Judicial understatement of the week

Jane is liveblogging the sad spectacle of the hapless attorney who was late for his first show-cause hearing, didn’t comply, and is now facing the en banc Mississippi Supreme Court at his second show-cause hearing (for which he was on time).

No attorney should be so cocky as to think a bad personal life couldn’t throw his practice into a tailspin, so I really don’t mean to make fun of this guy. That said, had to quote this from Jane’s coverage:

M.W. – When I first started practicing I did miss some hearings but that was some time ago. But I keep my own calendar.
J. Kitchens – Well, that doesn’t seem to be working for you.

U.S. war crimes to be paid for … by Poland

The European Court of Human Rights has ruled in a case brought by two people who were held prisoner by the U.S. in a Polish facility.

The court said it had been established that the CIA used a facility in a northern Polish forest, code named “Quartz”, as a hub in its network for interrogating suspected al Qaeda operatives rounded up after the Sept. 11, 2001 attacks. * * *

The court case was brought by lawyers for two men, Saudi-born Abu Zubaydah, and Saudi national Abd al-Rahim al-Nashiri, who are now both inmates at Guantanamo Bay, the U.S. military’s prison on Cuba.

They alleged they were flown in secret to a remote Polish airfield, then transferred to the CIA-facility near the village of Stare Kiejkuty where they were subject to treatment they said amounted to torture.

Lawyers for Nashiri said one on occasion he was forced to stand naked and hooded in his cell while his interrogator operated a power drill, making the detainee believe he would be harmed. In another incident, the lawyers said, an interrogator cocked a pistol next to Nashiri’s head. * * *

It said Poland knew about their detention and should have known they were at risk of ill-treatment.

The court found Poland violated its obligations under the European Convention on Human Rights to prevent torture, ensure the right to liberty, and properly investigate allegations a crime had been committed on its territory.

It ordered Poland to pay al-Nashiri 100,000 euros in damages and 130,000 euros to Zubaydah.

Send the bill to Obama, Poles. Via @thegarance.

Source documents for the Great War

The site is not eye-candy by any means, but anyone curious about the war can browse & find among other things transcriptions (in translation) of various documents, from pre-1914 through post-1919, with a few words of explanation in at least some cases, like the Austrian ultimatum of 100 years ago today, and Serbia’s reply (abridged, alas). The interpretation isn’t always sound (Serbia did not reject “one or two minor clauses,” but rather waffled on some and flatly rejected the clauses whereby Austria would exercise authority on Serbian territory), but it’s a notable resource.

DeLong links to a similar resource at BYU.

“The realm of the dead is not invaded, and punishment visited upon the dead.”

Not in Mississippi courts, anyway. A post by E. Volokh on the issue of punitive damages against a deceased person got me looking up the Mississippi rule, which is codified at Miss. Code Ann. 91-7-235: “Vindictive damages shall not be allowed.” There’s another search term to add to “punitive” and “exemplary” when you’re researching punitive damages.

And don’t forget “punitory”:

The action of the court, in its instructions, in excluding from the consideration of the jury the question of punitory damages, is also assigned for error. On this point it will be sufficient to say that at common law the action would have been abated upon the death of the defendant, and no recovery could have been had against her representative. The doctrine was that for a personal wrong the offender could not be followed into the grave, and the dead be visited with punishment. Our statutes have modified the common law to the extent of permitting a recovery against the representative of the deceased wrong-doer to an amount sufficient to compensate for the actual damage sustained by the injured party; but the realm of the dead is not invaded, and punishment visited upon the dead.

Hewlett v. George, 68 Miss. 702, 710, 9 So. 885, 887 (1891). Such punishment is presumably reserved for another jurisdiction.

The Ohio decision discussed by Prof. Volokh actually held to the contrary, apparently on the theory that knowledge my estate might be hit for punitive damages (with consequent detriment to my presumably beloveds) exercises the deterrent effect that punitive damages are meant to evoke. Not a bad argument, but it’s for the Miss. Legislature to ponder, not for our courts.

The Onion reports on new Mississippi abortion regulation

Damn, Onion, don’t give the pinheads ideas:

JACKSON, MS—In an effort to make certain that physicians who perform the procedure are fully qualified to do so, a new state law passed Tuesday will require Mississippi doctors to climb an 18-foot wall before entering any medical facility providing abortions.

The Clinic Fortification and Physician Excellence Act calls for the construction of concrete barriers nearly two stories tall and 4 feet thick around all clinics offering abortion services, and for physicians working at these sites to scale such barricades unassisted, a landmark piece of legislation that supporters hailed as a victory for women’s health.

“No woman, in this state or any other, should ever receive care from a medical professional incapable of climbing an 18-foot wall,” said Governor Phil Bryant, adding that it was “ridiculous” that women had been living in a place where doctors could perform abortions without first surmounting an obstacle approximately three times their height. “Any physicians lacking the necessary upper body strength to pull themselves up and over an 18-foot wall have no business performing such a potentially dangerous procedure.”

“This law is shamefully overdue,” Bryant added. “I’m sorry the women of Mississippi had to wait so long.”

But it’s not enough to satisfy everyone:

“These new requirements are a joke and are riddled with loopholes—I mean, there’s nothing stopping someone from taking a running start or using chalk to get a better handhold on the wall,” said Pro-Life Mississippi president Dana Chisholm, who characterized the walls as a watered-down version of a prior law passed in Arkansas that required doctors performing abortions to leap over a 20-foot-wide trench in a single attempt. “The message we’re sending to women in this state is that it’s perfectly okay for them to be treated in unsafe facilities staffed by people who did nothing more than hop over a glorified little fence.”

“There’s not even any spikes or broken glass at the top, let alone electrified razor wire—any old doctor can get up and over it in no time,” added Chisholm. “Honestly, why even have a wall at all, for crying out loud?”

Why, indeed?

Circuit vs. circuit

The D.C. Court of Appeals rules 2-1 that the tax credits necessary to the operation of the ACA exchanges aren’t available in the majority of states, where the feds have taken over the operation of the state exchange due to state recalcitrance against Obamacare.

This same day, the Fourth Circuit rules 3-0 that the IRS reading of the statute to allow the tax credits in the federally-operated exchanges is indeed to be upheld. Two judges hold the statute to be ambiguous and thus open to the agency’s reading; Judge Davis, concurring, thinks the statute is clear, and writes:

Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), to decline to do so. They have a clear choice, one afforded by the admittedly less-than perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. Id. What they may not do is rely on our help to 
deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

From his mouth to the en banc D.C. Circuit’s lips.