A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.

Saturday, February 21, 2004

No meal reimbursement for work on Christmas Day

This exchange is so sad, for so many different reasons.

Friday, February 20, 2004

Legal writing in Rush Limbaugh case...

Thanks to Criminal Appeal for this pointer.
Capitalism meets Christ

I am a Christian and I am a capitalist. But this makes me sick:

"Replicas of the nails used to hang Jesus on the cross have become the red-hot official merchandise linked to Mel Gibson's controversial new movie, "The Passion of the Christ."
Pendants made from the pewter, 2 1/2-inch nails - selling for $16.99 - all but flew out of the Christian Publications Bookstore on West 43rd Street as soon as they were put on display.

"Hundreds of stores across the country will be selling licensed items tied to the movie, a graphically violent depiction of the last 12 hours of Christ's life, which opens next week on Ash Wednesday.

"The souvenirs include a book, pins, key chains, coffee mugs and T-shirts.

Instead donating more money to one of the many deserving charities, these consumers are wasting money on trikets, junk, and other possessions of this world.
"Getting More from Google"

If you are a googlephile, you will enjoy this article. (Requires free registration to the MIT Technology Review. With a smart-sounding title like that, who wouldn't register).
Dead, but not forgotten

See this post at Legal Fiction for an example of Aristotle's Rhetoric to the Edwards and Kerry campaigns.

Every post I have read at Legal Fiction is intelligently written (And I say this even though I often disagree with 'em).
A new blog

From what I can tell, Criminal Appeal kicks ass.
Ex Enron CEO indicted

here.Jeff Skilling's lawyer is Daniel M. Petrocelli, a highly respected civil litigator. Petrocelli was lead council in the Simpson civil trial. I read his closing argument in that trial. His closing argument was among the best I have ever seen. The government has their hands full. One more reason to never be charged with a crime until you are very, very wealthy.
Breath out, start up.

CrimLaw links to an article discussing the New Mexico legislature's attempt to require all cars to have a device that requires the driver to blow into a breatalyzer before the ignition would start.

My hunch is this law would be invalid under the Dormant Commerce Clause as a undue burden on interstate commerce. I also think it would be invalid under a theory of field preemption due to the extensive involvement of the federal government.

Wednesday, February 18, 2004

The New Federalism?

ALAFAIR BURKE has a Findlaw column examining Sabri v. United States.

The United States surprised her (and me) when it argued that Congress had the power to enact the federal program bribery statute (18 U.S.C. 666(a)(2)) under the Necessary and Proper Clause.

Tuesday, February 17, 2004

Political advocacy in action - the filibuster that never was

I imagine someone could write an interesting human-interest piece about the Democrat filibusters of conservative nominees. What was it like for Miguel Estrada to be denied an up-or-down vote? How did his family feel seeing his integrity questioned? Did he grow stronger or weaker as a result of the experience? Is he cynical?

And what about Doug Kmiec? An article on him would have to be called: "The Filibuster that Never Was."

***December 9, 2002***
A balloon is thrown...

Legal Scholar Is Considered for Court
"President Bush is considering naming Douglas W. Kmiec, the dean of the law school at Catholic University and a prominent social conservative scholar, to the federal appeals court based in Washington, administration officials said today."

***DECEMBER 10, 2002***
The special interest groups attack...

Alliance for Justice Statement on Douglas Kmiec
Statement of Nan Aron, President of the Alliance for Justice, Regarding Possible Kmiec Nomination to Court of Appeals
"Washington, DC — The Alliance for Justice expressed grave concerns over reports that the White House is considering Professor Douglas Kmiec for a seat on the U.S. Court of Appeals for the District of Columbia. Alliance for Justice President Nan Aron noted: "Kmiec's record reflects an ultra-conservative philosophy opposing a woman's right to choose, bipartisan civil rights legislation and regulations on property. He would be a very poor, divisive choice for the D.C. Circuit."
The D.C. Circuit, widely viewed as the second most-important court in the country because of its unique jurisdiction and location in the nation's capital, is currently made up of four Democrat and four Republican appointees, with four vacancies. President Bush has previously nominated D.C. lawyers John Roberts and Miguel Estrada to the court. Battles over vacancies on the D.C. Circuit during the Clinton years were heated, with some Senate Republicans arguing that the workload of the court was such that the 11th and 12th vacancies did not need to be filled. On September 24, 2002, Senator Jeff Sessions reiterated his opposition to filling more than ten seats on the D.C. Circuit. Nonetheless, the White House is reportedly considering nominations, including Kmiec's, to fill the 11th and 12th seat.
Kmiec has stated that the Civil Rights Act of 1991 was likely to create racial quotas and should be declared unconstitutional. He has submitted Congressional testimony that "Abortion is more than the killing, it is also the coarsening of the American heart . . . . [A]bortion undermines all life." Kmiec has also written that many property regulations are unconstitutional unless they provide compensation to the property owners-a view that calls into question key environmental laws such as the Clean Air Act and the Clean Water Act.
Responding to rumors of Kmiec's nomination, Aron said, "not only would Kmiec's nomination fly in the face of Senate Republicans' own assertions that an 11th judge on the court was not necessary, it would make a mockery of administration pledges of conciliation and cooperation and of President Bush's claims to be a `uniter not a divider.' It would be further evidence that this administration is intent on packing the courts with ultraconservatives, in direct contravention of the interests and will of the American people."

***DECEMBER 12, 2002***

The "mainstream" media begins throwing mud. [Do we really care if the guy put D.C. plates on his car within 30-days of his moving from California to D.C.? Even I don't care, and I am pretty intolerant of inconsistencies.]

Judge Scofflaw?

"After the New York Times claimed Tuesday that Catholic University Law School Dean Douglas W. Kmiec is on President Bush's short list for a coveted seat on the Washington federal appeals court, one of Kmiec's Northwest D.C. neighbors helpfully pointed out to us that he keeps California plates on his cars."

***DECEMBER 19, 2002***

The "mainstream" media coincidentally argues that maybe we don't need any new judges on the D.C. Circuit. [Do a survey. Ask any federal judge you know if he or she is "underworked".]

How Many Judges?
Thursday, December 19, 2002; Page A40
"YOU MIGHT NOT expect that the question of how many judges a court needs would become a festering political problem. But how to staff the U.S. Court of Appeals for the D.C. Circuit is threatening to become just that -- again. The court, which is one of the most important in the country, has 12 authorized judgeships. But during the Clinton administration, Republican senators blocked qualified nominees to its 11th and 12th seats; its declining workload made additional judges unnecessary, they said. Now President Bush, poised to win confirmation of nominees John G. Roberts and Miguel A. Estrada to the vacant ninth and 10th seats on the court, wants to fill the additional slots as well. An ugly fight could await the nominees, whoever they turn out to be."

***DECEMBER 19, 2002***
In the Wall Street Journal, Kmiec asks in vain that you...

Judge Me By My Work, Not By My Faith
"Last week, the New York Times reported that President Bush was considering
nominating me to the U.S. Court of Appeals for the District of Columbia
Circuit. While many friends from my days in the Justice Department, former
students now practicing at law firms across the country, and sitting judges
wrote or called to encourage this development, a stark, inside-the- Beltway
question emerged from the report: Can an avowedly pro-life Catholic actually
serve on such court?"

[NOTE: I have the full-text of these articles. I do not know enough about Copyright to know if I can post them.]
Unauthorized practice of law in California


Commercial speech and Do-Not-Call

...case upholding the do-not-call registry is available here.
Via How Appealing.
Man serves 4-hour detention for daughter.

"On the morning of Friday January 30, Hatton said he decided it was too cold for his children to go to school that day. But the Lovington High School Handbook does not list "parental concern for a child's safety" as one of six excused absences in their handbook."
"Lovington High School Principal Kevin Van Meter said the Hatton's 16 year old daughter's absence was unexcused, and punished her with five days detention. He based the punishment on a provision in the Lovington High School Handbook which states, “The student will be considered truant for all unexcused absences. The student will make up all time for unexcused absences unless the administrator deems the absence to be unavoidable.”

The principal sentenced the daughter to a 4-hour detention. Her father is serving the sentence instead.

Can you see why so many of us hate(d) school?
I can't seem to spot the issue...

"Private sector lawyers are joining forces with the San Francisco city attorney's office to defend the city's move last week to issue same-sex marriage licenses."

The licenses were issues in violation of state law.

A political subdivision is subordinate to the state. Local officials may not violate state law. When the municipal employees issued marriage licenses, they violated the law. Period.

I am sympathetic to civil disobediance, especially when the protester willinlyg suffers the consequences of em's actions, as Thoreau did when he sat in a jail cell rather than pay his taxes.

It creates a different problem when city officials begin breaking the law. I spent last summer in San Francisco. I paid over $200 in parking tickets. (I recieved a $100 ticket for not having a front license plate on my car). I obeyed the law and paid my fine. Had I refuse to pay, the city would have placed a "boot" on my car.

Why must I follow the law when city officials themselves disregard the law? I am to the city what the city is to the state, namely, bound by the law.

By the way, has anyone else noted how this situation parallels former-Judge Roy Moore's putting up the Ten Commandments monument? Why has the illegal conduct of local officials not causes a similar media outcry?
Eugene wonders...

..about this story (where it seems a fellow was either wearing face paint to rob a house or face paint to make fun of dark-skinned people), "[I]ts suggestion that the real explanation (burglary) is less serious than the apparent one (blackface), strikes me as out of place, unless I'm picking up a subtext that isn't really there."

Could be the burglary was going to be a college prank. The facts say that the person wearing the face paint was a new inductee in a fraternity. Maybe he was going to "rob" another frat house.
Section 1983 case

"The appeals court found that while the Supreme Court has established a right under the 14th Amendment of mentally competent individuals to decline life-sustaining measures, that does not apply to patients like Pouliot who were never able to express their wishes."

What is most amazing is that the Second Circuit denied the AG's claim of absolute immunity for their acts. See page 12 of the slip opinion for an excellent discussion of the immunity doctrines in Section 1983 cases.

The case is Blouin v. Spitzer (02-7997) and it was decided on 02/02/04.
DOJ Reading Room

I am not sure if I posted this yet. Anyhow, here is a link to the DOJ reading room, where it's top-notch AUSA manauls are available for public study.
Martha stewart and phone logs

See the Smoking Gun for another reason to remember: it is almost always easier to explain the truth, than to explain why you lied about the truth.
In a job market where many students can't find jobs...

...law firms are having an overly difficult a time enticing the top students. The solution?

"After fielding complaints from a number of large law firms, a task force at the National Association for Law Placement has recommended shortening the time in which law students have to respond to employment offers."

I'll file this under "Reasons for hating the arrogance of those in the law profession" file.

Monday, February 16, 2004

Handy dandy federalism quotes

"[T]he constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated. This principle, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. Gibbons v. Ogden, 22 U.S. 1, 33 (1824).
(footnotes omitted)


“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961).


“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).


“[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). United States v. Morrison, 529 U.S. 598 (2000).


“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.” Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991).


I have dozens more if you care to see them.
The Feeney Amendment. Part I. Sex Crimes.

Below please find some of my notes on the Feeney Amendment. If you have any other questions, I can e-mail you a draft of a paper that, by the way, will be included in the CLE materials of a national bar association. I am not yet sure who will hold the copyright. And so I refrain from posting the entire document online. Indeed, what follows are notes taken from the paper using different language and syntax than in the draft for publication.

There is no express or implied warranty of habitabiliy. This is also not legal advice.

Sex Crimes

In all cases brought under 18 U.S.C. §1201 involving minors, and all offenses committed under §1591 or Chapters 71, 109A, or 117, of Title 18, several changes apply.

A judge may not issue a downward departure (Ed Note: I don't care about upward depatures.) based on an unenumerated circumstance. U.S.S.G. §5K2.0(b)(1). An unenumerated circumstance is one that has not been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines." Id. and Application Note. Departures are proper only if based on factors articulated in Chapter 5, Part K. U.S.S.G. §2G2.2(b)(5)(A)-(D).

There are several factors that the sentencing court may no longer rely upon. Age may be used as a factor to downward depart only to the extent that age may be used under 5H1.1. An extraordinary physical impairment is relevant for a downward departure only to the extent that physical condition may be relied upon under 5H1.4. Aberrant behavior is no longer a proper reason for a downward departure. Family ties and responsibilities are never a reason for a downward departure. United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) is therefore overruled. This amends 5H1.6, which provides that family ties are not ordinarily relevant. Gambling dependence is no longer a factor a court may consider as a for a departure. 5H1.4.

Chapter 4, Part B1.5, Application Note 4(b)(i) changes the definition of pattern of sex crimes: now two or more sex acts with the same minor is a pattern of sexual misconduct. Previously, two separate offenses against two separate victims were required to qualify the defendant for a 4B1.5 base level increase.

The defendant will be subject to a 4 level enhancement if convicted with material depicting minors engaged in sadistic or masochistic acts. 2G2.2(b)(3)

There is now a sliding scale for a base level increase in cases involving multiple pornographic images. U. S.S.G. §2G2.2(b)(6)(A)-(D). Ten to 150 images will subject the defendant to a 2 level base increase. U.S.S.G. §2G2.2(b)(6)(A). From 150 to 300 images will subject the defendant to a base level increase of 3. U.S.S.G. §2G2.2(b)(6)(B). From 300 to 600 will subject the defendant to a 4 level increase. U.S.S.G. §2G2.2(b)(6)(C). A defendant found with 600 or more images will have his base level increased by 5 levels. U.S.S.G. §2G2.2(b)(6)(D).

The Post-Feeney Guidelines are available here.

McNab v. United States, or: Why I like it when rich people get charged with crimes.

How Appealing posts links to McNab briefs here.

Miguel Estrada is council for petitioner. Seth Waxman (Solicitor General during the Clinton administration) is amicus in support of petitioner.

Whatever the Supreme Court decides to do in this case, at least we can sleep well knowing that it was handled by the best.


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