pageok
pageok
pageok
Baze on Baze:
Ralph Baze, who is one of the two petitioners in the lethal injection case being argued tomorrow, has this interesting comment about his case in the Louisville Courier-Journal:
"The lethal injection (argument) is something one of my attorneys felt necessary to do," Baze said. "It is litigation that's time had come, and I just happened to be one of the people in the position where it could be filed under my name."
Thanks to How Appealing for the link.
Dave N (mail):
My criminal procedure professor, who was my absolute favorite law professor had two salient observations. First, if someone wanted judicial immortality, become the warden of a maximum security prison, because you would be the named respondent in so many cases. (think of Warden Wainwright of Gideon v. Wainwright, Wainwright v. Sykes, and Wainwright v. Witt fame, among other cases).

Second, he said he shook his head when newspapers ran obituaries when Ernesto Miranda died--as if his life really had any real relevance to the rule that bears his name.

We use last names as an identifier in case names (as good of system as any)--but the back stories of the litigants should have little relevance to the rule (except to the extent the facts of the case impact the rule).
1.6.2008 5:45pm
Brian G (mail) (www):
Best idea I've heard is for them to use the same cocktail that Oregon uses for assisted suicides.
1.6.2008 5:51pm
Sean M:
I would disagree strenuously with Dave N's second point to an extent. What makes the U.S. legal system interesting is that it issues no advisory opinions. It is based on real cases and controversies between real people. While the background may not matter to the dissolved down holding, the background of the litigants and how they got to the court, especially the Supreme Court, is fascinating trivia if not also relevant to the analysis of their decisions. Indeed, for certain branches of legal thought, it is the deciding factor.

I remember Prof. Volokh posted some time back trivia on what happened to the parties in some major Supreme Court cases. I always enjoy reading them, even if it doesn't have the same legal salience as what appears in U.S. Reporter.
1.6.2008 6:21pm
Dave N (mail):
Sean M,

I agree that the back stories can be interesting--as is "Whatever happened to?" type questions. My point is that while our system requires cases and controversies, the rule is bigger than the individual. Case in point, does anyone here know whatever happened to the Carolene Products Company? (as in the famous Carlene Products, footnote 4)? Better yet, does anyone care?
1.6.2008 6:34pm
Lior:
@Sean M: the opposition of advisory opinions seems to me to be a serious weakness of the legal system, especially in the criminal realm. Very general rules get made in cases which have very specific facts. Constitutional interpretation should not depend on whether a particular criminal is particularly deserving of relief, or is able to afford top-notch representation (in the context of DC v Heller, think of the Miller case). For Baze, do you think that the grizly details of any particular murder relevant to the purely legal question at hand?

Disclosure: I am a non-US layman.
1.6.2008 6:34pm
Mike G in Corvallis (mail):
"It is litigation that's time had come, and I just happened to be one of the people in the position where it could be filed under my name."

Am I the only person who was irked by this statement? No, he did not "just happen" to be in his position. He put himself there.
1.6.2008 7:18pm
George Weiss (mail):
the opposition of advisory opinions seems to me to be a serious weakness of the legal system

i agree how ridiculous is it that we are now after over 200 years time finally able to know what our 2nd amendment means in very basic terms..and still not able to decide if..assuming its decided that its an individual right..still have to wait additional time to know if the right would apply to the states.


..unfortunately its unconstitutional for article III courts to give advisory opinions.
1.6.2008 7:33pm
martinned (mail) (www):
L.S.,

@Lior: I don't know. I don't have anything against the concept of advisory opinions on principle, but I'm thinking more and more that statute law and other abstract law aren't really law until they are let loose on an actual case. Without cases, an abstract rule means nothing (or rather, it could mean any number of things). Asking a court to rule on an abstract problem is an exercise in semantics; nice for law scholars, but useless for the law.

I suspect that is why the most important court that does hand down advisory opinions, the ECJ, writes them in such a way that they end up all but disposing of the case. In theory, the national court asks a prejudicial question (art. 234 EC, in case anyone cares), which is an abstract question of European law, which the ECJ will then answer so that the national court can resolve the case before it. In practice, the answer given is usually so specific that the national court can do little else than rubber stamp it.

(ICJ advisory opinions are a different story. They are only advisory in the sense that they are not binding.)
1.6.2008 7:37pm
Lior:
@Mike G:
Am I the only person who was irked by this statement? No, he did not "just happen" to be in his position. He put himself there.


I think Baze is quite honest. He did not commit murder in order to challenge the death penalty, or even death penalty procedure. In fact, he will remain sentenced to death no matter what. The real situation is that opponents of the death penalty are using his case as a "vehicle" for Supreme Court review of the death penalty system. Neither side's brief distinguishes the case of Baze and Dowling from that of any other death row inmate in Kentucky (except that the State recounts the facts of their crimes for extra emotional impact).
1.6.2008 7:59pm
Dilan Esper (mail) (www):
Case in point, does anyone here know whatever happened to the Carolene Products Company?

Not really, but what happened to Dred Scott, Jane Roe, and George Bush and Al Gore are all pretty interesting.
1.6.2008 8:11pm
Poster Child:
Any doubts how 5 old Christian pricks will decide in the case of average American vs criminals in uniforms?
1.6.2008 8:12pm
Dave N (mail):
I don't even know what Poster Child means. Perhaps it will be deleted--but if it is, I hope it will be because of its complete incoherence rather than for any other reason.
1.6.2008 8:48pm
Malvolio:
Second, he said he shook his head when newspapers ran obituaries when Ernesto Miranda died--as if his life really had any real relevance to the rule that bears his name.
Except that after the guy who the police strongly suspected stabbed Miranda was arrested, he was informed of his rights ("Mirandized" as they say). He declined to make a statement and was released.
1.6.2008 9:21pm
JohnAnnArbor:
If lethal injection is no-go, maybe nitrogen asphyxiation's time has arrived.
1.6.2008 10:30pm
JohnAnnArbor:
Try that link again.
1.6.2008 10:45pm
tvk:
Case in point, does anyone here know whatever happened to the Carolene Products Company?

No. But we do know what happened to Ms. Buck. And it is not just a human interest story, but an indictment of the legal rule itself.
1.6.2008 10:46pm
Kovarsky (mail):
factoid:

strickland v. washington is always shortcited as "strickland" because people assume that's the name of the petitioner. but strickland is the name of the head institutional officer, and washington was the petitioner. the case should be short cited washington, not strickland.

i know you can all sleep better now.
1.7.2008 1:08am
Lior:
@Kovarsky: as the full name of the case indicates, Strickland was the petitioner. This was because prisoner Washington had won in the Court of Appeals.
1.7.2008 1:38am
Kovarsky (mail):
lior

you are confusing the term "petitioner" as in the person who petitions for cert in the supreme court with the term "petitioner" as it refers to the prisoner that files the habeas claim.

who is the cert petitioner in habeas cases would not determine the short form of the cite. that is determined by the name of the petitioner filing the habeas application. that is washington.
1.7.2008 2:05am
Dave N (mail):
Kovarsky,

I respectfully disagree. I think that customarily, we cite case names by the first party listed, unless that party is the federal government (United States v. Nixon) or a state (Kansas v. Marsh) or one of their political entities. Occassionally, the second party becomes the "shorthand" name for a case if the first party's name is too long and cumbersome.

I am aware of no rule that gives priorities to habeas petitioners over that of the nominal respondent in federal district court. In my first post, I noted that Wainwright is a listed party in at least 3 Supreme Court decisions. Unless I was citing to both Wainwright v. Sykes and Wainwright v. Witt in the same pleading, I would likely shortcite either reference as Wainwright. However, if I was citing both, I would cite them as Sykes or Witt, respectively.
1.7.2008 3:13am
OrinKerr:
Hard to believe it's been more than 50 years since Board of Education, and 35 years since Wade.
1.7.2008 3:18am
Guest101:
Kovarsky is wrong. In Supreme Court opinions, the cert. petitioner is listed first because that name appears first in the caption. It's true that the habeas petitioner would be listed first at the district court level, but it's not at all unusual to see parties' names reversed at the Supreme Court (i.e., underlying defendant's name appearing first) precisely because the party who lost below and petitioned for certiorari becomes the petitioner at the SCOTUS level.
1.7.2008 9:17am
Colin (mail):
My criminal procedure professor, who was my absolute favorite law professor had two salient observations. First, if someone wanted judicial immortality, become the warden of a maximum security prison, because you would be the named respondent in so many cases.

That wasn't Stuntz, was it? I think he said the same thing to us.
1.7.2008 9:20am
alias:
Guest, Kovarsky's talking about 3 different things:
(1) habeas petitioner
(2) cert petitioner
(3) which party's name gets used as the short cite

I think he's generally right, but I'm not aware of any hard and fast rule regarding (3). For better or worse, most people know that case as "Strickland" and to call it "Washington" is to be ambiguous (not to revive the VC debate on prescriptive vs. descriptive use of language or anything...)

Also, what does this mean? "In Supreme Court opinions, the cert. petitioner is listed first because that name appears first in the caption." This is either circular or it's stating something that I think Kovarsky and everyone else understands.
1.7.2008 9:23am
Kovarsky (mail):
I'm always amazed at how smug people can be. I wasn't talking about whose name goes first on a cert petition. I was talking about how you short cite a case. The short cite of a case, as a general rule, is not supposed to be the government party. I'm sure there are other exceptions.

I was merely making the point that this happens to be an example where people don't obey the rule, probably because "washington" the habeas petitioner was mistaken for "washington" the state entity.

I'm not sure why, if people are going to be so dismissive of a comment that was just meant as a good natured, one-off supplement to the thread, they don't actually spend more time understanding it. I wasn't talking about the order that parties were listed on the cert. petition.
1.7.2008 9:46am
Kovarsky (mail):
I'm always amazed at how smug people can be. I wasn't talking about whose name goes first on a cert petition. I was talking about how you short cite a case. The short cite of a case, as a general rule, is not supposed to be the government party. I'm sure there are other exceptions.

I was merely making the point that this happens to be an example where people don't obey the rule, probably because "washington" the habeas petitioner was mistaken for "washington" the state entity.
1.7.2008 9:54am
martinned (mail) (www):
L.S.,

Over here, in NL, the most common reporter adds not only a syllabus, but also a name or nickname for the case. As a result, some cases are named by their parties (eg. the key negligence case of Lindenbaum v. Cohen), while other cases are named after some other element of the case. (eg. the Open Hatch case, where some drunkard fell through a hatch left open in the back of a bar, leading to an important Supreme Court ruling applying a version of the Learned Hand formula to decide what kind of precautions are required in such circumstances to avoid liability.) Other cases I remember off the top of my head were named after the insane asylum where the plaintiffs resided (they sued the state in an important constitutional law case) or the untranslatable shortcoming of a horse that the seller hadn't told the buyer about.
1.7.2008 10:12am
Cruise Ship Jobs (mail) (www):
Hello, volokh.com

Was looking for some new blogs to add to my reader and I found yours volokh.com

Just added you to my reader, and leaving a friendly comment

Keep updating your blog please, I like it ;) about the [url=http://vibratingring.blogspot.com/]cock ring [/url]

Au revoir

yours truley,

Mary
My blog themed around
1.18.2008 7:50pm