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Tuesday, November 21, 2017

Thor: Ragnarok Does Not Exemplify Trial By Combat

Over at the ABA Journal, Adam Banner claims that Thor: Ragnarok is the "latest instance of trial by combat in popular culture." He writes (don't worry, no spoilers yet): 
First off, if you haven’t seen the new Thor film, I highly suggest it. It’s one of the best entries in the Marvel Cinematic Universe, and it contains one of the best scenes any fan could ask for: a battle between the God of Thunder and a giant, green rage monster. Without giving too much away, Thor is promised his freedom if he can best his captor’s “champion” in combat—it just so happens that champion is a super-angry Hulk. Trial by combat? Definitely.
I've seen Thor: Ragnarok twice (it's fantastic), and I've written a fair amount about trial by combat (see blog posts here, here, and here and a peer reviewed (!?) article that I coauthored with my former classmate, Raj Shah here). After reflecting on the history, basis, and characteristics of historic (and even Game-of-Thrones-style) trial by combat, the fight between Thor and Hulk in the movie cannot be fairly characterized as an example of trial by combat.

Banner (what a name for a guy writing about a fight that involves the Hulk) decides to write his article without spoilers, which allows him to advance his claim behind a fog of uncertainty that maybe there are other events in the movie that make the fight into a trial by combat scenario. I'll get into the nitty-gritty of the events leading up to the fight in the movie after the break, so I guess there are some minor spoiler alerts for those who didn't watch the trailers and put two and two together.

Wednesday, November 15, 2017

Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:

Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:
"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.
While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

Thursday, October 26, 2017

Honolulu Bans Looking at Cell Phones While Crossing The Street

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.
"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."
Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.
One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.

Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.

Friday, October 20, 2017

Court Denies Sheriff Joe Arpaio's Request to Vacate All Orders and Dismiss Case Following Pardon

NPR reports:
U.S. District Judge Susan Ritchie Bolton says that President Trump's pardon of former Maricopa County Sheriff Joe Arpaio does not "revise the historical facts" of his case — and that she will not vacate her ruling that found Arpaio guilty of criminal contempt.
On Thursday, Bolton quoted Black's Law Dictionary to say that a pardon "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." But she then added a further interpretation in her own words: "It does not erase a judgment of conviction, or its underlying legal and factual findings."
The NPR story contains a copy of the Order, but a complete copy of the Order can be found here. Additional coverage of this most recent development can be found here and here. Arpaio's attorneys have filed a notice of appeal of the ruling. My own discussion of the Arpaio pardon can be found here.

I do not have a time to do my own research on the law of pardons in the Ninth Circuit, but from the court's focus on the law of other circuits it appears that there does not seem to be any clean, controlling precedent in the Ninth Circuit. The court was not persuaded by Arpaio's reliance on U.S. v. Schaffer in which the DC Circuit vacated all orders following a pardon. The judge noted that due to the procedural background of Schaffer, the only issue pending was the court's grant of a new trial to Schaffer, which left Schaffer in a position "as if no trial had ever taken place." Accordingly, the seemingly broad order in Schaffer had a limited effect, which distinguished the ruling in Schaffer from Arpaio's broader request.

When this Order is appealed, I expect that the quick discussion in footnote one of the Order will be expanded upon. Here is the text of that footnote (with hyperlinks to the text of the cited cases added):

The United States Supreme Court originally signaled in dicta that a presidential pardon may have an expunging effect. See Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866) ("A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence."). The Court later rejected this view. See Burdick v. United States, 236 U.S. 79, 94 (1915) ("[A pardon] carries an imputation of guilt; acceptance a confession of it."). Other courts have followed suit. See, e.g., In re North, 62 F.3d 1434, 1436-37 (D.C. Cir. 1994) (finding Garland dicta not controlling); United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990) (same); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975) (same).
As the case works its way up through appeals, I suspect that discussion of the Supreme Court precedents and their interactions will move from the footnotes to the text of whatever opinions result. And if the law in the Ninth Circuit addressing this pardon issue is as absent as it seems from Judge Bolton's order, it will be interesting to see how the Ninth Circuit addresses the issue. In the end, I suspect that the ruling will not be favorable to Arpaio, but if the Ninth Circuit takes a thorough approach to the analysis (see, e.g., the approach in Noonan), the decision could be a notable contribution to this rarely-litigated area of law.

Tuesday, October 17, 2017

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:
1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.
2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.
The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:
56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.
57. QUIRK is a BULLY.
As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?
181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.
182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].
183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.
184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].
185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.
186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.
And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:
G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.
Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Wednesday, October 4, 2017

Wall Street Journal Praises Judicial Ignorance of Statistical Methods

From yesterday's Wall Street Journal editorial page covering yesterday's oral arguments in Gill v. Whitforda case that involved a challenge to alleged gerrymandering:

[Chief Justice John Roberts] zeroed in on risks for the credibility of the judiciary if the Supreme Court invalidates a state electoral map on purely political grounds for the first time. His reference to EG is to a political science standard offered by the plaintiffs as a test of when an electoral map is too partisan.
. . .
Chief Justice: “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7%. That doesn’t sound like language in the Constitution.” . . .
[Plaintiffs' Attorney, Paul] Smith: “If you let this go, if you say this is—we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.
And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like—everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”
Chief Justice: “No, but you’re going to take this—the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”
Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.
An eye-opening Twitter thread by Steven Mazie illustrating how Chief Justice Roberts and Justice Gorsuch appeared to lack knowledge of the statistical methodology involved paints Chief Justice Roberts' comment as more disturbing than the quippy Editorial Board lets on. While "gobbledygook" is a fun word, reminiscent of "argle bargle" and "pure applesauce" of old, the implications of the comment are that the Court -- the last resort for challenging (often-complex) gerrymandering schemes -- should decline to do so because the methods involved are too complicated and potentially subject to partisan manipulation. Jesse Wegman at the New York Times' editorial page covers Smith's response, which summarizes this problem:
“The problem in this area is if you don’t do it, it is locked up,” Mr. Smith said. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”
Gerrymanders are more than "unsightly" as the Journal describes. The contorted and bizarre-looking voting districts that gerrymandering creates may result in disenfranchisement of voters along party and racial lines. They threaten representative democracy. The Journal's and Chief Justice's implication that a lack of understanding of statistical methods is enough of a barrier to let this threat go unchallenged is concerning.

Thursday, September 28, 2017

Trump to Nominate Justice Don Willett for Fifth Circuit

So reports San Antonio Express-News:

President Trump on Thursday will nominate two conservatives from Texas with compelling personal stories to the 5th U.S. Circuit Court of Appeals, according to a senior administrative official.
Texas Supreme Court Justice Don Willett was cited by Trump as a potential U.S. Supreme court pick during his presidential campaign. Dallas appellate lawyer James Ho is a former Texas solicitor general who has argued cases before state and federal courts.
Willett -- a prolific Twitter user whose wit with more than 96,000 followers and the title of Texas “Tweeter Laureate” --had gently mocked Trump in some tweets during the campaign for the White House.
The article has a collection of some of Justice Willett's "gently mock[ing]" tweets.

I had previously blogged about Justice Willett back in the heyday of speculation as to who Trump would nominate to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. At the time, Justice Willett was on Trump's list of potential nominees, although Trump ultimately nominated now-Justice Neil Gorsuch to the Court.

It will be interesting to see whether Justice Willett faces heightened scrutiny in his confirmation hearing given his prior inclusion on Trump's list of potential Supreme Court nominees. Justice Willett also may have a wider public profile than some of Trump's other nominees in light of his active, and often humorous, Twitter account. This, coupled with existing dissatisfaction by Democrats on the Senate Judiciary Committee may lead to some interesting exchanges whenever the hearings end up taking place.