Is that a problem?

I don’t know much about the “likelihood of success on the merits” part, but I am impressed by the way another traditional element of the injunction question comes out–a little something we call “weighing of harms”:

In various countries, plaintiffs have sought court orders to halt the operation of the Large Hadron Collider at CERN near Geneva, Switzerland, with the most extraordinary of allegations: that the experiment may create a black hole that will devour the Earth.

Up until now, the various lawsuits filed against the LHC have faltered. But if the right kind of claim is filed in the proper court, a judge may soon have to face the question of whether an injunction might be needed to save the world.

That Eric Johnson knows how to get your attention.  Read the whole thing, while you still can!

Best of 2009: “Was Rosen really right?”

This was posted on July 16, 2009.

Hm. Instapundit cites Randy Barnett, who writes:

When [Jeffrey] Rosen published his critique [of Sonya Sotomayor], I knew very little about Sotomayor. After forcing myself to watch much of the hearings, I wonder if those who criticized him then are having any second thoughts today.

I am having second thoughts about my own measured enthusiasm for Sotomayor, which was based on a selfish interest in a particular area of law plus what I believed was the range of options from this Administration, yes.

But do I have second thoughts about my criticism of Jeffrey Rosen (it’s buried in here; and no, I don’t think Jennifer Rubin meant me when she asked the question)?

No. Rosen’s article seemed rushed, and was based on very few specifics, and a lot of anonymous sources. The specifics were also very pedestrian. She was obviously vulnerable on Ricci v. DeStefano, but, well, “everyone” knew that — I am sure that that includes Randy Barnett. If her opinion in Ricci was that bad (and evidently it was!), why couldn’t Rosen give us six more such-a’s? That was his job as a reporter.

To the contrary, Rosen is to be criticized not only for pulling back from his original view so he wouldn’t lose out on invitations to all the right parties, but for writing such a damned lazy legal journalism article when in fact there may have been not only smoke but some fire to report. There’s a lot of that going around.

I also didn’t, and still don’t, think much of this slam by Jennifer Rubin, also cited by both Glenn and Randy:

The question is not whether Sotomayor will get through, but why the president felt so compelled to select her. If he was desperate to find a Latina, he should have found a wise one.

Talk about “wise.” I know wisdom is not the same as intelligence, but I don’t think Jennifer Rubin has the slightest inclination to make that distinction here.

Read the rest of this entry »

Best of 2009: “Bipartisan? Whew!”

This was first posted on April 21, 2009.

Obama on show trials of CIA employees:

Mr. Obama, who has been saying that the nation should look ahead rather than focusing on the past, said he is “not suggesting” that a commission be established.

But in response to questions from reporters in the Oval Office, he said, “if and when there needs to be a further accounting,” he hoped that Congress would examine ways to obtain one “in a bipartisan fashion,” from people who are independent and therefore can build credibility with the public.

Regrets, we have a few.

Regrets, we have a few.

The horror.

I’d like to say this is fundamentally a dodge. It is a dodge — he wants to look ahead, not back, he’s not suggesting, he’s leaving doors open… it is a dodge, and frankly a contemptible one.

But fundamentally it is not a dodge. Fundamentally it is something much more horrible. It is the process by which the United States takes on a practice associated with tyrannies and, far from being an endorsement of the rule of law, elevates the assumption to power to the ability to punish the previous regime for “incorrect” — and hence “criminal” — policies.

It is no different from the argument about the supposedly inevitable impeachment of ex-President Bush, also based on supposed crimes arising from torture. As I wrote on a private list, made up mainly of attorneys, discussing that topic (adapted here), there is a tendency among certain people, and in particular those attracted to a certain pole in political debate, to regard their political choices or philosophical conclusions as the sole “moral” choice. In fact, (a) criminalization of political disagreement, (2) the use of penal power to punish players in the previous regime, and (3) the adaptation of legislative bodies as proxies to loose the necessary political “justice” when the traditional judicial organs refuse to comply, have historically been popular options for playing out this partisan outrage and sating the desire for “moral” vindication on the politically deviant.

Just not in this country.

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Scott Fenstermaker: I was wrong about him!

Super Genius

"Super Genius"

That Scott Fenstermaker is quite a good sport.  I just got this email from him (link added):


I saw your blog posting about my involvement in the 9/11 case.  Good work!  If I were you, I would be more cautious about labeling other people as childish.  By the way, does your new firm have a defamation defense practice?

Scott Fenstermaker

He’s not only giving me free advice, but it appears he wants to send me some work on some as-yet unrevealed defamation case!

Could be he’s not the dunderhead I thought he was?

Not safe for work. Of course!

"Brother from another mother"

Personal friend of mine!

BITTER LAWYER interviews Randazza.  Of course it’s obscene — and hey, I mean like the kind you should have to go to jail for, man! — from “go.”  So for the good of your soul, no, don’t go!

At least don’t tell anyone you did.  You won’t fool God of course but at least you won’t lead others astray by your example.

But anyway — this part is not only safe for work, it’s safe for home, and should be required reading in law school, too:

What’s been your best moment in the law?

I don’t think there’s one “best moment.” Honestly, I live for the moments when I get a call from small blogger who has a really terrifying issue, and you can tell that there’s a real sense of panic on their voice.  When I get those calls, and I’m able to help, those are the best moments.

What’s been the worst moment?

Realizing that a lot of judges really don’t care, and they let lawyers get away with dishonest work.

That’s why Marco will survive, while my own prospects are less clear.  He realized that in one “worst moment,” whereas every day I wake up and think this time — this time, for sure! — Lucy is going to really hold onto that football . . .

Takes a toll on you, ya know?

Scott the Windowmaker

I’ve been wondering when this part of the Khalid Sheik Mohammed story was going to get a little air ever since I heard them interviewing one of the members of his “dream team,” Scott Fenstermaker, on the radio.

Ed Morrissey is very smart, but he’s missing something here about Fenstermaker:  He is very, very stupid.  I know this because I he was my adversary in a small case once–a case, in fact, in which he represented his own law firm, and thereby proved the ancient adage about what sort of a lawyer the self-represented get for themselves.

Fenstermaker stunned me with this obtuseness.  The experience was more akin to attempting to interact with masonry than any other I have had in my litigation career.  He was dumb, and he was childish.

Fenstermaker was infuriating because he never, ever processed what you tell him and responded with an answer premised on the new information — not merely that he didn’t agree.  He just didn’t absorb a thing you were saying. Some lawyers are manipulative, or misstate what you’ve said, or are playing dumb, but not this guy.  He was just thick as a brick.

I know his resume makes it appear that he has been somewhere and done something, but I’ll bet you dollars to donuts that somewhere between then and now, there’s a serious head injury in the mix.

And I have nothing per se against dumb-dumbs, even in the legal profession.  But the point is, Ed’s looking for a way to get through to Fenstermaker, and it isn’t going to happen.  There’s no there there.  He is not just trying to confuse you, Ed. He is thoroughly confused.

And the other point is this:  The fact that this guy is both a lawyer for this mass murderer or a member of his family — or whatever — , and his chief spokesman, means something very weird is afoot, the precise nature of which leaves me feeling kind of dumb, too.  But at the end of the day, it’s probably nothing more than just… Scott Fenstermaker.

Cross-posted on Right Wing News.

Attorney Ronald D. Coleman