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Supreme Court Rulings
10 Mistakes Frank Rich Made in his Hit Piece about Clarence Thomas
Category: Supreme Court Rulings
Frank Rich's supporters express pride that he gets his facts straight. Well, his fact checking record took a hit with his recent hit piece on the autobiography of Clarence Thomas. Here are the Top 10:
10. "He [Justice Thomas]" still denies that he is the beneficiary of the very race-based preferences he deplores."
No. Not correct. Thomas repeatedly states that his acceptance by both Harvard and Yale was affected by his race, and that he wishes he had not indicated race on his application, and been judged solely solely by the quality of his work as an English Literature major at Holy Cross---where he did well, by the way.
9. "...the post [he received when he was hired by then Missouri Attorney General John Danforth] was substantial -- an assistant attorney general --"
No. Not correct. The position of assistant attorney general is an entry level position for a young attorney. An assistant attorney general has less real authority than the secretaries who work in the attorney general's office, and only slightly more prestige. Rich is easily fooled by titles.
8. The "compassionate conservative" [President Bush] who turned the 2000 G.O.P. convention into a minstrel show..."
No. Not correct. First you need to know that a minstrel shows "portrayed and lampooned blacks in stereotypical and often disparaging ways: as ignorant, lazy, buffoonish, superstitious, joyous, and musical." The 2000 G.O.P. convention did none of those things. In fact, Bush went out of his way to court the black vote (and then didn't get it) by giving prominent roles to blacks who had succeeded in business or politics.
When you know that, you realize just how racist Frank Rich really is, in his smarmy liberal way. Only liberals can make that sort of comment about "minstrel shows" and get away with it. Hodding Carter, an aide to Jimmy Carter, once said in Playboy magazine that Justice Thomas was "a 'chicken-eating preacher' who gladly parroted the segregationists' lines in exchange for a few crumbs from the white man's table" and that he was "one of the few left in captivity" as if he were some sort of an animal, confined to a zoo.
Liberals feel free to say those sort of things, and make those sort of references, without fear of being chastised for it. They, and Rich, should be ashamed (but they're not).
7. Thomas' book "follows a Supreme Court decision (which he abetted) outlawing voluntary school desegregation plans in two American cities..."
No. Not correct. Rich is referring to Community Schools v. Seattle School District No. 1 which found that schools which had never been segregated could not prevent students from transferring from one school to another simply because of their race.
Rich is a sort of lazy liberal. I doubt he has read the Supreme Court's opinion, instead permitting liberal colleagues to tell him what it says, and what it means. What the Supreme Court opinion found is that Seattle had never operated legally segregated schools or been subject to court-ordered desegregation. In short, the schools had never been segregated, so it couldn't be "desegregated."
What Rich and his liberal colleagues mean by "desegregation plans" are plans meant to classify and sort students based upon race, regardless of whether there is a history of racial segregation in the first place. He loves the sort of "top-down" social experimentation that treats people like members of an interest group--you are black, you must think like a black person thinks, and we will place you in a school where you will meet whites who think like white people think. God save us from people like Rich.
6. Thomas' book "follows the decision by the leading Republican presidential candidates to snub a debate at a historically black college..."
No. Not correct. The G.O.P. candidates didn't "snub" the Tavis Smiley forum. What they did was make an informed decision not to campaign in a forum which was over 99% Democrat when they are running in a Republican primary where Democrats can't vote. One of the cardinal rules of politics is that you campaign for the votes of people who have the right to vote for you. If you are campaigning before non-voters, or voters who can't vote for you, you are wasting your time. The only candidates who showed up are the ones who had nothing to lose, because they are not even on the radar to become nominees in the Presidential election. The real candidates need to spend their time in primary states in front of real primary voters.
Continue reading "10 Mistakes Frank Rich Made in his Hit Piece about Clarence Thomas"
Frank Rich Lynches Justice Thomas Once Again
Category: Supreme Court Rulings
New York Times Op-Ed Columnist Frank Rich chose to lynch Justice Clarence Thomas again in a recent op-ed piece, where is such lynchings are at least labeled as opinion. The occasion was the publication of Thomas' autobiography entitled My Grandfather's Son which was released by Harper Collins on October 1. Rich is fossilized 60's style social activist who claims that Thomas hasn't changed with the times. Thomas may not have changed with the Times, but the times have caught up with Thomas.
I couldn't help but wonder whether Rich was taking a shot not just at Thomas, but at his first wife, Gail Winston, who is Executive Editor of Harper Collins, Thomas' publisher. For all I know Rich and his ex-wife could be best of friends, but Rich did feature commentary on the $1.5 million book deal, not an inordinate sum based upon what the book should bring in to the publisher. Perhaps that was a backhanded slap at his former spouse, or her employer, for having compensated Thomas for a book which is bound to spend many weeks on the best-sellers list.
Rich's commentary is based upon the CBS 60 minutes interview with Thomas rather than the book itself. It is worth noting that the book has no index. That must have been intentional. There was no way for Rich to simply flip to the back, find the sections which support his thesis, and then print that. He would have had to have actually read the book to comment on it.
Although, if he and his ex are on good terms, perhaps she had slipped him a copy over the transom before the release date. Maybe he already knew that this was a well-written, thoughtful, and revealing portrait of a great man. If he hasn't read it yet, there is still time.
The Mythical "Choice of Freight Rates" under COGSA
Category: Supreme Court Rulings
In Norfolk Southern Ry. v. James N. Kirby, Pty Ltd., 543 U.S. 14 (U.S. 2004) Justice O'Connor, speaking for a unanimous Supreme Court, extended maritime contract jurisdiction to train wrecks. To those of us who practice maritime law, the result is not so strange. What is strange is the Court's reference to the mythical "choice of freight rates" which motivated the Court's decision to limit Norfolk Southern's liability to $500 per container after it did over $1.5 million in damage to a shipment of machinery which originated in Australia and was destined for Huntsville, Alabama.
You can forgive the Aussies for being a bit pissed. They are part of the civilized world when it comes to ocean shipping laws and limitations on liability. The laws of the United States are both antiquated and uncivilized and hence carriers operating in the United States could care less about cargo damage. In the vernacular, they don't give a crap. They don't have to.
If you think I'm being overly critical consider this---throughout Europe, heavy lift cargoes, like the machinery Norfolk Southern was carrying, are carried on low-boy or Mafi trailers. In the United States, carriers place the same cargoes, which the Europeans have so carefully handled from the factory to the port, on ordinary truck chassis. When these chassis turn over in transit, as they so frequently do in the U.S., the carriers simply say "Oops!...there goes another $500."
Some power plant manufacturers makes a cottage industry out of cargo damage. Every time CSX or Norfolk Southern loses a power plant component, usually worth over $1.5 million, the manufacturer gets to make another one, and the insurance carrier picks up the bill. Why should they care if the cargo gets damaged in route?
What the Supreme Court said in Kirby was this:
In negotiating the ICC bill, Kirby had the opportunity to declare the full value of the machinery and to have ICC assume liability for that value. Cf. New York, N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 135 (1953) (a carrier must provide a shipper with a fair opportunity to declare value). Instead, and as is common in the industry, see Sturley, Carriage of Goods by Sea, 31 J. Mar. L. & Com. 241, 244 (2000), Kirby accepted a contractual liability limitation for ICC below the machinery's true value, resulting, presumably, in lower shipping rates.
In reality, Kirby had no such "opportunity." These freight rates are called "ad valorum" rates and the fact of the matter is that the rates are set so high, over 100 times the comparable insurance rate, that they are nothing more than a way to shift the cost of cargo damage from the carrier's insurer to the cargo owner's insurer.
A couple of years ago I took the deposition of the Risk Manager of a major U.S. to Caribbean ocean carrier. He said that in his 20 years of working as a Risk Manager, he had never, never seen anyone elect to ship cargo under the ad valorum rate. Only a uninformed shipper would do it.
Congress, of course, sought to prevent this result. In the Carriage of Goods by Sea Act it specifically invalidated benefit of insurance clauses or any clauses which attempts to shift the burden of cargo damage away from the ocean carriers, but as you learn the longer you practice law, Courts don't care what Congress wants, or what Congress says. Courts want what they want, and if Congressmen want the law to be a particular way, well, they better just become federal judges.
Chinese take-out: Empirical Tool for Predicting Supreme Court Rulings
Category: Supreme Court Rulings
A Chinese restaurant on Capitol Hill in Washinton D.C. has been running a betting pool behind its kitchen for at least the past seven years. What makes this pool somewhat different is that the gamblers aren't waging on numbers, horse races, or football games----they are wagering on the outcome of cases heard before the United States Supreme Court.
The restaurant, named Yung Ciao's, is operated by Sally Yung, a second generation Chinese of Taiwanese descent, and her boyfriend, Ronny Squilante. Squilante, a New Yorker of Italian descent, insisted on the word "Ciao" being added to the restaurant's name. It was his idea to take bets directly from the back door of the restaurant. Since then, the idea has proved to be enormously popular with local gamblers.
Ronny got the idea from listening to the late night delivery drivers returning from their runs to the Supreme Court Building, located less than a half mile away. "What you got there?" he would ask. "Clarence order Szechuan Chicken, extra hot, with hot and spicy soup. What you think of that?" In a chorus all the delivery drivers would shout "Dissenting opinion!!!" Sally said that she could predict the outcome of a case based upon what the Justices were ordering to be delivered.
Sally Yung began naming certain combinations after individual Supreme Court Justices. A vegetarian "Buddha's Delight" with white rice, extra tofu, and cashews became known as a "Souter Special," while a "Shrimp with Lobster Sauce," roast pork egg roll and fried rice became known as a "Breyer Midnight Special" because Justice Breyer would only order it after Justice Ginsburg left the building for the night.
Sally handicaps the upcoming rulings by who is ordering together, and posts her odds on a slate in the back of the restaurant. "If Thomas, Alito, Scalia, and Roberts all order together, then I think maybe some criminal is having bad day." "If Ginsburg, Breyer, Souter and Kennedy all order togther, then criminal having good day." But, "the key is Kennedy" said Sally when interviewed on her method of handicapping the betting on pending Supreme Court cases. "He never order same thing twice. Always choose one from column A and one from column B. Sometimes hot and spicy, sometimes mild. Can never tell."
She has been remarkably successful in making her predictions though. In the Spring Term of 2006 her predictions were correct over 90% of the time, but she admits that even she gets surprised sometimes. "United States v. Gonzales, we pay big on that one. Give 3 to 1 odds that United States will win, Gonzales will stay in jail." Gonzales claimed that he didn't get the attorney of his choice and that his conviction should be overturned, even though he couldn't show that another attorney would have done a better job defending him. "You believe it?" said Sally. "Scalia vote with Souter, Breyer, Ginsburg, and Stevens! I shocked! Kennedy vote with Alito, Thomas, and Roberts---no way to predict that one. We lose big."
Asked whether they liked the new Justice to the Supreme Court Yung Ciao's delivery drivers were unanimous. "Roberts and Alito, they tip good." About the others they said "Thomas still small tipper, but Scalia tip double when they eat together."
Sally has offered to permit scholars to go through Young Ciao's computer records to track how the Justices eating patterns have acted a predictors of the outcome of cases. A research group called Ratio Juris, which attempts to use empirical methods to predict Supreme Court outcomes, is considering taking her up on her offer.
(c) 2006
Redefining Judicial Activism
Category: Supreme Court Rulings
Lori A. Ringhand, a professor of constitutional law, election law, and comparative public law at the University of Kentucky is about to publish a law review article which, for some reason, has captured the attention of the New York Times so much that they published a September 11, 2006 editorial entitled "Activism Is in the Eye of the Ideologist." The editorial starts with the almost laughable assertion that "anyone who follows the courts knows that conservative judges are as activist as liberal judges" concludes with the self-righteous admonition that "...what is wrong is for one side to pretend its judges are not activist, and turn activism into a partisan talking point..."
Ringhand, whose political leanings are unknown to me, theorizes in her article that Supreme Court Justices Thomas and Scalia are the true "activist judges" because they frequently vote to overturn Supreme Court precedent and that the liberal justices are actually the "less activist" because they more frequently vote to maintain the status quo. The article is to be published in "Constitutional Quarterly", a law review published by the University of Minnesota where one of Ringhand's compatriots in a blog known as Ratio Juris is also a law professor.
The mathematics used to support the argument involves a type of sleight of hand which one might call "redefining the definitions." To most of us, judicial activists are those who look upon the Constitution as a "living, breathing document" to be bent and molded to current, and usually liberal political philosophy.
Lets just take one example. Under the Constitution, the federal government has jurisdiction over the "navigable water of the United States. To judicial activists the Federal government has jurisdiction of all boggy terrain, which is wet during any portion of the year, because the bog is a "navigable water of the United States." Off course, no boat can float on the bog, but that doesn't matter because the water from that bog will someday, somehow, flow into a navigable river. Since the bog is therefore part of the "navigable waters" it is regulated by the Army Corps of Engineers, and not subject to state jurisdiction. Under the "activist" definition of the term "navigable waters of the United States" the jurisdiction of the United States begins at the end of your ureter (need I be more specific?)---where the water you consume begins its journey to become a part of the navigable waters.
Such redefinition of the Constitution have a powerful political impact. It is such laws which permits the federal government to tell you how much water your toilet can use, and permit the Army Corps of Engineers to control all building and construction in over 50% of the State of Florida as "jurisdictional wetlands."
According to Ringhand, when the conservative justices says, for example, that the word "navigable" means "able to be navigated," they are being judicial activists because prior judges found that bogs were "navigable." In other words, anytime Justices Thomas and Scalia are voting to overturn part of the liberal agenda of the Courts for the past forty years, they are being activists.
Thomas and Scalia are real closer to being strict constructionists. They tend to uphold inconvenient portions of the Constitution, like the Tenth Amendment [The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.] which limit the power of the federal government.
Their philosophy appears to be, like that of the Founding Fathers, one of less government = less taxes =more freedom.
Professor Ringhand may have captured the attention of the New York Times, and her theory may "have legs" because it give a ring of empirical or mathematical support to an otherwise humorous concept---that those who try to undo the judicial activism of the past are the true activists.
U.S. Courts have gutted Cargo Legislation with forum selection clauses
Category: Supreme Court Rulings
It took maritime shipping interests decades to come to an international convention protecting shippers and consignees of cargo from over reaching by ocean carriers. Congress saw the convention, called the Hague Rule on Bills of Lading, and thought it didn't protect cargo owners enough so it enacted the U.S. Carriage of Goods by Sea Act which contained higher limits on liability (100 pounds Sterling under the Hague Rules, $500 per package under COGSA), and which applied to bills of lading both to and from the United States.
COGSA says in clause 3(8):
(8) Limitation of liability for negligence. Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this Act, shall be null and void and of no effect. A benefit of insurance in favor of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability.
In 1967 the Second Circuit said that forum selection clauses lessened the carrier's liability under COGSA in Indussa Corp. v. S. S. Ranborg, 377 F.2d 200 (CA2 1967), and for many years that was the law. Then in 1995 the Supreme Court in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 537 (U.S. 1995) said that foreign arbitration clauses are valid and should be enforced. The Court was balancing the interests expressed by Congress in the Federal Arbitration Act with those expressed in the Carriage of Goods by Sea Act.
The Sky Reefer case arose under a charter party, meaning that the owner of the cargo chartered the entire ship in a private contract, negotiated the contract with the ocean carrier at arms length, and was not dealing with a common carrier which is required, by law, to treat all of its customers the same. The Supreme Court reasoned that a big shipper contracting with a big shipowner could look after itself and could have negotiated for the litigation to take place in New York instead of Tokyo. But what about the little guys? What about those shippers who contract with common carriers, where there is no room for negotiation? What happens to them?
So how did we get from foreign arbitration of cargo damages cases to foreign courts?
Continue reading "U.S. Courts have gutted Cargo Legislation with forum selection clauses"
Judge Virginia M. Hernandez-Covington starts service in Jacksonville
Category: Supreme Court Rulings
Judge Virginia M. Hernandez-Covington, who had been assigned as a United States District Judge in Fort Myers, has started to serve in her new post as a district judge for the Jacksonville Division.
According to the website for Stetson University College of Law, Judge Covington's biography is as follows:
Florida Governor Jeb Bush appointed Judge Covington to the Second District Court of Appeal, and she began her service in September 2001.
Prior to joining the Court, Judge Covington was the Chief of the Asset Forfeiture Section of the United States Attorney's Office for more than 12 years, receiving numerous commendations from the Department of Justice and law enforcement in that time. Judge Covington has lectured extensively on asset forfeiture, money laundering and complex prosecutions to prosecutors and law enforcement personnel nationwide. She also has taught throughout Latin America on trial advocacy practices and procedures.
Additionally, Judge Covington served as a trial attorney for the Federal Trade Commission and an Assistant State Attorney for Hillsborough County before joining the U.S. Attorney's Office.
Judge Covington earned a bachelor of science in 1976 and master of busniness administration a year later from the University of Tampa. Judge Covington earned her Juris Doctor degree from Georgetown University Law Center in 1980.
Judge Covington has received numerous awards and recognition, including being named 2003 Tampa Hispanic Woman of the Year. She serves on the National Alumni Board for Georgetown University Law Center as well as having served as Chair of the Board of Counselors of the University of Tampa and President of Tampa Hispanic Heritage. She is a founding member and president-elect of the Herbert G. Goldburg Criminal Law Inn of Court.
Continue reading "Judge Virginia M. Hernandez-Covington starts service in Jacksonville"
Tropical Shipping argues that Harter Act doesn't apply to it
Category: Supreme Court Rulings
Tropical Shipping, a Riviera Beach, Florida container ship operator, has filed a brief with the United States District Court in Florida asserting that it doesn't have to comply with the Harter Act on shipments from foreign countries to the United States. The Harter Act is the Act which protects shippers of cargo from those nasty clauses in bills of lading absolving ocean carriers from liablity if they damage cargo en route.
Tropical's position is outlandish.
Continue reading "Tropical Shipping argues that Harter Act doesn't apply to it"
New wave under COGSA? Sue under the Harter Act.
Category: Supreme Court Rulings
Claims for damage to cargo shipped in international commerce are governed by the United States Carriage of Goods by Sea Act which is the U.S. enactment of the the Hague Rules. Some of its key features is that a shipowner is liable for cargo damaged from "hook to hook", meaning from loading to discharge, unless it is exonerated under one of 13 exceptions to liability such as "Act of God", inherent nature of the goods, errors in navigation and management of the ship (not the cargo) etc. A shipowner is generally entitled to limit its liability to $500 per package. The statute of limitations is one year.
Many shipowners are manipulating the terms on their bills of lading to take advantage of the $500 limitation and limit their liablility to $500 per container. However, an ancient statute is now being used to combat that trend. It provides that if shipowners do not properly describe the cargo on the bill of lading, they can be fined $2000 per bill of lading, with half going to the federal government and half going to the cargo owner.
At least on Pennsylvania based clothing manufacturer is seeking millions in damages from Tropical and Crowley for listing containers with 5000 or more men's suits as "1 package."
The case is currently filed in the Middle District of Florida.
Concurrent State and Federal Jurisdiction in Admiralty
Category: Supreme Court Rulings
It is amazing to me how many otherwise intelligent lawyers are hung up on the concept that admiralty cases need to be brought in federal court. Article III, Section 2 of the United States Constitution granted original jurisdiction to U.S. federal courts over admiralty and maritime matters. However, most admiralty cases in the United States can be brought in either federal or state court.
The federal and state courts have concurrent jurisdiction pursuant to the terms of a federal statute known as the "Savings to Suitors" clause. Under the Savings to Suitors clause, certain remedies are exclusively limited to being filed in the federal courts: suits seeking to arrest ships to enforce maritime mortgages and liens, petitions to limit a shipowner's liability to the value of a ship after a major accident, and actions seeking to partition ownership of a ship. But those are only the rare cases which the average lawyer is not going to try to handle themselves anyway (leave these to maritime experts--like me).
However, the vast majority of maritime actions, such as suits for damage to cargo, injuries to seamen, collisions between vessels, wake damage, and maritime polution cases may be brought in either state court or federal court.
U.S. Ninth Circuit Court of Appeals Should be Split Up
Category: Supreme Court Rulings
Lawyers are frequently commenting these days on how many times the 9th Circuit is being reversed by the Supreme Court. However, the problem may not be due to a more "liberal" court in California, Washington, and Oregon, but rather because that court has gotten too big to be consistent with itself.
The 9th Circuit has 28 regular judges and another 22 senior judges. That is more than twice the number of judges of the average Circuit. By comparison, the 1st Circuit in New England has only 6 regular judges. The 11th, which includes Florida, Alabama, and Georgia has 13.
Only 3 judges sit on any one panel. With so many judges, it is difficult for all the panels, which are often ruling on similar questions of law, to be completely consistent. Their case load is huge. In 2004 they had almost 15,000 cases filed, which is three times the national average.
Courts are supposed to resolve their own conflicts through en banc hearings, but the 9th is too big to sit en banc, so only 11 of the 28 judges sit when the court has an en banc hearing. Perhaps they should call it and en demi-banc hearing.
It's long past time to split this Circuit into two, or even three smaller Circuits. My vote? Split off California entirely and attach Guam, Hawaii, and the Northern Marianna Islands to it. Group Washington, Oregon, and Alaska together. Give the Mountain States another Circuit. That type of split will enable the West Coast courts to operate effectively for a couple of decades.
Why You Should care about the Supreme Court Ruling in Virginia Community College v. Katz
Category: Supreme Court Rulings
Since I posted my last essay about Central Virginia Community College v. Katz, No. 04-885 (2006) I've read other commentators who have asked the question "who cares?" Shouldn't States be treated like every other creditor when it comes to the Bankruptcy Code. Maybe they should, but they've voted not to be, and that decision, in a democracy, is more important than the issue decided by this Court. Here's why.
Virginia Community College v Katz: Did Supreme Court Reverse the 11th Amendment? (And can they really do that?)
Category: Supreme Court Rulings
While Central Virginia Community College v. Katz, No. 04-885 (2006) appears on its face to be a minor bankruptcy decision, it may turn out to be the first slide down a "slippery slope," or if you prefer, it may be the federal "camel getting its nose under the tent" of 11th Amendment. The fact is that the majority in this hotly contested 5-4 decision said that the 11th Amendment doesn't really mean what it says it means. A little history may help to understand why the majority got it wrong.