Likelihood of Success

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Archive for the ‘Lex scripta’ Category

Cooking lawyers alive

Posted by Ron Coleman on July 1, 2008

O’Connor federal courthouse

Originally uploaded by Ron Coleman

Yesterday I was here, in the stupidestly-designed courthouse on God’s brutally-baked brown desert earth — the Sandra Day O’Connor Courthouse in sunny Phoenix, Arizona. It is truly a marvel of arrogance. Imagine being so utterly uninterested in anything besides how you’d like your box of Erector Set pieces to look like at the award ceremony that you design a massive building, meant for human habitation, that is actually a gigantic greenhouse that grabs scorching-hot sunbeams from one of the hottest atmospheres on the continent and just plays them across a massive, uncoolable interior atrium.

This monster has an evil twin in my own neighborhood, named after the entirely more prosaic former U.S. Senator and ur-fixer Alfonse D’Amato, in his home turf in Long Island. The U.S. courthouse for the Eastern District of New York is every bit as soulless and unconnected to how people use built space. Like the Arizona torture chamber, this one features cold, ornament-free, angular hard white spaces, a soaring atrium and a complete denial of the human spirit. Both feature vast plazas requiring five minutes of walking from the curb to the front door that, when shown on the architect’s drawings, must have depicted lunchtime building workers gaily eating their lunches, taking in the sun, flirting and strumming guitars — a true communitarian dream in federal jurisprudential space, and far enough from any possible truck bomb to make those shared moments entirely carefree.

But no has ever relaxed in either one of these plazas. The one in Central Islip is too windblown to hang out in, the D’Amato tower truly epitomizing the concept of a white elephant as the only building of its scale for what must be 20 miles all around — a largely empty monument to federally funded megalomania. On almost any day the sun beats off the bright white surfaces so intensely that polarized lenses are de rigeur and blinded lawyers quickly scurry across the plaza through the revolving-door entrance and into the heartless, icy lobby. But this same formula truly amounts to a miniature Judicial Conference death valley in Phoenix. Read the rest of this entry »

Posted in Americana, Lex scripta, Style, Suburbia, Uncategorized | 5 Comments »

Search on for homely, unkempt receptionists who don’t eat

Posted by Ron Coleman on June 24, 2008

“Asking for Coffee Not Grounds for Sex Harassment Suit”:

[Judge Berle M. ] Schiller found that plaintiff Tamara Klopfenstein failed to allege even a prima facie case of sex discrimination because she cannot show that she was treated differently from any “similarly situated” male employees since there was only one receptionist in the office and the job had always been held by a woman. . . .

Plaintiffs attorneys . . . said in an interview that they intend to appeal the ruling, and that Schiller erred by failing to recognize that some tasks are “inherently more Immaculate receptionoffensive to women.”

Not that there’s anything circular about that. If the plaintiff were to win such an appeal, it would amount to a ruling that by virtue of a job usually being done by women, it is inherently offensive to ask women to do it.

Such a ruling would surely do wonders for women’s employment prospects. Did President Clinton have any idea a person who would pass up the opportunity to craft such a doctrine was his nominee for this federal judgeship back in 2000? When are we going to break free of these sexist chains? Man, just wait till the next time someone asks me to move a refrigerator.

And it wasn’t just the coffee that stained Klopfenstein’s experience at this shop:

According to court papers, Klopfenstein worked for six weeks as a part-time receptionist and data entry clerk. In her suit, she claims that the office environment was tinged with sexism from the very beginning when a vice president of the company made a note after her initial interview that she “looks nice, dresses well.”

Well, who would want that in a receptionist?

After just a few weeks on the job, Klopfenstein claims that a male co-worker invited her to lunch in an e-mail that said “I feel bad you have been working here for a couple of weeks and we haven’t gotten to know each other yet.”

In her deposition, Klopfenstein testified that she found the invitation “very offensive” because “there is no reason why a man and a woman should go out to lunch together without any other party around. To me that’s a date.”

Being asked to lunch — “very offensive” indeed! And the guy actually was going to make everyone else leave the restaurant! Please, do we have to connect the dots?! Yet the law would not take notice.

Okay, I know what you’re wondering, but you’re afraid to ask. Given all this offensiveness and tingeing, I can hardly blame you, but I’m here to bring it all on home. What you want to know is: Judge Berle M. Schiller… uh, what kind of name is that? “Berle”?

It’s a boy’s name. (Hat tip to Overlawyered.)

UPDATE:  Similar thinking from Classical Values (via Glenn).

Posted in Americana, Lex scripta, Sisyphus | 5 Comments »

Attention counsel — man your ambulances

Posted by Ron Coleman on June 22, 2008

A high-achieving but highly stressed type-A overweight middle-age man drops dead from a massive heart attack in his place of work — so it must be someone else’s fault!

Posted in Lex scripta, Sisyphus | Leave a Comment »

Fakeout

Posted by Ron Coleman on June 18, 2008

I wrote a piece about Chinese intellectual property reform at LIKELIHOOD OF CONFUSION® that readers of a more political and less legal bent may find interesting.  So go read it!

Posted in Gelt, Lex scripta, Oppression | Leave a Comment »

Judge grants himself raise, appoints himself king

Posted by Ron Coleman on June 11, 2008

The New York Law Journal:

Manhattan Supreme Court Justice Edward H. Lehner today gave the Legislature and Governor David A. Paterson 90 days to adjust the pay of the state’s 1,300 judges to reflect the rise in the cost of living since their last raise nearly 10 years ago.

Justice Lehner found that the Legislature and the governor had “unconstitutionally abused their power” by neglecting to raise judicial pay. He concluded in Larabee v. Governor, 112301/07, that the executive and legislative branches had violated the separation of powers doctrine by linking judicial pay to extraneous legislative issues such as raises for the legislators themselves and campaign finance reform.

Wow. It’s good to be the king!

The objection here, obviously, comes precisely from the concept of the separation of powers. I have not read the opinion, but it is astonishing to suggest that a judge can make a policy decision as to judicial pay — his own salary — and call what may very well be a very poor, an awful, a scandalous policy, “unconstitutional” as a basis for ordering a legislature to make what is obviously a legislative decision: Setting the pay of state employees, whether they wear robes or not.

Let’s see how this plays out. Considering that this litigation strategy has been more than endorsed by the Chief Judge of New York State, Judith Kaye, it’s hard to imagine how this judicial coup d’etat can be stopped.

On the other hand… what if the legislature doesn’t “obey”?

New York State seems to be on its way to achieving banana republic status.

Posted in Lex scripta, Oppression, Politics and Poker | Leave a Comment »

Lamp and portal

Posted by Ron Coleman on June 6, 2008

Door to judge’s chambers, Newark historic courthouse

Originally uploaded by Ron Coleman

The door to a judge’s chambers in the restored Newark historic courthouse. Note the fasces on the lintel.

Posted in Americana, Ars Longa, Lex scripta, Metropolis | Leave a Comment »

Baseball whiffs

Posted by Ron Coleman on June 2, 2008

You’re outta here!

Major League Baseball and the players association struck out on Monday when the U.S. Supreme Court rejected their appeal of a ruling that sided with a company that uses player statistics for fantasy baseball.

The high court declined to hear the appeal of a lower-court ruling that a St. Louis-based company called C.B.C. Distribution and Marketing Inc. has a free-speech right to use the names and performance statistics of famous athletes.

So, that’s that, right? Uh…

After the Supreme Court refused to get involved in the dispute, a spokesman for the players union said, “We’re considering our options.” Officials from Major League Baseball declined to comment.

The only “option” would seem to be the gift of legislation, awarding Baseball unprecedented rights to control names and numbers and what people do with them. Heck, Hollywood gets these kinds of things all the time — they’ve extended copyright until forever, after all. Why can’t Baseball have “such a”?

Or is Senator Spector, looking for a pastime and finding professional sports a fertile field in which to seek some latter-day political relevance, maybe going to be a… problem for the billionaires of baseball?

Cross-posted on LIKELIHOOD OF CONFUSION®.

Posted in Americana, Gelt, Lex scripta | Leave a Comment »

AP Blues

Posted by Ron Coleman on May 18, 2008

Steve Boriss on the Associated Press:

Marshall Field III, grandson of the founder of the department store of the same name, also challenged the AP monopoly with mixed results. He tried to launch the Chicago Sun in 1941, but struggled because AP member Chicago Tribune blocked his membership, freezing him out of the ultra low-cost news available to members. Field took his case all the way to the U.S. Supreme Court, which found the AP in violation of the Sherman Anti-Trust Act. The Court in its decision quoted legendary appellate judge Learned Hand, who wrote of the dangers of AP’s monopoly: “In the production of news every step involves the conscious intervention of some news gatherer, and two accounts of the same event will never be the same. … For these reasons it is impossible to treat two news services as interchangeable, and to deprive a paper of the benefit of any service of the first rating is to deprive the reading public of means of information which it should have; it is only by cross-lights from varying directions that full illumination can be secured.”

Unfortunately, the AP’s legal defeat led to no discernible increase in competition among newspapers. Not a single, financially viable paper has been launched in the more than 60 years since the decision.

But the real problem is not the number of newspapers we now have, but that they refuse to compete with each other, a symptom of the AP-created culture of collaboration over competition. For example, in any other business, if there were a highly successful paper in one city, it would be natural for it to expand to a nearby city to dethrone the leader. But as members of the same AP network, papers assume their cities belong to them, and no other member has the right to invade it. Even if a neighboring paper did invade, the AP network makes it nearly impossible for them to succeed through competition because all papers are essentially running the same stories anyway.

The end result of the AP network has been the creation of a news supply chain that reliably turns out monolithic, center-left news. Each evening, the New York Times and Washington Post coordinate their stories, creating what is erroneously referred to as the “national conversation,” but is really how the world looks to editors writing for audiences in the nation’s liberal centers of money and power. These stories are then slavishly followed by the TV networks, spread by the NY Times, Washington Post, and AP news services to metro papers, whose stories are, in turn, slavishly repeated by local TV stations.

This AP-supported journalism culture deprives Americans of their birthright as codified by the Founding Fathers.

Very, very interesting. Still, I wish he had cited that part of the “code,” because I am not sure where a right to monopoly-free newspapering is written in the Constitution (he did say “Founding Fathers”).

I think the AP is despicable for a lot of reasons, too, but I’m a little surprised a libertarian law professor such as Glenn Reynolds, via whom I found this link, doesn’t enunciate either a constitutional argument to buck up Boriss here, or a free-market defense of the application (successful or otherwise) of antitrust law to a First Amendment protected activity such as reporting.

What I’m getting at here is that I don’t quite understand the political economy of Pajamas Media in this article in terms of what I thought it was in general, except that, well, yes, we righties hates the AP. Can’t we do better than that?

Cross-posted on Right Wing News.

Posted in Lex scripta, Medialites | 3 Comments »

Happy marriage in sunny California

Posted by Ron Coleman on May 15, 2008

Instapundit:

CALIFORNIA’S SUPREME COURT STRIKES DOWN the state’s ban on gay marriages. Did it just hand the state to McCain? Well, possibly.

Personally, I favor gay marriage, but I think it would be much better if it were adopted through political, rather than judicial, channels — though I realize that some would call that a distinction without a difference where California is concerned. . . .

I had been saying the same thing on Dean’s World most of last year (and would link to that chain of posts but, alas, there’s not such thing any more on that blog — here’s one ), except the favoring part. The next step, of course, is the proposal in California of a constitutional amendment to reverse this decision (since the Cali court claims to act under constitutional color), and, depending on California’s procedure for making a constitutional change, myriad legal, political and judicial attempts to keep that off the ballot and at all costs prevent the occurrence of democracy … the whole tiring, usual thing that has played out everywhere.

It’s kind of like the revenge of Rose Bird!

Posted in Lex scripta, O Mores!, Uncategorized | 6 Comments »

Votes don’t grow on trees

Posted by Ron Coleman on April 28, 2008

Instapundit:

SUPREME COURT UPHOLDS Indiana’s voter ID law: “The Supreme Court has ruled that states can require voters to produce photo identification without violating their constitutional rights.” Seems reasonable to me.

Amazingly, it didn’t to three justices.

Why do I have a feeling — without the decision being available yet — I can guess who they [Souter-Stevens-Ginsberg-Breyer] are?

UPDATE: Stevens actually wrote the majority opinion, interestingly.  Jack Balkin writes:

In Crawford v. Marion County Election Board, the Supreme Court continues a trend of using technical doctrines of facial challenges to swat away constitutional litigation and drive questions back to the political process. Whether you think that is a good or a bad thing depends on your view of whether the Indiana legislature was essentially limiting access to the ballot to certain classes of voters in order to help the Republican Party stay in power. If you think that the political process will take care of enfranchising these voters, you need not worry too much about the result. If, on the other hand, you think that the political process is being used to build in advantages for one party over another, there is greater reason to be concerned.

That’s his first paragraph, his topic paragraph. He uses the word “constitutional” once, and never in a substantive way. In other words, Balkin does not like the policy of the U.S. Supreme Court. But he doesn’t seem to have much of a constitutional or legal argument — spot the word “technical”? — to make.

Posted in Lex scripta, Oppression | 2 Comments »