February 18, 2008
Happy Birthday, Washington!
My Hallmark calendar announces today as Presidents’ Day (as do so many commercials–what do presidents have to do with kitchen appliances anyway?), but The Code (not the one that includes parlay) considers today the observance of only one president’s birth: Washington. See 5 U.S.C. 6103(a), which lists the following federal holidays:
The following are legal public holidays:
New Year’s Day, January 1.Birthday of Martin Luther King, Jr., the third Monday in January.Washington’s Birthday, the third Monday in February.Memorial Day, the last Monday in May.Independence Day, July 4.Labor Day, the first Monday in September.Columbus Day, the second Monday in October.Veterans[*] Day, November 11.Thanksgiving Day, the fourth Thursday in November.Christmas Day, December 25.
Perhaps its best, as all presidents are not equally honorable, and few could dispute Washington’s grace and leadership. A tip of the hat to loyal reader and code aficionado, Prawnik!
* Why isn’t this punctuated Veterans’ Day?
February 13, 2008
The Historical Record
I am a bit pressed for time today, but just thought I would share this fun link of trials with you. The website chronicles famous trials: from Socrates to Jesus to Thomas More to Nuremberg to Moussaoui.
A tip of the hat to my dear husband who manages to find all sorts of things using this magic box (as one of my older professors used to call the laptops that had begun to invade his classroom).
February 12, 2008
Why Every Business Needs Employees With A Decent Liberal Arts Education
To avoid problems like this. A store unwittingly marketed a child’s bed under the name “Lolita,” title of the infamous 1955 novel by Vladimir Nobokov. Once notified, the naive store employees turned to, of all sources, Wikipedia, to verify the problem. *Sigh*
Kudos to any commenter for proposing other potential marketing snafus. Linens by Iago? Fur coats by Aslan?
February 11, 2008
Word in Context: stochastic
This one again comes from the pen (keyboard) of Chief Judge Easterbrook in a concurrence to an opinion drafted by then-Chief Judge Flaum. The majority opinion (joined by Judge Bauer) upheld a line of cases in the Seventh Circuit allowing district courts to deny an award of costs to the prevailing party based on the other party’s indigence, but remanded the case for the district court to make clearer findings regarding the indigence of this particular losing party (including her future inability to pay). Judge Easterbrook would rather award costs automatically, and leave issues of indigence to the bankruptcy courts. He concurred, however, because he considered the issue best left to the Supreme Court to resolve because of a circuit split. He explains:
Making the award of costs routine has three additional benefits: (a) It avoids the expense of suit-by-suit inquiries into indigence, which as this case shows may be complex. Why replicate a bankruptcy proceeding just to decide on an award of costs? (b) It avoids false positives. Some people who claim to be indigent aren’t. Indeed, the very assertion “I’m indigent, so please excuse me” implies solvency. Why seek to avoid an award that, if you are destitute, cannot harm you? (A pauper who fears that the award could be collected from future income may have it discharged in bankruptcy.) (c) It avoids disparate treatment of identically situated litigants. District judges differ substantially in how they use the discretion this court’s decisions give them. Some regularly excuse costs for indigents; some never do; some draw hard-to-articulate lines. Rights measured by the chancellor’s foot are not “rights” of any kind, and such a stochastic process is not the administration of justice. We need rules that apply in an even-handed fashion.
Rivera v. City of Chicago, 469 F.3d 631 (7th Cir. 2006) (Easterbrook, J. concurring). Stochastic means characterized by randomness or conjecture and the term is used in statistics. The Chancellor’s foot seems to originate from this quote from English jurist John Seldon (1584-1654):
Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’T is the same thing in the Chancellor’s conscience.
To paraphrase in the words of Dr. Seuss (which I read a lot of lately . . . ): “How many different feet you meet!”
February 8, 2008
Tectonic States
Georgia’s legislature recently passed a resolution to move its northern border one mile further north, essentially invading Tennessee! At stake are riparian rights to Nickajack Reservoir, which parched Georgia seeks.
If Georgia acts on the resolution, litigation would doubtlessly follow. Interestingly, it would provide a rare instance for the Supreme Court to exercise original jurisdiction over the matter. (That is, the states could bring the case directly to the Supreme Court without going through the district or appellate courts.) Article III, section 2 of the Constitution reads in relevant part, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” 12 U.S.C. 1251 further provides that “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States,” but in all the other options from section 2, the Supreme Court has “original but not exclusive jurisdiction.”
The exercise of original jurisdiction by the Supreme Court is relatively rare, so the prospect of such a case is exciting, at least to this court watcher!
February 6, 2008
Ashes to Ashes
Today begins our forty days in the desert to prepare for Easter.
Remember you are dust and to dust you will return.
Today is Ash Wednesday, a date that appears on my Hallmark calendar along with Groundhog Day and Presidents’ Day. I find it curious that the beginning of the season of Lent has wound its way into the culture while so many other feasts have not. (For example, neither the Feasts of the Assumption nor the Immaculate Conception make the calendar cut, although both are holy days of obligation, unlike Ash Wednesday.) Perhaps it is because of the outward sign of the imposition of ashes.
For most of my life, I have spent Ash Wednesday in a Catholic environment. One year when I was not, however, proved the most memorable observance to date. As a graduate student at the University of Texas at Austin, I occasionally went to daily Mass at a chapel that ministered to students on the campus. I attended the packed noon Mass on Ash Wednesday, and returned to my office to sit vigil for the sparsely attended office hours (except before an exam!) that I diligently offered. A student did appear to chat and ask a few questions, and I noticed his furtive glances at my forehead. He finally awkwardly (but kindly) informed me that I had some stuff on my face. Surprised, I fumblingly explained that as a Catholic I had received the imposition of ashes to mark the beginning of Lent and to remind me of my mortality. It was one of the few times I felt set apart as a Catholic. For the remainder of the day, it was interesting to walk through the department and campus and see those who were marked. A few unknown students stopped me as I crossed the quad later in the day to ask where they might get ashes or find Mass. The occasion seemed to foster unity among those marked with the ashes, while simultaneously setting us apart from the others. I am too young to remember when all Catholics abstained from meat on Fridays, but I imagine a similar solidarity existed among the fish eaters. (Our family has returned to the tradition of abstaining from meat on Fridays throughout the liturgical year, as do many of our friends, but it is far from a universal Catholic practice these days, and probably (possibly?) not required under current canon law.)
For the rundown on all the Lenten rules and controversies, check out this great website.
February 5, 2008
Super Mardi Gras
Just in time for Super Tuesday and Mardi Gras, the Federalist Society released a print debate on judicial philosophies of the current presidential candidates here. So far, only two Republicans (McCain and Romney) have participated.
(UPDATE: Huckabee and Paul have submitted responses too.)
I hope everyone out there can enjoy a paczki while watching the delegate count tonight. Indulging in paczki is a great annual treat, but why not invest in a paczki bobblehead to enjoy all year round? Available in three different scents. (Anybody else rather frightened by the fuzzy smelly paczki toys?)
A Tribute to Judge Selya from a Former Clerk
A former clerk to Judge Selya, a senior judge on the First Circuit with a penchant for using neglected words, penned this tribute to his judge (and his judge’s vocabulary) recently in the National Law Journal. In one brief anecdote (my favorite from the article), the clerk recounts how he managed to work “crapulous,” a word he gleaned from a page-a-day calendar, into an opinion. Crapulous means suffering from excess food or drink, making the word a bit trickier to place than one might initially think (since decorum and proper usage would preclude simply referring to the crapulous briefing . . . ). Fortunately, Judge Selya had the opportunity to decide a case involving a bar serving a noticeably crapulous customer.
My previous posts about Judge Selya can be found here and here. A tip of the hat to one of my regular lurkers out there for pointing this article out to me!
February 4, 2008
Blade Runner
On Friday, a jury convicted actor Wesley Snipes (a.k.a. Blade the Daywalking Vampire Slayer–I confess I have seen all three of those movies!) on failure to file tax returns (for three of the six counts charged), and acquitted him of tax evasion and conspiracy. It appears that the jury found that Snipes acted in good faith, a defense to the intent requirement. I have not followed the trial closely, but it looks suspiciously like jury nullification to me, even though the jury convicted the non-celebrity co-defendants, the promoter and the accountant. Unfortunately, this verdict only bolsters the crazy tax-protester movement for which I have little sympathy. Furthermore, with a jury verdict like this, I do not imagine the prosecutor has many options for an appeal given the deferential standard of review applied to a jury verdict.
I will be interested to see what the judge does at sentencing; with the guidelines now being advisory, the judge could depart upward. I would think Snipes would be making arrangements to pay back taxes to show some remorse to the judge in an attempt to avoid jail time, but that is just my speculation. Judge William Terrell Hodges is a Nixon appointee who assumed senior status in 1999.
Here’s a link with a bunch of the documents in the case. The “Wesley Snipes'[s] Anti-Tax Manifesto” is a particularly interesting sample of the pro se genre of legal filings.
February 3, 2008
Word in Context: cavil
This one comes from Judge Posner:
A motion to alter or amend a judgment is deemed filed under Rule 59(e) of the civil rules, which tolls the time for filing an appeal from the judgment, if the motion is filed within 10 days after entry of the judgment, which means after the Rule 58 judgment order has been docketed. Fed. R. Civ. P. 58(b)(2); Laborers’ Pension Fund v. A & C Environmental, Inc., 301 F.3d 768, 775 n. 5 (7th Cir. 2002), Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 92 (2d Cir. 2003). It is deemed filed under Rule 59(e) even if, as in this case, the motion is not labeled a Rule 59(e) motion and, again as in this case, does not say “alter or amend” (the language of Rule 59(e)), but instead uses a synonym, such as “vacate” or “reconsider.” Curry v. United States, 307 F.3d 664, 666 (7th Cir. 2002); Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986); Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 136-37 (2d Cir. 2000), Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir. 1986)(en banc).
But we and most other courts do not cavil if, as also in this case, the motion is filed before the Rule 58 judgment order has been docketed or even before there is a Rule 58 judgment, provided that a final judgment has been rendered. E.g., Dunn v. Truck World, Inc., 929 F.2d 311 (7th Cir. 1991); Havird Oil Co. v. Marathon Oil Co., 149 F.3d 283, 288 (4th Cir. 1998); Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485 n. 7 (1st Cir. 1993); cf. Fed. R. App. P. 4(a)(2); FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991); Chicago United Industries, Ltd. v. City of Chicago, 445 F.3d 940, 943 (7th Cir. 2006).
Borrero v. City of Chicago, 456 f.3d 698 (7th Cir. 2006). Cavil, which functions as both a noun and a verb, means to raise objections, but not just any objections! The word conveys that the objections are trivial or annoying. Perhaps aggravated law clerks or judges out there may appreciate employing this word to vent some frustration civilly and subtly against a caviling litigant.
The Write Bailiwick 