Archive for October, 2006

Everyone has been blogging about this salon story, regarding donations by federal judges to the republicans who later put them on the bench.

$44,000 / 24 = $1834. I can’t really agree with the implied conclusion (i.e. that all of these judges are necessarily dirty) of the Salon article, because I don’t think that $1800 is really enough money to get excited about.

But it’s still a legitimate question, becuase giving money to someone who later gets you a job might look like quid pro quo, which raises the question of the appearance of impartiality in every case that judge might hear down the road. How can you trust a judge to make fair decisions, if the case is ACLU v. Gonzales, and the judge owes their job to a $5000 donation they made to Bush’s 2004 campaign fund?

I think we’ve talked about Judge Cook before, in one of our classes.

Since 1990, Judge Deborah Cook, who was confirmed to the 6th U.S. Circuit Court of Appeals in May 2003, gave more than $10,000 to three Ohio Republicans who were instrumental in getting her on the bench.

I’m sure that Judge Cook will recuse herself from any cases where her prior generosity might call her impartiality into question.

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I had an awkward experience the other night, reading a case for class. It came about because we were assigned Youn v. Track for CivPro. It was a case about discovery abuse and sanctions. One of the thorny issues that we teased out in class was the way the plaintiffs, Youn and his brother-in-law, accused the judge of racism. Plaintiffs were Korean, and their argument on appeal was that the judge had made several rulings on their motions that indicated he didn’t trust them simply because they were Korean, or because their business kept its documents in Korean. They had asked the judge to recuse himself, he had declined to do so, and had subsequently imposed sanctions against Plaintiffs for their failure to provide satisfactory answers to defendant’s requests for discovery.

In class, we talked about judicial impropriety. The real question at the end of Youn boiled down to whether defendants (whoops) plaintiffs had done anything to provoke the judge.

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At least in New York. We’ve just started talking about homicide in Crim Law class, and one of the things we learned last week was that in general, the dividing line between murder and manslaughter is whether the one who kills does so on purpose, or is just careless or reckless in their actions. Stated slightly differently, the question is: did the killer have intent to cause harm, or was it an accident?

This case seems to say that the jury found that driving drunk is morally equivalent to trying to kill someone. In fact, we’ve got a quote from one of the jurors who says almost exactly that:

“He voluntarily was intoxicated,” DeRita said. “He got into the car, he turned the key, he drove, he turned around, he avoided stimuli to make him get out of the way. It wasn’t an accident because he brought this on himself and he caused the death of two people.”

By this logic, should we charge all DUI arrests as attempted murder?

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This case is timely in two ways. We read about a slip-and-fall case involving CB in torts this week, and today we spent a little bit of time talking about racism and judicial impropriety in Youn v. Track. So I’m amused that today brought a lawsuit joining these two themes together in a single case.

Cracker Barrel, owned by the CBRL Group, has already settled a 2004 discrimination lawsuit with the U.S. Justice Department.

In that case, the Justice Department alleged that in seven states, Cracker Barrel restaurants segregated customers by race, favored white customers and allowed white servers to refuse to wait on African-American customers.

You would think that they would be extra-special careful after being in the news for something like that. Or maybe change their name to something that doesn’t immediately suggest a bunch of old racist white men sitting on the porch of the general store, making fun of all them darkies coming in to have lunch.

Really. Calling the restaurant “Cracker Barrel” is like calling it “Racist Honkey Kitchen” or “Dred Scott’s Lunch Counter.” It doesn’t matter if the original owners were thinking of saltines or wheat thins- after that first racism case, it was time to change the name. Now, they only have themselves to blame if they happen to attract staff whose highest ambition is to be the very best cracker they can.

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Cory is on a roll today

This sort of thing is what makes the internet a wonderful place. One of Cory’s students set up a blog to collect egregious EULA’s that people find, just walking around in meatspace, and opened it to the internet to collect examples from other people. I’m bookmarking it now, on what looks like day one of the project, becuase I’m sure it will be increasingly useful in the future.

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If I gave you a book, but I told you that you could only read pages 10-24, you would think I was crazy.  If I sold you a car, but I told you that I was keeping the rights to drive in second gear, you’d laugh at me.  So why is it ok for people to sell us dvd’s where we can’t skip the previews for the next ‘feature?’  If all I want to do is watch the lobby scene from The Matrix, why should I be forced to watch commercials before I get there?  I bought the damn thing, which means I can do whatever I want with it now.  The seller’s rights to dictate how I use that product stopped when my ownership started.  That, in a nutshell, is what the doctrine of first sale is about.  It’s why there is a legal market in used books and cd’s- that is, why it’s not a copyright violation for you to sell a used book after you’re done reading it, even without a license to sell or distribute from the copyright owner.

So when Cory Doctrow over at boingboing points out something like this, it makes my head pound.

Please note: This fabric can be purchased for personal sewing projects only. This print cannot be used for items made for resale.

It’s nice that they want to impose this restriction on their purchasers- good luck enforcing it.  If they admit they can’t enforce it, why go to the trouble of claiming it in the first place?

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Habeus corpus? Yeah, we used to have that, but we got rid of it becuase it’s too expensive.

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