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Rare Error Correction:
Does anyone know the backstory to Erickson v. Pardus, a per curiam summary reversal handed down today? It looks like a relatively routine pro se prisoner lawsuit; the Tenth Circuit had denied relief in an unpublished opinion. Based on the docket sheet, it looks like the inmate petitioned pro se, and the state initially waived its right to file a brief. The Court called for a response, later called for the record, and then after holding the case for a while reversed 7-2.
Justin (mail):
Thomas's dissent is odd. He doesn't even address the Fourteenth Amendment issue (think DeShaney exception), which the defendant is more likely to win on than his Eighth Amendment challenge. The majority can ignore that particular question, because it can reverse on independent grounds, but Thomas either misses it completely or simply decides to ignore that question.
6.4.2007 2:40pm
OrinKerr:
Justin,

I believe you misunderstand the certiorari procedure. The Court granted cert and reversed on the 8th Amendment question alone; that was the only issue in play, so Justice Thomas was under no obligation to consider other aspects of the case.
6.4.2007 2:47pm
David in NY (mail):
Thomas's dissent is odd as a matter of Eighth Amendment law, seems to me. He would hold that Erickson has no Eighth Amendment claim until the disregard of his medical needs had killed him. Then he gets his remedy -- in the great beyond, I suppose.
6.4.2007 2:54pm
Justin (mail):
Orin,

I am perfectly well aware of the certiori procedure itself. Having read the opinion (and not the application for cert itself), it initially appeared that the cert was granted on the pleading question generally (see, e.g., page 1 "alleging violations of his Eigth and Fourteenth Amendment protections . . . deeming these allegations and others . . . "The holding departs in so stark a manner . . . that we grant review [and] reverse" and page 5 "still in need of treatment for this disease." I am assuming that you have read the petition for cert and know otherwise - I disagree that your interpretation can be gleaned from the opinion itself.
6.4.2007 2:57pm
MikeC&F (mail):
He would hold that Erickson has no Eighth Amendment claim until the disregard of his medical needs had killed him. Then he gets his remedy -- in the great beyond, I suppose.

Yes, very weird. Under Thomas' view, a prison could expose prisoners to HIV; unless the prisoner actually developed HIV, he would not have suffered an Eighth Amendment violation. There is nothing "cruel and unusual" about exposing someone to dangerous conditions? Isn't subjecting someone to the fear of contracting HIV cruel and unusual?

Guards could take a new prisoner, and make him watch a gang rape. They could even throw the new prisoner into the group of rapists. But unless the prisoner was actually raped (say, the guards pulled him away right as he was about to be violated), he would not have suffered cruel and unusual punishment?
6.4.2007 3:07pm
byomtov (mail):
I'd say it's fair to call Thomas' dissent "harsh jurisprudence," among other things.
6.4.2007 3:10pm
Justin (mail):
Mike, a lot of that is covered under the Fourteenth Amendment in the DeShaney exceptions, which is why I brought that up.
6.4.2007 3:11pm
OrinKerr:
Thanks for the clarification, Justin.

I haven't read the cert petition -- I only read this opinion and the 10th Circuit's. As I read the Supreme Court's decision, though, I understand it to mention the 14th Amendment only as it needs to to get to the 8th Amendment right: the 8th Amendment does not apply to the states, so technically the Court is applying the 14th Amendment's incorporation of the 8th Amendment standard. I hadn't read the opinion as also getting to the 14th amendment issues beyond the cruel and unusual punishment issues (although perhaps it should be -- i agree we would want to read the petition to get a sense of that.)
6.4.2007 3:14pm
Justin (mail):
Hrm. I automatically just assumed it was the Fourteenth Amendment right discussed in DeShaney. Of course, this guy is pro se - but that would be an even more interesting question - whether the Supreme Court can (or should) properly consider an appeal of a pro se case that alleged a violation of the Eighth Amendment, when the correct cause of action is a Fourteenth Amendment, and facts and context would put both the court and the defendant on notice of the actual source of the right to be vindicated. It's doubtful - interesting, but doubtful.
6.4.2007 3:27pm
AF:
I read this opinion as a signal that Bell Atlantic v. Twombly hasn't changed the pleading standards for civil rights cases.
6.4.2007 3:27pm
Justin (mail):
That would be both a very quick, and very low profile "signal," but not an absurd suggestion - that may well have contributed to the opinion.
6.4.2007 3:44pm
Justin (mail):
Also, its useful to point out that Scalia only dissented in the granting of cert, and not in the decision to reverse (not sure if he takes no part or concurs in the majority), and thus 7-2 is not exactly correct, though I cannot tell if 7-1-1, "7-2 and 8-1," or even "8-1 (Scalia) and 8-1 (Thomas)" is more accurate.

I assume, but may be wrong, that Scalia's position is on Kyles v. Whitley grounds (Scalia, J., dissenting) - that the court should not take cert just to reverse clear error.
6.4.2007 3:49pm
A.J. (mail):
Professor Kerr,

Unfortunately I have no information from which to answer your question. I do, however, have one of my own. The court says that under Fed. R. Civ. P. 8(a)(2) "[s]pecific facts are not necessary; the statement need only give the defendant fair notice" of the claim and grounds.

That makes sense under Conley v. Gibson, but last week in Twombley, the Court "retired" Conley and required "enough facts to state a claim to relief that is plausible on its face," explaining in n.3 that "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests."

Is this a partial abandonment of the transubstantive approach to pleading? An exception for pro se litigants? Or am I missing something in not being able to figure out if/when facts must be pled?
6.4.2007 3:49pm
MikeC&F (mail):
As I read the Supreme Court's decision, though, I understand it to mention the 14th Amendment only as it needs to to get to the 8th Amendment right: the 8th Amendment does not apply to the states, so technically the Court is applying the 14th Amendment's incorporation of the 8th Amendment standard.

I'm on a diet and haven't had any coffee yet, so take this for what it's worth....

You can't segregate the 8th and 14th Amendment issues. (But, as I'll note below: You can.) The 8th and 14th Amendments are one in the same. The difference is that the 8th Amendment applies to people who have been convicted. The 14th Applies to pre-trial detainees. The "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." Ingraham v. Wright, 430 U.S. 651, 671 -672, n. 40 (1977).

Since the petitioner was in prison, he was convicted. Thus, the 8th Amendment's prohibition against cruel and unusual punishment would kick in. But the 14th would be relevant only as to the incorporation doctrine; it's procedural, here.

If, however, the petitioner had been a pre-trial detainee, the 14th Amendment would have a substantive component: It would act like the 8th Amendment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) ("The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons ... who have been injured while being apprehended by the police. In fact, the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.")

Under the Court's jurisprudence, the 14th Amendment acts like the 8th Amendment when pre-trial detainees are concerned.

So Justin is technically incorrect when he criticizes Justice Thomas for ignoring "the Fourteenth Amendment issue (think DeShaney exception), which the defendant is more likely to win on than his Eighth Amendment challenge." Since the person is in prison, the affirmative duty/DeDhaney line of cases would not apply.

I hope the above makes sense. Section 1983 cases are painfully technical and I'm not of my usual frame of mind.
6.4.2007 3:57pm
Justin (mail):
AJ, there appears to be substantial rule between the Twombley requirements of "enough facts" and the lack of a need for "specific facts." And there's nothing to indicate that this case could not meet the "enough facts" requirement in Twombley - the allegations here are far more concrete than the ones in Twombley.
6.4.2007 3:57pm
elChato (mail):
MikeC&F,

from what I understand of Justice Thomas's writings, he thinks the 8th Amendment applies only to sentences or other punishment imposed upon conviction. Cases like this one, where a person sentenced to confinement is exposed to mistreatment or unsafe conditions, are not 8th Amendment cases as he views them; instead the plaintiff's claims must be resolved under state law, and if state remedies are not constitutionally adequate, the plaintiff has a remedy under the Due Process Clause. This view he spelled out in his dissent in Hudson v. McMillian.
6.4.2007 3:59pm
Special Guest:
My immediate thought was that it was a corrective to Twombly, but if you look at the docket it's clear that the Court has been mulling this case over for a while, so Twombly can't be the entire explanation about why the Court chose to error correct here. My guess would be that this is just a really egregious case of prisoner mistreatment -- I mean, the guy has presumably not been getting his Hep C treatment for quite some time now, and that's a very serious breach of medical care.

It's also very stupid of the prison to refuse to treat a prisoner for an infectious disease, putting the rest of the prisoners and guards at risk, not to mention the fact that they he will eventually require them to provide much more expensive treatment when his liver fails because he was denied care earlier.

That said, the formulation of the pleading standard given is still not really useful to me -- what does it mean to say that you don't have to plead "specific facts," but that you do need to spell out the "grounds" of your claim? Obviously, "grounds" must contain some "specific facts."
6.4.2007 4:00pm
Special Guest:

...last week in Twombley, the Court "retired" Conley and required "enough facts to state a claim to relief that is plausible on its face," explaining in n.3 that "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests."


Ok, now I'm even more confused because this latest opinion case cites Conley via Twombley.
6.4.2007 4:05pm
Justin (mail):
Mike, your citation clearly indicates that the Eighth Amendment does not apply to pretrial detainees, but not that the Fourteenth Amendment's due process requirements do not. But having just rexamined DeShaney, its clear that the Eighth Amendment would be sufficient in any event (citing Robinson v. California, 370 U.S. 660 (1962)).*

* DeShaney also does not stand for the reverse proposition of Revere v. Mass. General Hospital. See n.5 ("In Whitley v. Albers, 475 U.S. 312 (186), we suggested that a similar state of mind is required to make out a substantive due process claim in the prison setting. Id. at 326-27"). But it is enough to find that the obligation of "basic human needs" that DeShaney relies upon can be derived from the Eighth Amendment as well, rendering Thomas's dissent procedurally correct (if substantively disturbing). It is difficult to infer that Thomas disagrees with DeShaney/Robinson/Youngblood in its Eighth Amendment context, but then agrees with it fully in the Fourteenth Amendment context, at least as applied to prisoners.
6.4.2007 4:09pm
Justin (mail):
"Ok, now I'm even more confused because this latest opinion case cites Conley via Twombley."

1) Presumably, its citation (or a "citations omitted") is required under the SCOTUS version of the bluebook (though I admit I've never read that guide, so I may be wrong).

2) The part of Conley that was cited was not overruled by Twombley. Although Conley was overruled, not everything it stated is necessarily bad law.
6.4.2007 4:11pm
Adam B. (www):
Or, does Twombly only affect the pleading standards in antitrust conspiracy pleading?
6.4.2007 4:40pm
Special Guest:

Or, does Twombly only affect the pleading standards in antitrust conspiracy pleading?


That's how I see it.
6.4.2007 4:46pm
David M. Nieporent (www):
I have to say, I'm puzzled by Thomas's opinion-in-the-alternative. Whether one agrees with his interpretation of the 8th Amendment, said interpretation is clear (that it applies to judicially-imposed punishments, not prison conditions) and would bar this suit. But I fail to see how his Helling citation applies here. Helling was a bogus secondhand smoke claim, in which the prisoner's argument was that he might be harmed sometime in the future. But Hepatitis is not a harm in the future; it's a harm now.
6.4.2007 5:06pm
David M. Nieporent (www):
Or, does Twombly only affect the pleading standards in antitrust conspiracy pleading?
No. Twombly applies to all cases. It just didn't overrule the language of Conley that's cited in this case. It only overruled the overbroad "no set of facts" part of Conley.
6.4.2007 5:09pm
A.J. (mail):

Or, does Twombly only affect the pleading standards in antitrust conspiracy pleading?



That's how I see it.



I don't read Twomblyit this way. Although the court takes the time to recite the discovery problems associated with antitrust law, it gives three strong indications that the pleading standard is to remain transubstantive. First, it grounds the decision in the text of Rule 8, which is generally applicable. Second, in the last pages of the opinion, the Court harmonizes Twombly with Swierkiewicz(essentially holding a heightened pleading requirement improper), by stating that "[h]ere . . . we do not require heightened fact pleading of specifics . . . ." Third, if the "plausibility" standard of Twombly were applicable only in antitrust cases, it would be unnecessary and peculiar to "retire" Conley, which was not an antitrust case.

I don't find Twombly and Pardus difficult to distinguish factually. I have more difficulty understanding why an allegation that the withholding of medication "shortly after" a treatment program commenced "endanger[ed] his life," contains "more than labels or conclusions," while an allegation that defendants entered into a contract, combination, or conspiracy to stay out of each others' territory throughout the relevant time period does not.

If Twombly must give the who, where, when, and how of the contracting, why needn't Erickson give the medical details of how withholding hepatitis medication endangered his life?

I'd figure maybe it's a Pro Se thing, but again the Court seems to ground its holding in the text of Rule 8.
6.4.2007 5:16pm
Justin (mail):
Interesting. From Hudson v. McMillan (Thomas, J., dissenting):

"Respondents concede that, [p29] if available state remedies were not constitutionally adequate, petitioner would have a claim under the Due Process Clause of the Fourteenth Amendment. Cf. Davidson v. Cannon, 474 U.S. 344, 348 (1986); Hudson v. Palmer, 468 U.S. 517, 532-534 (1984); Parratt v. Taylor, 451 U.S. 527, 541. I agree with respondents that this is the appropriate, and appropriately limited, federal constitutional inquiry in this case."

There goes my "difficult to infer." Does anyone have a copy of the petition?

Also, would Thomas strike a necessary fifth blow against an inmate because he adopted the Eighth Amendment language promoted in Robinson, and failed to consider his dissent in pleading the case (which Scalia joined, but most likely not for that paragraph)?
6.4.2007 5:20pm
Justin (mail):
I have more difficulty understanding why an allegation that the withholding of medication "shortly after" a treatment program commenced "endanger[ed] his life," contains "more than labels or conclusions," while an allegation that defendants entered into a contract, combination, or conspiracy to stay out of each others' territory throughout the relevant time period does not.

Because the nexus on one is reasonably inferrable from more specific facts alleged in the complaint, the other is not. By example, would Twombley doom a wrongful death case that asserted the defendant "shot the defendant with a .44, killing him,b" but failed to explain that "the bullet from the .44 pierced his heart, which prevented blood from circulating to his brain, leading his brain to fail to obtain the neccesary nutrients to continue functioning, and thus causing the brain to completely shut down.*

* Plaintiff is prepared to introduce expert testimony that to this day, there is no scientific way of resuscitating someone whose brain has completely shut down."

(and yes, I am exaggerating the point).
6.4.2007 5:25pm
Special Guest:

Although the court takes the time to recite the discovery problems associated with antitrust law, it gives three strong indications that the pleading standard is to remain transubstantive.


I never knew that 12b6 motions operate by transubstantiation! I always suspected there was some hocus pocus involved. I should have watched closer to see at what point during Civ Pro class the spirit entered the pleadings.

Anyway, ex-Catholic injokes aside, I think the confusion involved in matching up Erickson and Twombly shows that whether or not the Federal Rules are transubstantive (which I understand to mean that they apply to all civil cases equally) in practice, it is much more useful to group pleading cases by substance. There really is no one verbal formulation of a standard that can unite matters as different as anti-trust and prison condition.
6.4.2007 6:03pm
MikeC&F (mail):
Justin, I'm not sure what you are saying. Let's talk this out....

The petitioner was suing for a violation of his right to receive medical care. He would be required to plead and prove that prison officers were deliberately indifferent to his serious medical needs. Because the petitioner was a convict in prison, his cause of action would sound in the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). The Eighth Amendment was incorporated against the states in Robinson v. California, 370 U.S. 660, 667 (1962).

If the prisoner had been a pre-trial detainee, his suit would have sounded in substantive due process under the Fourteenth Amendment only. So if you were taking a law school exam, as a matter of issue spotting, the first thing you would ask yourself is this: "Is the plaintiff a convict or pre-trial detainee?" There is an analytical distinction between the two. Indeed, one can often judge whether a person is a Section 1983 novice based on how he frames the issues.

So the prisoner sued under the 14th Amendment as a matter of procedure: The 14th Amendment is the "hook" that applies the 8th Amendment to the states. He cannot state a separate cause of action under the substantive component of the due process clause (as interpreted in Farmer v. Brennan).

Thus, it isn't quite right to say that Thomas was wrong because he didn't "even address the Fourteenth Amendment issue (think DeShaney exception), which the defendant is more likely to win on than his Eighth Amendment challenge." The convict, quite simply, cannot sue under the "DeShaney exception" (there are even some problems with this wording, but that's a topic for another day). Rather, he may only sue under the Eighth Amendment (again, which was incorporated to apply to the states).

So Justice Thomas did not - and should not have - addressed the "DeShaney exception," as that's a non-issue in this case.

Now, feel free to correct me if I am wrong. Do you know of legal authority supporting the proposition that a convict may sue a under the Substantive Due Process Clause for the denial of treatment for his serious medical needs?
6.4.2007 6:20pm
Justin (mail):
Mike, I'm not sure how your new post is supposed to be helpful. I was with you until you started talking about law school exams. I just looked up Farmer, and I still don't see how you logically draw "If X, then not A" from the statement "If not X, then: 1) A and 2) not B."

I've just read through Farmer, in addition to DeShaney and Revere, and still haven't found any evidence for your initial assertion, for which, in any event, Thomas (whose the topic of this dicussion) explicitly rejected in his dissent in Hudson.
6.4.2007 6:40pm
Justin (mail):
In any event, the case you are looking for is Wolff v. McDonnell (1974):

Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a matter of policy raising no constitutional issue. If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.

....

Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U.S. 249 (1971); Screws v. United States, 325 U.S. 91 (1945).
6.4.2007 6:48pm
Justin (mail):
Ooops - casecite is 418 U.S. 539.
6.4.2007 6:49pm
MikeC&F (mail):
Justin, Wolff v. McDonnell was a procedural due process case. Why did you think it was relevant to the discussion?

In any event, here was my initial assertion: A state prisoner/convict who has been denied medical treatment may not sue under the Substantive Due Process Clause. Rather, a state prisoner must sue under the 8th Amendment (as incorporated against the states through the 14th Amendment).

In support of this assertion, I cited several cases which show that the Supreme Court treats convicts differently from pre-trial detainees. I cited cases where the Court has analyzed the denial of medical treatment of convicts under (and only under) the Eighth Amendment. I showed that the Supreme Court has held that pre-trial detainees must sue under the Substantive Due Process Clause for being denied medical treatment. I even quoted the Court's very own language indicating that pre-trial detainees are a separate class from convicts.

Are you not able to infer that where a) the Court creates two separate classes of people and b) analyzes the claims brought by those separate classes of people; that c) those two classes of people may not use under the same legal theories for the same claim?

In any event, please show me a Supreme Court case supporting your argument that a convict may sue under the Substantive Due Process Clause for being denied medical treatment. I am actually quite curious about this and would love to see such a case.

(While I think I have carried my burden of proof as to my assertion, you are the one who has been under the burden of proof all along, as you are the one who claimed that Justice Thomas was wrong for not "even address[ing] the Fourteenth Amendment issue (think DeShaney exception), which the defendant is more likely to win on than his Eighth Amendment challenge." In light of your claim, you must prove (using actual cases) that Justice Thomas was under an obligation to analyze the claim of a prisoner denied medical treatment under the Substantive Due Process Clause.)
6.4.2007 7:42pm
Justin (mail):
Dude, you can think what you want.
6.4.2007 8:01pm
Justin (mail):
As to your parenthetical, Orin and I already discussed this, and the question would turn on whether the Fourteenth Amendment was within the scope of the cert petition or not.
6.4.2007 8:02pm
Special Guest:
Mike - Sorry if I missed it, but did you cite a case holding that a convicted prisoner has NO substantive due process rights? That certainly can't be true. As such, if Thomas is right that the 8th Amend. only applies to the prison sentence itself and not to prison conditions, then it logically follows that a prisoner would sue under due process to challenge prison conditions.

The only reason pre-trial detainees and prisoners are treated separately when they challenge prison conditions is that pre-trial detainees can never sue under the 8th Amendment: since they have not been convicted, they can't be punished and the 8th Amend is irrelevant to them. It's my understanding that most courts consider the pre-trial detainee's due process rights and the prisoner's 8th amendment rights to be about the same, as far as prison conditions go.
6.4.2007 8:06pm
Special Guest:
To clarify, the point of my comment is that I disagree with both Mike &Justin! I mean to say that since a prisoner has substantive due process rights, Thomas should have voted to remand for consideration of the case under that theory rather that voting to uphold the dismissal. Since it's pro se, the prisoner probably didn't even really state the basis for his claim clearly and the courts probably construed it as an 8th Amendment matter. It would have been appropriate for Thomas to take the second step and look at due process, as pro se petitions should be generously construed.
6.4.2007 8:14pm
MikeC&F (mail):
Dude, you can think what you want.

What I "think" is based on actual legal opinions. I am still not sure what you base your "thinking" on.

but did you cite a case holding that a convicted prisoner has NO substantive due process rights?

I have carefully used my language (considering this is a comment to a blog post) and wrote: "A state prisoner/convict who has been denied medical treatment may not sue under the Substantive Due Process Clause. Rather, a state prisoner must sue under the 8th Amendment (as incorporated against the states through the 14th Amendment)."

I never said state prisoners have no SDP rights. I said that a prisoner who is denied medical treatment may not sue under SDP.

Does anyone have a case supporting the proposition that a prisoner may sue under SDP for a denial of medical treatment? Anyone?
6.4.2007 8:33pm
Public_Defender (mail):
This guy is THE HERO of his prison law library.

The facts as alleged are pretty horrible--wrongfully denying life-saving medical care based on a false allegation of illegal drug use. Can the prisoner back it up? I don't know. But that's what discovery is supposed to be for.

This case just shows how careless some judges are when reviewing prisoner claims.
6.4.2007 9:31pm
Justin (mail):
Special Guest, I'm not sure why you disagree with me, I think your point and mine are just about the same.
6.4.2007 11:35pm
MikeC&F (mail):
Justin: I see you are still following this thread. Have you found a case yet (heck, at this point, I'm curious to see a case from any jurisdiction) supporting your argument that a state prisoner may bring a substantive due process claim alleging a violation of his right to receive medical treatment?
6.5.2007 3:13am
Special Guest:
Does anyone have a case supporting the proposition that a prisoner may sue under SDP for a denial of medical treatment? Anyone?

Sorry if I wasn't clear -- my only point is that if (as Thomas thinks) the 8th Amendment isn't available, then SDP would be available. I agree with Mike that as it stands SDP challenges are not available; and with Justin that Thomas should start mentioning SDP in future prison litigation dissents where he believes the 8th Amend doesn't apply.
6.5.2007 10:12am
Justin (mail):
Special Guest, I think your original argument was correct - that both the 8th Amendment and the 14th Amendment Due Process Clause are available to prisoners (there is no "substantive due process clause," even in the sense that there is a "dormant commerce clause" - there is just a debate as to whether the due process clause involves "substantive" rights), but because Robinson preceded Youngblood, and under the Robinson-Youngblood-DeShaney trilogy the analysis is the same, it tends to be examined under the Eighth Amendment light.
6.5.2007 11:01am
MikeC&F (mail):
Justin: It looks like I can safely stop following this thread. I'm more than disappointed, as I thought that someone who speaks with such certainty would have at least one case to support his arguments. Alas, it is not to be.
6.5.2007 2:41pm