Testing for textualism

Bryan Garner and U.S. Supreme Court Justice Antonin Scalia have written a treatise entitled Reading Law: The Interpretation of Legal Texts.

It has everything you ever wanted to know about the subject matter, prefaced by an essay, in which Scalia predictably explains that textualism is the only valid approach to the interpretation of law.

What the book doesn’t have, explains Garner in the latest issue of the ABA Journal, is a textualism test that he and Scalia were considering for inclusion in their 567-page epic.

A sample:

  • A contract entitles a caterer to be reimbursed for the expense of supplying “trays, glasses, dishes, utensils or other tableware.” In his reimbursement schedule, the caterer lists $1,500 for paper napkins. Is this expenditure reimbursable?
  • No. Under the ejusdem generis canon the phrase or other tableware is limited to things of the same types as in the preceding list: trays, glasses, dishes, utensils. Those are sturdier items that are more or less durable (even if plastic); paper napkins are flimsy and are more often disposed of within seconds after use. The listed items are for serving food and facilitating consumption; paper napkins, by contrast, are for cleaning. If, as seems likely, the caterer drafted the contract, the contra proferentem canon would reinforce this result.

There’s plenty more where that came from. Check it out.

HT: SBM Blog

Tongue-In-Cheek Department: ‘Americans for Inequality’ endorse Romney for president

I have the bad fortune of working for a company with an IT Department that has equipped our computer network with an excellent email spam filter, so I miss out on all the swell opportunities to date or marry women from exotic foreign countries, buy Viagra®, check my credit score, get unbelievable deals on high-end brand-name products, collect sweepstakes winnings, borrow money, dodge taxes or help yet another unfortunate person from Nigeria transfer some money.

When something out of the ordinary hits my inbox, I tend to treat it with healthy suspicion.

I was in a quandary this morning when “Sender: Warren Bancroft, Americans for Inequality – Subject: Americans for Inequality to Endorse Mitt Romney for President” slipped past the spam filter and popped up on my email program.

“I have no idea who Warren Bancroft is,” I thought.

“Americans for Inequality; well, at least he’s being upfront about where his head’s at.”

What I didn’t think about is how often misdirection is the name of the game for political advocacy groups. An oil company might form a front organization called “Citizens for Protecting the Environment” to make the case for drilling in a pristine wilderness area. “Fair Access to Government” might advocate for making the process of getting an initiative on the ballot more difficult than it already is.

My curiosity was sufficiently aroused. I clicked and prepared myself for reading an extremist’s diatribe.

Here’s the press release I got instead:

[Manchester, New Hampshire] The Board of Directors of Americans for Inequality, a citizens’ advocacy group which promotes the benefits of inequality, voted to endorse former Massachusetts Governor Mitt Romney (R) for President. “The Board of Directors voted to emphatically endorse Governor Romney’s candidacy for President” said Warren Bancroft, interim Chair of Americans for Inequality. “Americans for Inequality is prepared to commit considerable resources to help make Mitt Romney the next President of the United States. …

In the 2012 Presidential campaign, Americans for Inequality has been the first organization to educate voters about the benefits of vast inequalities.  Americans for Inequality has been a pioneer in changing the narrative away from the costs and perils of inequality—and toward a new appreciation of how inequality plays an important and beneficial role in our economy.

“For far too long the poor, unemployed, and elderly have been coddled by America’s generous welfare system and exempted from contributing their fair share in taxes, while banks and companies have suffered under an oppressive regime. Mitt Romney and Paul Ryan’s budget plan will mostly rely on ending the era of entitlement and providing tax relief for upper-income households. That’s the beauty of the Romney/Ryan plan: the higher the income, the higher the tax break. Their budget plan will ensure that inequality will remain with us, as it should, for many years,” said Bancroft.

The Americans for Inequality endorsement was not, however, a unanimous one.  One member of the Americans for Inequality Board voted against the Romney endorsement.

Chester Prattfield noted how inequality has accelerated under President Obama, and that it could continue for another four years. “The current recovery has been the weakest and most unequal recovery since WWII, both in terms of income and wealth. The financial industry is back on its feet and corporations are making record profits.  Class mobility and opportunity are declining as inequality becomes entrenched, and that’s what we want to see. But there is room for improvement. Job creators do 100% of the work, but from 2009-2011, they only received 88% of the national income.  And companies such as Exxon Mobil pay as high as 2% in federal taxes—they need relief.”

“While I voted to endorse President Obama, and will continue to personally support his campaign, I understand and respect the decision of the Americans for Inequality Board,” said Prattfield, Americans for Inequality co-founder.  “I appreciate the thoughtfulness the Board of Directors has put into this decision.”

Now, you may agree or disagree, strongly or otherwise, with the political statements being made, but it’s tough to deny that straight-faced satire is one of the most entertaining, and powerful, forms of communication available.

Report has fresh details about bomb incident at Detroit federal building

You may recall reports of a bomb incident in March 2011 at the Patrick V. McNamara Federal Building in Detroit, which houses the FBI and other federal agencies.

New details have emerged in a recent report the Department of Homeland Security has issued about the incident.

The bottom line: Someone left a canvas bag containing a small locked safe outside the federal building. A security guard brought the bag inside, where it sat under a security checkpoint desk for three weeks before someone figured out there was a bomb inside the safe.

Several guards who saw the bag under the desk assumed it was either found property or personal property of another guard.

Over the three weeks, the bag and its contents were looked at, X-rayed and shaken by guards and their supervisors, who were trying to figure out what was inside.

Update: Video of rampant speculation about the contents of the canvas bag.

Eventually two guards did the right thing. When they used screening equipment and could not identify the bag’s contents, they notified a Federal Protective Service (FPS) inspector, who determined that the bag might contain a bomb and took appropriate actions.

The report concluded that DECO, Inc., the contractor that supplies security services to the FPS, “committed multiple breaches of its contract” but those breaches “were the result of poor judgment by the guard [who brought the bag inside], not systemic problems with DECO.

“FPS also bears some responsibility for the bag that contained the IED [improvised explosive device] remaining in the building for 21 days.”

As a result of the incident, the guard who brought the bag inside was fired, along with two other guards. Another resigned before being fired. Written warnings or suspensions were issued to 16 other DECO employees.

Since shortly after the incident, the FPS has been renewing its contract with DECO in three-month increments. The FPS intends to solicit a new contract for guard services in Michigan. DECO will be allowed to bid on the new contract, according to the report.


Slot machines: it doesn’t matter if you win or lose, just make sure you win or lose

♫ I’ve got my eyes on you, so best beware where you roam.
I’ve got my eyes on you, so don’t stray too far from home.
Incidentally, I’ve set my spies on you.
I’m checking on all you do, from A to Z.

– Cole Porter, 1939

Cole Porter’s tinged-with-jealousy love song takes on new meaning once you step inside a casino.

Slot players watch each other. The casino’s floor walkers watch all of them. Floor supervisors watch the watchers. Pit bosses watch the blackjack dealers and players. Other watchers watch the players, base dealers, stickman and boxman at the craps table.

And in an air-conditioned room full of monitors, security personnel watch the entire show via feeds from dozens of strategically placed cameras.

Not surprisingly, they’re watching for cheaters. But it might surprise you to know that they’re also watching, as we learn from a pair of Michigan Court of Appeals opinions, for people who might be using slot machines to launder money.

Here’s the theory: Let’s say you’ve got some ill-gotten cash that needs to be legitimized. What to do? Take the cash and load a few hundred, or if you’re in a hurry, a thousand or two into a slot machine. Play once or twice. Cash out and take the pay ticket from the machine. Repeat as necessary.

You now have a bunch of casino pay tickets to establish in one way or another that your money has been acquired by legitimate means.

The problem, of course, is that you’re spending lots of time feeding cash into slot machines, very little time actually playing the machine and then cashing out, and then doing this over and over.

And it’s a sure bet that the watchers have been watching with great interest.

Now there may be very innocent reasons why you’re engaging in this sort of play. Everyone has some idiosyncrasies, especially when it comes to hanging out in casinos.

Or maybe you’re getting set to launder a big load of money by cashing some pay tickets at a casino teller’s cage (but not enough to trigger a reporting requirement) and the rest at a pay kiosk that doesn’t ask any questions.

The watchers have no idea what you’re thinking about but “if it looks like a duck, walks like a duck and quacks like a duck,” they’re not inclined to give you the benefit of the doubt and write you off as a goofball.

So the authorities are summoned and questions are asked.

This has happened a couple of times to Catherine Simmons at the Greektown Casino. Her style of slot machine play and cashing out aroused enough suspicion that Michigan State Police gaming agents were  twice called upon to check her out.

Each time, no charges were brought. Each time Simmons was aggravated enough to sue the cops, who, the Court of Appeals ruled in a pair of opinions, were just doing their jobs and therefore immune from suit. See, Simmons v. Grandison and Simmons v. Greektown Casino, et al.

Who would have ever thought that there’s a right way and a wrong way to play a slot machine?

Former Ingham County prosecutor Donald Martin dead at 71

Former Ingham County prosecutor Donald Martin has died from leukemia. He was 71.

The Lansing State Journal reports that Martin was hired as an assistant Ingham prosecutor in 1967:

In 1970, he was promoted to chief assistant prosecutor. He resigned in 1973 and went into private practice. In 1986, Martin was appointed interim county prosecutor after Peter Houk was named to the circuit court. Later that year, Martin was elected to serve the last two years of Houk’s term. Martin won re-election in 1988 and 1992, and ended up serving as prosecutor for 10 years.

In 1996, Martin lost his bid for a third term to Stuart Dunnings III, the current Ingham County prosecutor, shortly after Martin’s unsuccessful manslaughter prosecution of a Lansing doctor who removed his premature child from life support.

Martin then joined the Lansing law firm of Foster, Swift Collins and Smith, where he practiced in the areas of criminal law, white-collar crime and domestic relations.

He earned his J.D. from Valparaiso University School of Law in 1967, and was a 1964 graduate of Capital University.

He is survived by his wife, Dorothy, and three sons.

Kelly, Moss and Robinson inducted into Women’s Hall of Fame

Michigan Supreme Court Justice Marilyn Kelly

Michigan Supreme Court Justice Marilyn Kelly, Michigan ACLU Director Kary Moss and attorney Rose Mary C. Robinson are among eight women who have been inducted into the 2011 Class of the Michigan Women’s Hall of Fame.

Kelly began her career as a French teacher and was elected to the State Board of Education at age 25 – later becoming its president. Justice Kelly worked as a courtroom attorney for over 17 years. She was elected to the Michigan Court of Appeals in 1988 and re-elected in 1994. She was elected to the Michigan Supreme Court in 1996 and again in 2004. She served as the Court’s Chief Justice from 2009-2011.

Moss is the first female executive director of the ACLU of Michigan, serving in that capacity since 1998. She earned a Masters in International Affairs from Columbia University and a JD from CUNY Law School at Queen’s College. Prior to joining the ACLU of Michigan, she clerked at the United States Court of Appeals for the Second Circuit and then served as staff attorney with the American Civil Liberties Union’s Women’s Rights Project which was founded by Justice Ruth Bader Ginsburg. During her tenure, Moss has initiated reforms and lawsuits championing women’s rights. As a practicing civil rights attorney, Moss litigated many cases dealing with sex discrimination and women’s rights.

Robinson was one of the first women elected to the Wayne County Commission. She earned her law degree from Wayne State University Law School in 1972. Her work on the Labor Committee of the Wayne County Commission opened doors for women, disabled residents, and minorities. Robinson is a criminal defense trial lawyer and appellate lawyer, often representing poor and indigent clients pro bono.

MSC’s Cavanagh receives Ingham Bar’s Lifetime Achievement Award

Michigan Supreme Court Justice Michael F. Cavanagh is the 2011 recipient of the Ingham County Bar Association’s Thomas E. Brennan Sr. Lifetime Achievement Award.

The ICBA gives the award “to lawyers who have made a significant and longstanding contribution to the advancement or improvement of the justice system and the betterment of the legal profession in the State of Michigan and have also attained professional excellence as demonstrated by accomplishments in the law or service to the profession during his or her career.”

The award will be presented at the ICBA’s 117th Annual Dinner on Nov. 2 at the Country Club of Lansing.

The ICBA will also honor several of its members at the dinner:

  • Karen Bush Schneider – Leo A. Farhat Outstanding Attorney Award
  • Shauna L. Dunnings – Theodore W. Swift Civility Award
  • Michael Brennan Farrell – Camille S. Abood Distinguished Volunteer Award

In addition, Heather Spielmaker, Director of the Center for Ethics, Service and Professionalism at the Thomas M. Cooley Law School, and Sgt. Major David L. Dunckel will receive the ICBA’s Liberty Bell Award.

The award “recognizes outstanding service performed by a non-lawyer citizen who has given time and energy to strengthen the effectiveness of the American system of justice.”

Catholic lawyers to celebrate parochial education

Livonia attorney Mike Butler wants you to know about the Catholic School Alumni Lawyer Heritage Dinner at Catholic Central High School in Novi on Nov. 15.

Butler explains:

It is an event to celebrate the common background of parochial education shared by many lawyers. It will also be an event to start a larger project of seeking out and preserving the history and heritage of the many closed Catholic Schools in the Detroit area.

Featured speakers are U.S. District Court Judge Victoria Roberts and Tom Rashid, former head of the Detroit Catholic High School League.

The event is being presented by the Bishop Michael J. Gallagher Dinner LLC, a non-profit organization of lawyers.

MBJ announces short story winners

Kudos to Eli D. Greenbaum, the first-place winner of the Michigan Bar Journal‘s third annual short story contest.

Greenbaum’s winning entry, Leo’s Dilemna, is a clever tale about how an elderly Holocaust survivor resolves a self-created estate-planning problem.

Other winners include:

The MBJ received 43 entries and selected 19 winners and finalists.

They’re good reads — all of them.