Oh Boy -- Judge Carnes Is at It Again!

Much digital ink has been spilled on this old-and-in-the-way blawg about Judge Carne's propensity for opening paragraph storytelling, analogy or metaphor -- usually invoking a song, cultural or historical reference.

This time I have to believe he's speaking directly to me:

Bob Dylan’s recognition that “[b]ehind every beautiful thing there’s been some kind of pain” 1 might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional “scars that the sun didn’t heal,”2 all of which led to this lawsuit. Wright filed this products liability action under Georgia law alleging that a hair bleaching product manufactured by Farouk Systems burned her scalp, causing her to suffer physical, mental, and emotional pain. She claims that the product—colorfully named “Blondest Blonde”—is defective because it contains isolated areas of high reactivity, called “hot spots,” that can lead to burning of the scalp. She also claims that Farouk failed to adequately warn users of the product of the risk that burns can result if the product touches the scalp. The district court granted Farouk’s motion for summary judgment on all of Wright’s claims, and this is her appeal.

Note to Magistrate Judge Goodman -- here's the clean and lean way the Judge cites the Dyl-Bard:

1 Bob Dylan, “Not Dark Yet,” on Time Out of Mind (Sony Records 1997).
2 Id.

See, that's all you need!

BTW, I figured he would have went with "Silvio," from Down in the Groove (Columbia 1988):

I can tell you fancy, I can tell you plain
You give something up for everything you gain
Since every pleasure's got an edge of pain
Pay for your ticket and don't complain

Is it Rolling, Bob?

Happy Birthday Bobby D!!

Tramps Like Us, Baby We Were Born to Cite!

The big day is almost here, see you all at lunchtime:

LUNCHEON MEETING FEATURING
THE HONORABLE JONATHAN GOODMAN

Guest Speaker:
The Honorable Jonathan Goodman, United States Magistrate Judge,
will address the must-hear-this topic:

"Rock & Roll Music in Judicial Opinions"

When: Wednesday, April 11, 2012
11:45 a.m. - 1:15 p.m.

Where: The Bankers Club
One Biscayne Tower
2 South Biscayne Blvd., 14th Floor
Miami, FL 33131

I'm sure the good Judge will point out that none other than Bobby D is the most-cited songwriter in legal opinions.

Here is the list from a recent study:

1. Bob Dylan -- 186 instances
2. The Beatles -- 74 instances
3. Bruce Springsteen -- 69 instances
4. Paul Simon -- 59 instances
5. Woody Guthrie -- 43 instances
6. Rolling Stones -- 39 instances
7. Grateful Dead -- 32 instances
8. Simon & Garfunkel -- 30 instances
9. Joni Mitchell -- 28 instances
10. R.E.M. -- 27 instances

Question -- is it possible to cite a song lyric in 300 characters or less?

Survey says:

3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.

 And also:

The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).

Oy veh -- next he'll take two paragraphs to explain what "it's better to be safe than sorry" means.

(Strike that).

Oh I kid the good judge -- the fact is this will be a fantastic presentation and I'm really looking forward to it.

See you all at lunch!

Does This Remind You of Anyone You Know?

These lyrics seem so apt for some reason this morning:

Now he worships at an altar of a stagnant pool
And when he sees his reflection, he's fulfilled
Oh, man is opposed to fair play
He wants it all and he wants it his way.

Gotta love opposing counsel!

I Don't Feel Like Working Today.

Do you?

Peter Halmos -- Will His Ship Ever Come In?

That toe-tappin' crippled yacht case is slowly limping to port, as the parties prepare their post-trial proposed findings of fact and conclusions of law.

And the beat goes on.

It took me all morning to read Steve Marino's excellent 85-page brief, which sets forth in exquisite detail the mountain of commercial litigation required to get the parties to this point (and they're not even done yet).

I guess one SIMPLY AMAZING! thing that fascinates me about this case is the uncontrollable variables that have entered into what should otherwise be a straightforward insurance coverage dispute.

Between the lawyers, the rulings, the clients and the witnesses you have a near-perfect s@#tstorm of what can go wrong when parties engage in f*$k the costs, balls-to-the-wall litigation.

It's almost an ideal case study for commercial litigators in that the subject matter could be anything -- widgets, yachts, whatever -- and the disputes seem both wildly impossible yet depressingly familiar to any of us who do this for a living.

Turning back to Roy Black's intriguing suggestions for UM Law, how in the hail do you teach kids to handle crap like this?

Seriously, how do you -- or even should you -- teach law students to do this type of litigation effectively?

Efficiently?

In such a way that they don't leave the office at night stupefied, screaming at the walls, drinking themselves to oblivion on a Tuesday, and allegedly challenging their girlfriends to naked post-shower sword fights?

Seven Things I Love Right Now.

My brain is brimming with useless and pointless knowledge (to quote Bobby D), so let's get right to it:

1.  SYSTEM ENTRY - Docket Entry 1388 restricted/sealed until further notice. (nc)

Seriously, how may secret filings can there be in a coverage dispute over a broken yacht?

2.  Smart, articulate women attorneys (especially those who blog!)

3.  That rousing ode to American Danny LaRusso exceptionalism, "You're the Best.......AROUND!":



Question -- shouldn't it just be "You're the Best!".....period?

Isn't the "AROUND" tacked on at the end superfluous, maybe even dismissive?

Is he truly the best, or just the best that happens to be around in the general vacinity of the All-Valley Karate Championships on that particular day?

Speaking of American exceptionalism and politicians who tour around demanding loyalty oaths and exact phrasings of how great we are, I think Garry Shandling has it exactly right -- this is the political equivalent of 
Charlie Sheen running around with strippers and blow, exclaiming that he is #winning. 

(I'm sure it made sense at the time.)

4.  Arresting a bird watcher, in a Weston park, for "sage possession" is almost as stupid as arresting her for "pot possession."

5.  I cannot confirm with certitude that the photo allegedly tweeted by Anthony Weiner is of my package; I say this only because someone apparently photoshopped tighty-whities over it, no doubt someone suffering from "body darkness prejudice."

Why ruin a great photo?

6.  New Blu-ray edition of Night of the Hunter.

7.  Judge Walsh's investiture today.

Remember -- things could always be worse.

Happy 70th Birthday Bobby D!

Who hasn't, at one time or another, thrown it all away?

Good Typography Friday

It's Good Friday and kids are out of school, offices are closed, and people are thinking about the Lord and the long weekend.

What better time to talk typography?

Do you know or even care what type font, spacing choices, or font size you use in briefs?

If "New Times Roman" is your default get the hail out of here.

Luckily, the 7th Circuit provides a wonderful, easy to understand tutorial on how best to present your briefs from a typographical perspective, offering useful tips on proportional spacing, serifs, and all other kinds of wonky technical junk that writers get into but everyone else yawns about.

Perfect for a day like today.

I like this piece of advice:

Typographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach—different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.

Read good books?  Oh man, I have to do that too?

Speaking of which, there are some fine writing tips offered in this new local blawg -- check it out.

Happy holidays!

11th Circuit to Judge Gold: Know Your Place.

The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.

On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).

On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.

But in a split decision, Executive trumps Judicial nanny nanny boo boo:

The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution

I'm having trouble with the first sentence --  "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."

I think it certainly can encroach on the separation of powers, but does it always do so by definition?

Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:

[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.

I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.

Finally, whatever happened to the mandamus standard of review?  That seems to have gone totally out the window here.

(I admit, I'm a standard of review junkie.)

As usual the barbed, bearded, cranky wondering Jew minstrel put it best:

"But even the president of the United States sometimes must have to stand naked ..."

Judge Gold got this right.

Buju Banton Trial Delayed.

I see David noted that nice article on Judge Cohn.

Lots of good stuff in there, but this part stuck out:

Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.

Cohn witnessed and was disturbed by racism against African-Americans. At an early age, he became acutely aware that his own heritage was also perceived as alien in the South.

"You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."

Hey, that's pretty much the first five chapters of Sarah Silverman's new book (except she grew up in rural New Hampshire and is way cuter than Judge Cohn -- no offense).

Meanwhile, Mr. Markus should have lots more time to prepare for trial, thanks to MD FL Judge Moody:

Banton's trial on drug charges originally was scheduled for April 19, the date Banton requested. But 11 days before the trial was set to start, U.S. District Judge James Moody moved it to June 21.

The defense objected, citing the cost of rearranging travel for witnesses and noting that Banton would be held in jail longer.

Moody overruled the objections.

I'm a civil litigator, so the concept of a "speedy trial" is not something generally in my lexicon.

But "justice delayed is justice denied" definitely rings a bell, or maybe I'm thinking of Dylan's "Tomorrow is a Long Time"?

Either way, I vividly remember Professor Stotsky repeating it over and over again....

Your Monday Morning Iqbal Update

I know I know, Iqbal is so 2009, almost as old as that Sony Playstation Mike Tein held up in front of Magistrate Judge Turnoff the other day.

Still, some judges continue to cite to it, as BLT notes:

A federal judge in Illinois refused to dismiss a lawsuit against former Secretary of Defense Donald Rumsfeld by two Americans who claimed they were detained and interrogated in Iraq.

David Vance and Nathan Ertel, who traveled to Iraq in 2005 to work for a security firm, filed suit against Rumsfeld and the U.S. government alleging that they were taken into custody and interrogated by the military because of suspicion that their company was providing arms to insurgents. They claim they were placed in cages, strip searched and questioned using “physically and mentally coercive tactics,” before they were finally released weeks later.

Rumsfeld filed a motion to dismiss. However, Judge Wayne Anderson of the U.S. District Court for the Northern District of Illinois today allowed one claim against him to go forward, finding the two contractors pleaded enough details to implicate the former secretary. See the opinion here.

Placed in cages, strip searched and questioned using "physically and mentally coercive tactics"?

I don't like to repeat myself, but again -- I've seen worse in the bounce house at Chucky Cheese.

How did Judge Anderson handle this meshuga "plausibility" standard:

“Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials. It is not, however, a categorical bar on claims against these officials. When a plaintiff presents well-pleaded factual allegations sufficient to raise a right to relief above a speculative level, that plaintiff is entitled to have his claim survive a motion to dismiss even if one of the defendants is a high-ranking government official.”

Let me translate this for all you burnouts out there in radioland:

While preachers preach of evil fates
Teachers teach that knowledge waits
Can lead to hundred-dollar plates
Goodness hides behind its gates
But even the president of the United States
Sometimes must have to stand naked.

Finally, didn't Kate Winslet look amazing yesterday?

I Shall Be Released.

SFL Monday -- Must Be Santa.

So I biked into work this morning, cigar in hand, across the causeway against a light blue sky and light green sea, breezy birds and boozy work crews, beautiful women and ugly dogs, walking clubs, backpackers, lost tourists, unlit Christmas lights, Chabad Houses, iced coffees, sleeping men and bike lanes that start and stop inexplicably for no apparent reason.

God I don't feel like working this morning.

Cranky Old Jew Turns 68!

Happy B-Day, Bobby D.

You did good.