Monday, October 17, 2011

Broccoli as Frost's Leaping Bloom of Flowers

This sole survivor stands  tall, defiant, and in full bloom.  Its fertility is like a rage against Winter's onset, a rant of denial.  Flowers are for Spring.  Flowers bring seed.  Flowers in the Fall?  What plant expects to not merely survive but to thrive as the first freeze approaches?  Broccoli, that's who.  Broccoli is really hard to kill. 
Robert Frost's The Tuft of Flowers expresses my feelings about this plant fiercely refusing to go quietly into that good night. 

The Tuft of Flowers

I went to turn the grass once after one
Who mowed it in the dew before the sun.

 The dew was gone that made his blade so keen
Before I came to view the leveled scene.

 I looked for him behind an isle of trees;
I listened for his whetstone on the breeze

.But he had gone his way, the grass all mown,
And I must be, as he had been,--alone,

 `As all must be,' I said within my heart,
`Whether they work together or apart.'

 But as I said it, swift there passed me by
On noiseless wing a 'wildered butterfly,

 Seeking with memories grown dim o'er night
Some resting flower of yesterday's delight.

 And once I marked his flight go round and round,
As where some flower lay withering on the ground.

 And then he flew as far as eye could see,
And then on tremulous wing came back to me.

 I thought of questions that have no reply,
And would have turned to toss the grass to dry;

 But he turned first, and led my eye to look
At a tall tuft of flowers beside a brook,

 A leaping tongue of bloom the scythe had spared
Beside a reedy brook the scythe had bared.

 I left my place to know them by their name,
Finding them butterfly weed when I came.

 The mower in the dew had loved them thus,
By leaving them to flourish, not for us,

 Nor yet to draw one thought of ours to him.
But from sheer morning gladness at the brim.

 The butterfly and I had lit upon,
Nevertheless, a message from the dawn,

 That made me hear the wakening birds around,
And hear his long scythe whispering to the ground,

 And feel a spirit kindred to my own;
So that henceforth I worked no more alone;

 But glad with him, I worked as with his aid,
And weary, sought at noon with him the shade;

 And dreaming, as it were, held brotherly speech
With one whose thought I had not hoped to reach.

 `Men work together,' I told him from the heart,
`Whether they work together or apart.'
The first freeze will probably hit this week.  The broccoli plant will stay green.  It will remain green until the ground resembles a glacier. 

Speaking of "all persons working together, whether they work together or apart" reminds me of all those who are hard at work looking for work.  I urge you to support both the American Jobs Act and the Occupy Wall Street Movement.    Senators Roberts and Moran from Kansasvoted against repairing vital infrastucture and against putting 11,500 persons back to work in  Kansas.

Thursday, October 13, 2011

October 11th Order List is in - USA v. Arizona has not yet gained certiorari - Court will consider cases where Circuits are split and States are split

The Court granted two more writs of certiorari October 11th.  U.S.A.  v. Arizona, the SB 1070 "papers please" case was not on this list.  Neither was the writ denied, and the Court issued 12½ pages of cert denials in their order.

Two cases made the cut.  Case Number 10-1042 is FREEMAN, TAMMY F., ET VIR v. QUICKEN LOANS, INC.  We don't get a lot of "et vir" so I'll explain.  Et vir is a Latin term meaning "and man" which through custom, practice, and usage translates to "and husband".  Previously I wrote about the term "et uxor" which is often shortened to "et ux".  Et uxor is shorthand for "and wife".

Tammy Freeman and her husband took out a mortgage from Quicken Loans.  Quicken Loans charge a "loan discount fee" but did not accompany that with a reduction in the rate of interest being charged.  Freeman contends that the Real Estate Settlement Procedures Act, (RESPA), required the reduction of the interest rate.  Thus the Freemans contend that Quicken violated RESPA's §8b prohibition on undivided unearned charges. 

The Circuit Courts are not in agreement.  Quicken contends that there must be two or more persons or parties engaging in undivided unearned charge.  The Fourth, Seventh, and Eighth Circuits have each held that RESPA § 8 is exclusively an anti-kickback provision, requiring two culpable parties, a giver and a receiver of the unlawful fee, rendering mark-ups by a sole services provider not actionable.  The Second, Third, and Eleventh Circuits have rejected the two-party requirement and held that RESPA § 8(b) prohibits mark-ups. Only the Second Circuit has explicitly addressed whether RESPA § 8(b) prohibits a sole provider’s undivided unearned charges and found that it did.

In this case the Fifth Circuit has sided with the Fourth, Seventh, and Eighth Circuits.

The next case winning a writ of certiorari is Case Number 10-1320, BLUEFORD, ALEX  v. ARKANSAS.  Here we have a double jeopardy case.  Blueford was charged with capital murder.  The jury was given an instruction for a series of  lesser included offenses.  The jury reported that they were unanimous against the capital murder charge and the lesser included offense of first degree murder.  The jury was deadlocked or hung on the manslaughter charge and therefore didn't reach a verdict on negligent homicide. 

Blueford argues that double jeopardy bars his prosecution for capital murder or first degree murder.  Arkansas has a different opinion and wants to redo the entire trial.  At issue here will be analysis and interpretation of the bridge instruction.  The bridge instruction told the jury to first consider the capital charge, which they did, and then go down the list of charges from most serious to least serious. 

The Arkansas Supreme Court said that most States prohibit partial-verdict inquiries as to the lesser included offenses.  Noting that a minority of States permit assigning double jeopardy protections in that setting, the Arkansas Supreme Court adopted the majority view.

Tuesday, October 4, 2011


Yesterday the Supreme Court issued an 89 page "Order List", taking care of much of the administrative housekeeping that accrued during their recess.  USA v. Arizona, the SB 1070 case on appeal from the Ninth Circuit was not on that list. 
Here is a sample of the actions the Court took.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition. This is a Fair Labor Standards Act and a Class Action Rule 23 case,

In Dukes the Court said:

1. The certification of the plaintiff class was not consistent with Rule 23(a).
(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature thatit is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to thevalidity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

 (b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the sameinjury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14. (c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short.

2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2).

(a) Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to therequested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule because, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out.
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition. This is a sad case about an honorable man who served our nation well in World War II and Korea as a combat pilot. In 1959 he was placed on "Retired Reserve" status. That status, Murphy contends, kept him from receiving promotions and earning full retirement benefits. In 1992 he began his legal crusade and seems unable to accept that he has lost his case. He accuses all of the judges who have had any part in the decisions of his case with judicial malpractice. The case comes from the Middle District of Tennessee.
The motion for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record is granted. Justice Alito took no part in the consideration or decision of this motion.  This is an antitrust action invoking both the Sherman Act and the Robinson-Patman Act.  The Sherman Act was a favorite tool for President Teddy Roosevelt in the 1890's.  The Robinson-Patman hearkens back to the laws following the Great Depression and prohibits certain anticompetitive practices.  Moundridge is on US Highway 81 between Newton, Ks. and McPherson, Ks; making it Northeast of Hutchinson, Kansas.