Magistrate Judge Goodman Cites Justice Scalia on Civility!

 Sanctions on Admissions
 
I'm beginning to appreciate Magistrate Judge Goodman's orders.

They have a certain directness to them, and his holdings are clearly expressed and supported by both logic and common sense.

This one dealing with sanctions for inaccurate responses to requests for admissions is a good example.

Although I do think there can be circumstances pre-trial where, akin to an sj ruling, a response can be deemed so false or inaccurate as to be sanctionable, for the most part I agree with the Judge's holding that this is reserved under Rule 37 for after trial or an adjudication of the disputed facts.

He throws in a Napoleon reference, also good.

Finally, I was right with the Judge up until the very last part of this quote:

In this spirited litigation, both sides have strongly pressed their positions at every junction and neither side has shown great willingness to make concessions, even on what are usually considered professional courtesies, such as accommodating colleagues’ deadline and scheduling issues. As a general matter, allegations of bad faith against opposing counsel, in addition to being in poor taste, are not helpful in aiding the Court’s adjudication of disputed issues. See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE, THE ART OF PERSUADING JUDGES 34-35 (2008) (“Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. . . . ‘An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.’”) (quoting Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 TUL. L. REV. 207, 224 (1995)).

Hold on -- Justice Scalia instructing on civility?

Guess there's a first for everything.

Justice Scalia Thinks the 14th Amendment Applies Equally To All Hetero Men.

Amanda Terkel notes a quite astonishing interview with Justice Scalia from the California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Hmm, here's the language from the 14th Amendment's equal protection clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So that must mean women are neither "citizens" or "persons"?

Maybe Representative Maloney is onto something.

(Native Americans, don't even think about it.)

Either way, I'm sure glad I saved the button!

Your Lazy Sunday NYT Clipping Service!

I don't want to get all Glenn Beck-y so early on a Sunday, but I wonder if there's some larger point that could be extracted from these very interesting stories in the Sunday Times:

1.  Tort reform is having a direct impact in Texas:

The tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting, but especially emergency rooms. It capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000.

Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it.

Malpractice lawyers say this is a near-impossible threshold to meet. “You’d have to be a Nazi death camp guard to meet this standard,” said Jon Powell, a malpractice and personal injury lawyer based in San Antonio. 

 Hey, don't go there!

2.  The Roberts Court is increasingly pro-business:

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests. 

 3.  And then there's this:

When the Tea Party holds its first Conservative Constitutional Seminar next month, Justice Antonin Scalia is set to be the speaker. It was a bad idea for him to accept this invitation. He should send his regrets.

The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

Perhaps it would leave Scalia more than just looking rash and biased?

In breaking news from 1905, I don't have much to add to the Wikileaks controversy, other than I'm generally a fan of transparency in government -- Gulf of Tonkin, Pentagon Papers, Watergate and all that.

Still, I was reminded of the possible value of the project while reading James Bradley's eye-opening The Imperial Cruise:  A Secret History of Empire and War.

Bradley, author of two fabulous WW II accounts, Flags of Our Fathers and Flyboys: A True Story of Courage (starring the very heroic first President Bush) reaches back in his latest book to understand why his father wound up fighting in the Pacific and just how the United States got embroiled in empire-building at the turn of the century in the first place.

Near the beginning of the book, there is this:

In the summer of 1905, clandestine diplomatic messages between Tokyo and Washington, D.C., pulsed through underwater cables far below the surface of the Pacific Ocean.  In a top-secret meeting with the Japanese prime minister, Taft -- at Roosevelt's direction -- brokered a confidential pact allowing Japan to expand into Korea.  It is unconstitutional for an American president to make a treaty with another nation without United States Senate approval.  And as he was negotiating secretly with the Japanese, Roosevelt was simultaneously serving as the "honest broker" in discussions between Russia and Japan, who were fighting what was up to that time history's largest war.  The combatants would sign the Portsmouth Peace Treaty in that summer of 1905, and one year later, the president would become the first American to be awarded the Nobel Peace Prize.  The Nobel Committee was never made aware of Roosevelt's secret negotiations, and the world would learn of these diplomatic cables only after Theodore Roosevelt's death.

What's past is prologue indeed.