Friday, October 5, 2007
We posted here about Nebraska State Senator Ernie Chambers' lawsuit against God for, inter alia, "terroristic threats of grave harm to innumerable persons." The Douglas County District Court in Nebraska was kind enough to send us the record in this case. After reviewing the pleadings, I've learned that God is represented by at least five different attorneys, each of whom filed a separate answer on God's behalf. The five attorneys have different views of their Client's nature. One attorney believes his Client is a vengeful god, as demonstrated by the answer he filed to Sen. Chambers' "terroristic threats" claim.
"God does not issue terroristic threats, but He will visit an appropriate punishment upon the blasphemous Complainant by seeing that he is removed from office next year."
The first answer filed on God's behalf reflects a more loving God.
Defendant admits that he knows Plaintiff; that He created Plaintiff; and that He is not dissappointed in Plaintiff . . . [and] while Defendant is always saddened by the pain His children endure, He reminds the Court that their ability to endure is what made and continues to make humankind great. Life struggled forth from the primordial ooze, and it struggles forth to this day. It would be unfair to state how or why, but the greatest years of humankind still lie in the future.
As regular readers of the blog know, God contacted me about representing him in this case, but things fell apart after I quoted my fee. Based on that brief contact, I can't say for sure which of God's five lawyers knows their Client best. I can say that "life-long self-indulgence without fear or risk of eternal damnation" was more than He was willing to pay for representation in this matter.--Counseller
Thursday, October 4, 2007
Wednesday, October 3, 2007
Here are a few courts of appeals opinions from late September that might be of interest to you.--Counseller
Pintado v. Miami-Dade Housing Agency (11th Cir.): The district court lacked subject matter jurisdiction where the plaintiff's pretrial amended complaint omitted the Title VII claim on which the district court's original jurisdiction was based and could not, post amendment, continue to exercise supplemental jurisdiction over plaintiff's state law claims.
Air Products & Controls, Inc. v. Safetech Int'l, Inc. (6th Cir.): The district court erred in dismissing for lack of personal jurisdiction because it erroneously determined that the exercise of jurisdiction over an out-of-state defendant would be unreasonable where Michigan had an interest in protecting the plaintiff whose principal place of business is in Michigan and the Defendants put forward no evidence to contradict the "inference of reasonableness."
Collins v. Horton (9th Cir.): Arbitrator did not "manifestly disregard the law" requiring vacatur of the award under the FAA by failing to apply offensive non-mutual collateral estoppel because no "'well defined, explicit, and clearly applicable' law existed to be disregarded."
Tuesday, October 2, 2007
Sometimes I have to look up during Civil Procedure to make sure I am in the right room.
Over the past couple of classes, it has transformed from a place where we answered questions by waxing philosophical about fundamental fairness, to a place where we flip furiously through a rule book, looking for a subsection to cite. We have moved at a breakneck pace through the rules concerning pleadings, pre-trial motions and discovery. These rules are certainly dense, but I actually enjoy attempting to figure out how they apply in various circumstances.
Although I like working with the rules more than I expected, I do have two Civ Pro related concerns. First, while I think I understand the details we are focusing on right now, I am worried that my understanding is shallow because I have nothing more than the vaguest sense of how the whole system works together. I know that, according to rule 12, a lack of personal jurisdiction can be waived while a subject-matter jurisdiction defense cannot. However, without any notion of what jurisdiction is, how it is determined, or what purpose it serves, it is difficult to do much beyond memorizing Rule 12. And I am fairly confident memorization is not enough.
I am left feeling like we jumped from the forest to a leaf without stopping to even glance at the trees. In a different class last week, the professors said, “Obviously you all know there is a federal system and a state system of courts. But do really know that? Have you learned in Civil Procedure what that really means?” We all looked around and realized that, after a month of classes, most of us had no better answer than the one we came in with.
I am sure the simple response to my concern is that professors have to begin teaching somewhere. Sure, for now it seems things would have been so much clearer if we had started with jurisdiction, but perhaps, if we had, I would now be wondering how I could possibly figure out to which court my client should plead if I didn’t even know what it meant to plead. I certainly don’t mean to suggest that I know better than my professor where he should have begun his course. However, I do wish that at the beginning of the semester, or even over the summer, there had been some reading assigned that explained enough of the big picture to give me a framework from which to understand the coming details. Even better would have been an introductory lecture, though I understand the difficulty of fitting it into the syllabus. As it stands now, I feel like I am going to have go back and “really learn” this part of the class once I have at least a basic understanding of parts of the course yet to come. Perhaps this is natural, but I would feel better about it if my professor were to directly acknowledge the situation, and perhaps provide a suggestion for how to best address it.
My second concern is that, despite my mastery of their details, I have little to no idea what the Federal Rules of Civil Procedure are. In thinking about how these details relate to larger systematic notions of fairness, I am left wondering where these rules came from, what makes them legitimate, what governed our procedural system before these rules, how they can be amended, and what their general scope of coverage is. Civ Pro has not completely lost its theoretical focus; we are asked to think about whether we think provisions of individual rule are fair or wise. However, I am having trouble answering these questions without understanding the framework of either the procedural system or the rules. A 2L told me Sibbach v. Wison, a case we will read in a couple of weeks, may shed some light on the difficulties I am having. For now, I am trying to hold back these big pictures concerns, while still moving beyond mere memorization. I trust that it will all come together and make sense. For now, Joseph Glannon is my hero. --Crash
Monday, October 1, 2007
The Supreme Court begins a new term today. SCOTUS Blog has a link to the first orders of the term and here NPR has a nice summary of the cases that will be before the court. On another Supreme Court note, NPR also has a story here about Justice Thomas's new book My Grandfather's Son.--Counseller
In a recent draft posted on SSRN, Prof. Jeannette Cox notes that in "a sharp break from past practice, federal courts have begun to exercise
jurisdiction over cases based on jurisdictional grounds no party has invoked.
Courts adopting this practice have concluded that district courts must retain removed cases that meet the requirements of a
congressionally-authorized ground of subject matter jurisdiction even when an
arguably antecedent requirement — party invocation of that jurisdictional ground
— has not occurred." The Article, Removed Cases and Uninvoked Jurisdictional Grounds, will appear in the North Carolina Law Review. -RR