Lowering the Bar

UPDATE: Supreme Court Denies Motions for Divided Argument

The Supreme Court did take up the "emergency" motions for reconsideration in the Carcieri case at its Friday conference today, and denied them.  That means it will not decide whether Joe Larisa or Ted Olson gets to argue for the petitioners, and that may mean there will be blood on the podium on November 3 if petitioners still have not been able to work it out.

At this point, whoever is able to broker a deal here could put his or her name in for the Nobel Peace Prize.

May I suggest a quick match of rock-paper-scissors?  At least the ground rules are fairly well established, and there is an international regulatory body that could supervise the event.

Link: SCOTUSblog (with link to order)

Supreme Court May Decide Supreme Court Argument Argument

The furious (and now completely ridiculous) battle over which attorney gets to argue Carcieri v. Kempthorne for the petitioners in the Supreme Court continues to rage, and it now looks like it may be resolved by the Court itself on Friday.

Because the U.S. Supreme Court doesn't have anything better to do.

As you may recall (if you were here two days ago), the petitioners and their attorneys (Joe Larisa and former SG Ted Olson) have been bickering about this for months.  They actually filed a "motion for divided argument," asking to split up the 30 minutes; but the Court denied the motion.  Olsen then tried to go ninja: he just filed a form claiming that he (alone) would argue for the full 30 minutes -- only to find out that Larisa had tried the same trick.  Unamused, the Court's clerk told them to go work it out and submit one name by Thursday.  But as we learned last time, not only could the parties not work it out, even by coin toss, they couldn't even agree on the rules for the coin toss.

Things have not improved.  Larisa sent the Court a letter on Monday saying that since it didn't look like the parties would be able to agree by Thursday, he was filing an "emergency motion to reconsider the motion for divided argument."  This caused the other side to blink.  Olson sent a letter later that day saying that Rhode Island had magnanimously decided it would not object to giving Larisa ten of the 30 minutes.  Larisa agreed.  A breakthrough appeared imminent.  But those who had hoped for a resolution (a group that does not include me) had those hopes dashed when the state Attorney General, apparently in defiance of the governor, told the Court that he would not agree to give up even the ten minutes, and would instead make "a renewed effort to select one counsel."

At last report, the Court had confirmed that it would take up the "emergency" motion at its private conference on Friday, October 31 (Halloween).

Link: BLT: The Blog of Legal Times

Florida Low-Pants Crackdown Implicates Few

Police reports posted today show that attempts to enforce a Florida ordinance against saggy pants have been less fruitful than sponsors may have hoped.  In the nine weeks since enforcement of the Riviera Beach ordinance started, police have arrested and/or cited only 17 offenders, and 12 of those were nabbed in the first two weeks.

Overall, it appears that police are enforcing the ordinance less than twice a week, which would mean that on average (and this is a generous estimate) the waistlines of Riviera Beach have been raised less than two inches per day by the crackdown, and much less than that in percentage terms.  And that likely overstates the law's effect, since The Smoking Gun reported that two of the men arrested most recently were repeat offenders who may never have hiked their pants up at all.

As recidivist saggers, each could receive up to 30 days in jail.

Link: The Smoking Gun

Attorneys Bicker Over Supreme Court Argument, Coin-Toss Rules

As November draws near, most of the country is debating who will get to sit in the Oval Office; but over in a corner of the highest level of the American legal community, the fight is over who will get to stand before the Supreme Court to argue Carcieri v. Kempthorne on November 3.

What's that case about, you ask?  The short answer is who cares, but for those of you still reading this sentence the questions presented have to do with when the federal government can take land from states and hold it in trust for Indian tribes.  In this case, the government took land from Rhode Island and gave it to the Narragansett tribe.  Rhode Island and the affected town want it back and are appealing, supported by (apparently) every other U.S. jurisdiction in which Indians still have something worth taking.  Much of the interest in the case has to do with federalism concerns.

Possibly more interesting to you, though, is that the petitioners and their attorneys can't agree who will argue the case.  The town wants its attorney, Joseph Larisa Jr., who has been handling the case for the last ten years.  But the governor and the state AG's office want Ted Olson (left), the impressively-jowled former Solicitor General who argued for Bush against Gore.  These kinds of disputes do come up but are typically worked out by attorneys acting like relatively grownup professionals, or, rarely, at gunpoint.  But in this case the bickering and posturing have gone on for many moons.

Under Supreme Court rules, each side typically gets just 30 minutes for argument and only one lawyer per side will be heard, unless the Court rules otherwise.  In August, the parties actually filed a "motion for divided argument," but the clerk denied it, telling them to work it out.

Larisa then proposed that the matter be settled with a coin toss.  The others reacted with horror.  "We don't think it's appropriate to engage in a coin toss with a part-time solicitor," sniffed full-time state spokesman Michael Healey.  Accordingly, later that day the governor's counsel proposed two coin tosses.  Under that plan, Larisa would flip with a representative of the governor's office, and if he won that one, would then flip with the AG's office.  This plan, which had the virtue of being entirely unfair to Larisa, was rejected.

Two weeks passed.  On October 23, with pressure mounting, somebody called up experienced Supreme Court advocate Laurence Tribe to ask his opinion.  His sage advice: coin toss.  Actually, that was his fallback position.  "The obvious solution," Tribe said, "is for Ted Olson to argue the case" because of his experience before the Court.  "But if they find that unpalatable," he continued, "they [Larisa/the town] should flip a coin and grow up."  Of course, they had been willing to flip a coin, but the state insisted they flip two.

Then the state developed a new position: the dispute should be resolved the American way, by voting.  "Democracy was an adequate enough framework to form the United States of America," said Healey, although you could argue it also took a couple of wars to do that, "[and] it should be an adequate enough framework to decide" this dispute.  But since the state's democratic framework involved a vote of the three parties -- two of whom wanted Olsen -- it was not adequate enough to fool Larisa.  This sent Healey back in front of a microphone.  The town "is rejecting the democratic process and is saying it prefers a game of chance," he said.  "The attorney general and the governor do not think there should be games of chance in Charlestown," Healey continued, although they were apparently okay with it if the rules ensured they would win.  Which one is the American way again?

The report also quoted Alan Gura, the 37-year-old lawyer who won the recent Second Amendment case in his very first argument before the Court.  "The justices do not decide these cases based on personal relationship with attorneys," Gura said.  "There is no substitute for knowledge of the record," which Larisa would have here and Olson would not.  Therefore, in Gura's professional opinion, the course was clear: "I think they should flip a coin."

Petitioners have until tomorrow to tell the Court who is going to argue.

Link: "State, town can't agree on who argues tribal land case," Providence Journal (Oct. 9, 2008).
Link: "Coin toss could decide who takes state case to high court," Providence Journal (Oct. 24, 2008).

TSA Fails to Detect Box Cutters, Inflatable Yasir Arafat Dolls

In the November issue of the Atlantic, Jeffrey Goldberg offers more evidence that airport security is mostly to make it seem like somebody is doing something, and is not in fact protecting you much:

[B]ecause I have a fair amount of experience reporting on terrorists, and because terrorist groups produce large quantities of branded knickknacks, I've amassed an inspiring collection of al-Qaeda T-shirts, Islamic Jihad flags, Hezbollah videotapes, and inflatable Yasir Arafat dolls (really). All these things I've carried with me through airports across the country. I've also carried, at various times: pocketknives, matches from hotels in Beirut and Peshawar, dust masks, lengths of rope, cigarette lighters, nail clippers . . . and, of course, box cutters. I was selected for secondary screening four times—out of dozens of passages through security checkpoints—during this extended experiment. At one screening, I was relieved of a pair of nail clippers; during another, a can of shaving cream.

If terrorist groups now sell "branded knicknacks," does that mean we won?

Link: Jeffrey Goldberg, "The Things He Carried," The Atlantic (Nov. 2008) (an article that also contains the phrase, "Hezbollah gift shop").

Woman Arrested for Cybermurder

A 43-year-old woman in Tokyo has been arrested for killing her husband, although they weren't legally married, she didn't really kill him, and he isn't really dead.

The two had only met online, as part of a popular interactive game called "Maple Story" in which cartoon-like "avatars" fight monsters, interact, and, apparently, get married.  They also get divorced, or at least these two did.  It would probably be more accurate to say that she got cyberdumped: "I was suddenly divorced," the woman said, "without a word of warning.  That made me so angry."  So angry that she used his login information -- which he had foolishly given her back when they were "happily married" -- to access his account and delete his avatar.  He called the cops.  They, apparently having no crimes at all to prosecute in their own area, traveled 600 miles to arrest the woman and bring her to the jurisdiction where the brutal deletion took place.

The woman is not actually charged with murder, but rather was arrested for illegally accessing a computer and manipulating electronic data.  She might also be charged with destruction of property, since avatars and the "things" they own arguably represent a major investment of time (and money in terms of online fees).  The report did not say what value the electro-husband put on his account, but it could easily have been thousands of dollars, given the amount that online items can sometimes trade for.  (I don't know this personally, of course, but the guys in my Dungeons and Dragons group were talking about it the other day at the food court.)

The woman had not been formally charged as of October 23, but if convicted of the illegal-access charges she could be fined up to $5,000 or given up to five years in jail.

Link: Chicago Tribune

D.C. Court Hears Argument in Appeal of Pants Case

Roy Pearson Jr., who is on the verge of getting his own category here, was in the D.C. Court of Appeals on October 22 to argue for the reinstatement of his $54-million lawsuit against the dry cleaners who he says lost his pants.

For two years now (search for "Pearson" in the Google search box to the right for past coverage), Pearson has entertained the nation with his crusade against Custom Cleaners, which he charged with losing a pair of his pants and then refusing to honor fully its promise of "Satisfaction Guaranteed."  Custom Cleaners maintained that it had found his pants, but Pearson claimed those were the pants of another, and refused to accept them. The cleaners ultimately offered up to $12,000 to settle the case, but that failed to satisfy Pearson, whose satisfaction, he claimed, had been guaranteed. It was all very ridiculous, and Pearson's case was eventually thrown out after a bench trial, though not before he had the chance to weep bitter tears of loss and regret during his testimony. Pearson was not reappointed to another term as a D.C. administrative law judge, although everyone involved insisted it had nothing to do with L'Affaire du Pants.

Pearson's appeal was heard on Wednesday before a three-judge panel, in a packed courtroom. "This is not about a pair of suit pants," he told the panel, which is something he has said before and can say as many times as he likes without changing the perception that the case is about a pair of suit pants.  See, e.g., "Judge Drops Pants, Suit Still On," Lowering the Bar (June 6, 2007).  Pearson maintains that the case is about the promise of "Satisfaction Guaranteed," which he said was "very subjective" and has "no parameters at all." That's probably true, but what Former Judge Pearson doesn't seem to understand is that statements or advertisements like that are generally not a valid basis for a fraud case, because a reasonable person would not take them literally. So, while it's obviously true that Pearson has not been satisfied, it is still fair to ask, "where's the fraud?"

Which, oddly enough, is what the judges asked. According to the Washington Post, they "repeatedly asked him to identify previous District cases to support his argument about the reach of 'satisfaction guaranteed.' Pearson said he could not provide examples." (This is generally a sign that an argument is not going well.) "At one point, [Judge Michael W.] Farrell threw up his hands and asked 'Where is the fraud?'" (That's another one.)

Christopher Manning, the weary but valiant defender of Custom Cleaners, again noted that Pearson has been offered his pants back time and again, but will not accept them.  Pearson, he said, is "entitled to nothing." Manning told the Post that he was confident the court would not reinstate the lawsuit, which is the kind of thing lawyers always say but in this case is almost certainly true.

Manning also said he thought this would be the "last episode" in the drama, something that briefly caused me to also weep bitter tears until I read, at the end of the report, that Pearson had sued the D.C. government in May alleging that its judicial commission acted illegally when it failed to reappoint him to another ten-year term. Then I dried my eyes, and saw a bright future in which, years from now, I am sitting (next to my wives Jessica Alba and Christina Aguilera, who given the passage of time are no longer mourning the sudden and still-unexplained deaths of their husbands) in a courtroom in the Hague, listening to Judge Pearson argue his case before the International Court of Justice.

Link: Washington Post (log-in may be required)
Link: Marc Fisher's blog for the Post about the argument

ACLU Successfully Defends Woman's Right to Swear

Sources are reporting that Dawn Herb, who as you may recall was cited for disorderly conduct in 2007 after a neighbor heard her swearing at her toilet, has settled her lawsuit against the city of Scranton, Pennsylvania.  Ms. Herb, who I'm going to again call "Dawn" because calling her "Herb" seems weird, filed the lawsuit after a judge found her not guilty of the toilet-harassment charges, ruling that while the language she had used might have been "vulgar," under the circumstances it was protected speech.

Dawn was trying to fix an overflowing toilet when this constitutional crisis began.  Frustrated with the appliance, she unleashed a few F-bombs at it, which were overheard by neighbor Patrick Gilman through an open window.  Gilman, an off-duty police officer, heroically called for backup, though not before (according to Dawn) demanding that she "shut the f___ up."  The officer who arrived cited Dawn for disorderly conduct, but the case against her was thrown out last December.

"It's clear the city was wrong," Dawn was quoted as saying after this week's settlement.  "[H]owever, I'm glad that I was able to fight for my rights.  In the end, I found justice."  (Well, in the end, you found $19,000 -- although that does smell an awful lot like justice.)  ACLU attorneys said the result was another victory for First Amendment rights.  "If we don't have the freedom to use a few choice words inside our own homes," said Valerie Burch, "then we really don't have much freedom at all."  News flash: we really don't have much freedom at all.  But at least we do still have the treasured right, so precious to the Founders, to swear at our furniture.

Link: AP via PennLive.com
Link: ACLU of Pennsylvania

French President Threatens to Sue Voodoo-Doll Maker

French President Nicolas Sarkozy, shown here getting angry at some Europeans about something, has threatened to sue a company that has been marketing a Sarkozy voodoo doll.

The doll bears a number of colorful quotes from the outspoken statesman (such as "Get lost, you pathetic ______," which he allegedly said last year to someone who refused to shake his hand) and comes with a manual telling buyers to stick pins in the quotes.  An unamused Sarkozy directed his lawyer to send out a cease-and-desist letter, which was published in Le Monde yesterday.

"Nicolas Sarkozy has instructed me to remind you that, whatever his status and fame, he has exclusive and absolute rights over his own image," said the letter, in a statement that I am pretty sure is false, at least taken literally, although I am having the research department check on the scope of the "fair use" doctrine in the EC.  The lawyer said that if the company did not recall the 20,000 dolls it has issued, Sarkozy would sue them.

The company, which is also marketing a doll of Segolene Royal, Sarkozy's rival in the last election, has called Sarkozy's reaction "totally disproportionate."  I agree -- instead he should immediately make a voodoo doll representing the company and go on TV to stick pins in it, which would have the twin advantages of being a lot cheaper than paying his lawyer and also making him look like less of a dick.

This is not the first time Sarkozy has sued someone while in office -- just last week he sued a former intelligence officer for libel and invasion of privacy after parts of the officer's diaries were published -- but it is the only example I can find of any world leader threatening a voodoo-doll manufacturer.

Link: BBC News

Yet Another Comical Case Name

This one may take you a little while to get through, but it's worth it:

United States v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO; Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty the Horse; Anthony Provenzano, also known as Tony Pro; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro; Christopher Furnari,Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as The Snake, also known as Junior; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messino; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey Aiuppa, also known as Joe Doves, also known as Joey O'Brien; John Phillip Cerone, also known as Jackie Cerone, also known as Jackie the Lackie; Joseph Lombardo, also known as Joey the Clown; Angelo LaPietra, also known as The Nutcracker; Frank Balistrieri, also known as Carl Angelo Deluna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters; Jackie Presser, General President [and other officers including sixteen Vice Presidents]; In re Application LXXXVI of the Independent Administrator, Leroy Ellis, Appellee v. Roadway Express, Inc., 3 F.3d 634 (2d Cir. 1993).

Link: Comical Case Names