Archive for February, 2010

Hertz is a Person Too

February 25, 2010

Back in November I wrote two posts explaining the case involving Hertz corporation in the Supreme Court and predicted the outcome. I got the outcome right but missed that the decision would be unanimous. (The posts are here and here.)

The Court ruled in favor of the big corporations, as predicted, announcing a brand new rule: These fictions, these soulless creations of the law, must have a home and that home is, “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Call it the corporation’s “nerve center.” Corporations don’t have nerves, but let that pass.

Let me explain. Imagine that you lived in San Diego, flew to Sacramento and rented a car. Hertz cheated you out of a couple of dollars. In fact, it was cheating all California residents who rented its cars, but not very much, just a few dollars each. If you cheat enough people out of just a little bit of money, you end up with a lot of money yourself. But Hertz’s “nerve center” – and watch that metaphor, we’re assuming a corporation is a living entity with nerves which, of course, it isn’t; it’s a legal fiction – is in New Jersey.

When you and a great many of your fellow California citizens discover this cheating and you band together and sue Hertz in your California courts.

Not any more you don’t.

Justice Breyer

Now you have to sue Hertz in federal court, because your court, the one you pay state taxes to operate, might not be fair to Hertz; which, even though it has no real nerves, conducts its activities out of a “nerve center” in New Jersey.

This is all a sham, of course. Hertz doesn’t want you suing it in state court because that’s too easy for you and too hard for Hertz. Besides federal judges are going to favor Hertz. If you are going to sue Hertz, it wants you to sue it in federal court. That is why the national Chamber of Commerce, that bastion of huge U.S. corporations backed Hertz and is delighted with the outcome.

And why small businesses ought to be outraged, because it will end up hurting them even more than individuals. (I see that the CEOs of the eleven largest United States corporations had private meetings this week with the President and other meetings with Congressional leaders demanding that they get the same tax breaks in the new jobs bill that small businesses are getting. I know some small business people. None of them get invited to private meetings with the leaders of our government.)

The beauty of the court’s Hertz decision lies in the abstract subterfuge which allows even the justices on the Supreme Court to avoid the reality of what they’ve just done; given huge corporations another way of escaping responsibility by pretending they are real people.

Chief Justice Marshall

Once, the law recognized that corporations aren’t real people. Writing for the Court in 1809, Chief Justice John Marshall correctly noted that corporations are, “invisible, intangible, and artificial. . .” and certainly not citizens. No more. Now the law must provide its creations with nice, safe, secure homes. Real people need shelter so these imagined children of the law must also.

And we must have “administrative simplicity.” That means you and your local business people  can’t sue Hertz in your own state court system. Not only must Hertz be protected from your  court’s “local prejudice”, it must have “administrative simplicity. ”

What’s more, at least according to the Court, you want it that way because it makes it easier on you. The new rule, “also benefits plaintiffs deciding whether to file suit in state of federal court.”

That’s a lie. You cannot pursue your lawsuit in your court. If you try, Hertz will haul you into federal court. And win.


Much more remains to be said about this case which is a huge victory for  big American and foreign corporations, the second in as many months from the Supreme Court. In fact, this case is a bigger win for them than the campaign speech case last month. This one though flew mostly beneath the radar.

Small businesses may be the biggest losers of all. More on that the next time I mount my soapbox about this case.

But I’ve said enough for this post. If you want to read the Court’s opinion – written by Justice Breyer, that champion of abstractions – here it is. Not much news coverage is available. It rated a small entry in the Wall Street Journal, a crowing news release from the Chamber of Commerce, a legal blog explaining the decision, and a perceptive note from the American Bar Association.


More News You Missed

February 21, 2010

According to the Santa Fe Reporter, a man there recently sued his neighbor for using her cell-phone, claiming it was making him insane.

Once I was at a motions hearing in Santa Fe and one of the cases called before mine concerned a hotel in Santa Fe. A woman from Beverly Hills had sued the hotel claiming she had tripped and fallen at the hotel because of the Saltillo tiles used in the entrance. The judge said, “Let me get this straight. This woman is suing because a hotel used Saltillo tiles – in Santa Fe? Case dismissed.”

The cell-phone case will last about as long.

Judicial Umpires

February 17, 2010

Apparently it had been a long time since I rode a cable car in San Francisco. During a recent photographic expedition, I was astonished to learn that the fare for a one-way ride is now five dollars. Getting on the car I said to the conductor, “The last time I rode a cable car it was fifty cents.” He smiled and said, “Welcome back.”

Aside from that, San Francisco is well; fresh crab is in season, North Beach swims in the odor of garlic, King Tut is back at the de Young, and the Irish Coffee at the Buena Vista is as good as ever.

But the title of this post is “Judicial Umpires” so I must have intended to write about something other than San Francisco. Long-time readers remember that this blog has little patience with judges pretending to be umpires. The worst example of this nonsense in recent times came during Chief Justice Roberts’ confirmation hearing, but it shows up all the time, like junk mail.

But I may have been underrating the Chief Justice. While in San Francisco I saw a quote from Sidney Morgenbesser, the Columbia University philosophy professor who died a few years ago. Perhaps Chief Justice Roberts had his fingers crossed under the table when pontificating about judges being umpires and was thinking of Morgenbesser who recognized three types of umpires: the realist who says,“I call them the way they are”; the subjectivist who says, “I call them the way I see them,” and the conventionalist, who declares, “I call them and then they are.”

By that definition, Judges who believe they are umpires are conventionalists. Like quantum physicists forcing electrons to make decisions by measuring them. Or the City of San Francisco deciding to charge five bucks for a cable car ride.

Too Good Not to Post

February 14, 2010

This photo is too good not to post, even though I don’t know who actually did the photoshopping work. If anyone knows, please leave a comment so that I can attribute it. That’s the problem with things floating around the internet – this one was forwarded by a friend – you don’t always know to whom it should be attributed.

Find the Five Justices Voting for Unlimited Corporate Spending in Political Campaigns

The Local Televison News

February 12, 2010

I no longer watch the local TV news. Nothing more than a list of items I need to be frightened to death by, read by someone barely out of college, without a shred of context. In fact, about the only televised news I do watch is the PBS News Hour. Even the BBC sometimes grates and here is why:

Is Nudity Legal?

February 8, 2010

Thoroughgood v. Tinkerson

Judge Whiner delivered the opinion of the court:

That indefatigable protector of our Nation’s moral fiber, Marjorie Thoroughgood, is before this court once again.  This time she asks the court to issue an injunction ordering her neighbors, the Tinkersons, to stop walking around their own house naked.

This contretemps began when the Tinkersons first moved to “Fawn Acres,” the gated community in which Mr. And Mrs. Thoroughgood have resided for many years.  Each of the houses – nay, estates – in Fawn Acres sit on lots that are at least five acres in size.  Although their properties abut each other, the evidence before the court is that the Tinkerson’s house is almost one mile away from the Thoroughgood house and is visible to the Thoroughgoods only from their roof.  Access to the Tinkerson estate is via a road that traverses the front edge of the Thoroughgood estate.  Mr. and Mrs. Tinkerson drive by the Thoroughgood property each day.

Soon after the Tinkersons moved in, Ms. Thoroughgood was out collecting her mail when Ms. Tinkerson drove by. Ms.Thoroughgood noticed that the Tinkerson car had prestige license plates.  Such license plates allow the owner of the car – for an additional annual fee – to put whatever she wants on the license plate.  These prestige plates are legal in this state and quite popular with the inhabitants of Fawn Acres, most of whom drive Mercedes-Benz automobiles and are rich.  Fawn Acre residents use the prestige license plates to drive home the message of their richness to those outside Fawn Acres who are not rich.

The meaning of the Tinkerson plate stumped Ms.Thoroughgood. The letters on the license plate were, “NDBUFF.”  It took a few days before Ms. Thoroughgood ascertained their meaning.  She accomplished this by pronouncing the first two letters out loud and adding the correct pronunciation of “buff.”  Ms. Thoroughgood’s suspicions were aroused.  She surmised that the license plate carried the not so subtle implication that Mr. and Mrs. Tinkerson approved of nudity and might even be practicing nudists, parading around their private estate without any clothes on.

Ms. Thoroughgood immediately sought confirmation of her dark misgivings.  The reader will remember that almost a mile separates the Thoroughgood residence and the Tinkerson house.  Ms. Thoroughgood could not see that far with the only aid available to her, a small pair of opera glasses.  She accosted her husband, demanding that he immediately purchase a more powerful pair of binoculars.  The evidence is that he was only too happy to comply,  Ms. Tinkerson is quite attractive physically as the court itself noticed during the trial of this matter.  Mr. Thoroughgood returned home, not only with a pair of powerful binoculars, but also a small telescope and tripod to hold it.

That evening Ms. Thoroughgood’s worst suspicions were confirmed.  By erecting the telescope on their roof, the Thoroughgoods were able to see all the way into the Tinkerson house and, to Ms. Thoroughgood’s disgust, saw both Mr. and Mrs. Tinkerson in their own living room absolutely naked.

Ms. Thoroughgood filed this action the next day, asking this court to order (1) the Tinkersons to cease and desist from nakedness; (2) make them replace the offending license plate; and (3) force Mr. Thoroughgood to come down from the roof.

Not surprisingly, the Tinkersons claim that they possess a right to privacy in their own home.  The basis for this claim rests in a line of United States Supreme Court decisions pretending to find such a “right to privacy” in the venerated Constitution of the United States.  It is true that, for a short while in the late 1960’s and early 1970’s, people known as “liberals” held seats on the Supreme Court. Those “liberal” justices discovered in the Constitution a supposed right to privacy.   They called it a “penumbra.”  Of course, that is an aberration in the long history of Puritanism in this country; those liberal justices are long gone and their “penumbras” relegated to jurisprudential shadows.

Regarding the Tinkerson’s claim to privacy in their own home, I myself have read the Constitution from cover to cover and the word “privacy” appears no where in it.  Obviously the Founding Fathers knew the meaning of the word and if they intended for us to have privacy they would have told us.  Because they did not, I must conclude that no such right to privacy exists.  Our houses provide us shelter, not privacy.  There is no telling what people would get up to in their own homes if they thought houses were private.  It is a pernicious idea and I am well pleased that I have the opportunity to strike it down.

Remembering Mark Twain’s dictum that “Naked people have little or no influence in society,” I hereby order the Tinkersons to put some clothes on.  It is for their own good as well as the Nation’s.  The offending license plate must be replaced with something less salacious.  As for Mr. Thoroughgood, he can either come down from his roof or take up bird watching.  That is no business of this court – unless he starts enjoying himself.


Rules for Writing – Prepositions

February 4, 2010

The Little Book

Never end a sentence with a preposition. That rule is hammered on writers everywhere. The most famous statement of the injunction comes from Winston Churchill who said – supposedly – to someone who insisted on the rule, “This is the kind of pedantic nonsense up with which I will not put!” But William Safire, in his little book, Fumblerules, suggests, “Rigidity is out, flexibility is in.”

Sometimes an ending preposition is useful and I don’t have an editor, so I do it occasionally. But I’ve never done it as well as E.B. White did in a letter to the editor of The Elements of Style, the famous little book which White updated. (“The constant use of the adjective little (except to indicate size) is particularly depleting, we should all try to do a little better . . .”)

To his editor, White wrote that,in his next grammar book, he wanted to tell how to end a sentence with five prepositions:

A father of a little boy goes upstairs after supper to read to his son,but he brings the wrong book. The boys says, “ What did you bring that book that I don’t want to be read to out of up for?”

That is a good quote to end this post with.


If you are seeing two different fonts on this post, so am I. I don’t know why. How should I? I don’t have an editor.

The Supreme Court’s Campaign Finance Decision

February 1, 2010

After making us wait for months, the Supreme Court did exactly what almost all observers predicted, ruling in a 5-4 split decision that corporations can spend as much money as they want in political campaigns. Not surprisingly, the opinion got a lot of news coverage, and, more surprising, a visible reaction from Justice Alito when President Obama lambasted the opinion during the State of the Union speech. (Frank Rich of the New York Times referred to Alito’s “delicate sensibilities.”)

2010 State of the Union Message

Speculating about what the Court does behind its closed doors is like metaphysical conjecture: Nobody knows for sure.

But, like metaphysical speculation, it can be fun to guess. For instance, why did the Chief Justice, Justice Thomas, and Justice Scalia feel a need to write separately, adding pages and pages to Justice Kennedy’s already long majority opinion? The answer almost certainly lies in their knowledge that the majority opinion is a breathtaking exercise in judicial activism. These are the justices who falsely proclaim their judicial modesty, but in this case go far out of their way to decide the constitutional issue on the broadest basis possible.

To summarize, they wrote, “We had to decide this case as broadly as possible because we had to.” And, yes, that is a tautology. On the merits, the majority said, “Money is speech, corporations are people; therefore, corporate money gets First Amendment protection.”  Seriously. That is the Readers’ Digest version of the holding. (I don’t know why they don’t put me on the Court. I don’t use nearly as many words to get to a result. “Omit needless words,” said Professor Strunk.)

Justice O'Connor

And the only member of the majority who chose not to write, Justice Alito, was the one visibly offended when the President took the Court to task for upending American political campaigns. In the realm of fascinating speculation must go, “What does Sandra Day O’Connor think of her replacement (Alito) and does she regret resigning from the Court?” I’m guessing the answers are, “not much” and “yes.”

Less speculation is required about the dissent. As the senior member of the dissenting minority, Justice Stevens assigned the writing of the dissent to himself. He probably will retire at the end of this Term and the dissent may be the last opinion on a major issue that Stevens writes. Moreover, he clearly has the better legal argument, so knows that his opinion will one day — when good political sense again commands a majority of the Court — be the law of the land. Dissenting opinions are often written for the future, the author assuming that his view will prevail eventually.

Justice Stevens was more persuasive than Justice Kennedy for another reason: None of the dissenters felt a need to write separately. In that regard, Stevens is better than Chief Justice Roberts at keeping his troops in line.

Being Chief Justice is like herding cats. Unless you are a Border Collie, there is little hope. We haven’t really had a Chief Justice since Earl Warren who was much good at it. In fact, the Chief Justice gave us a clue about the frustrations of the job recently. During an oral argument this month, Solicitor General Elena Kagan inadvertently called Justice Scalia, “Mr. Chief Justice.” She immediately caught the mistake and said to Scalia, “I didn’t mean to promote you.” The Chief Justice jumped in, “I’m glad someone thinks of it as a promotion.”  I imagine he’s having a hard time with his brethren.

He needs some Border Collies.


For a thoughtful, serious analysis of the President’s words about the opinion and Justice Alito’s response, look at this from SCOTUSblog.  Here is the opinion itself, all 183 pages of it.