- “Lawmakers must act now to close New York’s double jeopardy loophole,” claims New York Attorney General Barbara Underwood. Its what? [Kenneth Lovett/New York Daily News, Jacob Sullum/Reason, Jed Shugerman/Slate (defending closing of “loophole”), Jonathan Blanks on Twitter, earlier]
- Speaking of pardon powers, Debra Saunders quotes me in column on Presidential pardons, Martha Stewart, Rod Blagojevich, Marc Rich, etc. [Las Vegas Review Journal/syndicated]
- “California Town Hired Private Law Firm to Sue Citizens, Then Tried to Conceal Massive Costs” [Scott Shackford, earlier on Indio, Coachella, etc.] Bill passed by California assembly “would put an end to a practice in which several cities have been contracting with private prosecutors to handle nuisance abatement cases, then billing the impacted citizens thousands in lawyers’ fees.” [same]
- “In light of the [Aaron] Persky recall, here are some studies on the impact of elections on judicial behavior. The story is consistent: elections make judges harsher, and there may be other costs as well (like lower-skilled people becoming judges).” [John Pfaff Twitter thread, earlier here, here, and here]
- “CBP Sued For Seizing $41,000 From Airline Passenger, Then Refusing To Give It Back Unless She Promised Not To Sue” [Tim Cushing, TechDirt]
- Even when suspects are in fact guilty, lies told to justify searches “corrupt the law in order to enforce it. That’s not how policing is supposed to work.” [Jonathan Blanks on Joseph Goldstein, New York Times investigation of police perjury (“testilying”)]
- “A Lawyer Who Helped an Exoneree Blow Through $750,000 Is Under Investigation” [Joseph Neff, Marshall Project]
- Department of State agency accreditation delays help worsen decline in international adoption [Kim Phagan-Hansel, Chronicle of Social Change]
- Fifth Circuit affirms sanctions award against ADA attorney Omar Rosales over “reprehensible misconduct” including “fabricating evidence” and “fraud on the court.” [Deutsch v. Phil’s Icehouse]
- Baltimore’s school mismanagement, GOP delegates cool on beer reform, non-citizen voting, Metro subway decay and more in my new Maryland roundup [Free State Notes]
- Eccentric English judge of olden days: “The Incoherence of Serjeant Arabin” [Bryan A. Garner]
- “L.A. Lawmakers Looking To Take Legal Action Against Google For Not Solving Long-Running City Traffic Problems” [Tim Cushing, TechDirt on controversy over Waze routing of traffic onto steep-graded street]
One problem with the packing on of fines and fees in street-level law enforcement is that it can pull residents down to indigency over ultimately minor offenses; another is that when fees are directed into justice system budgets, it can reshape incentives in dangerous ways. “We place courts in a dangerous position when we make them dependent on the funds they collect. The dynamic risks undermining judicial independence.” [Matthew Menendez, ABA Journal]
- One-woman false-accusation machine induced Pittsburgh police to file eight criminal cases against couple; one was jailed for six days and the other for six months before she admitted making it up [Paula Reed Ward, Pittsburgh Post-Gazette]
- Regulation is the bane of a great many California small businesses, and that goes for Humboldt County marijuana growers too [David Boaz, Cato]
- One Billy Goat might have cause to regret picking trademark fight with another [Timothy Geigner, TechDirt]
- “Antitrust Jurisprudence Is the Right’s Greatest Legal Success” [John McGinnis, Law and Liberty]
- State Attorney General Election Tracker is a new resource from law firm Cozen O’Connor tracking campaign and election news from state attorney general elections across the country;
- “Iowa judge admits hundreds of his rulings were ghost-written by attorneys” [Clark Kauffman, Des Moines Register]
With so many judges owing their tenure on the New York bench to political connections and opaque methods of appointment, it’s a wonder there aren’t more subpar performers [New York Post]
If you mistakenly took the U.S. Code to be the definitive statement of federal law — even in instances in which it happens to depart from the Statutes at Large — be comforted that the U.S. Supreme Court has fallen into the very same error. Writes Will Baude: “Anyway, if you want to read more about this, I highly recommend the short and excellent article by Tobias Dorsey, ‘Some Reflections on Not Reading the Statutes,’ which rocked my world when I was in law school.” His example is the wording over the mode of appointment of the director of the FBI. And he’s right on the Dorsey article, which is really quite a read for shaking up one’s complacency on the subject of statutory interpretation.
From the First Circuit’s opinion introducing the case of Sanders v. Phoenix Insurance Company, arising out of somewhat lurid facts touching on both insurance coverage and professional responsibility:
SELYA, Circuit Judge. This case begins with a tragic tale of unrequited love and morphs into a series of imaginative questions regarding the coverage available under a standard form homeowner’s insurance policy. But when imagination runs headlong into settled legal precedent, imagination loses. Recognizing as much, the court below dismissed the complaint. After careful consideration, we affirm.
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.
Last night, before a convention center filled with his followers in San Diego, presidential candidate Donald Trump chose to launch a lengthy diatribe against the local federal judge hearing the case against his Trump University. Trump said Judge Gonzalo Curiel, of the Southern District of California, should recuse himself, but cited no reasons for why other than that he had been appointed by Obama and had repeatedly ruled against Trump’s lawyers.
In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live. [More: David Post]
Law professor Josh Blackman, active in the Federalist Society, writes as follows:
His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults….
I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against [Trump].
This might be a good time to catch up, if you haven’t, on the legal saga of Trump University, which I’ve been following for more than a year (when I first looked into it as part of my research into the work of New York Attorney General Eric Schneiderman). Some coverage: Jillian Kay Melchior/NRO last July, Emma Brown/Washington Post last September, Ian Tuttle/NRO in February, Roger Parloff/Fortune, Joe Mullin and Jonathan Kaminsky/ArsTechnica. In the San Diego proceedings, one law firm ranged against Trump is Robbins Geller, descendant of convicted class-actioneer Bill Lerach’s Lerach Coughlin, and the subject of some less than flattering coverage in these columns over the years.