It was the wrong thread - Page 159

Sidd Finch · 05-24-2010, 05:14 PM

Quote:

Originally Posted by Atticus Grinch

Q. "And you thought he posed a threat to you, such that responding with deadly force made sense to you?"

A. "Absolutely."

Q. "Why?"

A. "I had once searched ASCAP licenses, and discovered that he wrote 'Hey Joe' and had recorded a cover of 'I Shot The Sheriff.'"

Pros.: "Move to strike."

Judge Finch: [Fill in the blank.]

Hate to respond to the same post twice, but since Marley singing I Shot the Sheriff isn't remotely close to the situation in this case (unless the Defendant was aiming to shoot I down in the first place, in which case imma no be self-defense, dig?), I'll give you this hypo instead:

Q. "And you thought he posed a threat to you, such that responding with deadly force made sense to you?"

A. "Absolutely."

Q. "Why?"

A. "When I bumped into him in the bar he yelled "Get the fuck off of me you fucking Jew." Then I watched a video of him on YouTube. He has swastika tattoos and he's in a band called Skrewdriver and he was singing that Nancy Sinatra song but with different words -- it ended with "One of these days these boots are gonna stomp all over Jews." So when I saw him coming at me in an alley and yelling "Hey, that's the fucking Jew who hit me in the bar," I was scared for my life.

Pros. [Atticus]: "Move to strike."

Judge Finch: "On what grounds?"

Pros. [Atticus] [Fill in the blank.]

Sidd Finch · 05-24-2010, 05:16 PM

Quote:

Originally Posted by Atticus Grinch

Can I get a ruling? And this time I mean that literally. You established your reductio ad absurdem, now I have a right to establish mine. You agree that you'd exclude songwriting credits, right? So now we'll see how far the line must move before the artist's bragadoccio is seen as a statement of truth. I'm guessing your line stops at Will Smith, while I go all the way up to Wu Tang.

No, I wouldn't agree that I'd exclude songwriting credits. Because judges are supposed to rule on admissibility, not weight. And in your absurd examples, the weight is zero, unless the Def can give some really good explanation of why he so deeply feared harm from the writer of Karma Chameleon.

eta: At most I'd sustain a relevance objection, but that's not what we're talking about and I think that you understand that. Although your reference to hearsay causes me to question that, honestly.

Sidd Finch · 05-25-2010, 01:45 PM

Quote:

Originally Posted by Sidd Finch

blah blah blah.

I killed the thread. But only because I heard Atticus singing Muskrat Love.

PresentTense Pirate Penske · 05-27-2010, 02:18 PM

Quote:

Originally Posted by Atticus Grinch

Can I get a ruling? And this time I mean that literally. You established your reductio ad absurdem, now I have a right to establish mine. You agree that you'd exclude songwriting credits, right? So now we'll see how far the line must move before the artist's bragadoccio is seen as a statement of truth. I'm guessing your line stops at Will Smith, while I go all the way up to Wu Tang.

I go beyond that through Ghost's Stapleton SExxx video and on up to the Wu-Massacre. Keep Allah in your heart....

hugs and kisses,

Tony Starkes.

Replaced_Texan · 06-22-2010, 12:58 PM

Snort. (cease and desist letter)

Fugee · 06-22-2010, 01:17 PM

Quote:

Originally Posted by Replaced_Texan

Snort. (cease and desist letter)

Hilarious. Even if the client didn't catch on to the April 1 date or the fact that unicorns don't exist, you'd think the lawyers might have.

Hank Chinaski · 07-02-2010, 01:34 PM

anyone ever argued that filing a procedurally flawed and factually BS motion to dismiss in lieu of an answer should attract a default judgement?

I just need a case that sounds scary for a letter, not the complete issue briefed.

07-02-2010, 01:55 PM

Quote:

Originally Posted by Hank Chinaski

anyone ever argued that filing a procedurally flawed and factually BS motion to dismiss in lieu of an answer should attract a default judgement?

I just need a case that sounds scary for a letter, not the complete issue briefed.

Rule 11 isn't scary enough? Or maybe you're not in Federal Court.

Hank Chinaski · 07-02-2010, 02:19 PM

Quote:

Originally Posted by ironweed

Rule 11 isn't scary enough? Or maybe you're not in Federal Court.

rule 11 is scary? not so much. but a default, that's some scary shit.

07-02-2010, 02:26 PM

Quote:

Originally Posted by Hank Chinaski

rule 11 is scary? not so much. but a default, that's some scary shit.

It is, which is why you're probably not going to find a case. But if this is someone who does not know from experience how forgiving the Federal courts can be, why not try Rule 11 = strike the offending paper = your MTD is gone = you haven't responded to the complaint = default. I know you know I know it's bullshit, but still.

I cannot believe the amount of shit people get away with, however, and most of them are not even pro se.

Atticus Grinch · 07-02-2010, 03:18 PM

Quote:

Originally Posted by Hank Chinaski

rule 11 is scary? not so much.

This explains a lot.

Tyrone Slothrop · 07-07-2010, 01:03 PM

David Post at Volokh:

Quote:

Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant — let’s assume it’s a criminal defendant who was convicted under a state nuisance statute — raises 2 issues: that the statute in question is unconstitutionally vague, or, in the alternative, an unconstitutional abridgement of the freedom of speech. Two of three judges, after due consideration, believe the statute is not unconstitutionally vague. Two of three judges believe the statute is not an unconstitutional abridgement of the freedom of speech. The defendant’s appeal, however, is successful and his conviction is overturned. How can that be?

The answer is pretty simple. The three judges divide this way:

Is the statute unconstitutionally vague?

Judge A NO

Judge B NO

Judge C YES

Is the statute a violation of the First Amendment?

Judge A YES

Judge B NO

Judge C NO

Two judges (A and C) will vote to overturn the conviction, and therefore they will prevail and the conviction will be overturned, even though “the court as a whole” thinks the statute is neitherunconstitutionally vague nor a violation of the First Amendment.

It’s an interesting problem, and a pretty knotty one when you start to look closely at it. First of all, what’s the “right answer” in the case? Given this distribution of reasoning among the three judges, what’s the “correct” outcome? Should the conviction be overturned, or not? Secondly, if the conviction is indeed overturned and the judges disclose their reasoning in an opinion (or several), how the hell do we interpret the result? Does this case “hold” that the statute is not unconstitutionally vague, and that it is not a First Amendment violation? [And if so, why isn’t the defendant in jail?]

Salop and I had some ideas about how to handle this problem (a number which, incidentally, I no longer think are valid . . .), but neither of us did much follow-up work on the problem after the paper came out. It turns out that the problem has spawned a little bloom of literature, and there’s now a fair bit of thinking about the problem out there (though I don’t think there’s a real consensus about how to deal with it).

I bring all this up now because over at SCOTUS, David Cohen asserts that McDonald v. City of Chicago represents an illustration of the paradox at work.

Quote:

To illustrate this phenomenon, imagine explaining the result of the case in a different way. After stating the basic holding that the Second Amendment is incorporated, someone responds, “Interesting. How is it incorporated?” The answer to that question reveals the paradox.

Is it incorporated through the Due Process Clause? Well, no, it’s not, as a majority of the Justices concluded that the Due Process Clause does not incorporate the Second Amendment. The four dissenters (in two separate opinions) rejected the right as fundamental under Duncan v. Louisiana (1968). Justice Thomas, in his separate concurrence, rejected Due Process incorporation for non-procedural rights altogether. To be sure, the four plurality Justices believed that the Due Process Clause incorporated the Second Amendment, but they were in the five-four minority on this point.

Is it incorporated through the Privileges or Immunities Clause? Again, no, it’s not, as a majority of the Justices rejected that claim as well. The plurality of four refused to revisit the Slaughter-House Cases (1873) or United States v. Cruikshank (1876) (on the Privileges or Immunities question), and the four dissenters also rejected this claim. Only Justice Thomas endorsed overturning Slaughter-House and reinvigorating the Privileges or Immunities Clause as the mechanism for incorporation. However, he was in the eight-one minority on this issue.

Thus, even though, as we all now know, the Second Amendment is in fact incorporated against state and local governments, a majority of the Court rejected incorporating it through the Due Process Clause and a majority of the Court rejected incorporating it through the Privileges or Immunities Clause.

I haven’t actually read the opinions yet, so I can’t vouch for Cohen’s characterization myself. These cases have a tendency to become interpretive nightmares as courts and commentators try to parse through the meaning of the paradox, so if his characterization is correct, I predict that you Con Law types are in for a bit of a rough ride on this one.

Atticus Grinch · 07-07-2010, 01:13 PM

Quote:

Originally Posted by Tyrone Slothrop

David Post at Volokh:

Much ado about nothing. You can't cite an outcome; you have to cite to an opinion. And the "injustice" of two judges believing different bases for overturning a judgment pales in comparison to the sausage-making that goes into verdicts and findings of fact. The only interesting point is when the 7th Circuit overturns Chicago's new ordinance on a patchwork of con law theories -- nearly half on substantive DP; nearly half on P&I. You'll have an entire generation of substantive DP law with no precedential effect.

Hank Chinaski · 07-07-2010, 01:17 PM

Quote:

Originally Posted by Atticus Grinch

Much ado about nothing. You can't cite an outcome; you have to cite to an opinion. And the "injustice" of two judges believing different bases for overturning a judgment pales in comparison to the sausage-making that goes into verdicts and findings of fact. The only interesting point is when the 7th Circuit overturns Chicago's new ordinance on a patchwork of con law theories -- nearly half on substantive DP; nearly half on P&I. You'll have an entire generation of substantive DP law with no precedential effect.

if you follow Ty's argument don't you have to throw out Griswald? i think we are seeing the beginning of the change to the right winger ty@50.

sebastian_dangerfield · 07-08-2010, 03:38 PM

Is it me or did Obama just tell the Federal Court in New Orleans to either approve his sixth month drilling moratorium or the Administration would immediately do a whole lot worse?

If that's the case, I applaud his balls.

...Not so much his brains. The dumb bastard's giving up a shitload of moderate votes in the gulf states to placate an environmentalist voting bloc his party already has in the bag.