Our evil twin, on killing Americans for "incitement"

Kenneth Anderson (no relation), commenting on the killing of al-Qaeda cleric al-Awlaki:

To be perfectly clear: I myself believe there will eventually be cases of incitement to killing and participation over the internet by radical jihadist preachers that will raise the question of targeting on the basis of incitement alone, and my own view is that there are circumstances where that will be justified, including some who will be US citizens — and this is not, repeat not, that case.

So apparently we could've just had Ezra Pound assassinated?

K.A. has learned not to enable comments on his posts, as then someone might inquire into the legal authority for "incitement" as a capital offense, or the place of "incitement" in the laws of war.

If there is anything the U.S. government does that K.A. has not displayed a willingness to rationalize, I am not familiar with it.

News alert: The Framers were politicians, too

Charles Pierce waxes irate about the cult of the Tenth Amendment, which as he notes, was drafted so as not to mean anything by politicians who didn't want it to mean anything.

(His quotation from Meier's Ratification reminds me that I need to read that. So many books, so little time.)

... From Pierce's comment thread:

How is that "Tenthers" can be so knowledgable about the nuances of constitutional history and original intent, but look at time-lapse photos of the South Pole and can't see melting?

5th Circuit to ponder issuing appalling en banc decision

Via Bashman, this news:

A federal appeals court in New Orleans will hear oral arguments in a lawsuit that claims a 9-year-old girl was checked out of a south Mississippi school six times by an unauthorized man who then raped her.

The lawsuit filed in 2008 by the girl's father and paternal grandmother said a Covington County elementary school failed to verify Tommy Keyes' identity when he took the girl from campus in 2007 and 2008. The school district denies the accusation.

A federal judge in Mississippi dismissed the lawsuit. Then, in August, a three-judge panel of the 5th U.S. Court of Appeals reinstated it.

In an order filed Monday and released Wednesday, the full 5th Circuit Court agreed to hear the school district's appeal of the reinstatement. The court said oral arguments will be scheduled later.

The lawsuit said the 6-foot-2-inch Keyes allegedly signed the check-out sheet on one occasion as the girl's mother but usually signed her father's name.

The lawsuit said Keyes "brutally and viciously raped, sodomized and molested" the girl each time he checked her out of school. Keyes brought the girl back to school and checked her in after the alleged attacks, the lawsuit said. * * *


At the beginning of school, guardians fill out a form in which they list people who have permission to check out a child. The lawsuit said that Keyes was not on the list of people approved to check out the girl and that school officials didn't ask for identification to compare with the list.

Attorneys for the girl's family have said the case would set a frightening legal precedent for parents if a court ultimately decides that an elementary school has no constitutional duty to prevent a student from leaving with an unauthorized person.

Here is the panel decision that may be overturned. Evidently, the weight of judicial opinion runs against the holding that assuming custodial care of a small child creates a "special relationship" that would make the school liable for due-process violation if it fails to keep the child reasonably safe.

To which TBA responds that there is something wrong with the weight of judicial opinion. You cannot legally require a child to attend school, act in loco parentis for the child, and then assume no duty whatsoever for the child's safety -- indeed, hand her over to her rapist. If the law holds that, then the law is an ass.

P.S. -- Keyes is said in the article to be serving a 10-year sentence. WTF?

U.S. Capitol Police discover "satire"

Apparently, I've been making the mistake of failing to check the Onion's Twitter feed. TPM reports:

As of the latest update on Twitter: "BREAKING: Congress demanding $12 trillion ransom or 'all the kids die' #CongressHostage"

Shortly after the story began being posted, the Capitol Police released this statement to the press, from spokesperson Sgt. Kimberly Schneider:

It has come to our attention that recent twitter feeds are reporting false information concerning current conditions at the U.S. Capitol. Conditions at the U.S. Capitol are currently normal. There is no credibility to these stories or the twitter feeds. The U.S. Capitol Police are currently investigating the reporting.

When contacted by TPM, Sgt. Schneider declined to comment on what the Capitol Police might be doing to investigate the matter, saying that the police do not discuss the preliminary stages of a law enforcement investigation.

Obviously (to everyone but the Capitol Police), it's a satire on "holding America hostage" in the debt-ceiling fiasco.

Late morning on Thursday, The Onion tweeted: "BREAKING: Witnesses reporting screams and gunfire heard inside Capitol building."

This was then followed by an "update," and a new hashtag for the story: "BREAKING: Capitol building being evacuated. 12 children held hostage by group of armed congressmen. #CongressHostage"

The paper then posted an article laying out the "breaking news" of the hostage situation -- having it begin when Senate Majority Leader Harry Reid (D-NV) "suddenly burst into the National Statuary Hall with a pair of black panty hose over his head and began firing a Beretta 9 mm handgun into the air, shouting, 'Everybody down! Everybody get the fuck down !'"

The article includes a plainly Photoshopped image of Speaker John Boehner (R-OH) at a door to the Russell Senate Office Building, holding a gun to a little girl's head, and flanked by an unidentified man wearing a ski-mask and holding a rifle. The caption reads: "If the money is not delivered by this evening, members of Congress say they will shoot a new child every hour on the hour."

The article also includes a fictional cell-phone video, seemingly taken by a child hostage, seated on the ground depicting Sen. Pat Toomey (R-PA) and Rep. Dan Lipisnki (D-IL) threatening the group of schoolchildren. "Lipinski" says, "Hey, Boehner, this kid's got a phone," and the video suddenly stops after a loud noise -- presumably meant to represent some violent act, possibly a gunshot, being committed against the child.

This story kicked off various negative reactions across Twitter. In a very notable example, House Majority Leader Eric Cantor's (R-VA) real-life spokesman Brad Dayspring tweeted: "The Onion: FAIL. #notfunny"

A minute or two later, The Onion tweeted a message about Cantor: "Arlington gun shop confirms Rep. @EricCantor bought 6 semi-automatic handguns, 3 rifles & 600 clips of ammo last month #CongressHostage"

Not a coincidence, one hopes.

From the annals of incidental sexism

ThinkBabyNames.com is a popular site for, uh, baby names, telling you about a name's popularity and original meaning. Here for instance is "Quinn" under "Boy Names":

Quinn meaning and name origin
Quinn \qu(i)-nn\ as a boy's name (also used as girl's name Quinn), is pronounced kwin. It is of Irish and Gaelic origin, and the meaning of Quinn is "counsel". May also possibly mean "descendant of Con", which has connotations for "intelligence". A Scottish and Irish surname used as a given name from very ancient times. Quin (keen) is a Spanish short form of Joaquin. Actor Aidan Quinn.

And here's the entry under "Girl Names" for "Quinn":

Quinn \qu(i)-nn\ as a girl's name (also used as boy's name Quinn), is pronounced kwin. It is of Irish and Gaelic origin, and the meaning of Quinn is "counsel". A Scottish and Irish surname occasionally used for girls. Actress Quinn Cummings.

Same meaning, right?

May also possibly mean "descendant of Con", which has connotations for "intelligence".

Oh right, that. Well, we wouldn't want to turn anyone off the name for their beautiful little girl, would we?

Reality-based diplomacy (for once, we'd eschew irony)

LGM points us to Charles Pierce's politics blog at Esquire. Worth a look, though the lead post right now is actually by Thomas Barnett:

It is time for both Afghanistan and Pakistan to stop being our problem and ours alone to solve. The Bush-Cheney unilateralism segued right into the Obama-Biden version: We simply refuse to deal with the regional powers, all of which want a far bigger say in how this whole thing settles out. Instead of working with India, China, Russia, Turkey, and Iran — and accepting that their more vigorous management of the situation would mean "victories" for them and not us — we've chosen consistently to side with Pakistan, which not only wants but is committed to keeping the region unstable.

And now comes word that they've been ambushing our soldiers? Please.

In strategic terms, I can't think of anything in U.S. foreign-policy history that reeks of the same level of sheer stupidity — nor stubbornness. On this level and this level alone, the Af-Pak fiasco outdistances the tragedy that was Vietnam. And for this reason alone, the Obama administration has shown itself no better at managing the long-war against violent extremism than the Bush administration was in its final years.

I wish there were more people saying this. We have some interests in the area, at least along the lines of (1) no nuclear war and (2) no harboring of terrorists, but quite obviously the next-door neighbors of all this have much more interest than we do, and any halfway successful policy will have to be built on that fact. Where's Henry Kissinger when you need him?

... My Kissinger quip btw shouldn't be taken as a mistaken agreement that Kissinger was in practice a realist. Walter Isaacson writes of K. during the 1971 India-Pakistan crisis:

The conflict thus illustrated two of the basic themes of his [K's] diplomacy: the primacy of realism over moral concerns, and the tendency to see disputes through the prism of the Soviet-American competition.

But, leaving aside "moral concerns" (which one might have thought were the *aim* of policy?), there is nothing "realistic" about projecting fantasies onto facts and treating a local conflict as a puppet show between the superpowers. If "realism" is to mean anything other than a contempt for human suffering, it has to mean a conscious effort to shed one's prejudices. What Stendhal said about bankers and philosophers applies to diplomacy as well:

To be a good philosopher, one must be dry, clear, without illusion. A banker who has made a fortune has one character trait that is needed for making discoveries in philosophy, that is to say, for seeing clearly into what is.

American unexceptionalism

Andrew Sullivan on America:

I will never think of America the same way after the Bush-Cheney administration. They ripped the scales off my eyes; they proved that America isn't, in the end, different; that its core moral principles, such as the prohibition of torture, are nostrums to be tossed aside at the whim of a few very scared and incompetent men; that the rule of law ends when it comes to presidential power, when he can simply order dipshit lawyers to say black is white; when no regret is ever truly expressed about the tens of thousands of Iraqis who died under US occupation; when the architects of these strategic and moral disasters are given legal immunity and peddle books on talkshows defending and bragging of their own awful legacy.

Word.

Via Ricks.

The importance of the "Oxford comma"

Visually depicted so that you will never forget it:

(Via.) Capitalization, it seems, is a separate issue altogether.

SATISFACTION GUARANTEED - So expensive to ship, you'll keep it and not return it

Jim McDonald provides this handy Product Description Glossary:

•NEW - Different color from previous design.
•ALL NEW - Parts are not interchangeable with previous design.
•EXCLUSIVE - Imported product.
•UNMATCHED - Almost as good as the competition.
•FOOLPROOF OPERATION - No provision for adjustments.
•ADVANCED DESIGN - The advertising agency doesn’t understand it.
•IT’S HERE AT LAST - Rush job. Nobody knew it was coming.
•FIELD TESTED - Manufacturer lacks test equipment.
•HIGH ACCURACY - All parts fit.
•FUTURISTIC - No conceivable reason for it to look the way it does.
•REDESIGNED - Previous flaws fixed—we hope.
•DIRECT SALES ONLY - Manufacturer had a big argument with distributor.
•YEARS OF DEVELOPMENT - We finally got one to work.
•BREAKTHROUGH - We finally figured out a use for it.
•MAINTENANCE FREE - Impossible to fix.
•MEETS ALL STANDARDS - Ours, not yours.
•SOLID-STATE - Heavy as hell.
•HIGH RELIABILITY - We made it work long enough to ship it.
•NON-REFUNDABLE - We couldn’t make it work long enough to ship it.

If only we'd decided that other war on the football field

Okay, this is pretty funny.

The rest of college football formally surrendered to the Southeastern Conference Sunday, ending a decades-long war that had become hopelessly one-sided.

The surrender took place just outside Appomattox, Va. SEC officials declined to explain why this site was chosen.

WSJ (via JJ). There's more at either link.

Brief-writing guidelines from people who read briefs.

We've probably mentioned it before, but the 7th Circuit's typography guidelines are a great resource for the legal writer.

For example, its guidelines on typefaces:

Use the most legible face available to you. Experiment with several, then choose the one you find easiest to read. Type with a larger “x-height” (that is, in which the letter x is taller in relation to a capital letter) tends to be more legible. For this reason faces in the Bookman and Century families are preferable to faces in the Garamond and Times families. You also should shun type designed for display. Bodoni and other faces with exaggerated stroke widths are effective in headlines but hard to read in long passages.

Our new favorite font, Georgia, is good on x-height.

I don't follow every rule or tip offered, but everything the court suggests is worth thinking about. If you've never looked at it before, you really should.

Winning the GOP race ... to Most Stupid Candidate

The increasingly desperate Michelle Bachmann:

I think you earned every dollar, you should get to keep every dollar that you earn. That's your money, that's not the government's money. That's the whole point.

Perhaps she favors a more Biblically-based revenue system, where the government operates on our tithes.

"The inexorable spread of ignorance even to the universities"

The Times HES runs a good article on W.G. Sebald, filling in some personal details I hadn't seen before. The author suggests that The Rings of Saturn is his best book, which is my feeling as well. I've never read anything quite like it.

Maybe if she'd said it in Law Latin? "Tace!"

The Hon. Edith Jones of the Fifth Circuit Court of Appeals is on a roll: first her slapdown of Judge Sam "Kindergarten Party" Sparks (which she cc'd to every other federal judge in W.D. Tex.), and now this at an en banc rehearing:

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….

CHIEF JUDGE JONES: Judge Dennis….

JUDGE DENNIS: … just on the basis of the amount of drugs …

CHIEF JUDGE JONES: Judge Dennis!

JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

(Via Bashman.) Puttin' the "chief" back in "chief judge," for sure. Imagine being the cringing counsel at the podium, waiting for Mom and Dad to quit fighting. Oy.

(She did apologize later, though the recording cuts off there.)

R.E.M. breaks up after 31 years

... i.e., about 17 years too late.

Bilbo purge -- what hobbits do after their third breakfast?

Mississippi's board of college trustees was given the power to hire and fire profs and administrators at the state schools largely because of such shenanigans as Governor Bilbo's firing of over 100 faculty, popularly dubbed the "Bilbo purge."

That at least is the normal understanding. But see William McCain's essay on the Progressive era in the McLemore-edited History of Mississippi:

He warned the state institutions of higher learning against the baleful influence of politics ....

That's Gov. Bilbo he's talking about. I suppose he warned by example.

... The rest of the sentence gives an idea of one limitation of the McLemore History (published in 1973): "... and advocated broader participation of women in civic affairs." That's how I found the McCain quote about Bilbo, which was the sole index entry for "Women in civic affairs." Number of mentions of Evelyn Gandy, first woman elected to statewide office in Mississippi (in 1959 no less): zero.

(Bilbo practiced what he preached, I suppose; Gandy worked for Bilbo after she got her law degree, an association that the Wikipedia article's author suggests may have cost her in her two runs for the Democratic nomination for governor.)

... My late aunt was convinced that Hillary Clinton had Vince Foster killed and that Evelyn Gandy was a lesbian. AFAIK she was wrong on both counts.

Death tax?

During the back-and-forths of the wars of succession following Alexander's death, the people of Athens revolted against Phocion, who'd ruled Attica on behalf of Cassander, and condemned him to death by hemlock:

The executioner underestimated the amount of hemlock needed, and (with Phocion still to drink) refused to prepare more unless he first got the price of it, 12 drachmas. In the end Phocion asked one of his friends for the money, complaining that in Athens it was impossible even to die unless you paid for the privilege.

-- Peter Green, Alexander to Actium, at 751 n.46.

Some damn fool thing in the Balkans

Reading Martin Wolf in the FT, Kevin Drum provides the skinny on why Greece must be saved at all costs:

1. Greece cannot pay its debts. Period. It has no choice but to default.

2. Once it defaults, it will be unable to borrow and it will be forced to cut spending even more than it has already. This will damage its economy further, which in turn will reduce tax revenues, which will require further spending cuts, which will damage its economy further, et cetera without end.

3. This is obviously unacceptable. The only answer for Greece would be to exit the euro and devalue its currency. As painful as this would be, it would almost certainly be regarded as preferable to years or decades of economic collapse.

4. But Greek exit from the euro would cause staggering damage to the rest of Europe and its banking system — far, far more damage than they'd suffer from merely increasing their bailout of Greece. See Wolf's column for more on this. It must be avoided at all costs.

5. Thus, the only option left is for Europe to prop up Greece for years. For all practical purposes, this doesn't mean loaning Greece money, it means giving Greece money. Lots of it.

Step 4 is the part that's not clear to me, so I went through the hoops of registration to see the FT column.

Yet the idea of exit is also vastly difficult to implement. Legally, it would require the country to leave the European Union. Would the latter then take the trouble of inviting the malefactor back in? Unlikely. The country would, as a result, probably be excluded from the single market, too. Moreover, it would find it impossible to exit quickly and cleanly. As the story broke, there would be a run on all its liabilities. The government would have to limit withdrawals from banks, if not close them outright. It would also need to impose capital controls, in violation of treaty obligations. It can redenominate debt contracted domestically. But it cannot do so for debt contracted abroad. Many corporations would then go bankrupt. A report from UBS estimates the total economic cost in the first year at 40-50 per cent of gross domestic product.

Contagion would also be inevitable. Presumably, an effort would be made to build a firewall between the exiting country and other vulnerable countries. But it would be tested to destruction. Much Greek debt is held abroad (see chart). Moreover, once one country has exited, currency risk would be even more real for every other vulnerable country, including even Italy and Spain. Neither governments nor corporates in such countries could easily sell their debts. Banks would experience runs. The ECB would be forced to lend without limit. The global interconnections of banks would appear terrifying. According to the Bank for International Settlements, US banks alone have an exposure of €478bn to Greece, Ireland, Italy, Portugal and Spain (see chart).

And as you'd imagine, it gets even worse if, say, Germany decides to quit. It seems that the euro was a feel-good flag of solidarity not corresponding to any financial coordination. So barring such coordination, which seems unlikely, the "contagion" seems likely to break out.

Note to self

Before finishing fat volume of Lloyd George biography (to 1912) and ordering second fat volume of same (1912-16), have a google and check whether the author is still alive to finish the damn thing.

It had been his intention to round out Lloyd George’s life by completing one volume on the last two years of the war and one on the postwar premiership and political career, but despite completing the work through 1917, it remained unfinished at his death.

Mercy sakes. Lloyd George's last victim?

Autodidactic autocrat

When Fat'h Ali became the Shah of Persia in 1797, he was given a set of the Britannica's 3rd edition, which he read completely; after this feat, he extended his royal title to include "Most Formidable Lord and Master of the Encyclopædia Britannica."

-- Wikipedia.

Non-copying ink?

Miss. R. App. P. 32(a) says briefs "shall be in black non-copying ink."

What is non-copying ink? The rule and its comment do not say.

The internet is not particularly helpful on direct inquiry, but we do find a definition for the forbidden "copying ink":

Copying ink, a peculiar ink used for writings of which copies by impression are to be taken.

Merriam-Webster says "ink suitable for writing or typing that is to be copied by direct transfer (as in a copying press)."

Wikipedia has a good article on "duplicating machines" that discusses copying presses as well as another method implicitly forbidden by Rule 32(a), the "spirit duplicator" or, as we called them back in elementary school, "ditto machines." The ink used in those was almost invariably purple. (I can still remember the smell, which delighted us schoolchildren for some reason.) Turns out that the same aniline purple is used in blue jeans.

Anyway, so now you know that you haven't been breaking Rule 32(a) all along. Probably.

[UPDATE: Jim refers us to the 1902 Encyclopedia Britannica:

Copying Ink.—Ink which yields by means of pressure an impression, on a sheet of damped tissue paper, of characters written in it is called copying ink. Any ink soluble in water, or which retains a certain degree of solubility, may be used as copying ink. Runge's chrome ink, being a soluble compound, is, therefore, so available ; and the other logwood inks as well as the ordinary ferrous gallate inks contain also soluble constituents, and indeed are essentially soluble till they are oxidized in and on the paper after exposure to the air. To render these available as copying inks it is only necessary to add to them a substance which will retard the oxidizing effect of the air for some time. For this purpose the bodies most serviceable are gum arabic or Senegal, with glycerin, dextrin, or sugar, which last, however, has the disadvantage of rendering the ink sticky. These substances act by forming a kind of glaze or varnish over the surface of the ink which excludes the air. At the same time when the damp sheet of tissue paper is applied to the writing they dissolve and allow a portion of the yet soluble ink to be absorbed by the moistened tissue. As copying ink has to yield two or more impressions, it is necessary that it should he made stronger, i.e., that it should contain more pigment or body than common ink. It, therefore, is prepared with from 30 to 40 per cent, less of water than non-copying kinds ; but otherwise, except in the presence of the ingredients above alluded to, the inks are quite the same.

The solubility is evidently the problem; Jim notes that Mississippi's humidity would've made these inks particularly unsuitable for a pre-A/C court, and they don't seem archivally suitable in any event?]

... The rule also says "on white paper without the name of any person or advertising matters on the paper." Does that forbid watermarks on bond paper? We've never had a brief rejected on that basis .... The "original," I'm pretty sure, sits in a file while the justices read the copies. And here recently, I've switched to 28-lb copy paper instead of bond, which does a terrible job of holding laser toner.

... One more tidbit: I've seen some briefs name both the MSSC and the COA on their covers, apparently recognizing that the filer doesn't know which court will hear the appeal. Don't do that. "Prior to notification by the clerk that the case has been assigned to the Court of Appeals, all pleadings shall be captioned in the name of the Supreme Court." M.R.A.P. 32(b).

From the secret history of liberalism

Scott Horton has a good "6 questions" interview with U-Chicago prof Bernard Harcourt (who, now that I think of it, I've seen commenting around the internet too) about Harourt's new book The Illusion of Free Markets: Punishment and the Myth of Natural Order. Interesting stuff: here's question # 1 and the beginning of Harcourt's response.

Your book builds off an intriguing study of the eighteenth-century French Physiocrats — François Quesnay, Pierre-Paul Le Mercier de la Rivière, and others — in which you suggest that their theories of economics closely parallel what we have come to think of as the Chicago School. What exactly are the parallels, and how did this idea come about?

It’s the messianic belief in natural order in economics — in spontaneous order, as Friedrich von Hayek called it — or today in the efficiency of free markets, conjoined with a faith in strong government to deal with those who are outside the natural order — who are out-of-order, or disorderly. It’s the combination of those two paradoxical tenets — of government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing — that links these thinkers.

I would've told him to subtitle it "From the Physiocrats to the Tea Party," but that's just the low way I think.

"My daddy did it."

One problem with reading the week's appellate decisions is that you find things you really wish you hadn't seen, like this from the denial of an appeal by Fred Lenard, whose wife and son went missing one day:

A search was organized for Katrina and Little Fred. Around 5:00 p.m. the next day, Little Fred was found alive by his half-brother, Fred Aikens. Aikens was the twenty-three-year-old son of Lenard and a former wife. Aikens testified that he had been told by a member of his mother’s family – who had heard it from another family member – that Katrina was dead, but Little Fred was alive; and the two would be found tied to a tractor tire near the Pleasant Grove Church in Sherard, Mississippi. Pleasant Grove was the church Lenard and his family attended. Aikens did not know the original source of the information. In the woods near the church, Aikens found Little Fred alone, “hogtied,” lying face-down in a ditch in a wooded area near the church. Little Fred’s hands and feet had been bound together behind his back with wire. He was cold, wet, hungry, and covered with insect bites. Little Fred had also been bitten by a snake; had bruises on various parts of his body; injuries to his wrists and ankles from the bindings; and swelling in his face, hands, and feet. He was taken to a nearby hospital, where he repeatedly stated: “My daddy did it.” * * *

Little Fred was four years of age at the time of the trial. He testified that the last time he saw his mother, Lenard was driving the Dumases’ Cadillac and took Little Fred and Katrina to a “pink church.” He saw Lenard “hurt” his mother, and when Lenard put him in [the] woods, Katrina could not protect him because “blood came out of her nose.” Little Fred also testified that Lenard put a “string” around Katrina’s neck.

It must be really difficult to get the death penalty in Coahoma County, if Fred Lenard couldn't do it.

Dep't of Simple Answers

Alcohol fueled his penchant for showmanship--asked by his second wife why he drank so much, he replied, quite logically, “I’m an alcoholic, goddamnit!”

That's Dwight McDonald, from a review of a new collection of his essays (edited by Louis Menand).

Miss. Supreme Court forgets standard of review?

The reversal last week of the $7M judgment against Sherwin-Williams from a few years back got some attention. Here is what TBA finds remarkable.

Justice Kitchens, concurring only in the judgment, argued that the testimony that S-W's lead-based paint was used was simply too incredible:

Sherwin-Williams presented substantial evidence that it had stopped manufacturing residential lead-based paint in 1972, but the plaintiff produced three witnesses who testified that lead-based Sherwin-Williams paint was used in the house between 1978 and 1994.

Doris Gaines, the plaintiff’s grandmother, testified that she had painted the home several times between 1979 and 1994, and that she always had asked the store for Sherwin-Williams “lead” paint. The grandmother acknowledged that she never had read the paint labels, but merely assumed that the paint contained lead because she had asked for lead paint.

Vernon Collier was a long-time friend of the grandmother’s who would help her with various construction and painting projects in her house. Collier testified that he had helped Ms. Gaines paint the outside of the house in 1979 with Sherwin-Williams paint. Collier stated that he believed the paint contained lead because it covered the painted surface in one coat, but he did not read the labels. Moreover, in an earlier deposition, Collier stated that he and Doris did not use Sherwin-Williams paint in the latter part of the 1970s because “[Doris] wasn’t into Sherwin-Williams at that time.”

Johnny Crawford, the plaintiff’s step-grandfather, purchased the house in 1978. Crawford testified that he had bought and used Sherwin-Williams lead paint in the late 1970s and recalled seeing the words “lead paint” on the labels. This testimony was directly contradicted by a prior affidavit wherein he swore that he had no knowledge whether the paint used on the house contained lead or what brand of paint was used.

The plaintiffs produced one witness who testified about the paint used on the house before 1978. Reverend Martin Lias’s deposition was read to the jury, and he testified that he had witnessed the painting of the back porch with white Sherwin-Williams lead paint in the 1930s. However, the grandmother, Ms. Gaines, testified that the back porch had been removed before the plaintiff was born, rendering Reverend Lias’s testimony irrelevant in the present case.

Could a reasonable jury have found by a preponderance of the credible evidence that lead-based paint was used? Really? Because that's the standard of review, right?

If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Thus the MSSC less than a year ago, reciting the boilerplate language for a JNOV motion.

However, that's not how Justice Pierce phrased it writing for the Court in the Sherwin-Williams case:

We will affirm the denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict if there is substantial evidence to support the verdict, but we will reverse if the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.

Where did the "no reasonable jury" part go? Oops. Kitchens should've called 'em out on that.

"NLRB judge: Employees can bitch about their jobs on Facebook"

Thus writes Alison Frankel. Here's the decision. Not sure how that applies to blogs! There's a "concerted effort" element that Facebook lends itself to:

In Myers Industries (Myers I), 268 NLRB 493 (1984), and in Myers Industries (Myers II) 281 NLRB 882 (1986), the Board held that "concerted activities" protected by Section 7 are those "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." However, the activities of a single employee in enlisting the support
of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity.

Hint: enable comments.

The man needs to start a blog

Another of those "what is Souter doing?" articles:

Like other retired justices, Souter is encouraged to continue to hear cases, and he appears to be a regular at the U.S. Court of Appeals for the 1st Circuit in Boston. He has served on dozens of cases and a LexisNexis search indicates he’s written 29 opinions.

But mostly he says he is reading. Souter complained just before he left the court that the work there kept him from pursuing his real intellectual interests. He said he underwent a “sort of annual intellectual lobotomy” when the court term started every fall.

But now he is free to fulfill what he calls “an interrupted education,” and the syllabus is daunting.

“The menu is mostly history: the classical period, the Carolingians, Britain up through the fourteenth century, American Puritanism as seen by historians after Perry Miller, the United States from Jefferson through Lincoln,” he wrote.

He adds, "It may be that the seemingly intrinsic attraction that past time has for me is merely a desire for escapism, as I look out at the nation and world with little optimism." History is certainly a cure for optimism.

9/11/11

If for some unfathomable reason you want to read something I wrote about the 9/11 anniversary, you can look here (12th comment down).

Meanwhile, Mark Kleiman has a post about a bunch of fundamentalist desert-dwellers who attacked an affluent, cosmopolitan city due to their being enraged at the toleration extended to infidels.

Mississippi State increases streak of almost-winning games

(TBA News, Sept. 10, 2011) Narrowly missing a touchdown that could have tied the game against Auburn in its last seconds, Mississippi State increased its streak of games it almost but not quite won.

"I'm really proud of this almost-victory that very nearly snapped Auburn's streak of actually-won games," said Billy Joe Roberts, who cheered State on as it narrowly failed to beat any good SEC teams in the 2010 season. "It's like our almost-victory against Auburn last year, or the game last season where we almost beat Arkansas but didn't actually do so."

Roberts intends to nominate MSU coach Dan Mullen as the all-time leader in putting up a really good game against teams that prove they are in fact better by scoring more points than the Bulldogs.

Well, you can't say we don't have standards

[F]act testimony, no matter how thoroughly contradicted or impeached, may create an issue for the jury, so long as it is not supernatural.

-- The Sherwin-Williams Company v. Trellvion Gaines (Miss. Sept. 8, 2011) at ¶18.

... This decision reverses the $7M lead-poisoning verdict against Sherwin-Williams down in Jefferson County back in 2009. Worth a look for lawyers re: "gatekeeping" on expert testimony.

4th Circuit to Virginia: No Standing Here

The Fourth Circuit has tossed Virginia's challenge to the PPACA individual mandate on the grounds that the plaintiff lacked standing, not being an individual required to buy insurance under the law. (Liberty U's suit was also tossed as seeking an impermissible anti-tax injunction.) Not unexpected, given the parties and the (Democrat-appointed) panel, but noteworthy. Decision here.

Spam FAIL

This just isn't terribly appealing:

Hello dear,i am Tina by name a female,i will like to be in serious relationship with you, i got your email today while looking honest partner.

"By name" a female? As opposed to ...? Sorry, "Tina," but I'm sure there are some female in fact spambots who are dying to make my acquaintance.

Another refugee from the Republican Party

Mike Lofgren, who apparently was a Republican staffer in Congress for 16 years (what is a "staffer" btw?), was apparently pushed over the edge by the debt-ceiling fiasco. His condemnation of what the GOP has become merits attention. A couple of snips:

A couple of years ago, a Republican committee staff director told me candidly (and proudly) what the method was to all this obstruction and disruption. Should Republicans succeed in obstructing the Senate from doing its job, it would further lower Congress's generic favorability rating among the American people. By sabotaging the reputation of an institution of government, the party that is programmatically against government would come out the relative winner. * * *

This tactic of inducing public distrust of government is not only cynical, it is schizophrenic. For people who profess to revere the Constitution, it is strange that they so caustically denigrate the very federal government that is the material expression of the principles embodied in that document. This is not to say that there is not some theoretical limit to the size or intrusiveness of government; I would be the first to say there are such limits, both fiscal and Constitutional. But most Republican officeholders seem strangely uninterested in the effective repeal of Fourth Amendment protections by the Patriot Act, the weakening of habeas corpus and self-incrimination protections in the public hysteria following 9/11 or the unpalatable fact that the United States has the largest incarcerated population of any country on earth. If anything, they would probably opt for more incarcerated persons, as imprisonment is a profit center for the prison privatization industry, which is itself a growth center for political contributions to these same politicians.[1] Instead, they prefer to rail against those government programs that actually help people. And when a program is too popular to attack directly, like Medicare or Social Security, they prefer to undermine it by feigning an agonized concern about the deficit. That concern, as we shall see, is largely fictitious.

Send the link to a Republican friend.

Breach of forecast

If weather prediction is an imprecise art, then NOAA shouldn't claim "100%" chance of heavy rain. Because in our little spinoff of Jackson, we didn't get any heavy rain last night -- hardly any rain at all.

Tropical Storm Lee has been a slacker in these parts. Or the anti-moisture force field protecting my grass from precipitation is stronger than I'd guessed. The guys at the National Weather Service are probably holding a meeting right now: "There it is again, see? The storm reaches these coordinates and just ... parts and goes around."

... Of course, it started raining 45 minutes after I posted this. Still, although the yard got decently soaked, Lee was a bust.

Someone get a quote from Steve Simpson

Alabama law firm Beasley Allen reports:

Today Judge Thomas L. Zebert found in favor of the State of Mississippi in its case against pharmaceutical company Sandoz, Inc. in the Chancery Court of Rankin County, Mississippi, and awarded a total verdict of $38,191,427.00. * * *

Mississippi Attorney General Jim Hood authorized the filing of these lawsuits against the pharmaceutical companies and Beasley Allen attorney W. Daniel “Dee” Miles, III, along with former Mississippi Governor Ronnie Musgrove from Copeland, Cook, Taylor and Bush tried the three-week trial in April.

The Court ruled in favor of the State of Mississippi on the Consumer Protection Act and common law fraud. It awarded Mississippi $23,661,618.00 in compensatory damages; it awarded Mississippi $11,830,809.00 in punitive damages; and it awarded $2,699,000.00 in civil penalties (for 2,699 quarterly reportings, at $1,000.00 each), for a verdict total of $38,191,427.00. In addition, the court entered an injunction on Sandoz using false AWPs when reporting prices to Mississippi.

54 more of these cases are pending before Judge Zebert, it appears, whose Sandoz opinion is here. Settlement time, or wait on the appeal?
... And so far as we can tell, the Vicksburg Daily News is the first paper to report on the Sandoz decision. JFP also has it, apparently printing the same news release as the VDN did. Journalism looks like a tiring profession.

The horror ... the horror

New Cheney Memoir Reveals He's Going To Live Full, Satisfied Life Without Ever Feeling Remorse And There's Nothing We Can Do About It.