Sotomayor and the Ricci Case

Tuesday, June 30, 2009

The Supreme Court handed down a major decision a few days ago that pertains to Title VII and racial discrimination. The case, Ricci et al. v. DeStefano et al., has been getting a lot of press. The case can be found here. It is a long one, at 93 pages, so I will forgive you if you don't read it. Scotusblog has one of the more objective views of the case and summarizes the main points and holdings. The Court has long held that any kind of race-based selection criteria will not be allowed unless there is a substantial amount of evidence that it is necessary to remedy a past discrimination. In applying this to the Ricci case, they said an employer may not refuse to hire or promote whites unless the criteria is skewed against minorities and they are at risk of being sued. In this case, the Court felt that the fire department did not meet this criteria.

Volokh has some good analyses here and here. The second article is especially interesting, in that it uses this case to refute the notion that the Roberts Court is pro-business. Another factor that has popped up is how this will influence the Sotomayor nomination. She was part of the 2nd Circuit Panel that was overturned by the Supreme Court. One complaint is that panel she was part of initially wanted to dispose of this case with an unpublished, unsigned summary order. Eventually, they settled on a one paragraph opinion. The fact that the Supreme Court had such a difficult time with this issue (in both the majority and dissenting opinions) suggests that it may not have been the no-brainer that Sotomayor's panel thought it was.

That being said, there are plenty of legal scholars that support her position and 4 of the liberal Justices agreed with her. She has not really surprised anyone here. I think her lack of analysis on this issue isn't good, but it doesn't rise to the level of a disqualification. It would be different if this was part of a pattern, but I don't think it is. Obama has the votes in the Senate to get this nomination through. Unless it is discovered that she has been taking trips with Gov. Sanford, I think it is inevitable that she will be on the Court.


27 Bottles of Beer

Friday, June 26, 2009

Local watering hole Crunchy's is committed to beer. Good beer.There was a time (and still sort of is) when you could buy cheap beer by the bucket at Crunchy's. I don't mean a "bucket of beer" like you get at those crappy mega-chain restaurants, which is a small bucket filled with ice and 6 or so bottles. That's not a Crunchy's-style bucket. A Crunchy's, you got a 3 gallon bucket filled with beer, and a couple of pitchers. Their rule was that you had to have at least 2 people in order to get a bucket of beer. A 3 gallon bucket of beer.

It was also only stuff like Busch or Bud Lite, but a bucket of Guinness would be prohibitively expensive. But lately, Crunchy's has lent over some of their taps and fridge space to great craft beer from around the country.

July has been declared Michigan Craft Beer Month in honor of Michigan's 75+ breweries. To celebrate, Crunchy's is doing something special. At 12:01 on July 1, Crunchy's is switching 27 taps over to Michigan beers. Apparently, their list will include:

Bell’s- Lager of the Lakes
Bell’s- Oberon
Bell’s- Pool side
Bell’s- Oarsman
Arcadia- Purple Haze
Arcadia- Hop Rocket
New Holland- Dragon’s Milk
New Holland- Golden Cap
Short’s- Huma-Lupa-Licious
Dark Horse- Boffo Brown
Dark Horse- Double Crooked Tree
Dragon Mead- Final Absolution
Kuhnhenn Bothers- Simco Silly
Arbor-Milestone Porter
King- Mocha Java
Atwater- D-Light
Atwater- Dirty Blonde
Motor City- Ghettoblaster
Founder’s- Cerise
Founder’s- Double Trouble
Hideout- Nitro Hazelnut Stout
Mt. Pleasant- Second Wind Wheat
Sherwood- Mistress Jades Hemp Ale
Black Lotus-
The Livery- The Jak
Firkin: The Livery- Double Hopped Maillot Jaune

On top of that, the Bells Poolside Cherry Wheat Ale and Oarsmen Sour Ale listed above are exclusive Bell's releases that were formerly only available at the brewery in Kalamazoo.

It is so vitally important for Michigan pubs to carry Michigan beer; many of these breweries can't compete with shelf space in stores against BudMillerCoors or InBev, and more don't even try. So when popular bars like Crunchy's highlight Michigan beer, a whole new audience gets to experience great craft beer.

On June 30/July 1, I know where I'll be parked.


Nerds Versus Jocks

Monday, June 22, 2009

If you didn't see it, Author/Actor/Humorist John Hodgman gave the keynote address at Friday night’s Radio & Television Correspondents’ Association Dinner. He used it as a forum to discuss the age-old conflict: that between jocks and nerds.

As much as I like to think of myself as a jock...I understood way too many of Hodgman's references. Oh well.

Part 1:
And part 2:I love Hodgman. I think he's one of The Daily Show's funniest commentators. He has also written two of the funniest books I've read: The Areas of My Expertise and More Information Than You Require. He's appeared numerous times on NPR's Wait Wait, Don't Tell Me as well as on general interviews. It's unfortunate that most people only know him for his PC/Mac commercials.

And don't be shy. Admit it: you get all his references. Nerd.


A Small 2nd Amendment Victory

Friday, June 19, 2009

A federal court in Utah issued a ruling that is mostly favorable to the 2nd and will hopefully be followed by other courts. The Volokh article gives a good, detailed explanation, but I will try to summarize it. Federal law prohibits anyone convicted of any kind of domestic assault from ever possessing a firearm. In this case, the defendant, following a "domestic dispute", was charged with violating this law. It is important to note that, while not a sterling character, he had no history of violence with a gun, nor was there any evidence that he ever even fired his gun.

The court said a few important things:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest.

Basically, they said that a law that deals with the 2nd triggers strict scrutiny. This has not been the case up until now. They also said:

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

This is part of what they said would be part of the jury instructions. They will allow the defendant to use this non-risk of violence as an affirmative defense. In other words, if the defendant is able to show that he is not at risk for hariming someone with a gun, then he will be found not guilty of violating the gun possession law. Without this, if he is found (beyond a reasonable doubt) of possessing a gun, he would be guilty.

I think this is a reasonable rule. At first glance, it is hard to argue that domestic abusers should be allowed to have guns, but that rule isn't always far and people should be allowed to challenge it under certain conditions. Let's say that a 19 year old is convicted of misdemeanor domestic assault. Under 18 U.S.C. § 922(g)(9), they would never be allowed to ever legally possess a gun. It doesn't matter what kind of life they have lived or how much time has elapsed. It is a lifetime ban. People should be offered some mechanism to challenge the ban and show that they are no longer dangerous.


Free Iran

Thursday, June 18, 2009



But Some of My Best Friends Are Black

It's a few days old now, but ATK-haunter John R sent me an email link to Wonkette. In this particular post, she highlighted some emails from Republican offices in Washington that she has subjectively branded as "racist."

Gotta say, I'd pretty well brand it that way too.

The point that I see is that it will be difficult for Republicans in the future to attract and retain minorities in their own party when so many people in leadership roles keep sending out racist stuff. You can't say you're not a racist and then send out pictures like the one at the top of this Wonkette post. From Newscoma on the picture in question: "When I asked her if she understood the controversial nature of the photo, Goforth [the staffer who sent the picture]would only say she felt very bad about accidentally sending it to the wrong list. When I gave her a second chance to address the controversial nature of the email, she again repeated that she only felt bad about sending it to the wrong list of people."'re sorry you sent it to the wrong list? Not sorry for being an asshole. Not sorry for offending the entire black caucus. Not sorry for a tasteless joke. No, sorry only that you meant to send it to your other dickhead friends, but hit the wrong button.

Then there's the South Carolina GOP Senate candidate who said, in a comment on a Facebook post of an escaped gorilla "I’m sure it’s just one of Michelle’s ancestors — probably harmless..."[meaning Michelle Obama]. He later apologized "if" he offended anyone.

In fact, Wonkette has a whole collection of various email gaffes here. Click the link, as otherwise I would be here all day copying what she has already done. To quote:

So, we’ve had the GOP county leader gal who sent out the “Obama Bucks” watermelon-chicken food stamps, the Southern California suburban Republican mayor who sent out the hilarious White House-watermelon garden email, the Florida state committee-woman GOP gal who sent out that “So how did black people travel in airplanes to Obama’s inauguration when they couldn’t get out of New Orleans during Katrina?” email comedy, the Republican mayor in South Carolina forwarding his “just out of curiosity” musings about the Muslim Barack Obama being maybe a character in the Bible (the Devil, in fact), and the Republican mayor of some Georgia town typing a hilarious Facebook status message suggesting Barack Obama should give the Queen of England some typical black-person snacks such as cigarettes and malt liquor.
The paragraph above is actually full of links, and if I get a chance I'll fill them all back in as well. Or, just go to the link above the quote and check it out yourself.

One of my favorite "excuses" from a linked article was how a local GOP leader was that "she doesn’t think in racist terms, pointing out she once supported Republican Alan Keyes."

Look. The face of the party simply cannot change when even people in leadership positions, local and national, act like insane racists. How "log cabin" Republicans have stuck around is a bit of a mystery to me. But this is the kind of shit that chases everyone else away.


I'll say what ever I want around my %*&$ing kids!!!

Tuesday, June 16, 2009

In an effort to find something slightly more interesting than a low level Obama appointment, I stumbled upon a story from Volokh on a New Jersey law that says abuse of a child can consist of:

the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language.

N.J. Stat. Ann. § 9-6-1

New Jersey is the home to many stupid laws, but this one seems to have a great deal of potential for abuse. While I generally think that parents shouldn't use naughty language around their kids, is this something we want to criminalize?


Is this really the best person for the job?

Despite some hiccups in the process, Obama has done a mostly good job when it comes to appointing skilled people for various positions. He has certainly done a better job than the previous President. In almost all instances, while I may have some serious philosophical differences, I can't find any problems with the appointees' intelligence or experience, which is why I was disappointed with his nomination of Mary Smith to head the DOJ Tax Division.

I know this doesn't hold the same level of scrutiny as Cabinet level post or a Supreme Court nomination, but this is still an important position. Not surprising, Republicans are mad about her lack of experience. Unlike some of their problems with Sotomayor, they seem to have a legitimate complaint. Ms. Smith's resume can be found on her firm's website. It is very impressive. She did well in school and has published a variety of articles. She also seems to be a very skilled litigator and has extensive experience in securities law. Unfortunately, I can't find anything in there that shows a high level of expertise in tax law.

Now I am no expert in tax law. I took two classes in tax law, one in income taxes and the other in estate and gift taxes. It wasn't my cup of tea and will readily admit that I struggled with much of it. In my opinion, tax law is a very complex field that has frequent, major changes. This is one reason that the most popular LL.M. degree is offered in taxation. Mary Smith may turn out to be a great choice, but I would prefer that he pick a person with a stronger tax background.


Honest Fraud (or What I Did on my Summer Vacation).

Monday, June 15, 2009

Sorry I haven't been much of an active participant in recent months, but my first year of law school took up some time (as did my Mahjongg group and book club). Several people have asked me what I've learned thus far, and I can sum it up like this: the law is a clusterf*ck. For a case in point, I offer you the following scenario.

It's a Monday, and you're hung over. You think about going to work... but it's gonna be a slow day in the office, there's a House marathon on cable, and you could really use a haircut. So you call your boss and tell him that you've got the flu, and you tell him you'll be in tomorrow if you're feeling better.

Congratulations, you've just committed wire fraud.

That's right; your actions constitute a federal offense. You are now liable for large fines and a long, long prison term in a Federal "pound-me-in-the-ass" prison. Tell Roger Clemens we said 'hi.'

Under 18 U.S.C. 1343, wire fraud is defined as the use of a phone (or the internet, fax machine, or pretty much any form of communication invented after the Pony Express) to create a scheme to defraud someone of 'stuff'. Section 1346 clarifies that part of 'stuff' includes the "intangible right of honest services." Ipso facto, presto changeo: a federal crime that is defined as being dishonest to someone to whom you shouldn't be dishonest.

It used to be that Honest Services fraud (which can be of the mail or wire variety) was only used to nail elected officials who sold out their constituents. Think Rod Blagojevich. But in the last decade, things have really picked up for honest services fraud in the private sector. You may remember a little company called "Enron" that had some troubles back in the day. Jeff Skilling, former CEO, is in jail for Honest Services fraud. So are at least a half-dozen of other corporate execs, and hundreds of other private-sector individuals.

The problem is that there is no definition of "honest services" in the statute, nor is it clear to whom the duty is owed. In theory, anyone who lies to his employer has committed fraud, even if (a)the employer is not financially harmed, (b) the employer does not find out about it, or (c) the employee does it to help the company. It's gotten so bad that last year, Antonin Scalia issued a blistering dissent to the refusal to grant cert to review an honest services conviction, claiming that the law was out of control.

Last month, the high court agreed to hear the appeal of Conrad Black to review the scope of the law. Conrad Black, though generally an almost Dickensianly dickish character, was thrown in jail for recieving payments (to which he was legally entitled) from one of his companies in a form that allowed him to minimize his Canadian tax liability. This did not violate Canadian tax law, and the payments were upheld as justified. But the fact that he didn't tell the company WHY he wanted the payments to be labeled a certain way sent the guy to jail for three to five years.

For a quick summary, I suggest you read this article on the topic. I'll be working on the issue for a good portion of the summer with a professor here. In the mean time... I suggest you refrain from pissing off your boss.


I'm Lazy

Monday, June 08, 2009

On occasion, we here at ATK like to take time out from drinking...

...wait. That's a lie. Let's start over. We here at ATK, sometimes between beers, read books! Honestly we do.

And I lack the brain power today to write up another post on Sotomayor, torture, gun laws, GM, those two reporters who got nabbed by the North Koreans or anything else. So today, we get a book meme.

Here's the deal. I don't like to "tag" people, so respond at your leisure, if at all. Also, the meme is a bit self-serving because I am trolling for some new books to read. This is a quick one. Name 15 books, the first 15 that come to mind, that will always stick with you; firsts, especially deep, especially funny, life-affirming...whatever. Just 15 books that have stuck with you over the years.

1. The Lord of the Rings (trilogy) – J.R.R. Tolkein
2. On the Origins of War and the Preservation of Peace – Donald Kagan
3. Half Asleep in Frog Pajamas – Tom Robbins
4. The (New) Complete Joy of Homebrewing - Charlie Papazian
5. Hitchhikers Guide To The Galaxy - Douglas Adams
6. The Universe in a Nutshell – Stephen Hawking
7. A Brief History of Nearly Everything – Bill Bryson
8. The Universe in a Single Atom – The Dalai Lama
9. The Hero with A Thousand Faces – Joseph Campbell
10. The Prophet – Khalil Gibran
11. Think on These Things – Jiddu Krishnamurti
12. The Gnostic Gospels – Elaine Pagels
13. Dancing Wu Li Masters – Gary Zukav
14. Fierce Invalids Home From Hot Climates - Tom Robbins
15. The Brewmaster’s Table – Garrett Oliver

Post 'em in the comments, or take it to your own blog, or read and ignore til someone else puts up a more topical post.


Strange Brew

Friday, June 05, 2009

My favorite in-state brewery is a close tie between New Holland and Founders. They each brew beers that are mainstays of my beer fridge. Founders, though, brews what is my favorite beer: the Breakfast Stout. There is, simply, nothing wrong with this beer. It is perfect in every way.

Then, on rare occasions, they brew their Kentucky Breakfast Stout, which is the very same stout aged in bourbon barrels. Clever, no? And muy delicioso.

In a recent conversation with their sales and marketing director, I found out that Founders is unveiling a line of specialty beers called "Founders Backstage." They make a limited amount of barrels of these beers (no bottles) and send them along to bars that are Founders-friendly. One of these beers is the Canadian Breakfast Stout. It's Breakfast Stout (oatmeal, double chocolate, coffee) with maple syrup added and aged, as I understand it, in maple syrup barrels. What's not to love?

And I found this elixir in one of my favorite beer bars, Dusty's Taproom, on my and Mrs. Smitty's anniversary evening this past Tuesday. Of course, we immediately each had a snifter. This stuff is incredible.

Our bartender handed each of us a pitch-black glass topped off with a rich, thick lather-like 3 finger head that yielded a lacing that stuck like glue to the glass as we drank it down. It just looked thick and heavy, and along with the lacing also left wine-like "legs" down the glass as we swirled it.

One long drawn breath was not enough to uncover all of the subtleties Canadian Breakfast Stout. I noticed the sticky-sweetness of the maple syrup right on top of everything. Along with it was root beer, vanilla, cinnamon, and cocoa. And of course, it wouldn't be Breakfast Stout with a nice load of coffee along with it. This beer just smelled like breakfast. It was inviting, warm, and comfortable. It didn't have aromas so heavy that it invoked fear. was breakfast in a bottle. Bathrobe and slippers and a newspaper.

To say that the taste mirrored the aroma would be to minimize what this beer offered my tongue. Maybe because of the barrel-aging of the beer, there was a hint of bourbon throughout each drink. The maple syrup added a huge complexity to the beer. The maple flavor we all love on top of our pancakes and sausages was clear as day. But it really added a depth of flavor through sugary sweetness that gave this stout a dark fruit character (plums) that is otherwise missing in the flagship style of this beer. Cocoa, root beer, molasses, malted milk, and coffee all played along in this breakfast of champions, and a interesting caramel taste thrilled me on the finish. These flavors, especially the maple, really lingered on my tongue well after each drink, and as the beer warmed a bit, all the flavors get more pronounced. This is a beer for the ages.

From the oatmeal, this lovely beer is smooth as silk, except for a slightly dusty cocoa texture. At nearly 10% abv, I never felt the alcohol burn, nor did the alcohol take away from any of the other flavors. There was no "maple syrup mixed with jet fuel" feel to this beer. It was just smooth, sticky, sweet and delicious.

Canadian Breakfast Stout. Would I pour it over pancakes? I might. In fact, I may actually mix pancake batter with it. This is an after-dinner sipper. This is a beer to be as much contemplated as it is to be cherished and drank. This beer is a rich, thick stack of pancakes covered in pure syrup with a cup of black coffee.


States and Munis Can Ban Guns, But the Feds Can't!

Wednesday, June 03, 2009

I know that we have had lengthy and interesting debates on gun rights in the past, so I will add a new wrinkle to the discussion...

Yesterday, the U.S. Court of Appeals for the Seventh Circuit (Chicago) ruled unanimously that the U.S. Supreme Court decision last year which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment didn’t apply to states and municipalities. It only applied to the federal government, which is why D.C. couldn't ban guns (they are a national territory and not a state). The decision yesterday was National Rifle Association of America v. City of Chicago, and it upheld a Chicago ordinance banning handguns and automatic weapons within city limits.

Here is the link to the article...

I think this is good news. I am sure Steves and others will disagree. I invite you to read the article and provide your thoughts. I will concede, though, that this is not close to over and I am sure the Supremes will want to weigh in to this one!



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