Speaking of Justice

Hiddly-ho, Neglecterinos! The first things that came to mind when re-reading my last post that rambled far into Old Man Simpson territory ("My story begins in nineteen dickety-two. We had to say 'dickety' because the Kaiser had stolen our word for twenty. I chased him down the road but gave up after dickety-six miles...") re: Justice Thomas were these:

1. Chris Noth's return to Law & Order
2. Justice Scalia's visit to Boston
3. Justice Breyer's new book
4. Recent supreme court news
5. Justice, Maggie Lizer's dog, on Arrested Development

The hardy or foolhardy will now suffer the consequences.

Chris Noth on L&O

The next best thing to Jerry Orbach rising from the dead to assume his rightful place as Lennie Briscoe (fingers still crossed, though). I've never been a Criminal Intent fan and don't get the appeal of D'onofrio's porcine performance. Now that they've brought back Noth, I actually watch it. Det. Logan is still very much the same man (although I swear I spotted a wedding ring when he was sitting in a car -- not a thing one would expect on Mike Logan), but as the New York Times puts it, "older, wiser, wearier." Partnering him with with the subdued Annabella Sciorra (ahem, I'm looking in your direction, Mr. D'onofrio) shows good casting instincts. It's not Scully and Mulder, and thank heaven it's not Olivia "Elliott, why won't you talk to me about your feelings..." Benson and Stabler. So far, so good.

Justice Antonin Scalia: Demonic Genius or Genius Demon?

Justice Scalia holds few opinions that I share, but his is the first voice that comes to mind when thinking about Supreme Court jurisprudence. His dissents in particular may be caustic, but they linger with you long after you've forgotten the majority opinion that you agree with.

Justice Scalia will be in Boston to speak at the New England School of Law Law Day Banquet on March 15, 2006. If you want to get to know more about him and cases are too boring for you, check out his book A Matter of Interpretation. It's under 200 pages, witty and very accessible.

Breyer's Book: Naturally Good

Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, which many view as a response to A Matter of Interpretation, has just been released. You can listen to him talk about the book with Terry Gross of NPR's Fresh Air.

Supreme Court Scuttlebutt: Roberts, Miers, Takings, Anna Nicole

Given that I can't come up with an original thought about Law & Order, there is nothing I could say about the Sturm und Drang that would add anything. However, in the interest of maintaining my nerdliness, I will point out that according to the Online Etymology Dictionary, the word scuttlebutt first appeared around 1805, coming from "water cask kept on a ship's deck," from scuttle "opening in a ship's deck"+ butt "barrel." Earlier scuttle cask (1777). It's meaning as "rumor, gossip" was first recorded 1901, originally nautical slang. Folk etymology has it that the meaning evolved because of custom among sailors of gathering around the scuttlebutt to gossip.

Justice is Blind

As I enjoy opportunities to make gratuitous references to Arrested Development, the whole justice theme begs me to say "Mr. Bluth, Justice is blind." How can you go wrong with a show that has a woman feigning blindness being led around by a guide dog that is, in fact, blind? I command thee to watch this show, dammit! It’s like the Ten Commandments say, you know? “Be true to thine own self, and to thine own self...”

If oonuh ent kno weh oonuh dah gwine, oonuh should kno weh oonuh come f'um

According to a story in The Beaufort Gazette, which I again found through the daily headlines on the Archaeology magazine site, archaeologists are using radar in an attempt to find slave cabins on Coosaw Island, South Carolina. If any of evidence of the cabins remains, they most likely were part of plantations owned by the Bull or Butler families, although the families rose to prominence about a century apart. What makes this project especially interesting is that the project directors hope it will be driven by local volunteers and that oral history will be given a prominent role. Research through the state archives and the Library of Congress will also supplement the archaeological record. To date, archaeologists have uncovered slipware pottery, daub, nails and tobacco pipe stems. No cabins have yet been located, but a likely trash put has been located. Trash pits are excellent sources for determining how people actually lived, what they ate, what kinds of material resources they possessed, etc.

The story also tickles another my more nerdly interests, i.e., linguistics. The South Carolina Sea Islands – of which Coosaw Island is one – are home to the Gullah language and culture. Census data show that the language is fast disappearing. In 1979, 100,000 South Carolinians were speaking Gullah, but 1990 Census data show only 180 listing it as the language they spoke at home.

Here are some links on Gullah language and/or culture:

• De Gullah Roots Tour
• Gullah: A Vanishing Culture
  
• The Gullah Dialect
  
• Gullah Net
  
• Glossary of Gullah Words
  
• Gullah Culture

Because I am such a ginormous nerd, I found that the story tickled another nerdly interest of mine: law-talking guys. Justice Scalia, who most assuredly deserves to be a cartoon villain or superhero depending upon one’s point of view, authored the opinion in Lucas v. South Carolina Coastal Council a few years back that had to do with a South Carolina barrier island and the Takings Clause. Now I know you’re thinking, “this could not possibly get any more exciting. I best buckle my seat belt, stow away my tray table and return my seat to an upright position so that I can safely handle all of the turbulence.” And you would be right. This will not get more exciting.

It seems that in the mid-80s, this guy named Lucas bought two residential lots on a barrier island in order to develop them. The adjacent lots already had residences on them. At the time, the lots were not subject to state coastal building permit regulations. Alas for poor Lucas, the legislature then enacted a law that prevented him from constructing residences on his parcels. No doubt having a clever, free-markety, laissez-faireish lawyer, Lucas filed suit against the state, arguing basically that the construction ban was an act by the state that robbed him of all “economically viable use” of his land and effectively worked a taking under the Fifth and Fourteenth Amendments. So the state could no show him the money, so to speak, as the takings clause requires just compensation to people like Lucas. The case winds through the courts for a few years and eventually makes it to the Supreme Court. So Justice Scalia dons his shiny black helmet, affects an asthmatic wheeze and tells the plaintiff “Lucas, I am your justice.” (Yeah, that was bad, I admit it. Humor me. I’m tired.) To make a long story somewhat shorter, Scalia basically agrees with Lucas. State regulation that acts to deprive a property owner of all economically viable use of his land is one of the types of takings that require just compensation. To allow otherwise would be inconsistent with “the historical compact” supposedly undergirding the Takings Clause. For those awake or truly interested, there is also an entertaining exchange between Justices Scalia and Blackmun. See footnote 15 for a paradigmatic example of Justice Scalia both eating his cake and having it, too.

Incidentally, Justice Thomas grew up speaking Geechee (which what the Gullah language is called in parts of Georgia and North Florida). Check out his brief comments.

Adhesion contract (n.) --

Adhesion Contract (n.) -- A standard-form contract prepared by one party, to be signed by the party in a weaker position, usu. a consumer, who adheres to the contract with little choice about the terms. Black's Law Dictionary (8th ed. 2004).

Being an all-around bully-hater, I thought this site was pretty amusing. I breathlessly await my kid's activation code. I also confess to a bias against microsoft as I especially loathe their annoying self- and cross-promotion in every product issued (for the love of God, leave me alone MSN Messenger! Get your corporate detritus off of my screen!)

So the site also tickled my interest as i have been forced to imbibe entirely too much economics in the law recently and need some mental ipecac to get it out of my system. For a particularly enraging opinion (in a dry, law-talkin' guy, sort-of-way), see Hill v. Gateway 2000. In that case, a couple ordered a Gateway computer (i'm a dell person myself) over the phone with a credit card. Like any other electronics or software you've purchase, a bunch of papers with terms and conditions in miniscule font that no one ever looks at came with it.* Those papers set out terms and conditions that said the couple was bound by the terms unless they returned the computer within 30 days (paying shipping, of course). When their computer broke a few months later, Gateway wouldn't repair it, and they sued. Gateway said, "ha ha! (nelson munce-style), now's the time to take a good look at those tiny terms on the papers in the box. You have no right to sue us, you toothless hicks (i paraphrase, of course)! You gave up your right to sue in that tiny-fonted insert. You've won a trip to arbitration!"**

The court said that there was no sale when the couple called Gateway and forked over their credit card number after which gateway agreed to ship their white elephant. Nope, gateway shipped the computer (which, i would think, your average person would assume he has already purchased) with an "accept-or-return offer" to sell the computer. The sale wasn't made until the couple didn't return the computer within 30 days (the only way to avoid the arbitration terms). It didn't matter that the supposed offer wasn't explained in any meaningful way or within a reasonable period of time.

This is so law schooly, I should be ashamed of myself, but i can't help it: One author noted that the case is particularly astonishing, because it revives "the principle that dominant contracting parties can use standard forms and manipulate the mode of agreement to bind their customers without meaningful assent, notice, or opportunity to pursue other terms. It transforms the normal into the unexpected--giving a credit card number on the phone is not really a sale. Then the unexpected becomes normal; more and more, companies like Gateway can dictate the terms on which their products are purchased and used with only the barest illusion of consent. As [a law professor explained] explained, under Hill, 'misrepresentation is the oil that lubricates capitalism.'"

And now, for an awkward transition, riddle me this,

Q: when can a credit card company charge you 28.49%, the highest possible rate?
A: when the cardholder is late making a payment to any creditor, including phone and utility bills and car payments. this can happen even if the cardholder paid the credit card company on time.

You know all that stuff that comes with your credit card statement every month? wouldn't you like to know what you agreed to in those tiny terms? Check out a really comprehensive overview from frontline: http://www.pbs.org/wgbh/pages/frontline/shows/credit/



*the papers stated that they were bound by the terms unless they returned the electronic doodad within 30 days, paying for the shipping themselves. Did you even get to these tiny terms? do you know where all those pieces of paper that came in the box for grand theft auto: vice city that you bought awhile back? how about for your iMac?

**arbitration is a topic of venting for another day, but the first question i always ask myself as a consumer is "why is industry x, or industry in general so keen to do y?" generally, the answer has nothing to do with benefits for their employees or consumers, although that won't stop them from framing it that way. wouldn't you be suspicious if your opponent picked the judge hearing your case who happened rely on your opponent for more business.