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February 2005
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April 2005

Blawg Review

There's a new blogging player in town.  Well, not really.  I recognize the writing style of the "anonymous" bloggers, and many of you will, too.  They're not newbies.  Which is good, because their project should turn into something great.  So check out Blawg Review.

Cross-Examination Favorites

Effective cross-examination requires experience.  I have suggested that twenty-five jury trials represent a minimum measure of the experience that is necessary.  Twenty five jury trials, of course, take time.  How can experience be accelerated?  There is something you can do to condense the process of acquiring the necessary eperience.  Even if you have the experience, I think it can be helpful, even to an older, mature trial lawyer to do as much.

In one word, read.  I don't mean read law.  There is too much law as it is.  Most of it better left unread.  But there is a small library of books about trial lawyers, trial judges, and trials.  Most of these books are contemptible as literature, but I recomment them as sources of vicarious experience.

Irving Younger, "The Art of Cross-Examination" at 32 (ABA 1975).  Please leave your favorite books or websites that deal with cross-examination, or trial tactics in general, in the comments section.


Prof. Bainbridge, responding to Instapundit's post, wrote:

I see federalism and limited government as means to an end, while [Prof. Reynolds] seems to see them as ends in and of themselves. I find his to be a fairly typical worldview among libertarians, who make a fetish out of federalism and small government without regard to whether they actually contribute towards the public good in a given case.

What do you suppose Professor Bainbridge means?  I hope that he doesn't mean this: "First, decide what you want.  Second, find a theory that you can use to convince people to accept that conclusion."  Isn't this the same model that activist judges use?

I'm not sure something is a principle when we only apply it pos hoc, which is what Prof. Bainbridge (though I hope not) seems to be suggesting.  Namely, the end we seek is the "public good."  If federalism will help us reach out preconceived notion of the "public good," then let's use federalism.  If not, let's use something else.  But isn't that just a post hoc justification for a pre-determined conclusion.  Federalism becomes a smokescreen for power politics.

I think that with principles, you have to take the good with the bad.  Generally, federalism will lead to increased individual liberty, but not always.  A state, e.g., may impose draconian sentences or oppressive regulatory schemes.  But if there is no due process or dormant Commerce Clause violation, then I have to accept that the state has the prerogative take that act.  I can't say, "Federalism should not apply here, because I believe that government regulation stifles economic growth and freedom."  Instead, I must accept the state's actions.

In any event, federalism is my fetish is because federalism, on balance, will lead to greater individual liberty.  I'll let two qualified people elaborate.  Judge Kennedy is fond of saying that the genius of the Founders was that they split the atom of sovereignty.  U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) (“Federalism was our Nation's own discovery.  *** It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other”).   The Framers recognized that federalism was not good qua good: Federalism was good because it furthered individual liberty. 

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. 

The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  By limiting the States and Congress to their proper prerogatives, the people enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.

Again, sometimes federalism does not lead to more liberty, though on balance, it does.  But I can't merely disregard federalism because I don't like the result in a given case.  Otherwise, I don't live by principles, but by whim.

Due Process and Police Investigations

One of the joys of reading and working on section 1983 cases is the high creativity factor.  The smartest lawyers I've ever met either had a broad anti-trust or 1983 practice.  (A lot of bozos take 1983 cases, screw them up, and make bad law, but that's a topic for another day).  Anyhow, here's the latest example of a creative effort to hold a city liable.  It was a sure loser from the outset (in my opinion), but it was a damned good try.  Affirming dismissal, Judge Heaney wrote for a unanimous three-judge panel:

Delroy C. and Rhonda L. Scheeler (the Scheelers) brought a claim pursuant to 42 U.S.C. § 1983 against the City of St. Cloud, Stearns County, and various city and county officials (the defendants) after the death of their son, Craig Scheeler. Craig Scheeler died after suffering a gunshot wound to his head. The police investigation concluded that the wound was accidentally self-inflicted when Craig Scheeler was playing Russian Roulette. The Scheelers maintain that someone else shot Craig, and that the defendants’ failure to properly investigate the circumstances of Craig’s death impeded their ability to bring a wrongful death claim against the assailant, denying them their constitutional right to access the courts.

Scheeler v. City of St. Cloud, No. 04-2800 (8th Cir. Mar. 31, 2005).  Pages 5-10 have an excellent discussion of what standards will govern 1983 actions brought under a denial of access to the courts theory.

Schiavo Wars Have Just Begun

Terri Schiavo may soon find a place in flat-liner heaven, thus ending the legal battles about who decides when and whether to feed her. But the real Schiavo Wars are just beginning. In the next decade, the pace of federal litigation on issues relating to the beginning and end of life will quicken; a new assault on privacy will blossom. Will liberty survive?

A God-intoxicated faction of Bible-thumping thugs scored a major victory in the newfound war on privacy. Congress was bullied into behaving as little more than a rubber stamp. To Hell with the deliberative process; God is calling, and the righteous demand that we listen.

Remember Madison's letter to Jefferson?

"Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents."

Shorn of its eighteenth century trappings, it comes down to this: Beware the mob. And there is no mob more frightening than those persuaded to a moral certainty that God has cut his way through the cosmic clutter to speak directly to them.

Days after tears are shed over the burying of Ms. Schiavo this new lion will roar.

Gay marriage? Against the will of God.

Abortion? Only God gives and takes life.

Prayer in the schools? Self-evidently good.

Evolution? The dogma of the religion of "secular humanism."

And on and on it will go.

The orthodox beliefs of the pork-fed, polyester clad, Walmart-lovin' Middle American angst junkies will become a new national standard. The righteous bent Congress to its will once; what's another run at a spiritual coup? Pity the heterodoxical too dense to consent to redemption.

The federal courts withstood the recent spasm of Schiavism. But a court-packing president with ties to the religious right will be looking to a new kind of jurist, one more inclined to give the mob what it wants.

It is frightening. Those of us who aren't members of Club Righteousness have good reason to worry. I am not a member of church or synagogue. I am, however, an American, and I always thought that meant I was supposed to tolerate those with different beliefs. I thought it meant I was to be let alone to scuplt my own responses to life's larger questions.

I am looking forward to the next decade. Find me a courthouse, 'cause I'm spoiling for a fight.

Et Tu, Big Mouth?

I logged on tonight and saw a story raising questions about why Jesse Jackson was inserting himself into the Schiavo case and the Michael Jackson trial. I was spewing venom. A minister without portfolio? Marble mouth in heat? A reverend without a cause?

Then a tiny voice sounded somewhere where conscience should lie.

"Why shouldn't Jesse speak?" the voice said.

Because he's a vapid, passe imbecile without the sense to shut up, I replied.

"Oh?" and a mocking silence.

Yeah, I mean this lipster lost it about the time he decided to appoint himself ambassador to Iran. I'm on a self-righteous toot, you see. I am seeing red and hoping for the taste of blood.

"Et tu?" the voice said.

What about me?

"Let he who is without blog cast the first stone," said the calmness.

And it hit me. I'm just jealous. When I pop off I have to create an audience. Jesse gets one just for being himself. We blogsters only aspire to be Jesse.

Aw, beans. It's no fun being honest.

Hey, Jesse. Yeah, you of sloppy diction and even sloppier distinctions. Sit down and shut up. Schiavo's constitutional issues are too dear to be traded upon by a two-bit populist in search of a following. And don't even try to pretend the Jackson case is a drama about race. Give it a rest, already.

Ah, ... I do feel better.

Church and State (University)

A state university demands that student organizations not discriminate on the basis of sexual orientation.  A student organization - the Christian Legal Society - excludes homosexuals from eligibility to hold executive positions.  The university de-recognized the organization, which means the members of the organization will be denied access to school facilities and other limited public fora.  The student organization claims that excluding homosexuals from holding executive positions is not only demanded by its members sincerely held religious beliefs, but also, is expressive association.

Is the state's policy constitutional?  Here's information on pending itigation.

A Section 1983 Action (in Theory, of Course)

The Blake jurors are upset about Steve Cooley's remarks:

Jurors who acquitted actor Robert Blake of murder demanded an apology from District Attorney Steve Cooley who called their decision "incredibly stupid."

"I'm just disgusted," Blake jury foreman Thomas Nicholson said Thursday. "It appears to me he has no faith in the jury selection. After all, it was his people who helped choose us."

Let's see....

Did Cooley retaliate against the jurors for engaging in protected speech and for voting, as they are constitutionally-entitled to, as a juror.  (Recognizing, of course, that Cooley's speech might be protected - but see Pickering - and thus provide a defense to liability).  And if so, assuming a juror would less likely exercise his constitutional right to serve on a jury (or to speak out on matters of public concern), would Mr. Cooley be liable under 1983?  Prosecutorial immunity would not apply, as speaking out at a post-verdict press conference is not a prosecutorial function.


Competition is Unjust

Cab drivers in Arizona recently protested "working conditions."  Among their complaints:

Competition from on-demand limousine companies. Sky Harbor is one of the only major airports that allows limo drivers to compete with cabbies for customers. Most other airports allow only limo drivers who are picking up passengers with reservations. City officials said they were aware of this issue and are hiring a consultant to look at its limousine policies.

Competition, it seems, is unjust.  Consumer choice, it seems, is also unjust.

(Hat tip: Politics Blog).