Best line of the day, so far

“Those who like to believe they have picked themselves up by the bootstraps sometimes forget that they wouldn’t even have boots were it not for the women who came before.”

From The Mother of All Grizzlies about Justice Ruth Bader Ginsburg by Dahlia Lithwick. An excerpt:

To which I would just add that Palin and the Mama Grizzlies also owe a debt of thanks directly to Ruth Bader Ginsburg, who almost single-handedly convinced the courts and legislatures to do away with gender classifications in matters ranging from a woman’s right to be executor of her son’s estate (Reed v. Reed, 1970), to a female Air Force lieutenant’s right to secure housing allowances and medical benefits for her husband (Frontiero v. Richardson, 1973), and the right of Oklahoma’s “thirsty boys” (her words) to buy beer at the Honk n’ Holler at the same age as young women (Craig v. Boren, 1976).

The Right to Counsel

The New York Times has a fascinating read about a woman and her public defender.

The story of this one defendant and her public defender, assembled through interviews and court records, is about a woman who was barely making it before the legal system helped shove her off track.

And it is also about a small-town lawyer and part-time public servant sinking in personal and professional quicksand that few people knew about when he showed up to represent Kimberly Hurell-Harring. Least of all her.

Increasing the odds

You go into a New Mexico Indian casino in 2006 and play a progressive slot machine; one with a very big prize, say $1.6 million dollars. Amazingly, you win.

But the casino says, oh sorry, the slot machine malfunctioned. You only won $400.

You appeal to the tribe’s gaming commission. They deny your claim; the slot machine malfunctioned.

You want “your” $1.6 million, so you file suit in state court. But Indian tribes have sovereign immunity. You can’t sue an Indian tribe. Case dismissed; the court has no jurisdiction.

You appeal to a higher court. In January 2010 the appeals court affirms the lower court’s dismissal. You can’t sue an Indian tribe.

Moral of the story: The house always wins.

The above is a very brief version of a true incident. Meanwhile last July another individual “won” $2.5 million on a slot machine at another New Mexico casino. Guess what? Her slot machine malfunctioned, too.

Chinese to launch first ever green lawsuit against government

NewMexiKen is taking the day off to celebrate the blog’s sixth anniversary.
The posts today are being written by readers just like you. This is from Bob Ormond.

China should see its first lawsuit by an environmental group against authorities within weeks, state media reported today (July 31).

A member of the All-China Environmental Federation – which is backed by the central government – said a judge in Guizhou province had accepted its claim on behalf of residents who complain they have suffered from pollution.

The Guardian

July 21st ought to be a national holiday

On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers. This wasn’t exactly the end of obscenity as a criminal category. Into the mid-1960s, Barney Rosset would wage battles in various state courts over William Burroughs’s “Naked Lunch” and Henry Miller’s “Tropic of Cancer,” other Grove novels now widely regarded as classics. But the “Chatterley” case established the principle that allowed free speech its total victory.

Excerpt from Fred Kaplan, “The Day Obscenity Became Art” – NYTimes.com.

A holiday not because of Lawrence’s book, but to celebrate the expansion of freedom this decision represented.

Best line of the day

“As the father of daughter who’s in high school, I find [the Redding ruling] a blessed relief. As a lover of Amendments IV and V, and an observer of the current Supreme Court, I find it damned near miraculous. As a longtime observer of Clarence Thomas, I continue to  find him pretty godawfully revolting.”

Charles Pierce

Search me

The Supreme Court says you can’t strip search a 13-year-old just because you have reason to believe she might have a couple of advil.

Well, eight-ninths of the Court says you can’t. Justice Thomas says it sounds like a reasonable search to him.

Suing to play

A student at my high school alma mater is suing to be allowed to play sports.

In a complaint filed last week, Steven Erly asked the Arizona Interscholastic Association to allow him to participate in sports even though he will be 19 when the school year begins.

The state’s high school sports and activities governing body states that players who turn 19 before Sept. 1 cannot compete during that school year.

According to the story in the Arizona Daily Star, Erly was ill and unable to play sports — or even to attend school full-time — during the 2006-2008 school years. He wants the opportunity he lost. He is suing under the Americans with Disabilities and Arizonans with Disabilities acts.

What do you think? How much accommodation should we make?

Chrysler and GM and accidents yet-to-be

Under the terms of the rescue, NewChrysler would be freed of current and future lawsuits seeking money damages for injury (or death) caused by cars or trucks that were sold by “old” Chrysler before the sale deal took effect.  Millions of those cars, oif course, are still on the road.

If that provision remained intact, there is almost no doubt that it would be repeated in any deal to spare bankrupt General Motors Corp. from existing and future accident claims, thus affecting millions more cars and trucks now in use.

Keeping the victims from suing, their lawyers argue, is not only beyond the power of a bankruptcy court, but raises “an important constitutional issue” about cutting off legal rights of people who, as of now, have no idea that they may someday be hurt in an auto crash.

SCOTUSblog has more. Interesting look at due process.

A lawsuit to relish

It seems Sara Lee is red hot at Kraft. Sara Lee makes Ball Park franks; Kraft owns Oscar Mayer.

According to the Chicago Tribune here’s the beef:

The Sara Lee suit, filed in U.S. District Court in Chicago, says the ad is false and misleading because in large type it implies one Oscar Mayer dog bested the taste of all Ball Park dogs. But the footnote, “in very small type,” says that Oscar Mayer compared its hot dogs to “the leading beef franks” of its main rivals.

The suit also claims Oscar Mayer’s contention that its Jumbo Beef franks are “100 percent pure beef” is false because they contain a host of other ingredients. Sara Lee says Oscar Mayer has rejected requests to drop its 100 percent pure beef claims.

The case law that applies may have been written by Justice Felix Frankfurter.

With apologies to official oldest child Ken.

The Supreme Court is neither hot nor bothered by strip searches

Dahlia Lithwick has a must read piece on how the Supreme Court takes failing to get it to a new level.

She begins:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter (“Court fails utterly to understand realities of gender pay discrimination”) will be Savana Redding (“Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks”).

Black Friday and Wal-Mart’s Blitz Sale

Two women, Jennifer Jones and Alicia Sgro, have sued Wal-Mart and others for alleged injuries — including punches to the face from an unknown assailant — that took place during the stampede that preceded Wal-Mart’s Black Friday ‘Blitz’ sale. (Black Friday is that day after Thanksgiving when the holiday shopping season officially kicks off.)

WSJ.com: Law Blog

The 14th amendment

… to the United States Constitution was ratified on this date in 1868. The first section of the amendment reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Boob job undone

In a decision that clears CBS of any wrongdoing for airing the 2004 Super Bowl halftime show that featured Janet Jackson’s infamous “wardrobe malfunction,” a federal appeals court overturned the $550,000 fine that the Federal Communications Commission levied against the station, calling the fine arbitrary and capricious.

The New York Times

The Albuquerque McDonald’s Coffee Case

Stella Liebeck was a 79-year-old Albuquerque resident when she bought some McDonald’s coffee in 1992. She bought it at a drive-thru, but the car was parked (she was a passenger) when the accident took place. She spilled the entire cup onto her lap. She was hospitalized for 10 days. McDonald’s originally offered her $800 toward her $11,000 medical bills.

This, from a article by Joshua Green at The Washington Monthly, provides some facts to offset the folklore surrounding the infamous McDonald’s coffee lawsuit. It was first posted here four years ago today.

To persuade the public that frivolous personal injury suits have brought on a crisis, advocates of change religiously invoke cases like the elderly woman who spilled coffee on herself and won a $2.9 million jury verdict against McDonald’s. . . . As Roger Williams University torts professor Carl Bogus explains in his book, Why Lawsuits Are Good for America, the woman who spilled her McDonald’s coffee had to undergo a skin graft, spend weeks in the hospital, and offered to settle for $10,000 (McDonald’s refused). She only sued as a last resort—the epitome of conscientious use of the legal system. Her original award of $2.9 million was later reduced by a judge, as most such judgements are, to $480,000, and she wound up settling for even less. To prevent other suits, McDonald’s, which had previously ignored more than 700 similar complaints, stopped serving near-boiling coffee, as did its competitors.

The Supremes

Well, shoot.

Summing Up

In Boumediene today, the Supreme Court decided 5-4:

Whether Article I, Section 9, Clause 2, (the privilege of the writ of habeas corpus) applies to aliens designated as enemy combatants detained at the U.S. Naval Station at Guantanamo Bay, Cuba.

It does.

Whether procedures established for those prisoners by Congress are a constitutionally adequate and sufficient guarantee of that privilege.

They aren’t.

Approximately 250 prisoners are held at Guantanamo without charges, some for six years. Only a few were petitioners in the subject case, but the decision should apply across the board.

250 alleged bad guys now get a day in court to find out why they are being held.

And this puts the nation more in peril?

And, if so, why did we move them 7,500 miles closer to the U.S. in the first place?

(Here’s the opinion [pdf].)

Best line of the day, so far

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Justice Anthony M. Kennedy writing for the Supreme Court in Boumediene v. Bush.

In McCain’s Court

The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement. With the general election in mind, McCain had to express himself with such elaborate circumlocution because he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking. In 2004, to stoke turnout among conservatives, Karl Rove engineered the addition of anti-gay-marriage voter initiatives to the ballots in Ohio and other states; last week, though, when the California Supreme Court voted to allow gay marriage in that state, only hard-core activists were able to muster much outrage. When it comes to the Constitution, McCain is on the wrong side of the voters, and of history; thus, his obfuscations.

Jeffrey Toobin

Follow the link to read more of Toobin’s analysis.

What He Said

“[A] court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government.”

Glenn Greenwald

Public Defender Goes Overboard

Santa Fe Sheriff Greg Solano takes exception to a defense attorney. Read why.

Oh Parody Woman

It was on this day in 1994 that the Supreme Court ruled that parody can be protected by the fair use clause of the Copyright Act of 1976. The case arose from a song by the rap group 2 Live Crew, which used elements of the Roy Orbison song from 1964: “Oh Pretty Woman.”

The Roy Orbison version of the song is about a man watching a pretty woman walking down the street. The 2 Live Crew version is about the subsequent relationship with that woman, who becomes a hairy woman, a bald-headed woman, and a two-timing woman. The music publishing company Acuff-Rose, which holds the copyright for the Roy Orbison song, sued 2 Live Crew for copyright violation.

Among those who sent “friend of the court” briefs in support of 2 Live Crew were Mad magazine, The Harvard Lampoon, and the Comedy Central TV channel. Among those who argued against 2 Live Crew were Dolly Parton and Michael Jackson. The Supreme Court ruled unanimously in favor of 2 Live Crew.

Justice David H. Souter wrote, “Like less ostensibly humorous forms of criticism, [parody] can provide social benefit by shedding light on an earlier work and, in the process, creating a new one.”

The Writer’s Almanac from American Public Media

Best line of the day, so far

What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion — roughly three weeks’ worth of profits — for destroying a long swath of the Alaska coastline in the largest oil spill in American history.

“So what can a corporation do to protect itself against punitive-damages awards such as this?” Roberts asked in court.

The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. “Well,” he said, “it can hire fit and competent people.”

The Washington Post

Best line of the day, so far

“All I am doing is following what to me is the clear wording of the First Amendment that ‘Congress shall make no law . . . abridging the freedom of speech or of the press.’ As I have said innumerable times before, I simply believe that ‘no law’ means no law.”

Justice Hugo Black, born on this date in 1886.

PLOL

The Public Libary of Law. A new resource to bookmark.