Justice Antonin Scalia

February 18, 2016

At Monday’s Philosopher’s Guild meeting, RF posed the question: Can a person be good and still take pleasure in someone’s having passed? I said yes, at least with respect to a public person. I mourn the loss of life and feel sad for family and friends. Soon after, the public persona takes over. With an appropriate amount of respect, the person becomes fair game.

So, history will judge Antonin Scalia, and the verdict will likely be mixed, and will come after a long while. For me, though, three negative attributes stand out. They are: (1) The originalism conceit; (2) An abysmal lack of judicial demeanor; and (3) A lack of evident empathy. (For an insider’s take, read after I wrote

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Jefferson Wins … and We’re Effed!

February 12, 2016

Reverent references to the Founding Fathers drive me nutso. Yes, they established a more perfect union, but they rarely agreed about anything. Disagreements are what what we ought to expect from bright, ambitious, contentious men, so when modern day references turn the Founding Fathers into a monolith, it should not go unnoticed.

How bad is it? Almost half-term Governor and full-time nitwit Sarah Palin said her favorite Founding Father is “all of them.” Morning Joe co-host Mika Brzezinski liked Abraham Lincoln (1809 – 1865) best. And these references are just silly. Certain Supreme Court justices believe in originalism, a principle which claims for itself the obligation and ability to determine what the words in the Constitution meant

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The Carmack Amendment

February 8, 2016

You’ve probably noticed the lack of regularity here. Apologies, but there are only so many hours in the day and stress has a way of shrink-wrapping them, so that an hour feels like it provided about three minutes worth of time for getting important things done.

Tuesday—Law Day, mostly, here at MRW—is upon us. Since moving is on my mind, I’m focused on the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. § 1 et seq.) The law—Section 14706 of the Act—addresses the rights, duties, and liability of common carriers who cross state lines, when a freight loss occurs.

The law is named after Senator Edward Carmack (D-Tenn.), who served in the U.S. Senate from

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Trump and the Bankruptcies

January 26, 2016

There’s been some talk—not enough, in my humble opinion—about the Trump bankruptcies. Here are some basic facts.

First, bankruptcy laws are federal, and they’re found in Title 11 of the United States Code. The title includes nine chapters: 1, 3, 5, 7, 9, 11, 12, 13, and 15. One through five apply to all bankruptcy filings.

Chapter 7 is a traditional or straight bankruptcy. The debtor gives up non-exempt property, if there is any, in return for which debts go away. It’s for poor people and corporations with no future prospects.

Chapter 9 is for municipalities. They’re uncommon, albeit less uncommon than they used to be, and my good friend and former partner Lowell Rothschild handled one of the

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Senator Ted Cruz, Redux

January 22, 2016

On April 24, 2015, I wrote Senator Ted Cruz. I was working a series about Rs running for POTUS. I’m pretty sure what I wrote about “this puerile personification of pestilence”—my words—left me so unclean I walked away from the exercise.

Alas, I’m back with redux, but not ready to leave this miserable momzer alone. Where to start, where to start? Let’s begin with health insurance.

Senator Cruz popped up on Thursday announcing that he is one of those “millions of Americans  who’s lost their healthcare because of ObamaCare.” (Details in Bradford Richardson’s piece for The Hill, Cruz says he lost his health insurance because of ObamaCare.) Well, Josh Marshall at Talking Points Memo did a little

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Appellate Court Process

January 18, 2016

The Arizona state court system has two primary appellate court levels: the Arizona Supreme Court and the Court of Appeals. The Supreme Court is paramount. It hears appeals from Court of Appeals decisions and in rare cases, directly from the trial courts. The Court of Appeals—there are divisions sitting in Phoenix for the north / central part of the state, and in Tucson for the rest–handles appeals from the Superior Courts, and from the Industrial Commission in workers compensation cases. I offer the foregoing introduction to highlight recent cases and provide some insights into the appellate process.

On November 24, 2015 the Arizona Supreme Court issued its unanimous opinion in DBT Yuma, L.L.C. v. Yuma County Airport Authority. The

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Friedrichs v. California Teachers Association

January 11, 2016

Labor law is not my best subject, for sure. I’ve handled many employment cases, and still advise clients on employment matters. Labor law, though, connotes union-management issues, and it’s an area in which I don’t practice.

Qualifier noted, I found myself following Friedrichs v. California Teachers Association, No. 14-915, the case in which the which the U.S. Supreme Court has been asked to abolish the “agency fee” regimen associated with public sector unions. In part, this was a “how can you ignore it case,” written and talked about everywhere. It’s also a reminder that elections matter. Had some more people moved their asses off their couches and voted in Florida in 2000, and if a few tens of

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Executive Orders

January 5, 2016

There’ll be a hubbub about executive action / orders by the time you’re reading this post. That arrogant, pompous wimp of a POTUS we have right now—does anyone else wonder how President Obama can be, at one and the same time, a king and a dictator and a skinny, wimpy dude who doesn’t have the cojones to stand up to anyone—will issue an Executive Order regarding guns in America later today.

From my perspective the Executive Order—a highlights sheet has already been posted—will do little, and ought to bring forth little controversy. Others will surely disagree. Here, and because it’s Law Day at MRW, I want to focus on the basis for presidential authority to act.

Executive Orders have been

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Law: It Doesn’t Serve Our Interests

December 21, 2015

Law can be viewed from many perspectives. Of late I’ve been working through how laws do (and too often don’t) serve our interests.

Let’s take criminal law. Traditionally, state laws have governed criminal conduct. Not so much anymore. Gary Fields and John Emshwiller wrote As Criminal Laws Proliferate, More Are Ensnared for the Wall Street Journal in July 2011. The article includes some great examples of conduct which should not be criminalized. Most telling is the fact that no one knows how many federal criminal laws exist. A law professor, the Justice Department and the American Bar Association have counted, and get no closer than estimates of 4500, 3000, and “much higher than 3000,” respectively.

Then there is the area

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One-Person/One-Vote. Really?

December 7, 2015

The U.S. Supreme Court hosts One-Person/One-Vote day on December 8. The Court will hear oral arguments in Evenwel v. Abbott, No. 14-940 and Harris v. Arizona Independent Redistricting Commission, No. 14-232. Both cases address the concept that our representatives should be distributed among us with a very high degree of equality.

In 1962, in Baker v. Carr, the Court wandered into the redistricting thicket. It held that legislative districts must be proportional in size, and that states cannot fail to redistrict for some 60 years. (Tennessee, where the case originated, had last done a redistricting in 1901.)

Reynolds v. Sims came two years after Baker v. Carr. It really honed in on the concept of drawing

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