Unbelievably stupid


Keep Austin Weird

Okay, the Federal Trade Commission (FTC) thinks no antitrust concerns are rasised by allowing the planet to be served by only one satellite radio company, but allowing the merger of two niche, patchouli-oil-scented grocery store chains is just a groovy bridge too far.

A federal district court ruled last August that Austin’s own bohemian bazaar turned corporate giant, Whole Foods, could acquire rival hippie food purveyor, Wild Oats, without hurting competition.

Yesterday, the D.C. Circuit ruled it had had enough of all the free grocery love, reversed the district court, and held that the core customers of each store were “worthy of antitrust protection,” despite their appearance (oh ok, I added that last part).

Because the merger has already gone through in the interim, the likely outcome of the remand–if the court sids with the FTC as expected–is that stores in areas that raise antitrust concerns will likely be divested.

Thx to the Austin Business Journal and the WSJ Law Blog

S&W commemorative revolver

Within weeks of SCOTUS ruling Dick Heller had a II Am right to possess a pistol for self-defense, the District of Columbia informed him the right doesn’t extend to semi-auto pistols after it rejected his permit application for his 1911 .45, because the District considered such firearms to be too similar to machine guns.

Only someone who has shot neither would make such a foolish assumption.

After being denied a right to register his semi-auto handgun, Heller was successful in submitting a .22 revolver for registration. However, if Heller is successful in gaining a permit to keep his .22 revolver in his home, it will have to be disassembled and trigger-locked and/or kept in a safe. This requirement (although it does include an assembly exception while it is being used against an intruder in the home) seems to treat as dicta Justice Scalia’s admonition that the “District’s requirement … that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” Dist. of Colum. v. Heller, No. 07-290, slip op. at 58 (June 26, 2008) (emphasis added).

Looks like it won’t be long before Heller II is foisted back upon the court system.

* * * UPDATE * * *

Looks like Dick Heller was equally displeased with the District’s new gun permit regulations, seeing as how he sued the District once again yesterday based, in part, on its disallowance of semi-auto handguns and its requirement that all firearms be kept disassembled and trigger-locked.

Thx to DC Dicta, the DCist, WaPo, and HotAir

For the coward pictured below.

About to rue the day

Today, the DPS released the security video of the arsonist who almost succeeded in burning the Governor’s Mansion to the ground.

Anyone with information about the possible identity of the person depicted in the video or picture above is urged to call investigators at:

512-506-2849,
512-506-2861,
512-506-2862, or
Crime at 800-252-8477.

Thx to the Austinist

Now that\'s zealous advocacyAnd now looking like a sane person

Covington & Burlington (former) partner David Remes submitted his letter of resignation this past Friday after making worldwide headlines (which generously noted his firm affiliation) for dropping his pants to reveal his stylish tighty-whities in Yemen–of all places.

Remes apparently pulled the disrobing stunt to somehow show mistreatment of prisoners at GitMo (the indefatigable “liar, liar, pants on fire” defense perhaps?), but may have just wound up mistreating every unfortunate soul who can never forget the sight of him in his underpants.

Thx to the WSJ Law Blog

Is that a shovel in your hand or are you just happy to see me?

Is that a shovel in your hand or are you just happy to see me?

Earlier this week, it took the Wisconsin Supreme Court 34 pages to explain that a corpse cannot consent to sexual intercourse. Even more amazing is that the High Court’s opinion reversed the decision of two lower Wisconsin courts … and was dissented from on the merits by two of the supreme court justices.

Incredibly, the grave-robbing defendants’ attorney commented that the majority opinion was–I’m not making this up–“dead wrong, as it makes the entire statute superfluous” (emphasis added). Indeed.

Thx to How Appealing and the Telegraph Herald

Ruh Roh

Austin has a long and tortured history with the perpetually-advertised transportation nirvana that is purported to be commuter/light rail.

Well, I have to admit enjoying a little grin reading in this morning’s Statesman that a cadre of officials from the Federal Railroad Administration and Federal Transit Administration in town to discuss granting waivers to operate commuter and freight trains on the same railroad with Capital Metro experienced a minor mishap.

The commuter railcar in which they were riding (at the blazing commuter speed of 5 mph) derailed briefly. Thankfully, no one was injured in the incident, save for maybe the reputation of Capital MetroRail (whose predictable motto is “All Systems Go”).

Thx to the Austinist and the Statesman

I’ve probably already derived too much jurisprudential pleasure from analyzing the SCOTUS plurality opinion handed down this past April in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), but the Onion has only just begun to analyze its merits.

* * * WARNING, NSFW LANGUAGE * * *

“I am the Law!”

Thx to Volokh

What to do when your print divisions are floundering?

Not realizing that mutual linking actually drives advertising revenue by boosting web traffic rather than detracts from it, the AP recently came out with a shockingly obtuse pricing scheme that purports to charge blogs up to $12.50 for as little as 5 excerpted words from an AP story.

Forward thinking

Apart from the obvious and dubious legal veracity of such a proposition, the AP apparently failed to consider or conceive of the potential reciprocal effects of such a policy.

New logo?

Prominent blogger Michelle Malkin recently calculated the amount the AP would owe her under its own pricing schedule for its quotation of her content to be $132,125.

She did the same calculation for Patterico and found the AP potentially owes that site $188,750 under the AP policy. Patterico commented on the AP’s use of Patterico‘s content, remarking:

So am I going to be an a[$$] and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not. They benefited from my content and I benefited from their link.

Thx to Michelle Malkin and Patterico’s Pontifications

Jacka$$

How bad does one’s political blunder have to be to not only force the end of a previously promising gubernatorial bid, but to impact a presidential race almost two decades later? Very, very bad indeed.

Many here in Texas have distant and dusty memories of the West Texas oilcatter and Aggie, Clayton Williams, who ran unsuccessfully for governor against Ann Richards in 1990. His campaign was going fairly well until he started lobbing rape and drinking “jokes” against his opponent who had publicly acknowledged struggles with alcohol.

Classy

Perhaps almost as unforgivable as his tasteless broadsides against Governor Richards, Claytie also made headlines when he refused to shake her hand before a debate in Dallas.

Well, John McCain‘s army of vetting wizards apparently failed to uncover these obscure political nuggets in Claytie’s past when they scheduled a fundraiser for Senator McCain at Claytie’s house in Midland. Senator Obama‘s team was quick to point out Claytie’s unsavory past, and McCain rescheduled the fundraiser, but decided to keep the $300,000 or so already raised with Claytie’s assistance.

Thx to the Politico’s Jonathan Martin and Texas on the Potomac

El Jefe

One might as well treat Justice Scalia‘s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson‘s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of “whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims”] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo‘s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”


Thx to Justice Scalia for his incomparable wit and eloquence.

Early Sunday morning, some cowardly soul set fire to the Texas Governor’s Mansion. Completed almost one hundred and fifty-two years ago on June 14, 1856, the Governor’s Mansion is one of Texas’s most historic structures, having housed Sam Houston during his first term as Governor.

In the downstairs parlors:

where Texas’ first presidential visitor, William McKinley, was received in 1901, plaster could be seen cracked and broken. Smoke damage was heavy, and windows were broken and charred.

The dining room—where famed humorist Will Rogers once ate so much chili with Gov. Miriam Ferguson that he had no room for dessert — was blackened and still smoldering.

Because the mansion was currently undergoing an extensive renovation, thankfully “all of the furnishings and official items had been removed” including “the window casements.” Some these irreplaceable items include original and seminal Texas history works of art and Stephen F. Austin‘s writing desk.

I’m not a criminal lawyer, so I don’t know what the Penal Code provides as a sentence for arson, but I’m all in favor of upping it to life in prison in this instance—or even worse—permanent banishment from Texas. Whatever misguided and mangled soul set this fire, they’ve forever given up their right to enjoy life in our fair State.

unbelievable

unbelievable

unbelievable

Thx to the Austinist, the Statesman, BurkaBlog, and State Fire Marshal Paul Maldonado, who is leading the investigation and has promised that “[w]e’re going to come get the person responsible for causing this damage.” Amen brother.

Boo-yah

Today’s SCOTX orders contain a little gem noted by both the Texas Appellate Law Blog and SCOTX Blog.

In In re Roberts (No. 05‑0362) (orig. proceeding) (per curiam), the Court (J. Johnson not sitting) dryly observes that:

[T]he only harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years …. By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.

Kudos to the authoring Justice of this one: very subtle yet very effective.

Thx to the Texas Appellate Law Blog and SCOTX Blog

The booking photo says it all

This blog’s newfound buddy, Adam “[Gee, maybe I’m not so] Bulletproof” Reposa, is–unfortunately–back in the news.

Tex Parte Blog just came across the ad mentioned here a few months ago and used quite effectively by the prosecution as an exhibit at Reposa’s trial for demonstrating an alternative hand sign for “contempt.”

Reposa has filed a writ of habeas corpus with the Texas Court of Criminal Appeals complaining his 90-day contempt sentence is excessive. In his writ, Reposa alleges that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt” by allowing the state to introduce evidence of extraneous conduct, i.e., the ad mentioned above from something called Whoopsy magazine, which is apparently distributed in some Austin clubs.

Of course it is.

In a letter sent by one of Reposa’s attorneys to the State Bar‘s Advertising Review Committee responding to the committee’s letter that threatened to report Reposa to the State Bar’s grievance committee, Reposa’s counsel justified the ad (presumably with a straight face) by stating:

If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer.

No, of course not. Except for the fact that the ad repeatedly mentions it references an Austin DWI attorney who has given himself the moniker, “Bulletproof.” It just so happens that there’s only one Austin DWI attorney–or any attorney in the state for that matter–who [in]famously holds himself out with the nickname “Bulletproof.”

Surely no one could connect those disparate dots?

Thx to Tex Parte Blog, Texas Lawyer, and Awesomeness For Awesome’s Sake

Good night and good luck

You hear Keith Olbermann go off on one of his unhinged tirades, keep in mind that the insanely-mustachioed Geraldo impersonator pictured above is the man you’re listening to.

Have to admit though, he and Dan Patrick were probably the best sportscasting team ever to hit the airwaves.

Thx to Deadspin and Flash Sports Tonight

I just came across a website that shares my sense of appreciation for at least one castmember of the distaff-tastic HBO show, Sex and the City. Putting taste and decency aside, I couldn’t resist bringing you some of its content.

From www.sarahjessicaparkerlookslikeahorse.com:

Naayyyyyy!

Naayyyyyy!

Naayyyyyyy!

Thx to Jossip

Oink

Few who read this blog may be old enough to remember Carole Keeton Strayhorn Rylander McClellan’s 1986 run for Congress, but I do.

Back in ’86, Carole “Keeton McClellan”–as she was then known–made enemies of her Democrat compatriots when she abruptly resigned from the State Board of Insurance with a full three years left on her term, and promptly switched parties so that she could run against the revered and longserving District 10 congressional representative, J.J. Jake Pickle. It wasn’t so much that people begrudged her ambition, but that she would so brazenly and inelegantly attempt to displace an LBJ-era icon in Central Texas politics who was literally beloved by his constituents.

In fact, so deserving of his constitutents’ affection was Congressman Pickle that I remember a tale told at his 2005 funeral that, throughout his years in Congress, he kept his home telephone number listed in the Austin phonebook so he was always—literally—just a phone call away from those who elected him.

Well, the Washington Times reports today that, ‘lo and behold, Mama Carole may have had something to do with her son’s recent partisan about-face with his former boss, 43.

Yesteryear

Lil’ Scotty’s on the left.

Thx to the Washington Times and the Austin Chronicle

Boondoggle

Ever get the feeling that the Capital Area Metropolitan Planning Organization (CAMPO) and TxDOT are flat-out lying to you about the supposed nirvana that will be a future Central Texas criss-crossed by toll roads?

Yeah, me too.

Well, here’s the proof. Austin American Statesman reporter Ben Wear cajoled a colleague to drive I-35 during rush hour while he cruised worry-free down the SH 130 toll road and then record who arrived at the toll road’s southern terminus first. According to Wear:

The tollways have been sold as a speedier alternative to the ravages of I-35 rush hour traffic. Toll road proponents have said that truckers, in particular, will flock to Texas 130 (and, eventually, Texas 45 Southeast) because time is money to them. Even with a $24 cash toll for truckers ($6 cash for passenger cars and pickups, $5.40 with a toll tag), the argument goes, it’s worth it to save the time.

So I decided to test that claim. I’d drive the tollway during rush hour and recruit a colleague to drive I-35 at the same time, then compare notes.

* * *

So last Monday morning, after synchronizing our watches on a frontage road just north of Texas 130’s departure from I-35, and agreeing that both of us would drive no faster than 70 mph in unrestricted traffic, we headed off, me to the tollway and Andrea on I-35. Who got to the intersection of FM 1327 and I-35 first?

* * *

Taking the toll road cost me nine minutes. And the toll I paid. But that’s not all it cost.

My total mileage: 54.8 miles, 11.5 miles more than the direct I-35 route. My Taurus tells me that I got 23.7 miles per gallon, so the extra mileage cost me a little less than a half-gallon of gas. That’s another $1.75 or so. I averaged 60.6 mph, Andrea 57.7 mph.

So, at rush hour, I paid almost $6 to get there 20 percent slower.

Fantastic. Small wonder the brain trust at TxDot was recently forced to admit a $1 billion “error” in its budget forecasting.

Thx to the Statesman’s Ben Wear

Because it’s Friday afternoon, I am compelled to bring this “life imitating art” clip to you. Have to give it to Sir Charles, he was a good sport about it.

* * * WARNING: NSFW LANGUAGE * * *

And the art ….

Thx to HotAir and YouTube

Smooooth

Shenanigans points out the colorable differences between yesterday’s Hardball and today’s.

Thx to Shenanigans

SCOTX

SCOTX Blog has a great post today regarding the latest screed from Texas Watch in their ever-vigilant quest to find new ways to sound imbecilic (my description only).

Texas Watch has apparently prepared a new “report” which purports to shine the light of truth on SCOTX‘s “penchant for secrecy” by “using per curiam opinions inappropriately to avoid accountability for some of the tough decisions.

Before I delve into the nonexistent merits of Texas Watch’s revelation, there is something curious going on here. Both the Houston Chronicle and the AP have published news accounts describing a report that Texas Watch has not even yet issued. Does anyone else find it odd that supposedly objective news outlets would be writing articles concerning PR dossiers that haven’t even been released to the public yet?

As to the merits, as any lawyer knows (which perhaps explains Mr. Winslow‘s ignorance), per curiam opinions are a remedial tool used by SCOTX (and the courts of appeals for that matter) to more quickly dispose of cases that require only relatively straightforward error correction. See Hon. Robert H. Pemberton, One Year Under the New TRAP: Improvements, Problems and Unresolved Issues in Texas Supreme Court Proceedings, in State Bar of Tex. Prof’l Dev. Program, Advanced Civil Appellate Practice Course B, B-18 (1998).

In fact, SCOTX first began to increase its use of per curiam opinions as early as 1925, when–not coincidentally–the Court was suffering from such a severe backlog of cases that a separate judicial body was created to assist in the mass adjudication of pending cases. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST. MARY’S L.J. 115, 117 (1992) (describing how, beginning in 1925, the Texas Supreme Court began to increase its issuance of per curiam opinions, “perhaps as a corrective device”); see also Act of Apr. 3, 1918, 35th Leg., 4th C.S., ch. 81, 1918 Tex. Gen. Laws 171 (made effective April 3, 1918, and reestablishing the Texas Commission of Appeals); Tex. S.J. Res. 8, 49th Leg., R.S., 1945 Tex. Gen. Laws 1043 (adopted at election held Aug. 25, 1945 eliminating the Texas Commission of Appeal).

Accordingly, per curiam opinions are used to more efficiently dispose of those cases upon which there is little or no disagreement, and which present fairly straightforward legal issues. In other words, if the Court is issuing more per curiam opinions, it is probably more accurately an indicia of an increased determination to reduce the Court’s backlog (previously bemoaned by Texas Watch) of appropriate cases than it is a Machiavellian attempt to shroud the deciding members from public scrutiny.

To the contrary, the use of such a jurisprudential mechanism actually INCREASES the scrutiny upon the Justices because a per curiam opinion is–by definition–issued by the entire Court. Every Justice is given equal praise/blame for the failings or triumphs of the decision, as compared to an authored opinion which can be attributed only to the majority of Justices who sign it.

Moreover, because the only type of case that is appropriate for per curiam disposition is one in which the legal issues are clear, straightforward, and non-controversial, Winslow’s claim that “[a]ll too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters” can simply not be taken seriously. Any decision likely to cause controversy or which demands the Court clarify a muddled or disputed area of the law is precisely the type of opinion least likely to be issued per curiam. And, as explained above, a per curiam opinion subjects every single Justice on the Court to elevated scrutiny, not just the authoring few.

Again, any basic analysis of the different types of opinions SCOTX is empowered to issue is a bit dry and legally complicated so I can’t really fault a group of non-lawyers (save for the one four-year lawyer Texas Watch recently hired) for failing to comprehend the finer points of the practice.

Most interesting to me is SCOTX Blog‘s noting that the official statistics published annually by the Office of Court Administration track the per curiam opinions written by each Justice (see page four of the .pdf file).

While it is of course obvious that a single Justice must be logistically tasked to author a per curiam opinion, the identity of that Justice should remain anonymous because it is the Court as a whole that is issuing the opinion. The fact that OCA tracks and publishes this data, tying these opinions to the chambers which issue them (by number of opinions only) is more troublesome than any flotsam trotted out by Texas Watch.

Thx to SCOTX Blog

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