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It effectively is an (extremely small scale) affirmative action program to attempt to increase opportunities available to women and minority lawyers. That it's done under a discretionary rule about class counsel efficacy is more likely an issue of pragmatism, especially if you look into how Baer actually administers it (which is that he requires the firm to file a memo showing their efforts to staff women and minority lawyers). And again, we return to Sotomayor's comment: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." The counsel adequacy idea is similar: that someone from an outgroup is going to be able to more effectively relate to and advocate for clients from an outgroup. Judge Baer is like 80 years old, the amount of fucks he gives has likely dwindled to a very small number. Why doesn't this apply equally to white men representing white men? The white Christian male experience is the American default, and it's impressed upon everyone whether they fit that description or not. Every lawyer is trained from the first day of civil procedure to the last day of the bar exam to adequately represent white men, and while we're on the topic of affirmative action, that line of law itself is being converted to the story of white interests and their central importance as well. There's simply no need to take the extra step in ensuring descriptive advocacy to protect white male interests because a) white male interests are protected at virtually every turn in society and b) the harm of doing so (contributing to systemic marginalization) outweighs the benefits. Now, given the structure of most class action representation (and really most representation) I am somewhat skeptical about the actual substantive benefits to women/minority clients of women/minority lawyers staffed on the matter, but Judge Baer is absolutely right to be pushing the issue. I mean, this is a lot of words discussing what is Samuel Alito's whiny, juvenile jab at the controversial idea that women and non-whites might actually get more than crumbs from the pie. gently caress Samuel Alito, there's a reason he's Todd from Breaking Bad in the OP. The Warszawa fucked around with this message at 07:18 on Dec 9, 2013 |
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Dec 9, 2013 07:11
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Kalman posted:Except that that implies there are unique aspects to being white and male in American society. (There aren't.) VitalSigns posted:You didn't hint at something like this. I was pointing out that the defendants in these suits are usually big businesses controlled by rich white men. quote:It's reasonable to question whether a rich white lawyer would have the perspective to effectively represent a class disproportionately made up of minorities that are hurt by the businesses' actions and understand the extra burdens that the plaintiffs face which he does not when he shares the perspective of the defendants. That and I'm not sure what the systemic discrimination angle in a satellite radio anti-trust case is even supposed to be anyway. OneEightHundred fucked around with this message at 08:05 on Dec 9, 2013 |
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Dec 9, 2013 07:29
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paragon1 posted:There are totally unique aspects to being a white man in America. There aren't any unique problems that I can think of, but surely that in and of itself counts as a unique aspect? Dude, we are the most oppressed demographic in existence. No White History month, Mother's day is a big deal but who cares about fathers day, prison rape, most prisoners are men, we don't get any tax breaks or special scholarships. It's hard out there man.
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Dec 9, 2013 07:35
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No national campaigns to give us straight white men special marriage rights either  VVVVVV Stop upstaging my jokes with way way better jokes 
VitalSigns fucked around with this message at 07:53 on Dec 9, 2013 |
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Dec 9, 2013 07:39
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Shbobdb posted:Dude, we are the most oppressed demographic in existence. No White History month, Mother's day is a big deal but who cares about fathers day, prison rape, most prisoners are men, we don't get any tax breaks or special scholarships. It's hard out there man. Hey yeah, you're right! Security never follows us when we go into stores either! It's like they don't even care!
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Dec 9, 2013 07:50
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paragon1 posted:Hey yeah, you're right! Security never follows us when we go into stores either! It's like they don't even care! I'm gonna steal that and make it my go-to complaint. That is fantastic!
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Dec 9, 2013 10:01
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This is the song that pops into my head when this sorts of conversations pop up: http://www.youtube.com/watch?v=sLg5POTvVzs Just don't read the comments (or do if you need more evidence people are horrible).
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Dec 9, 2013 10:42
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The Warszawa posted:It effectively is an (extremely small scale) affirmative action program to attempt to increase opportunities available to women and minority lawyers. That it's done under a discretionary rule about class counsel efficacy is more likely an issue of pragmatism, especially if you look into how Baer actually administers it (which is that he requires the firm to file a memo showing their efforts to staff women and minority lawyers). And again, we return to Sotomayor's comment: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." The counsel adequacy idea is similar: that someone from an outgroup is going to be able to more effectively relate to and advocate for clients from an outgroup. Judge Baer is like 80 years old, the amount of fucks he gives has likely dwindled to a very small number. I think I agree with this interpretation, but I'm still not clear on a couple of things 1. How are the attorneys for a class-action case chosen? If a mainly-minority group chose a bunch of old white men to represent it, who is this judge to tell them they were wrong for making that choice? 2. What does this look like in actual practice? Or, what would female/minority lawyers do that white men would not, and how would that serve to secure additional winnings for the plaintiffs?
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Dec 9, 2013 11:13
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StarMagician posted:I think I agree with this interpretation, but I'm still not clear on a couple of things 1. So it's important to remember that this is about the staffing of lawyers to class action cases by the lead law firm, so there are two components. Class counsel is appointed as part of the certification process because a class action by definition means that many of the parties whose interests are being adjudicated will have virtually no input onto how the case proceeds - this is why the judge is involved in selecting counsel at all, because the counsel selected isn't just representing the plaintiffs in the courtroom but all members of the class. If you've ever gotten a mailing notifying you of your entitlement to like 75 cents because of your cell phone plan, you've been represented by class counsel without any input at all. That's the first part. The second part is different from firm to firm, but basically partners who handle cases will pull more junior lawyers onto matters in various capacities, either piecemeal as developments occur (i.e., pulling new lawyers on when a motion needs to be filed) or at the outset (i.e., one cluster sticks with it for the duration), or what I gather is the most common approach, which is a mix of both. To the best of my knowledge, at virtually no point do clients get input into which lawyers are staffed before the bill comes due. The clients are still getting the lawyers they selected on the grounds they selected them (especially since every law firm at least claims to be an equal opportunity employer committed to a diverse and vibrant profession). 2. What this probably looks like in practice is there are more ethnic and women's names on the bill the clients get from the white male partners who lead the case. However, it does provide those lawyers with opportunities to advance in the firm (ideally), which is ostensibly good from a perspective of diversifying leadership in the bar. Depending on the jury, it might help to have a woman or minority lawyer arguing, but that's really up in the air. If the lawyer is senior enough to be guiding strategy, a non-white, non-male lawyer might be more sensitive to the needs of non-white/non-male class members than a white lawyer, especially when it comes to pressing discrimination claims. I have seen white lawyers be incredibly condescending and patronizing to their nonwhite clients, especially about discrimination claims, but I don't think that's a function of whiteness so much as a function of being a lovely lawyer. Jeffersonlives is likely entirely correct when he says that the counsel efficacy justification is a smokescreen for Judge Baer to do a little more for non-white non-male lawyers. This actually came up earlier in this term in Scheutte, and comes up every few years (if not every term) when people realize that almost every SCOTUS "race case" ends up argued by white dudes. SCOTUSBlog has a lot on Scheutte, and I'm going to write some up on it in the next week (read: month) for the thread. The Warszawa fucked around with this message at 12:15 on Dec 9, 2013 |
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Dec 9, 2013 12:08
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This could have went in about 12 different threads, but Pam Karlan is being appointed deputy assistant AG for the voting rights division, which is about the best response to Shelby County I think the administration could have come up with.
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Dec 20, 2013 22:41
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A little bit of a crosspost from the gay marriage thread, but a federal judge just ruled Utah's same-sex marriage ban unconstitutional and repeatedly cited last summer's DOMA ruling. Or to be more specific, repeatedly quoting Scalia's dissent in support of legalizing gay marriage. 
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Dec 21, 2013 01:12
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Ballz posted:A little bit of a crosspost from the gay marriage thread, but a federal judge just ruled Utah's same-sex marriage ban unconstitutional and repeatedly cited last summer's DOMA ruling. Trolling the troll? awesome!
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Dec 21, 2013 02:28
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spoon daddy posted:Trolling the troll? awesome! All we need is more judges to do this until Scalia's cholesterol takes care of the rest.
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Dec 21, 2013 03:16
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What circuit is Utah in? If it's the 9th, will they repeat the same reasoning as in Perry v. Schwarzenegger?
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Dec 21, 2013 03:42
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The X-man cometh posted:What circuit is Utah in? If it's the 9th, will they repeat the same reasoning as in Perry v. Schwarzenegger? No, Tenth.
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Dec 21, 2013 03:43
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The X-man cometh posted:What circuit is Utah in? If it's the 9th, will they repeat the same reasoning as in Perry v. Schwarzenegger? 10th. Everything I know about it is:   Stultus Maximus!!!!
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Dec 21, 2013 03:44
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My god, I can't imagine how much more overworked the 9th is compared to the 10th.
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Dec 21, 2013 20:54
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Omelette du Fromage posted:My god, I can't imagine how much more overworked the 9th is compared to the 10th.
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Dec 21, 2013 20:57
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Omelette du Fromage posted:My god, I can't imagine how much more overworked the 9th is compared to the 10th. Yeah since Alaska is in there I think the 9th might actually cover about half the land mass of the united states. Which while it isnt any more important than "look at all dat red area vote republican!!" it might indicate that particular circuit is overbroad and might need some help.
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Dec 21, 2013 21:02
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FRINGE posted:Looks like the 10th should be dissolved into the 5th. gently caress you t  Don't lump us in with Texas living in Utah is punishment enough.
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Dec 21, 2013 21:02
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RuanGacho posted:Yeah since Alaska is in there I think the 9th might actually cover about half the land mass of the united states. Which while it isnt any more important than "look at all dat red area vote republican!!" it might indicate that particular circuit is overbroad and might need some help. The Ninth's size has been a recognized problem for a while now. There's just not a great solution because of California. Really it's big enough that it would normally make sense to split it off into its own circuit, but nobody really wants to have the "all-california" circuit, so you have to decide who to leave in with it, and what to do with Hawaii and Alaska and gently caress it just appoint more judges and walk away slowly.
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Dec 21, 2013 21:18
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RuanGacho posted:Yeah since Alaska is in there I think the 9th might actually cover about half the land mass of the united states. Which while it isnt any more important than "look at all dat red area vote republican!!" it might indicate that particular circuit is overbroad and might need some help. It does have more than twice as many judgeships as the Tenth, so it's not like the judges are especially overworked there in comparison to other circuits (the cases-per-judge are pretty comparable between the 9th and 10th last time I looked.). For comparison, the second biggest circuit by number of judges, the Fifth, has 17 judges. That said, the 9th should probably be split up - when you have 29 judges, meeting en banc becomes both much harder and much less useful.
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Dec 21, 2013 21:20
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Arcturas posted:The Ninth's size has been a recognized problem for a while now. There's just not a great solution because of California. Really it's big enough that it would normally make sense to split it off into its own circuit, but nobody really wants to have the "all-california" circuit, so you have to decide who to leave in with it, and what to do with Hawaii and Alaska and gently caress it just appoint more judges and walk away slowly.
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Dec 21, 2013 21:24
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FRINGE posted:Looks like the 10th should be dissolved into the 5th. The current 5th and 11th Circuits were split from the old 5th in October 1981. Splitting the 9th has been debated forever and ever, but good luck getting Congress to do it (or, in divided government, create enough judgeships). Also, gently caress yes Pam Karlan forever and ever amen.
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Dec 21, 2013 21:52
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The Warszawa posted:The current 5th and 11th Circuits were split from the old 5th in October 1981. Resulting in the most common, and also most innocuous, footnote 1 in 11th Circuit opinions: quote:In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. (Google Scholar identifies about 9,000 citations)
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Dec 21, 2013 22:33
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The Warszawa posted:Splitting the 9th has been debated forever and ever, but good luck getting Congress to do it (or, in divided government, create enough judgeships). Yep, the Democrats should have done this in the 111th, but they'd just spent a bunch of years coming up with lame reasons to fight it during the Bush 43 administration since they couldn't just be honest and say they didn't want to dilute the liberalness of the 9th Circuit.
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Dec 21, 2013 22:37
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I wish the coastal population centers could be leveraged to expand liberal jurisprudence into the blood-red plains states. Make California the Western border of a circuit and have it be the mega-circuit that covers HI, CA, NV, CO, AZ, NM, TX, KS, and OK. Have OR and WA be the core of another that covers AK, WA, OR, WY, MT, ID, UT, ND, SD, and NE. Then have MN, WI, MI, IA, MO as one, IL, IN, KY, OH, as another, NH, VT, ME, PA as one, leverage NE and NJ into an anchor to rule Appalachia and the Chesapeake states, then block the Southeastern states into their own little judicial hellhole where they can circulate dick-measuring opinions on who hates minorities the most. E: this is a non-serious wish list that probably would ruin a lot of things that make circuit courts worthwhile. FAUXTON fucked around with this message at 19:56 on Dec 22, 2013 |
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Dec 22, 2013 19:50
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There's a movement in right wing circles to abolish the ninth circuit entirely, which given the lifetime tenure of judges, would wind up turning the 10th into a super circuit.
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Dec 22, 2013 20:09
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Emanuel Collective posted:There's a movement in right wing circles to abolish the ninth circuit entirely, which given the lifetime tenure of judges, would wind up turning the 10th into a super circuit. In the Newtonian version of this plan they also impeach, abolish, or defund all the judges they don't like.
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Dec 22, 2013 20:19
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Awesome OP. I think Sotomayor's opinion in Missouri v. McNeely this year was a pretty noteworthy opinion for every criminal law office in the country. Holding: The fact that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency under Schmerber justifying an officer to order a blood test without getting a warrant.
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Dec 23, 2013 17:16
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AshB posted:Awesome OP. I think Sotomayor's opinion in Missouri v. McNeely this year was a pretty noteworthy opinion for every criminal law office in the country. Holding: The fact that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency under Schmerber justifying an officer to order a blood test without getting a warrant. I wonder if that'll just make warrants a dime a dozen now, like the 'smelled weed' probable cause for a car search.
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Dec 24, 2013 02:55
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The Entire Universe posted:I wonder if that'll just make warrants a dime a dozen now, like the 'smelled weed' probable cause for a car search. That got struck as an excuse in Massachusetts (and, I suppose as necessity goes, in Washington state and Colorado). ulmont posted:Resulting in the most common, and also most innocuous, footnote 1 in 11th Circuit opinions: Fun fact, the most cited case in the Supreme Court is a relatively uncontroversial decision that held (in part) that syllabi that appear before a SCOTUS opinion are not binding, but are prepared as convenience for the reader. It's cited in the syllabus before every decision now. Tens of thousands of cites, last I checked.
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Dec 24, 2013 03:45
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That's three opposite of what happened - Sotomayor ruled that you need to go before a judge, nit use a fishy excuse.
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Dec 24, 2013 03:46
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The X-man cometh posted:That's three opposite of what happened - Sotomayor ruled that you need to go before a judge, nit use a fishy excuse. I was using it as a comparison - 'like' was part of the sentence. Now instead of just using a fishy excuse (like dissipation of BAC) to compel a blood test without a warrant, it'll just make warrants the new throwaway step - instead of being able to claim you smelled weed after the fact in court, you just need to call a judge beforehand and say you smelled weed. Don't try to sell me on the idea that low level judges and the cops don't collude worse than family members on ebay. Unless you're in MA/CO/WA in which case you can say you smelled burning plastic and cat piss or whatever meth is.
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Dec 24, 2013 07:13
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VitalSigns posted:10th. Everything I know about it is: Nicked from Wikipedia, here're the population stats for each circuit: code:
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Dec 25, 2013 18:51
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The Entire Universe posted:I wish the coastal population centers could be leveraged to expand liberal jurisprudence into the blood-red plains states. Make California the Western border of a circuit and have it be the mega-circuit that covers HI, CA, NV, CO, AZ, NM, TX, KS, and OK. Have OR and WA be the core of another that covers AK, WA, OR, WY, MT, ID, UT, ND, SD, and NE. Is there a structural reason that the 9th circuit is more liberal than the others? They're all nominated by the President, so it should be fairly random which circuits happen to have more conservative or more liberal justices at any given time. My first thought was that it might have something to do with Senatorial privilege.
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Dec 25, 2013 19:34
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StarMagician posted:Is there a structural reason that the 9th circuit is more liberal than the others? They're all nominated by the President, so it should be fairly random which circuits happen to have more conservative or more liberal justices at any given time. My first thought was that it might have something to do with Senatorial privilege. Senatorial privilege is really an issue more for district courts than for circuits, since it's less/not really respected in the same way there. The perception of the 9th as particularly liberal isn't really correct - it has some liberals, but it also has some extremely conservative judges (Kosinski, o'Scannlain, etc.) - I think it's more that with more judges you'll get more outliers in philosophy so you do wind up with some notable people a bit further left or right.
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Dec 25, 2013 19:44
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Another ruling on the NSA's activities came down today in New York, and takes a complete opposite stance to the one given in Washington last week. Is this as sure to be accepted by SCOTUS as the media's making it out to be? If it is, when will the ruling probably be?
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Dec 28, 2013 12:11
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coffeetable posted:Another ruling on the NSA's activities came down today in New York, and takes a complete opposite stance to the one given in Washington last week. Is this as sure to be accepted by SCOTUS as the media's making it out to be? If it is, when will the ruling probably be? It's far more in line with SCOTUS precedent than the other ruling was (which more or less said "I don't like the single closest ruling so I am going to ignore it") so it pretty much comes down to does SCOTUS want to change a major 4th Amendment doctrine or not. Ruling is a ways off - we will need both to be appealed through the circuits and be upheld to create a circuit split in order to really create a guarantee SCOTUS would take it, though it isn't impossible they'd take it if the DDC ruling (unconstitutional) was upheld.
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Dec 28, 2013 14:33
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Ah, timing! The true bugbear of the appeals process -- incredibly important, and yet incredibly boring to research! So I'm not going to do the research, I'm just working off of my memory and general knowledge about the federal rules of appellate procedure! It's been a while since I have looked at the Court's docketing schedule, but I'm fairly certain that the final days for cert to be granted in order for a case to be heard in the upcoming term is near the beginning of Fall -- September or October, maybe? So, in order to be heard in the next 2014 term (Fall 2014-Spring 2015), the cases would need to go trough the entire appellate process at the intermediate appellate level, and then an appeal successfully filed with SCOTUS, within the next 9ish months. I'm not well versed in either the 2nd Circuit's or District of Columbia Circuit's rules of appellate procedure when it comes down to timing (different circuit's local rules can modify the basic federal rules) -- but you can look it up online if you're particularly interested! -- but the whole process requires an initial brief, a response brief, a reply brief, oral argument, and then the opinion/dissent to be written. And then add another month or so for the actual appeal to SCOTUS. So, it's possible, but based on my limited experience with appeals in the federal courts, not likely. In sum: if SCOTUS were to grant cert, it is plausible that we would see the case in the 2014 term, but it would most likely come up in the 2015 term (and therefore an opinion would likely be published in early 2016).
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Dec 28, 2013 17:06
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