludes:

These votes by Justice Stevens, like the opposing votes, are certainly defensible as a matter of technical constitutional law. All are decisions of a closely-divided court, many by 5 to 4. Nor is any single vote determinative of a broad approach. But Justice Stevens has been nothing if not consistent recently in supporting positions favored by the liberal political elites.

As a constitutional law professor, I enjoyed the often idiosyncratic, hit-and-miss, early Justice Stevens more than the current incarnation. I did not necessarily agree with his positions, but they were often thought-provoking. His more recent efforts, such as his dissent in D.C. v. Heller, can still be quite well-informed and scholarly, but they are predictably liberal-by today's standards as well as those of 30 years ago. If Justice Stevens believes he has not changed, he is certainly entitled to his own opinion. But, to borrow the rest of the aphorism, he is not entitled to his own facts.

Which, if it proves anything, is that living in Washington D.C. has a gravitational attraction toward the political elites.

Justice, Mushrooms and "Manure in the Dark"

We do not subscribe to the obscurantist notion that justice, like wild mushrooms, thrives on manure in the dark. As Presiding Justice Gilbert observed, "Just as a theater critic must see the play before writing a review, judges must carefully consider the evidence before deciding a case. The lifeblood of our judicial institutions depends upon judges rendering decisions that are the product of a reasoned and objective view of the law and the facts." (Rose v. Superior Court (2000) 81 Cal. App. 4th 564, 572 [96 Cal. Rptr. 2d 843].)

Titmas v. Superior Court, 87 Cal. App. 4th 738, 742 (Cal. App. 4th Dist. 2001)

I've got nothing really profound or original to say here, except that I thought this was a nice, and rare, turn of phrase in a judicial decision.

Well, except maybe that I often feel that I've gotten the "mushroom treatment" - i.e., kept in the dark and had manure shovelled at me.

Bankruptcy Law Reform Needed

According to the Empirical Legal Studies Blog, the data shows that it may be time rethink the Bankruptcy law reform:

With the Dow below the 6,800 mark (as of 3:30 PM EST) for the first time since 1997, now is perhaps an appropriate time to turn our attention to bankruptcy scholarship. To this end, a recent paper by Bob Lawless (IL) et al. warrants attention as it is among the first wave of empirical assessments of the recently reformed bankruptcy code. In Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, the authors report that:

"Contrary to the advocates' claim that high-income filers would be driven from the system and, by implication, that those remaining would have more modest incomes, the data show no change in the income levels of bankruptcy filers after the amendments. These findings thus cast doubt on the suggestion that those purged from the bankruptcy courts - approximately 800,000 in 2007 alone based on trend extrapolation - were high-income deadbeats; they instead appear to have been ordinary American families in serious financial distress. The data also show that debtors filing for bankruptcy in 2007 have even greater debt loads than their counterparts from 2001, a development that seems to track a national trend of increasing consumer debt. The findings thus align with at least two predictions of some legal scholars. The first is that the bankruptcy reform bill was not aimed at high-income abusers but was instead a general assault on all debtors, regardless of their financial circumstances. The second is that debtors are waiting longer - and incurring more debt - before ultimately seeking bankruptcy relief, consistent with the so-called "sweat box" theory of credit card lending."

Legal Aphorisms

Rulings should be "reasoned decisions, rather than decisions with reasons . . . ." (In re Rose (2000) 22 Cal. 4th 430, 468 [93 Cal. Rptr. 2d 298, 993 P.2d 956] (dis. opn. of Brown, J.),

Titmas v. Superior Court, 87 Cal. App. 4th 738, 741 (Cal. App. 4th Dist. 2001)

This founds profound, and I sense that there is a distinction here, but I'm not sure that there is a difference between a "reasoned decision" and a "decisions with reasons," except that you like the former better than the latter.

Lawrence Tribe: Bad on Constitutional Law, Bad on Physics

Cosmologist Frank Tipler criticizes Lawrence Tribe's recent effort to criticize strict constructionism as hopelessly "Newtonian."

Isn't the problem that this is exactly the silly kind of post-modernist B.S. exposed by the Sokal Hoax.

First Amendment News

This is the The California Supreme Court's decision in North Coast Women's Care Group v. Superior Court. The court sums up its holding as follows:

Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.

The case grew out of the trial court's grant of summary adjudication as to the thirty-second affirmative defense, which pled that the defendant medical group's refusal to inseminate a lesbian - purportedly motivated by the fact that the lesbian was a lesbian as opposed to unmarried - was "was protected by the rights of free speech and freedom of religion set forth in the federal and state Constitutions." The trial court's grant of summary adjudication was "writted" by the defendant to the Court of Appeals, which overturned the summary adjudication on that defense. The Supreme Court then overturned the Court of Appeals, thereby reinstating the trial court's decision.

Got that?

The California Supreme Court dispensed with the challenge under the Federal Constitution on the grounds that the law was one of general, neutral application:

But then in 1990, in Smith, supra, 494 U.S 872, the high court repudiated the compelling state interest test it had used in Sherbert, supra, 374 U.S. 398, and in Yoder, supra, 406 U.S. 205. Instead, it announced that the First Amendment’s right to the free exercise of religion “does not relieve an individual of the 9 obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” (Smith, supra, at p. 879.) Three years later, the court reiterated that holding in Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531 (Lukumi), stating that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

Thus, under the United States Supreme Court’s most recent holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector’s religious beliefs.

The court refused to grant a "conscience exemption" under the state constitution on the grounds that under "strict scrutiny" standards, requiring all physicians to comply with state non-discrimination laws furthered an "important governmental objective" in the "least restrictive" way:

Presumably, for defendants to comply with the Unruh Civil Rights Act’s prohibition against sexual orientation discrimination would substantially burden their religious beliefs. Yet that burden is insufficient to allow them to engage in such discrimination. The Act furthers California’s compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal.

The court suggests that religious scruples might be handled as follows:

To avoid any conflict between their religious beliefs and the state Unruh Civil Rights Act’s antidiscrimination provisions, defendant physicians can simply refuse to perform the IUI medical procedure at issue here for any patient of North Coast, the physicians’ employer. Or, because they incur liability under the Act if they infringe upon the right to the “full and equal” services of North Coast’s medical practice (Civ. Code, § 51, subd. (b); see id. §§ 51, subd. (a), 52, subd. (a)),defendant physicians can avoid such a conflict by ensuring that every patient requiring IUI receives “full and equal” access to that medical procedure though a North Coast physician lacking defendants’ religious objections.

On the one hand, this decision is not overly surprising, although it is problematic. The U.S. Supreme Court has been following the notion for years that laws of general application are not subject to a religious scruples exception. We can see the motivation for this kind of rule in the drug area - if drug pushers can claim a special religious exemption, and courts are not permitted to check the sincerity of the putative religious belief, what are we left with except anarchy?

But the rule is problematic. A general rule that everyone could be required to testify as to their conversations without a religious exception would be a tremendous infringement of relgious freedom for Catholics. That would be a kind of tyranny and antithetical to the reason why religious liberty is protected, i.e., for the peace of the community.

The California Supreme Court's application of the strict scrutiny standard is just lame, and very frightening. When I was in law school, no attempted limitation of speech ever passed strict scrutiny standards. Courts always found ways in which their might be "less restrictive alternatives", such as more speech.

In this case, however, the California Supreme Court finds that there is no less intrusive way to see that lesbians get inseminated other than by requiring a violation of conscience?

Does that make sense? How about requiring pulbic health agencies to perform this service? Or paying lesbians to travel to places where the service is provided? Certainly these things would be inconvenient, but if we are talking about religious conscience, which is expressly protected in the Constitution for good reason, a mere statute - which is what the Unruh Act is - shouldn't be allowed to trump constitutional protection.

After that was what the Supreme Court was saying last month in the Gay Marriage case, namely that a statute passed by referendum couldn't stand up against a newly minted constitutional right.

Moreover, isn't the court playing fast and loose with the costs that not protecting constitutional rights has on the people involved. Hence, last month in the Gay Marriage case, the "less restrictive alternative" in the form of the Domestic Partnership law passed by the legislature was inadequate because the the "stigma" imposed on gays was too compelling.

This month, the court can't think of a less restrictive alternative, but can't fathom why someone with a religious conscience might feel stigmatized by being compelled to violate his or her conscience.

So, once again, we see that there is a hierarchy of constitutional rights, and that rights which are mentioned in the relevant constitutions, such as that of freedom of religious conscience, run a distant second to those which aren't.[Fn. 1]

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1. Interestingly, the Court leaves open the possibility of the doctors defending themselves on the basis that their religious scruples do not permit them to inseminate unmarried women. The reason for this seems to be that the Unruh Act - unlike California's Fair Employment and Housing Act - does not make "marital status" a protected class, in which case the doctors defense would be that they were not motivated by the plaintiff's protected status; they could just as easily defend themselves by saying that the wouldn't do artificial inseminations on blondes or short women.

Case Note

I was going to file this one under "if only unpaid Pentacostal pastors could get married", but there are some interesting evidentiary issues in People v. Mario Antonio Bautista.

Bautista was an unpaid Pentecostal pastor and leader of an independent Pentecostal church in San Jose. He was convicted of, inter alia, sexual penetration of a person unconscious of the nature of the act. (In a nutshell, Bautista claimed that he was "checking the virginity" of minor females as part a "professional purpose" designed to disguise the true nature of his actions.(Life is weirder than fiction.).)

The evidentiary issue is that the trial court allowed the prosecution to inquire into defendant's and defendant's churches religious beliefs insofar as those beliefs explained the defendant's conduct and the victim's delayed reporting of the crime. "The constitution does not erect a per sea barrier to the admission of evidence concerning one's beliefs and associations...simply because those beliefs and assocations are protected by the First Amendment."

Another weird note: Bautista was an immigration attorney and was disbarred following his conviction.

Proving the rule that pastors and/or their wives get one free murder.

Dr. Helen notes that Mary Winkler received custody of her victim's children:

Killer Mary Winkler gets her kids back. I have no words to describe how unfair the justice system is towards men who are slaughtered by their wives.

According to Glenn Sacks:

Mary Winkler--who shot her husband in the back and then refused to aid him or call 911 as he slowly bled to death for 20 minutes--walked away a free woman last year after serving a farcically brief "sentence" for her crimes.... Mary Winkler was granted supervised visits with her daughters last year. Now, sadly, she has gained back custody of the three girls....

Mary Winkler’s claims of abuse were largely uncorroborated during the trial. According to the testimony from Matthew Winkler's oldest daughter, Patricia, the dead father--who as he lay dying looked at his wife and asked "why?"--was a good man and did not abuse her mother.

Vox Day remarks

It won't surprise me in the least if one or more of those girls eventually elects to avenge her father's murder. The situation certainly seems to cry out for that sort of remorseless Greek nemesis. And why shouldn't the girls feel free to take justice into their own hands, when being female grants a license to kill in Tennessee?

This was an outrageous case, but I don't think that we can factor out the sympathy Winkler got as a pastor's wife. I have in mind the Hurth case in Fresno, where a Baptist pastor and police chaplain was acquitted of murder for handcuffing and killing the husband of his lover and then cleaning up the evidence. I suspect that in some communities there is a buried assumption that such people really can't be murderers.

A "Practice Tip" Moment

If you are looking for a "form" product liability complaint for cases involving "defective thong underwear," look no farther.

I recall that Penner defended a product liability action involving a bathroom plunger, a shower and a highly improbable impalement.

These things happen.

But why make them part of the public record?