• SebastianDangerfield commented on the blog post The Mysteries of The Female Organism

    2012-08-20 16:56:41View | Delete

    Tbogg, extra points for the Dusan Makaveyev reference. Expect a gold star on your report card this term.

  • The ad campaign is despicable. Everything about it is despicable: the actual pro-pollution viewpoint, as well as the framing, which marries right-wing tropes about out-of-touch Hollywood elitists with the language of OWS. As Kelly noted, though, co-option it isn’t. Rather, it’s trying to trade on OWS tropes, its “brand” as Kelly notes.

    Despicable as the campaign is, and despicable as the leadership of the unions that set it in motion are, it’s not right to trash Trumka or the AFL over this. The federation is just that — a federation of various unions that differ widely in political outlook, goals, etc. The AFL is not in a position to dictate anything to the building trades unions that support the Keystone X-L project, and any pressure from the AFL (which, for all we know, may have been tried) would almost certainly be ignored. The AFL is simply not set up to dictate policy and positions to its constituent unions. It exists to support its constituent unions and mediate disputes between them.

  • SebastianDangerfield commented on the blog post “The Constitution Doesn’t Protect Tents”

    2011-10-18 07:48:34View | Delete

    Another good case is Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), which held that a tent city in Lafayette Park, designed to draw attention to the plight of the homeless, was protected symbolic speech.

  • A lawgeek PS: Much of the problem here arises from allowing parties that may or may not have standing to intervene in the first place. There’s currently a circuit split over whether an intervenor must satisfy Article III, and the Court has reserved the question. Of course standing rules have become ridiculously restrictive thanks to the Rehnquist Court, but if you’re going to have standing rules at all, it seems ridiculous to give people full party rights (including the right to inflict discovery requests on an actual party) if those people couldn’t have brought suit in the first place. Plus, in cases like this one, it would be helpful to clear up the standing question on the front end, rather than while a case is on appeal.

    I do find it amusingly ironic that the Rehnquist’s restrictive approach to standing (designed, of course, to work to the detriment of those who try to enforce civil rights or protect the environment) might make insulate Walker’s ruling from reversal.

  • Yeah, fair enough. I certainly had the impression that Boies and Olson were gunning to take this to the Supremes, but once the state folded its hand, at that point I rather think they had to rein in their ambitions to preserve their gains.

    It will be interesting to see what the California Supreme court does with this. There are definitely occasions I’ve seen where a federal appeals court tries to get clarity from a state supreme court in order to properly decide a federal issue and then gets back useless mush. (I had a case where the question was whether state law offered a means of redressing the plaintiff’s injury, independently of federal constitutional claims under Section 1983, and the state supreme court eventually answered that the state’s court system has jurisdiction to entertain Section 1983 claims; not helpful.)

    I would hope that Reinhardt would give the opinion to Hawkins. And absolutely rehearing en banc (in one of those kooky 9th Circuit demi-en bancs) is definitely a possibility. And I certainly hope you’re right about Kennedy. My view on that question changes from week to week.

  • I would think that having secured relief for one’s clients at trial, and with the defendants’ forgoing of their right to appeal, the only position to take consistent with their ethical obligation to their clients was to fight the initiative proponents’ standing (particularly given the Arizonans for Official English decision). It would be the height of bad representation to say, “Sure we got you the relief that you want and the state has folded, leaving only the proponents of the initiative on the field, who probably don’t have standing, but we’re going to go ahead and acquiesce to standing because we want to get a splashy appeals court decision and maybe one from the Supremes as well.”

    Reinhardt appears frustrated as he is driven by a desire to decide a landmark case. But the lawyers’ job at this stage is to preserve the relief for their clients, not drive the case forward.

    As for the broader cause, I don’t think that a dismissal based on standing would be such a bad outcome. The suit would have yielded a great District Court decision which brought relief to the plaintiffs, and our side lives to fight another day. I know many are itching to see the Supremes deal with the issue now, which is a perfectly respectable position. And I certainly hope that Kennedy is ready to make his mark on history by doing the right thing on this issue, but I’m risk-averse in terms of sending cases to this Supreme Court. I’m even more concerned about sending a Reinhardt decision on this issue to this Court; we all love him of course, but as I’ve pointed out before, an opinion from him is like a matador’s red cape to most of the Court.

  • This really is a bizarre punt. In Arizonans for Official English, the Supremes had no trouble taking a look at state law and ruling that there was no standing on the ground that “we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” If there is no statute granting initiative proponents this kind of authority, I rather doubt the state supreme court can invent such authority. Sheesh.

    As for the rap on the Boies/Olson strategery, I’m not so sure that filing the action against a broader set of defendants is “a simple matter of pleading.” If you want to enjoin every clerk in the state, you’d need a lot of plaintiffs — or a class action. I’ve always assumed that the Boies/Olson borg made the decision to seek relief only for particular plaintiffs in order to shop for (and hold on to) a favorable venue — and given that they drew Walker I can’t say that they didn’t do a good job there. Just because they didn’t file the lawsuit that Reinhardt would have preferred doesn’t mean that there weren’t good reasons for framing the suit the way they did. Plus, let’s face it, if the suit succeeds in procuring a Ninth Circuit decision invalidating the marriage amendment, for all practical purposes you have the same result as a statewide injunction. And it’s simply 20-20 hindsight to postulate that they should have sued more officials because the Governor and the AG would decide to throw the towel in.

  • SebastianDangerfield commented on the blog post Excellent Panel Announced for Perry Prop 8 Appeal

    2010-11-29 14:53:40View | Delete

    Oh man, gotta love Rheinhardt, but if he writes the opinion, it’s a big fat piece of cert.-and-reverse bait for the Supremes! His opinion are giant red capes before the eyes of the Gang of Five. Let’s hope Kennedy cares more about his legacy than he does about sticking it to the libs.