Category Archives: Stupid Lawyer Tricks

Discipline before rule of law

As most of you know by now, Trump fired FBI Director James Comey last night.  He commissioned a rationale from the Department of Justice, which he presented to Comey with a cover letter from Attorney General Sessions.

Here is the first sentence of Sessions’s letter:

As Attorney General, I am committed to a high level of discipline, integrity, and the rule of law to the Department of Justice.

Discipline first; rule of law third.

This is inconsistent with the oath of a civil servant, whose first duty is to the rule of law:

I, ——–, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The attorney general takes that same oath.  (TW:  This links to the swearing in of Attorney General Loretta Lynch, which may cause fatal levels of nostalgia for the decency, fairness, and the rule of law.)

Hell, even the oath Sessions took to become an attorney in Alabama requires him to support the United States Constitution (albeit second to the Alabama Constitution — I suppose just in case they secede again) and nowhere speaks of “discipline.”

I, ————, do solemnly swear (or affirm) that I will demean myself as an attorney, according to the best of my learning and ability, and with all good fidelity, as well to the court as to the client; that I will use no falsehood or delay any person’s cause for lucre or malice, and that I will support the constitution of the State of Alabama and of the United States, so long as I continue a citizen thereof, so help me God.

I was interested to learn that Sessions has also sworn not to “delay any person’s cause for lucre or malice.”  Let’s see how that plays out in the Trump/Russia investigation.

Ultimately, Sessions is a mean, insecure, racist punk.  His need for discipline reveals a lifetime spent fearing independent or abstract thought, essential to support and defend principles instead of people.  He’s the one of those little shits who always surround the school bully, egging him on.  Vincent Crabbe or Gregory Goyle to Trump’s Draco Malfoy.

Image: four wizards from Harry Potter, middle school-age kids in black academic robes. All white. Second from left is Draco Malfoy, blond and sneering. To either side and slightly behind him are his sidekicks.

Coal company asks court to strike protest song lyrics from activists’ lawsuit

Coal company asks court to strike protest song lyrics from activists’ lawsuit.

{Image: four parallel coal trains rounding a bend in the track, the front two with coal cars full of coal.}

Image credit: energycatalyzer3.com

There is just so much to love about this.  That the plaintiffs’ lawyer — our friend Darold Killmer — included John Prine’s beautiful lyrics in his complaint.

Then the coal company came with the world’s largest shovel
And they tortured the timber and stripped all the land
Well, they dug for their coal till the land was forsaken
Then they wrote it all down as the progress of man …
And daddy won’t you take me back to Muhlenberg County
Down by the Green River where Paradise lay?
Well, I’m sorry my son, but you’re too late in asking
Mister Peabody’s coal train has hauled it away.

That this annoyed Peabody Energy, the defendant.  That they were so annoyed and clueless that they moved to strike the lyrics as “irrelevant, immaterial, impertinent and/or inflammatory.”   (I love “impertinent” with its overtones of the Dowager Countess of Downton Abbey.)  That this motion gave Darold the opportunity to write things like this:

Defendant Peabody Energy Corp. has paid its lawyers thousands of dollars to submit a 17 page brief in support of its four page Motion to Strike song lyrics from the Complaint because . . .   it wants “to avoid the expenditure of time and money that must arise from litigating spurious issues . . .”

and

A song can’t hurt Peabody, and recitation of a portion of the song will not cause Peabody undue difficulty or expense, except that which is self-inflicted.

and

Undersigned counsel is happy to report that the frequency of references to Bruce Springsteen’s lyrics in all types of legal writing is rising.

In fact, there is an entire section of the brief entitled “Non-Traditional Legal Writing is Good,” and I commend that to my vast audience of word nerds (hi, Mom!).

Obviously, the most delicious thing of all is that if Peabody had just put on its big-kid undies, ignored the lyrics, and moved on, no one would know.  Well, all of us with the privilege of hearing Darold recite his legal exploits would know, but it might not have surfaced outside the bar/bars of Denver.

Now, however, it’s in the ABA Journal.  And U.S. News & World Report.  And the St. Louis Post-Dispatch.  And Wyoming Public Radio.

Self-inflicted, indeed!

Biglaw Firm Decimates Summer Associate Program | Above the Law

http://abovethelaw.com/2015/06/biglaw-firm-decimates-summer-associate-program/

But think of the SOCIETAL cost as packs of feral law students roam the hot summer streets in their new suits looking for $100 lunches and getting in knife fights over memo formatting.

Justice Roberts: sketchy on law AND historical anthropology.

Justice Roberts cited the traditions of four cultures in his dissent on gay marriage. Here’s what he didn’t mention. – The Washington Post.

Yesterday we demonstrated that Justice Roberts’s grasp of the Constitution was sort of tenuous, in that he seemed to think that the right to due process and equal protection had to be put to popular vote.

Today, thanks to the intrepid frustrated anthropology majors at the Washington Post, we can examine Justice Roberts’s grasp of that subject.

Justice Roberts’s dissent in the marriage equality case provided examples of long-standing, widespread history of sanctimonous sanctified man/woman marriages, harrumphing that, with the Obergefell decision,

the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at *24 (U.S. June 26, 2015).

Before we get to anthropology, I’ll visit the last question quickly:  I hope you think you’re Supreme Court justices, because that’s what we’re paying you to be.  In that case, again Con Law 101, you get to “say what the law is.”   Marbury v. Madison, 5 U.S. 137, 177 (1803).

But the WaPo had some fun with Roberts’s reference to the Kalahari, the Chinese, the Carthaginians, and the Aztecs.  Read the whole article, but here are some highlights:

  • Kalahari Bushman apparently had “polygamous households where lesbianism was common.”
  • During the Han dynasty in China, “homosexuality was rife” and almost all of the emperors apparently “had same-sex lovers.”*
  • According to at least one right-wing Italian scholar, Carthage “was a paradise for homosexuals.”
  • In Aztec law and custom, marriage could be “conditional” and “[p]olygamy and concubines were permitted.”**  And then there’s “the whole human sacrifice thing,” not directly related to the gender of people permitted to marry, but a cautionary note on taking legal advice from ancient cultures.
Image: drawing of several people stabbing and removing the hearts from others, with much blood.

Human sacrifice as shown in the Codex Magliabechiano, Folio 70, via https://en.wikipedia.org/wiki/Human_sacrifice_in_Aztec_culture

All of the justices have law clerks, who are all the biggest nerds from each Ivy League law school class each year.  Justice Roberts’s clerks couldn’t find examples that were not deflatable by a couple of minutes of Google research by a WaPo intern?

********

* Possibly Justice Roberts was comparing the Han Chinese to American government of the the Republican variety, where conservative lawmakers inveigh against marriage equality while keeping gay lovers or picking up guys in airport bathrooms.

** Again, Roberts may have been thinking of the subset of Republican marital values embodied by GOP presidential candidate Donald Trump.

“Lost Opportunity”

Chief justice decries decision that does not ‘celebrate Constitution’ | TheHill.

“Indeed, however heartened proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause,” Chief Justice Roberts said in his dissent.

Wow – just think of all the opportunities we fans of civil rights have lost!

  • Lawrence v. Texas denied gays and lesbians the opportunity to persuade their fellow citizens that it was OK for them to have sex in the privacy of their own homes.  Dang – that would have been both fun and enlightening!
  • Romer v. Evans denied gays and lesbians the opportunity to persuade their fellow citizens to let them have the right to persuade their fellow citizens.
  • Brown v. Board denied African-Americans the opportunity to persuade their fellow citizen that they were fellow citizens.
  • Olmstead v. L.C. denied people with disabilities the opportunity to persuade their fellow citizens that they should be allowed to live in the community.
  • City of Cleburne denied people with disabilities the opportunity to persuade their fellow citizens that the Constitution protected them in the first place.
  • New York Times Co. v. Sullivan denied the press the opportunity to persuade their fellow citizens of their freedom of speech.
  • Estelle v. Gamble denied prisoners the opportunity to persuade their fellow citizens that they were entitled to some small modicum of medical care.

And so on.  You get the idea.

Dear Chief Justice Roberts:*  “RIGHTS” —

Image:  Inigo Montoya from The Princess Bride with the caption

********

*  Wow. That scans just like “Dread Pirate Roberts.”

[Updated: edited for grammar.  #wordnerd]

Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post

Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post.

From the WaPo article:

The main question in the case is about the subsidies used to buy health insurance by people who otherwise can’t afford it. Roberts and Scalia disagree on whether Congress meant for the subsidies to be available through the federally run insurance marketplace set up under the law, as the Obama administration argued, or if Congress wanted to give subsidies only to people who bought insurance through an exchange operated by a state government, as the law’s opponents claimed.

Roberts agreed with the administration. He wrote that it was “implausible” for Congress to set up a system in which people who used the federal marketplace wouldn’t be able to get financial help buying insurance. Scalia disagreed. But, back in 2012, he had written that without subsidies, “the exchanges would not operate as Congress intended.”

And then there was this, from yesterday’s decision affirming the validity of the disparate impact theory of fair housing decision.  The majority opinion by Justice Kennedy explains that the Court had previously held similar language in Title VII and the Age Discrimination in Employment Act (ADEA) to support that theory.  Regarding the ADEA decision, Justice Kennedy wrote:

In a separate opinion, Justice SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243–247 (opinion concurring in part and concurring in judgment).

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., No. 13-1371, 2015 WL 2473449, at *8 (U.S. June 25, 2015).  In other words, in 1984, Scalia believed that the language of the ADEA was ambiguous on the question of disparate impact and deferred to the regulations, something he refused to do with respect to the Fair Housing Act yesterday.

And this was just gratuitous, as I’m confident there are approximately 10,000 statutory construction treatises Kennedy could have quoted from:

Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).

Id. at *11.

Such weird unpredictability from someone who believes the meaning of the constitution was fixed in 1787.

[Updated to add the second Inclusive Communities quote.]

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