Bush League Judicial Opinions

After seeing Michael’s post about Judge Spark’s order inviting counsel to a kindergarten party to teach squabbling counsel about how to resolve discovery disputes without oversight, I was curious about whether any other judge had ever used the phrase “kindergarten party” in a written opinion. While I agree with Michael that Judge Spark’s opinions go too far, and are too cruel and targeted to be appropriate, I do think there is a time and a place in judicial opinions for informal turns of phrase. Plus, it is always pretty entertaining when judges try and fail to sound “hip,” by wrongly employing the lingo that all the cool kids are using these days.

As it turns out, no one but Sparks has busted out the term kindergarten party, at least not in any reported order. So I looked into whether any similar phrases were in use, and found that no judge has ever sunk so low as to use the term “weaksauce” in a judicial opinion, and only one or two have referred to conduct as being “amateur hour.”

But I was pleased to see that quite a few judges have seen fit to use my personal favorite synonym for kindergarten party behavior, and have described litigants and attorneys alike as being “bush league.” Among those using the phrase are judges from the Mississippi Supreme Court (“I do not approve of what defense counsel did in this case, but compared to what happened in Cole, Darby’s lawyer is in a bush league. Darby v. State, 538 So. 2d 1168, 1178 (Miss. 1989)), the 7th Circuit (“But the confession was the beginning of the cooperation, for it was the confession that revealed that Rutledge was involved in more than bush-league drug dealing.” United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990)), and the 5th Circuit (“The betting began with bush-league sums in early June, 1970.” United States v. Burke, 495 F.2d 1226, 1230 (5th Cir. 1974)).

The 10th Circuit has joined in to — even accompanying its use of the phrase with a pretty terrible pun:

“Arguably, an etymologist would place the terms ‘slime’ and ‘sleazebag’ in the same league as ‘scum’; perhaps a bush league rather than a professional league, but nonetheless the same league.” Henderson v. Times Mirror Co., 669 F. Supp. 356, 361 (D. Colo. 1987) aff’d, 876 F.2d 108 (10th Cir. 1989).

Sadly, the 10th Circuit appears not to understand its own analogy, given that the whole point of having a bush league and a pro league is that the two are not, in fact, part of the same league.

And here’s a fairly scathing quote from a Massachusetts Superior Court:

“However, within my discretion, I find that a litigant’s right to access to the appellate courts is so important and so sacred that the blatant and transparently bush league contumacious conduct of Bruce D. Amster in attempting to avoid a creditor’s judgment doesn’t qualify for cutting off his appellate rights even though his conduct is flagrant[.]” John P. Kendall v. Hyannis Restorations International Sales, Inc., et al., Superior Court of Massachusetts

My new goal for the day: find an excuse to use the phrase “transparently bush league contumacious conduct”.

And here are some final quotes, attesting to the judicial popularity of describing kindergarten party antics as bush league moves:

“Absent that, the cataloguing of every instance of intense disagreement between the parties over the life of an investigation and trial, be it claimed Brady violations or bush league recess interrogation of the courtroom gallery, contorts the Hyde Amendment into a vehicle for Monday morning quarterbacking Congress simply did not intend.” United States v. Ali, 06-CR-200 (ENV), 2008 WL 4773422 (E.D.N.Y. Oct. 27, 2008)

“In comparison to some of the more notorious cybersquatters, Rayne’s registration of roughly thirty domain names might seem bush-league. See H.R. Rep. 106–412, at 13 (noting that certain cyberpirates have been known to warehouse hundreds, even thousands, of domain names).” Savin Corp. v. Rayne, 00-CV-11728 PBS, 2001 WL 34815751 (D. Mass. Mar. 26, 2001)

“Legal academia may have unwittingly contributed to the common failure of counsel to brief thoroughly state constitutional issues by sometimes viewing them as the bush league of constitutional law.” Davenport v. Garcia, 834 S.W.2d 4, 21 (Tex. 1992)

And saving the best for last, we have what must surely be the absolute worst pun that has ever graced a federal court’s opinion, courtesy of the district court for the Southern District of New York:

“Of the magazines cited by defendants as undermining the PLAYBOY mark, PLAYBIRDS has no significance. PLAYBIRDS is a sex-oriented magazine but its style and content is bush league compared to PLAYBOY. It consists essentially of a series of pictures of unclad women with their legs open, exhibiting with dull redundancy the organ that PLAYBOY strives to make mysterious and interesting through suggestive display.” Playboy Enterprises, Inc. v. Chuckleberry Pub., Inc., 486 F. Supp. 414, 422 (S.D.N.Y. 1980)

-Susan

Earthquacalypse 2011

Pictured below is a reenactment of my office immediately following the Great DC Earthquake of 2011:

Note that this photo is only an approximate recreation of the devastating scene, as the original havoc and destruction caused by the earthquake had been repaired before someone reminded me that I should have taken a photo.

-Susan

Update (from Michael): The horrible earthquake depicted above actually caused several D.C. law firms and courts to close for the day. Oh the humanity.

Who Does Google Think You Are?

Ever wonder how Google figures out which ads it is going to flash at you? To see who Google thinks you are, you can check out your Google demographic profile by clicking over to http://www.google.com/ads/preferences/. The interest categories appear to be updated regularly based upon what sites have been visited over the past few days, but the inferred demographics do not seem to change as much. Here is Google’s stalking profile for me:

While my age demographic has been correctly pegged, apparently Google thinks I’m actually a dude. At least for the moment, under the user history for this particular browser.

I guess it is sort of comforting that Google isn’t using my Google account or my Google+ profile — which correctly identifies me as female — or any other Google profile I have to figure out what web ads to direct at me. According to Google’s Privacy Policy for Google Ads, it looks like the ads Google generates are not based upon anyone’s individual Google accounts, but rather the web activity on each individual browser or device. So while you’re not exactly anonymous, it at least provides the comforting illusion that Google is not stalking everything you do.

-Susan

EDVA’s Tasteful New ECF Color Scheme

The website for the Eastern District of Virginia’s ECF system is having some issues. It has unexpectedly acquired the following color scheme:

And so, when I logged into ECF earlier, I was suddenly and unexpectedly confronted with a screen entirely filled with the most horrifying shade of green-gold the world has ever known. The color has been variously identified by attorneys viewing it as “aggressively cat diarrhea green”, “baby poop green”, and “ebola-infested olive.”

A quick look at the source code for the page shows what it wrong — and reveals that, thankfully, EDVA is not intentionally inflicting that color scheme on its users. Apparently, whoever handles the website was trying to go for the much more predictably bland #999966 for the background shade. Unfortunately for them, they accidentally set the color with the following: <BODY BGCOLOR=#999966″>. And, as I am reliably informed by someone who knows a lot more about such things than I do, that little extra ” has somehow managed to convert the website’s background from the staid #999966 into the cringe-inducing #999600 instead.

Now let’s see just how long it takes for them to fix it.

-Susan

Update: As of July 27, the website is still not fixed. Damn, EDVA needs to look into hiring some new, more diligent tech people.

Another Step Forward

I got back home tonight just in time to hear that it really had gone through: New York has legislatively authorized same sex marriages.

Forty years from now, everyone is going to claim that, on this date, they were “not against” gay marriage. Some might still claim they were “against the way it was done,” but that they “weren’t against it in principle” — because obviously the only philosophically valid piece of legislation is one done by popular referendum — but very few will acknowledge that they believed that marriage equality would be a contributing cause to the destruction of America, or that they thought today would be a day to be mourned.

And that’s fine. Letting people forget that they disagreed with Brown v. Board was the best way to proceed, and it is the same here.

But tonight, freedom scored another victory. By a small amount — albeit a very large amount for those whom it directly affects — there has been an increase in the ability of Americans to order their lives as they see fit, in accordance with their own beliefs and convictions.

And to, most importantly, live their own lives however they goddamned want to. That is worth celebrating.

-Susan

The Greater D.C. Area’s Worst Named Company

This D.C. area contractor clearly did not do much marketing research before choosing a company name:

I had to check the company out to make sure this was not some kind of prank, but yes, RA Hyman Restoration, Inc. is indeed a real business:

RA Hyman Restoration, Inc. helps people and businesses that are in need of emergency restoration services for damages caused by flood and fire due to accidents or natural disasters.

Whatever marketing research they did plainly failed to include the 13 year old boy test — an important stage of concept testing where, before unveiling any new marketing strategy or company name, you run it by a panel of 13 year old boys first. (Or, apparently, a panel of sufficiently immature 25 year old lawyers.) If their first reaction is to giggle, ditch the name.

I did wonder at first if perhaps this is an old, established company that was saddled with an unfortunate name in a previous, more innocent era. But alas, no, the company was created in 2007. They have no excuse.

-Susan

One if By Land, Two if By Extremely Misleading Headline

The only redeeming part of the whole Palin nontroversy — “Reveregate,” or whatever we are calling it these days — is that at least people are learning a bit of interesting history about Paul Revere beyond the the traditional American mythology. Palin did not give an entirely coherent recount of the tale, but big whoop — I thought we were beyond stopping the presses every time Palin was less that perfectly clear about something.

For instance, in one article, a historian is quoted giving the following evaluation of the accuracy of Palin’s re-telling of the Midnight Ride of Paul Revere:But the nonsensical “defenses” of Palin’s version of history are written in such bad faith that they are far more troubling than any irrelevant misstatement Palin may have initially made. All too often, The Word of Palin is treated something like the Bible or other mystical text; her proclamations are often vague enough or contain enough non sequiturs that defenders are able to read great mystical truths into her rambling sound bites. Palin only sounds vague and confused, they claims, but in reality she is a deep and worldly historical scholar!

Boston University history professor Brendan McConville said, “Basically when Paul Revere was stopped by the British, he did say to them, ‘Look, there is a mobilization going on that you’ll be confronting,’ and the British are aware as they’re marching down the countryside, they hear church bells ringing — she was right about that — and warning shots being fired. That’s accurate.”

Patrick Leehey of the Paul Revere House said Revere was probably bluffing his British captors, but reluctantly conceded that it could be construed as Revere warning the British.

“I suppose you could say that,” Leehey said. “But I don’t know if that’s really what Mrs. Palin was referring to.”

McConville said he also is not convinced that Palin’s remarks reflect scholarship.

“I would call her lucky in her comments,” McConville said.

And, yet, what was the headline for the article containing this quote?

Experts back Sarah Palin’s historical account

You betcha she was right!

-Susan

The Wars on Poker and Porn: America Strikes Back

After the DOJ had a busy week shutting down the three largest online poker sites and instigating criminal charges against eleven officers and directors, you would think those advocating for greater control over Americans’ lives would be content. After all, everyone knows online poker is a national menace and grave security threat; it is about time something was done about it.

But no. Social conservatives will not rest until all moral vices have been banned, so that America may be free once again. Which is why it is an absolute outrage that the DOJ has taken moves to close down the Obscenity Prosecution Task Force, even if the DOJ has offered reassurances that the elimination of the task force doesn’t mean that such prosecutions will be halted, only that it will be “[r]e-incorporating the prosecution of obscenity violations into the Child Exploitation and Obscenity Section.”

Reasons for dropping the Obscenity Task Force may include its completely inept handling of the John Stagliano case, as well as the fact that the DOJ’s own attorneys were deeply reluctant to carry out such prosecutions. But, as a disturbingly large portion of the Senate made clear in a letter to the DOJ, that is not good enough. Prosecuting porn is vital to the nation’s future, and the Senate is greatly distressed by the dearth of obscenity prosecutions that have occurred under the Obama administration:

Earlier this month, [Sen. Orrin] Hatch and 41 other senators sent a letter to Holder pushing him to bring criminal cases against “all major distributors of adult obscenity.”

“We write to urge the Department of Justice vigorously to enforce federal obscenity laws against major commercial distributors of hardcore adult pornography,” said the April 4 letter, circulated by Hatch. “We know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families and communities and the problems are only getting worse.”

I expect that, within the next week, the DOJ will follow up by announcing prosecutions against rock ‘n’ roll, indecent dancing, and overly-fatty desserts.

-Susan

Independent Political Parties Have All the Best Names

From Rhode Island, here are two more awesome independent party names. In addition to the The Rent is Too Damn High Party and the H.E.R.O.S.H.E.R.O. Party, we also have Gregory Raposa of the Vigilant Fox Party and Robert P. Venturini of the Hour With Bob party.

Sadly, while Vigilant Fox party sounds like exactly the kind of party I’d want to join, whether the political kind or otherwise, the Vigilant Fox Party has a rather esoteric platform. Raposa campaigned for (and lost) the seat for Rhode Island’s First Congressional District.

Independent Gregory Raposa was born in 1947 in Fall River, Mass., and currently lives in Bristol. He earned his associate’s degree from the Community College of Rhode Island in 1968 and a bachelor’s degree in psychology from Rhode Island College in 1970. A taxi driver in Boston, Raposa is a member of the Vigilant Fox party.

“I don’t believe in imposing a fine on people who work, so, as a first step in destroying the income tax, I propose to eliminate income taxes on people earning less than $50,000. This income tax money – freed up – will act as a stimulus to the economy in a more natural way than current stimulus packages. A graduated income tax will start after $50,000 to earn the same in taxes as now. I am also proposing to completely revamp the educational system, eliminating almost all schools and colleges, in favor of home and self education, use of modern technology and paying student and their parents directly for their learning accomplishments. This income will allow a parent to stay at home, educate their child, and become a real family again. By 15, most students will have a college degree equivalent. The savings—about half a trillion dollars a year – year after year. I also propose to eliminate retirement benefits for new federal employees. Democrats and Republicans are the worst enemies of this country. Admit your past voting mistakes and stop voting for them.”

The Hour With Bob party is much more heart-warming:

Robert P. Venturini is the familiar, friendly face of “An Hour with Bob,” and “Bob’s Big Adventures,” local cable-access shows watched by Rhode Islanders for 19 years. Some readers have doubtless been on his programs.

Venturini, 62, seeks to parlay his TV-show role as unpaid “state booster” and his community service through hosting an annual Toys for Tots telethon, into elected office. He is in a three-way race with Elizabeth H. Roberts, the incumbent endorsed Democrat and former state senator, and fellow independent Robert J. Healey Jr., who wants to abolish the job to save taxpayers’ money.

“I’m a regular guy trying to make a difference,” said Venturini, a real-estate agent, Cumberland native and Pawtucket resident.

I wish more candidates had their own shows on public-access networks.

-Susan

Supreme Court of the Philippines Threatens to Hold Professors Who Condemned Plagiarism In Contempt

Previously, Mike posted about a decision from the Supreme Court of the Philippines that extensively plagiarized an article written by two American legal scholars. That case, Isabelita Vinuya v. Executive Secretary, also reached a decision contrary to that of the article the Supreme Court had plagiarized from, despite the extensive copy-and-paste job done on the source material.

37 professors at the University of the Philippines College of law issued a statement condemning the plagiarism. Now, the Philippines’ Supreme Court has threatened to hold the professors in contempt:

[Justice] Del Castillo was accused of plagiarizing portions of his ruling on World War II comfort women, but the Supreme Court cleared him, saying there was “no malicious intent” in the “accidental decapitation” of the attribution marks that would indicate that the research material was borrowed.

The court also threatened to crack its whip on the 37 law professors who aired a statement against Del Castillo, saying the Code of Professional Conduct for lawyers prohibits members of the Bar from airing public statements that tend to influence public opinion while a case is pending.

Can you imagine if that was the rule in the U.S.? That would essentially outlaw legal bloggers.

In its Rule to Show Cause issued against the professors, the Supreme Court stated that it

“could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration.” The Vinuya case was controversial enough, it added, but the law faculty “would fan the flames and invite resentment against a resolution that would not reverse the said decision.” The court said this was contrary to the faculty’s obligation as law professors and officers of the court and violated the Code of Professional Responsibility.

There is little doubt, though, that the critics’ charges of plagiarism are accurate. In its order dismissing the plagiarism allegations, the Court excused the failure to cite directly quoted text by noting that, “Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.” In other words, it’s the “Bill Gates ate my homework” defense.

-Susan