Kathianne
07-14-2007, 01:23 PM
If you found this as amusing as I did, check the site, as there are links:
http://www.professorbainbridge.com/2007/07/overjudged-the-.html
Overjudged: The Case About Nothing a.k.a. The Children's Temper Tantrum
As regular readers know, I'm a big fan of Overlawyered. I'd like to suggest they consider renaming it Overjudged, at least temporarily, to address Husain v. Springer, in which Chief Judge Jacobs authored the best dissent I've read in ages (HT: Above the Law)
I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. [PB: Zing!] I suppose this is unusual, so I explain why.
The majority has fulfilled its responsibility to explain at some length its vacatur of a part of the district court’s judgment. But this is not a case that should occupy the mind of a person who has anything consequential to do. [PB: Zing!] In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the “Student Union” party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made a mockery of the election rules, directed that the election be re-run. The gist of the complaint is that the editors’ speech was chilled, which is deemed to be a bad thing.
This is a case about nothing. [PB: Zing!] Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it. See Amato v. City of Saratoga Springs, 170 F.3d 311, 322-23 (2d Cir. 1999) (Jacobs, J., concurring) (noting that a trial over one dollar is a “wasteful imposition on the trial judge and on the taxpayers and veniremen”).
With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children [PB: Zing!] spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit. A selection from the illiterate piffle in the disputed issue of the College Voice is set out in the margin for the reader’s fun.
The footnote reads:
One student journalist laments that he is no longer the friend of the incumbent president of the student government: “I am very sad today. I lost a friend; his name is Joe Canale. . . . Things changed on April 9, 1997. It was a pizza day I won’t forget. . . . Joe did not shake my hand and all he said to me, in a rather drone voice, was ‘Getting ready for the elections?’ From that point on I knew, Joe had disowned me, all because of my affiliation with [the Student Union]. . . . ‘When I found out he renounced my friendship, because of my affiliation with Student Union, I adopted the slogan ‘Joe Must Go’ to console me in my hour of need.’”
Another article denounces “pizza politics”: free pizza at student events is “another of the perverse policies set forth by this bureaucratic institution. The pizza is most certainly not ‘free’. It was paid for, in full, by the student body of the College of Staten Island, it belongs to them. The pizza is the property of the student body, not of the student government.” The same writer is agitated by a student-government planned “Solidarity/Unity Fest” which included a “velcro wall, a climbing mountain, a gladiator joust, a laser tag maze, human bowling, a bungee run, a velcro wall [another velcro wall?], human fooseball [sic], face painters, jugglers, mimes, 12 different carnival style games and things of that nature.” According to the author, this “Fest” was an “attempt[] to coerce votes out of the student body in exchange for carnal pleasures.” The article closes with a call to “end the evil tyranous [sic] reign of the current [student government] by whatever means necesaary [sic].”
The paper’s coverage of a “so-called Mayoral Forum” complains that the two political parties “have historically been slaves to the Wall Street corporate tycoons, while either ignoring or killing the working class and poor people of this city and nation.” An editorial sets out the goals of the paper: “We oppose the poisonous divisions fostered on the basis of race by the bosses, who make Black and white workers fight each other for the crumbs off their table . . . even though it is the workers who produce all the wealth.” The paper “seeks to engage all those who are committed to fighting exploitation and oppression in common action against the common enemy...capitalism.” (ellipsis in original).
The issue features the Student Union’s “12-Pt. Program For Change,” including a call to “END CORPORATE CONTROL OF THE BOOKSTORE” so that it can “be returned immediately to the student body.” The reason: “CUNY in general and CSI in particular have become the crown jewel in campaign of corporate terror.”
I know nothing about Chief Justice Jacobs, but on the basis of this opinion, I've decided to nominate him for some sort of judicial prize.
Update: I have nothing but respect for my colleague and friend Eugene Volokh, but I think he's off base on this case:
It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.
Actually, I think Chief Judge Jacobs took the case very seriously. Molière wrote:
[B]One easily bears moral reproof, but never mockery.
Knowing this, I suspect, Chief Judge Jacobs intentionally set out to use the technique known as shaming. David Skeel explains that:
“Shaming” ... “is the process by which citizens publicly and self-consciously draw attention to the bad dispositions or actions of an offender, as a way of punishing him for having those dispositions or engaging in those actions.”
The enforcer expresses moral outrage at the offender, expecting that the intended audience will respond with similar moral disapproval.
As noted, I suspect that Jacobs intended to shame both the majority and the plaintiffs. Look at the footnote. Doesn't it seem obvious that he expects the reader not only to have "fun" but to "respond with similar moral disapproval"? Ditto his statement that he didn't read the majority opinion? It's a remarkable putdown, which seems intended to "draw attention to" what Jacobs regards as the absurd "actions of" the majority.
Hence, contra Eugene, I think Judge Jacobs took this case very seriously.
Posted on July 13, 2007 in
http://www.professorbainbridge.com/2007/07/overjudged-the-.html
Overjudged: The Case About Nothing a.k.a. The Children's Temper Tantrum
As regular readers know, I'm a big fan of Overlawyered. I'd like to suggest they consider renaming it Overjudged, at least temporarily, to address Husain v. Springer, in which Chief Judge Jacobs authored the best dissent I've read in ages (HT: Above the Law)
I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. [PB: Zing!] I suppose this is unusual, so I explain why.
The majority has fulfilled its responsibility to explain at some length its vacatur of a part of the district court’s judgment. But this is not a case that should occupy the mind of a person who has anything consequential to do. [PB: Zing!] In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the “Student Union” party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made a mockery of the election rules, directed that the election be re-run. The gist of the complaint is that the editors’ speech was chilled, which is deemed to be a bad thing.
This is a case about nothing. [PB: Zing!] Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it. See Amato v. City of Saratoga Springs, 170 F.3d 311, 322-23 (2d Cir. 1999) (Jacobs, J., concurring) (noting that a trial over one dollar is a “wasteful imposition on the trial judge and on the taxpayers and veniremen”).
With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children [PB: Zing!] spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit. A selection from the illiterate piffle in the disputed issue of the College Voice is set out in the margin for the reader’s fun.
The footnote reads:
One student journalist laments that he is no longer the friend of the incumbent president of the student government: “I am very sad today. I lost a friend; his name is Joe Canale. . . . Things changed on April 9, 1997. It was a pizza day I won’t forget. . . . Joe did not shake my hand and all he said to me, in a rather drone voice, was ‘Getting ready for the elections?’ From that point on I knew, Joe had disowned me, all because of my affiliation with [the Student Union]. . . . ‘When I found out he renounced my friendship, because of my affiliation with Student Union, I adopted the slogan ‘Joe Must Go’ to console me in my hour of need.’”
Another article denounces “pizza politics”: free pizza at student events is “another of the perverse policies set forth by this bureaucratic institution. The pizza is most certainly not ‘free’. It was paid for, in full, by the student body of the College of Staten Island, it belongs to them. The pizza is the property of the student body, not of the student government.” The same writer is agitated by a student-government planned “Solidarity/Unity Fest” which included a “velcro wall, a climbing mountain, a gladiator joust, a laser tag maze, human bowling, a bungee run, a velcro wall [another velcro wall?], human fooseball [sic], face painters, jugglers, mimes, 12 different carnival style games and things of that nature.” According to the author, this “Fest” was an “attempt[] to coerce votes out of the student body in exchange for carnal pleasures.” The article closes with a call to “end the evil tyranous [sic] reign of the current [student government] by whatever means necesaary [sic].”
The paper’s coverage of a “so-called Mayoral Forum” complains that the two political parties “have historically been slaves to the Wall Street corporate tycoons, while either ignoring or killing the working class and poor people of this city and nation.” An editorial sets out the goals of the paper: “We oppose the poisonous divisions fostered on the basis of race by the bosses, who make Black and white workers fight each other for the crumbs off their table . . . even though it is the workers who produce all the wealth.” The paper “seeks to engage all those who are committed to fighting exploitation and oppression in common action against the common enemy...capitalism.” (ellipsis in original).
The issue features the Student Union’s “12-Pt. Program For Change,” including a call to “END CORPORATE CONTROL OF THE BOOKSTORE” so that it can “be returned immediately to the student body.” The reason: “CUNY in general and CSI in particular have become the crown jewel in campaign of corporate terror.”
I know nothing about Chief Justice Jacobs, but on the basis of this opinion, I've decided to nominate him for some sort of judicial prize.
Update: I have nothing but respect for my colleague and friend Eugene Volokh, but I think he's off base on this case:
It's too bad that the dissenting judge didn't take the case more seriously: I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny. Even if the dissenter thinks the case should be unimportant ("this silly thing," he calls it), and that the plaintiffs are suffering from a "fantasy of oppression" and engaging in a "slow-motion tantrum," the case now is indeed important. It seems to me that the matter deserved his time and attention.
Actually, I think Chief Judge Jacobs took the case very seriously. Molière wrote:
[B]One easily bears moral reproof, but never mockery.
Knowing this, I suspect, Chief Judge Jacobs intentionally set out to use the technique known as shaming. David Skeel explains that:
“Shaming” ... “is the process by which citizens publicly and self-consciously draw attention to the bad dispositions or actions of an offender, as a way of punishing him for having those dispositions or engaging in those actions.”
The enforcer expresses moral outrage at the offender, expecting that the intended audience will respond with similar moral disapproval.
As noted, I suspect that Jacobs intended to shame both the majority and the plaintiffs. Look at the footnote. Doesn't it seem obvious that he expects the reader not only to have "fun" but to "respond with similar moral disapproval"? Ditto his statement that he didn't read the majority opinion? It's a remarkable putdown, which seems intended to "draw attention to" what Jacobs regards as the absurd "actions of" the majority.
Hence, contra Eugene, I think Judge Jacobs took this case very seriously.
Posted on July 13, 2007 in