(The Return of) Ignatz, by Sam Heldman

Wednesday, May 28, 2003

One more thing before I go: Bill Altreuter reports that the New York state court system is instituting a new set of fees for lawsuits, including a $45 fee every time you want to file a motion! I've never run across anything remotely like that; we're all used to paying a filing fee to file a case, or to file an appeal -- but to have to continue to pay money as the case goes along is new to me. I'm not saying that I'm sure that it's a bad idea or unfair (assuming that there is still a way for people to proceed "in forma pauperis" without paying the fees if they don't have enough $). But it strikes me as very odd, and I may decide later today that I'm against it. You never know.

posted by sam 11:08 AM 0 comments


A month without sunshine in DC has made me grumpy and heavy. So I am leaving again -- off to Boston for a conference of lawyers who represent teachers. (OK, all "moderate Democrats": grouse about teachers' unions, at will. I'm not listening, but you can assume that I disagree). There will probably be no blogging here the rest of the week.

By the way: why did Chief Justice Rehnquist vote with the majority -- indeed why did he write the opinion -- in yesterday's decision upholding the application of the Family & Medical Leave Act to the states? Isn't that a surprise, given his leadership of the "federalism" trend of holding laws unconstitutional when they allow suits against states (e.g., the Americans with Disabilities Act, the Age Discrimination in Employment Act)? Here's my theory: he voted that way because in the Justices' post-argument conference, when it came his turn to vote on the case, there was already a majority to uphold the Act (Justice O'Connor having voted with the "liberals"). So Justice Rehnquist's choice was whether to vote with the majority, which would give him the chance to assign the opinion to himself and thereby ensure that the opinion did as little damage to the "federalism" trend as possible -- or to vote with the dissenters and risk a majority opinion that undermined the trend substantially. (The Chief Justice gets to assign the opinion, if and only if he's in the majority; if he's not, then the senior Justice in the majority gets to assign it, to my understanding.). And so -- though I conjecture that he almost certainly would have voted to hold the law unconstitutional IF Justice O'Connor had voted that way too -- he joined the majority and assigned the opinion to himself. This is pure conjecture on my part, but it makes sense I think. And note that I am not, in my mind at least, accusing him of anything beyond the pale; my hazy understanding is that the ability to do this maneuver is one of the recognized and accepted great things about being the Chief Justice.

posted by sam 7:42 AM 0 comments

Tuesday, May 27, 2003

Ed Still has moved his great blog to a new Movable Type-driven site. Still a wonderful source for election law and related topics.

posted by sam 12:16 PM 0 comments

Ten Commandments Oral Argument

Next week, in Montgomery, the Eleventh Circuit will hear oral arguments in the case challenging the large monument celebrating the Ten Commandments in the Alabama Supreme Court building. The panel, I am informed by the Clerk's Office, will be Chief Judge Edmondson, Judge Carnes, and District Judge Story from N.D. Ga. Don't expect cynical or snarky comments about the panel from me; not only do I have an argument before the same panel on the same day, but I wouldn't even make cynical or snarky comments about this panel to my best friends under cover of darkness. By the way, in a massive bummer, the Court has NOT made arrangements for lawyers in the other cases on the docket to have special seating to hear the Commandments case, so I will either have to skip that one or stand in line with the activists and the politicians.

posted by sam 8:57 AM 0 comments

Monday, May 26, 2003

A nice guy named Mitchell Freedman, with whom I've had some blog-related email, has published an "alternative history" book starting from the premise that Robert F. Kennedy survived the assassination attempt. The book is called "A Disturbance of Fate" and (from review on Amazon, etc.) sounds very interesting, especially if you're a fan of alternative histories or are a political junkie. He's doing a reading at the B&N in downtown DC on June 12. Check it out.

posted by sam 7:52 AM 0 comments

Sunday, May 25, 2003

short items
* The Atlanta newspaper has an article on Bill Pryor's nomination, titled "Judicial nominee a conservative true believer."

* I wish that the sun would come out; it's been gray and rainy for years, I think.

* You know you're desperate when your defense requires the assertion that criminal lawyer Leonard Weinglass, who used to represent you, sabotaged your case. I don't completely blame Mumia's defense for trying this argument; after all, much of habeas corpus law (unfortunately, I think) depends on proving that your former lawyer screwed up beyond belief; and so if that's what you have to argue in order to save your life or liberty, it's natural that you'd want to argue it no matter how far-fetched it might seem to other people. But based on what I know of Weinglass -- including having seen him do the best appellate argument I've ever seen anyone give, calmly winning a reversal of a conviction before a rather conservative panel of judges -- it's impossible for me to believe the allegation of "sabotage". (link via How Appealing)

posted by sam 3:16 PM 0 comments

Friday, May 23, 2003

Bill Pryor
TalkLeft has an informative piece on Bill Pryor and the death penalty. here.

posted by sam 7:32 AM 0 comments


Slacktivist has a brilliant explanation of the times, drawing on Walker Percy. here. (via Atrios).

posted by sam 7:17 AM 0 comments

Thursday, May 22, 2003

Free James Brown!
Bill Altreuter has a consistently great site, where he talks about the practice of law, music, food, and other things that matter. Today he hits a couple of things that happen to come together in my mind: the weather in Ithaca, and the pardon of James Brown. I have some great old friends who live in Ithaca, who recorded a song about the weather there: "I Live Where it's Gray". (Supposedly, whereas kids elsewhere bother their parents by asking incessantly "why is the sky blue?", kids in Ithaca ask, "why is the sky gray?"). You can listen to it here. And when I had the privilege of playing in the old-time band competition at the Galax VA fiddlers' convention in 1989 with some of those friends, we were joined on bass by Dave Grant, who befuddled the locals a bit by yelling "Free James Brown!". Now, on some other plane, Dave Grant is smiling because James Brown's been pardoned.

posted by sam 10:46 AM 0 comments

on punishing jurors

Unlike me (see below), Gary O'Connor is doing what a blogger should do; in response to the silly Slate article suggesting that jurors should be punished for reaching "wrong" verdicts, Gary explains that this went out hundreds of years ago, for good reasons. See this post, and scroll down to the last section.

posted by sam 10:10 AM 0 comments

filthy savage

Via Seeing the Forest, I learn that right-wing nut radio personality Michael "Savage" has sued various websites that make fun of, and express opposition to, his hateful and ignorant rants. Among them is Savage Stupidity. I spent some time on that website this morning, looking at the Complaint that "Savage" filed, and looking at various materials on that site. The suit is clearly frivolous in a legal sense, because the site is obviously protected by the First Amendment. (I suppose that it's theoretically possible that there was some actionable stuff on the site at some earlier date that has been taken down in response to the suit, but I see no indication anywhere that such is the case). You can donate to the defense at Savage Stupidity, or take other action as you see fit.

posted by sam 8:37 AM 0 comments

Wednesday, May 21, 2003

only one month ...
One month from now, two notable things will happen.

The first show of the 2003 season of concerts at DC's Fort Reno Park -- a long-running tradition of great local bands, free and outside on summer evenings; and

The release of Harry Potter V.

posted by sam 3:04 PM 0 comments

blogging about blogging

I find that I am not much of a blogger these days. Here's what made me realize this fact, with the most clarity. When I read the article in Slate a couple of days ago, proposing that jurors be fined for reaching the "wrong" verdict and financially rewarded for reaching the "right" verdict, the fullest extent of my thinking about the article was, "that's the stupidest damn thing I've ever read in my life." I was right, of course, and I make no apologies for reaching that conclusion, in my own mind, with so little internal deliberation or fancy exposition. But it doesn't make me much of a blogger, does it? Surely the least I could have done, would be to write a hundred words or so about it. Please accept my apologies for my failure to have done so.

posted by sam 12:36 PM 0 comments

Tuesday, May 20, 2003

Hello. All I have time to say, so far today, is read this thing that Warren Buffett wrote (link via Atrios).

posted by sam 1:44 PM 0 comments

Monday, May 19, 2003

home again
Back home again, after 2300 miles of driving (thank you, Screamin' Jay Hawkins, for your help). Bourbon Street still smells like urine, in case you were wondering. Catching up on what I have meant to blog:

* You can download a free Wilco EP, by going to the band's site and following where it says "click here for free EP" or something like that. Actually, you can download it IF (a) you have a copy of Yankee Hotel Foxtrot (the band's last record) and (b) are patient (because the servers are overloaded).

* Plenty of people beyond myself are speaking out about Bill Pryor's nomination to the Eleventh Circuit. Unsurprisingly, his brief in Texas v. Lawrence is a main reason. Here is a fascinating article about the origins of that brief. And here is a NYT editorial.

* Expect some Supreme Court decisions today, and maybe even some interesting ones. Marty Lederman explains at SCOTUSblog.

* Law Prof. Lawrence Solum's exchange with Prof. Balkin et al. (see here for Solum's latest and here for Balkin's) is an interesting debate over Solum's effort to find some neutral principles of "how to do constitutional law" that would assertedly take the politics out of the enterprise. Returning to Screamin' Jay Hawkins, I reply cynically "yeah, when pumpkins look like pickles" (Jay's better version of "when pigs fly") -- there has never been a time when Constitutional Law was done that way, and I don't think that there ever will. Nonetheless, it is useful and informative to think about why or why not, and about what alternatives there might be.

posted by sam 7:11 AM 0 comments

Monday, May 12, 2003

I'm off (but you already knew that)
Blogging will be intermittent or nonexistent this week, because I am heading to (among other places) New Orleans, to speak at a program on labor law.

posted by sam 7:05 AM 0 comments

Sunday, May 11, 2003

insider trading tip
Make sure that you are not holding Ignatz shares on July 21, 2003.

posted by sam 7:16 AM 0 comments


Happy Blog Birthday to Max.

posted by sam 7:10 AM 0 comments

Friday, May 09, 2003

Bill Pryor on Bill Pryor
So Alabama AG Bill Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit, has issued a press release responding to those who have attacked his stance on the Voting Rights Act of 1965. Here are two quotes. The first is from his press release:
I believe the Voting Rights Act is one of the greatest and most necessary laws in American history. I have expressed some concern that Congress should consider minor changes to that vital law to end procedural and political abuses that do not affect minority voters and were never intended by Congress.
. Now here is a quote from Bill Pryor's testimony to the Senate Judiciary Committee, in 1997. After discussing some litigation under the Voting Rights Act -- including a case in which I participated, which was an effort to increase the opportunity of Black voters to elect candidates of their choice to Alabama's appellate courts, and other cases that involved expansion of local governing bodies so that Black voters would be able to elect a candidate of their choosing to multi-member boards -- Pryor called these rulings a "dramatic" and "intrusive abuse of judicial power", and further said to the Senate:
I encourage you to consider seriously, for example, the repeal or amendment of section 5 of the Voting Rights Act, which is an affront to federalism and an expensive burden that has far outlived its usefulness, and consider modifying other provisions of the Act that have led to extraordinary abuses of judicial power.
Pryor's Senate testimony was not -- despite the apparent assertion in his press release -- talking about "procedural and political abuses that do not affect minority voters"; instead he was talking about judicial decrees that were designed to improve the strength of minority voters but that Pryor felt had gone too far or otherwise erred. And he was not -- despite the apparent assertion in his press release -- talking about "minor changes". He was instead expressly talking about repeal of Section 5 itself, along with other changes to the law. The repeal of Section 5, as anyone familiar with the Act could tell you, would be no "minor change"; Section 5 is one of the major provisions of the law, with a focus and effect different from the other provisions of the law. And he was not -- despite the implication in his press release -- talking about simply putting things back to the way that Congress had "intended"; instead, his attack on Section 5 was expressly based on a vision of "federalism," though no such "federalism" had been any part of Congress's intent in enacting Section 5 in the first place.

The best thing that Bill Pryor has going for his nomination, I think, is his reputation for candor. But if this press release is any indication, he may be voluntarily giving up that one advantage.

posted by sam 1:16 PM 0 comments


Fred at Bureaucrat by Day has a very informative post about the nude models in Philadelphia who wanted to organize a union. Recommended reading if you care about workplace fairness issues. (permalinks may be screwing up; if so, go here and look at posts for May 8.)

posted by sam 7:33 AM 0 comments

Thursday, May 08, 2003

labor law
The labor lawyers among you (are there any who read this silly blog these days?) may be interested to know that NLRB General Counsel Rosenfeld has recently issued a "Report on Recent Case Developments," available here, with a special (though by no means exclusive) focus on current cases that raise issues under last year's Supreme Court decision in BE&K.

posted by sam 4:49 PM 0 comments


I don't even feel bad about not having anything mildly interesting to say today, because Ted Barlow is back from hiatus, and reading his stuff is much better than reading my stuff.

posted by sam 4:23 PM 0 comments

Wednesday, May 07, 2003

Hello. Little time for blogging today. I am writing a not-very-exciting brief to the NLRB (oh, by the way, you can still download my paper about the basics of labor law if you want) and am going to the American Constitution Society lunch. Maybe inspiration will strike later. More about civil rights leaders' opposition to the Pryor nomination here.

posted by sam 11:22 AM 0 comments

Tuesday, May 06, 2003

Bill Pryor, and the footsoldiers of the Civil Rights movement.
In Birmingham a few days ago there was a major celebration of the 40th anniversary of central events in the Civil Rights Movement. In the course of the event, many heroes and footsoldiers of the Movement -- including Rev. Vivian, Rev. Shuttlesworth, and others -- signed a letter proclaiming their opposition to Bill Pryor's nomination to the 11th Circuit. See article here.

Let me be plain, because I know that some people will want to cry foul or pretend that I am saying something inflammatory and unwarranted: I am not accusing Bill Pryor of being a white supremacist. As far as I know, the signers of the letter are not, either. I do believe, though, that "states' rights" doctrine has been used throughout American history to justify positions that are to the advantage of white people and to the disadvantage of Black people (this is, I trust, completely undisputed by any reasonable person) -- and that, whether or not some intentional group-based hatred is involved on the part of any current individual so-called "federalist", the doctrine is used by Pryor and others at this point in American history to justify positions that are systematically to the disadvantage of Black people, women, disabled people, older people, gay people, poor people ...

posted by sam 9:51 AM 0 comments

Monday, May 05, 2003

I have been debating about Bill Pryor's comparison of gay sex and necrophilia, with the anonyblogger at Southern Appeal, if you're interested. In addition to his other flaws, his comments for some reason will not load in a Safari browser, so you may have to use the dreaded Internet Explorer or something.

posted by sam 2:01 PM 0 comments


Marty Lederman -- taking a deserved break from long posts about campaign finance -- remarks this morning about what he finds to be a rather unusual legal usage of the word "dehors" (meaning, more or less, "beyond") in the opinion this morning in Telemarketing Assocs. Marty has apparently spent too little time among Southern lawyers; I have, unless I am dreaming, more than once heard a lawyer indignantly complain about his or her opponent during oral argument, "Now Judge, he's de-hoorin' the record!" (meaning, more or less, stating facts that aren't supported by evidence).

posted by sam 12:01 PM 0 comments


My weekend was made much more wonderful by staying away from my blog. I am now ducking my head back in just long enough to say, I recommend that you read this commentary on the Pledge case by ace legal reporter/commentator Tony Mauro. Link via Howard (a phrase which can henceforth be written as LvHB, because the thought appears so often here and on other law-oriented blogs).

posted by sam 7:14 AM 0 comments

Friday, May 02, 2003

Gee whiz, more about IOLTA?
Here are two things that are true about me: (1) I worry a lot about being wrong, because I don't like to be wrong; but (2) I will ultimately admit it if I'm wrong. So I've spent too much time worrying about the difference between opt-out and mandatory IOLTA programs today, because Bill Pryor's arch-supporter Feddie thinks that the difference is absolutely vital, and that it perfectly explains why Bill Pryor did not rise to the defense of Alabama's IOLTA program for funding legal services for poor people. Thus what I saw as an example of Pryor not defending a state law when he thought or hoped that the law was unconstitutional, Feddie sees as Pryor wisely doing nothing because Alabama's program (being an opt-out program) was really in no jeopardy because the Supreme Court litigation dealt precisely with a mandatory program.

Good news for me is that I still don't think, after further research, that I was wrong. I think that the best explanation of the situation is not that Bill Pryor (hyper-prolific amicus brief filer though he is) decided merely to sit this one out because Alabama's law wasn't really in any danger. I think that the only fair inference is that he sat this one out because he agreed with his ideological friends at Washington Legal Foundation in their attack on IOLTA. Why do I say this? Because (1) by my count, 14 other states with opt-out (or perhaps even with truly lawyer-voluntary) IOLTA programs did join in the defense of IOLTA in the Supreme Court. For those playing along at home, and guided by the categorization of IOLTA programs on this page, those States seem to be Indiana, Kansas, Maine, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, and Utah. Now one could either hypothesize (as Feddie does) that those AGs were all really just doing some politically-motivated nonsense that was totally unnecessary given that their programs were in absolutely no jeopardy, or infer that those AGs had some good reason for thinking that "opt-out" programs were in some substantial legal danger if the attack on the mandatory programs had succeeded. And (2) I think that the latter inference is more reasonable -- that those AGs had a good reason for thinking that their programs (and Alabama's) were in real jeopardy too, because from what I can glean it appears that WLF's theory ultimately was that client consent -- not lawyer consent, which is all that an opt-out program provides -- was required to make IOLTA programs constitutional, and that (though it would be easier to start the litigation by attacking mandatory programs) the constitutional theory that WLF was pursuing was (at least arguably) equally applicable to opt-out programs. If you're interested, and I cant imagine that you really would be, see for instance fn 225 of this (pdf) article.

So, with that longwinded anxiety out of the way, I arrive where I started: I think that anyone who believes that Alabama's program was in the clear, and in no jeopardy from WLF's attack, is being naive about how aggressive WLF would have gladly been if they had succeeded in attacking the mandatory programs first, or is being too confident in predicting that all courts would have agreed that the "opt-out" distinction was legally relevant. Bill Pryor surely didn't think either of those things, because he's too smart. He stayed out of the fray, I firmly believe, because he thought that mandatory IOLTA programs should be struck down, even if that would seriously jeopardize Alabama's program. And he didn't even file a brief -- which he could have -- saying "even if you strike down Washington's program, you shouldn't intimate that opt-out programs would be unconstitutional as well."

So, with that even more longwinded anxiety, I will continue to cite Pryor's behavior in the IOLTA case as an example of a time when he did not rally to the defense of state law. If anyone has factual or legal information that should convince me that in fact all the other opt-out State AGs were ignorant of the legal certitude that their programs were beyond attack, or were just doing PC politics, please feel free to let me know: sam at heldman dot net. [updated after initial posting to tone down some anger]

posted by sam 4:54 PM 0 comments


Thanks to Juan Non-Volokh for responding to my post below, in which I took issue with some of his commentary. If he is defending his characterization of the defeat of Sessions's nomination as "obstruction" in a negative sense -- and I'm not sure he is -- I just can't agree, based on the record. The Senate Judiciary Committee heard testimony -- some of which was undisputed by now-Sen. Sessions, and most or all of which was presumably found credible by the majority of the Committee (thus leading to the negative result on the nomination) -- that Sessions, while sitting as U.S. Attorney in Mobile, had said that he used to think that the Klan was ok until he found out that they smoked marijuana; that a white lawyer who represented Black people in voting rights cases was a disgrace to his race; that the NAACP was an unAmerican or anti-American organization; etc. If Non-Volokh is suggesting that Senatorial reliance on these points was a mask for ulterior motives that can fairly be called "obstruction" -- and again I'm not sure that he is -- I must disagree. That testimony was surely enough, in itself, to justify any reasonable Senator in opposing the nomination.

Non-Volokh also asks what else I found incorrect in his posting. Mostly, I was referring to his reference to Senate Democrats as having begun the pattern of "obstruction" (again with a bad connotation) in the Reagan era. He admitted, as I read his post, that this was in response to a dogged effort by the Reagan administration to nominate based on ideology, more so than had then-recent Administrations; but still he decried Senatorial response as some bad "obstructionism". I disagree; if a first cause must be identified for the so-called current spiral, then wouldn't it be more fair to place the blame on President Reagan's program of more ideological nominations?

posted by sam 12:14 PM 0 comments

rhetorical question for the day

If an unctuously moralistic Senator uses coarse language in Senate debate that is not fit to be printed in a newspaper -- and declines the opportunity to withdraw that language -- is it appropriate for the AP and the newspaper to take affirmative steps to pretend that it never happened, by editing his words? (see the last portion of this article; compare here, where the same paper's gossip columnist printed the actual words without ellipsis)
[I now see that Howard noted the same thing about the AP's report.]

posted by sam 9:49 AM 0 comments


Thanks to Howard Bashman, I see that the AP is now covering the fact that Bill Pryor's Lawrence v. Texas amicus brief out-Santorumed Santorum, in his assertion that gay sex is like necrophilia from a constitutional point of view. And don't forget, everybody -- when you hear his defenders say, "hey, by filing that amicus brief, he was just doing his job, which is to defend the State's laws whenever there is a good constitutional argument for doing so," you can say: "Oh really? Then why didn't he file an amicus brief to defend the State's law, as the vast majority of other state AGs successfully did, in the IOLTA case (Brown v. Legal Foundation)? Could it have something to do with the fact that the right-wing group Washington Legal Foundation -- one of the few groups lucky enough to receive a link on his official State website -- was challenging the law? Or perhaps with his ideology? Why is it more important to defend an anti-gay sex law, or to defend the State's prohibition of vibrators, than to protect State laws that provide legal services for poor people?"

UPDATE: The internet's most dogged defender of Bill Pryor, Feddie at Southern Appeal, says that I'm badly wrong because (he says) Alabama's IOLTA program is "voluntary" in that a lawyer can opt out of it, and therefore was not jeopardized in Brown. I firmly believe that Feddie is wrong. Alabama law -- Rule of Prof. Conduct 1.15(g) -- requires that every lawyer who maintains a separate account to hold client funds must give the interest to the IOLTA program. A lawyer can decide not to have such a separate account, but if the lawyer has such an account, the interest is "taken" by the IOLTA program. And the interest, under the Washington Legal Foundation theory, was the client's -- not the lawyer's -- and so the client would have had a takings claim in Alabama under the (rejected) WLF theory, if the lawyer was one who had decided to have such an account. Nice try, Feddie, but no cigar. {Further: According to the Indiana Bar, 21 states have opt-out programs; but at least several of those, including Indiana itself, joined in the States' amicus brief in support of IOLTA. Presumably they recognized, as I do, that their programs were in the same jeopardy as the other states'. If you want to investigate, do a google search for the words iolta and opt-out; then note various states with opt-out programs who, through their AGs, joined the amicus brief. Pryor did not join. Retraction, please, Feddie?}

posted by sam 7:17 AM 0 comments

Thursday, May 01, 2003

My friend John Feffer, who knows more about more kinds of food than anyone I know, has a new article in The American Prospect about the international debates over genetically modified foods. Check it out.

posted by sam 1:43 PM 0 comments


With so much of my blogging and writing energy having been devoted to Bill Pryor's nomination to the 11th Circuit, I don't have the inclination to say much about the other current aspects of the confirmation wars, from Justice Owen (I discussed my opposition to her nomination months ago) to broad proposals to "reform" the process. You can get plenty of info about all of this, by reading the nice folks in the links column. But I can't resist: (a) a recommendation that you read Prof. Balkin's post here; and (b) pointing out that Juan Non-Volokh's response errs (among other ways) in offering, as one of the most notable examples of Democratic "obstruction" of Reagan nominees, the defeat of now-Senator Jeff Sessions's nomination to the U.S. District Court for the Southern District of Alabama. Sessions's nomination was defeated in 1986 -- not, as one might think from the context of Non-Volokh's post, in 1987 or 1988 in a Democratic effort to keep the seat open in hopes of a Democratic Presidential victory in 1988. And more importantly, to describe the defeat of Sessions's nomination as ideological or political "obstruction" with a negative connotation is absurd to anyone who remembers, or has read the transcript of, the Senate hearing on his nomination. I recommend it to Non-Volokh, and to anyone else; it will knock your socks off.

posted by sam 7:34 AM 0 comments

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