f/k/a . . .

 

[Note: The serious comments on Judge Alito start

with the “afterthought” section below.  But, don’t let

that stop you from reading the lighter stuff.]

 

The nomination of Samuel Anthony Alito for the U.S.

Supreme Court probably has quite a few lawyers and

law students Turning Italian right about now.  If they

don’t have time for a deep-immersion course in the 

language, I want to recommend Don Cangelosi’s

Italian Without Words (Meadowbrook Press, 1989),

as a practical substitute for serious study. [you can

even look inside the book here for quick pointers]

 

  After spending a little time with Ultralingua,

I can tell trivia lovers that ”alito“ means “breath,” as

well as “puff,” in Italian.

 

alito!

puffs from the right

huffs from the left

 

        dagosan:   [Oct. 31, 2005]

 

Although “scalia” does not appear to be a word in the 

Italian language, “scala” is a scale (measure) or staircase

(think escalator).  Hmm.

  A note to ethnology buffs:  If Sam Alito is anything like

your humble Editor, he does not consider himself to be

“Italian.”  He’s American and, if you insist on further

ethnic classification, he’s Italo/Italian American.  Italian

ancestry is a very good thing, but no one’s taking the

boat back to the Old Country to stay.

 

orig.  

 

afterthought (midnight):  Blue Mass Group weblog has a

very interesting post entitled “One Liberal’s Positive View

of Alito.”  The remarks of a progressive democrat who

clerked for Judge Alito are reassuring and well worth

your attention — especially if you are tempted, like

the self-promoting Chuck Schumer, to react very nega-

tively to Judge Alito, merely because he is clearly a

conservative jurist.   Go now, read Katherine Pringle’s

assessment of her old boss.  (via SCOTUS Blog)

update (Nov. 1, 2005): There are two New York Times pieces

today for those of us who are left-of-center, don’t have to please

constituencies, and want to give Samuel Alito thoughtful consid-

eration.  See “Methodical Jurist/Clear Record” and Ann Althouse’s

“Separated at the Bench,” Nov. 1, 2005).  And, here’s a question

that I believe is worth pondering:

If Judge Alito would indeed be an independent, highly
respected, consensus-building, conservative Justice,
couldn’t he be the best possible person to counter
the extremism of Justice Scalia (pointing out over-

reaching, finding narrower grounds, etc. ) on a Court

that is very likely to have a “conservative” majority

for a very long time?

update (Nov. 2, 2005): In the run-up to the Alito Senate hearings,

I will list here links to other materials from “unexpected” sources

that caution against a knee-jerk reaction to Sam Alito’ nomination.

From TalkLeft: A Defender Praises Alito (Oct. 31, 2005).

Peter Goldberger, a Pennsylvania lawyer, starts his

description of Alito with: Don’t guess at Judge Alito’s

predilictions. I am a full-time criminal defense appellate

litigator, and more than half my cases are in the 3d Circuit.

Alito — unlike some judges we both know — does not “twist

the facts, ignore facts, and even make up facts to make the

facts fit the argument they want to make.” He is intellectually

honest in the highest degree.  . . . He is very conservative,

but he is neither knee-jerk nor dishonest.”

 

From Blue Mass Group: The Alito MoveOn Didn’t Mention

(Nov. 1, 2005): David Kravitz shows how easily the record

of any long-sitting judge can be manipulated.  Kravitz

notes:  “All that this - or any of the other “lists” floating around -

can prove is that Alito has been a judge for a long time; that

 he has decided a lot of tough cases that could have gone

either way; and that you should be very careful about reading

too much into selective “case summaries” proffered by interest

groups with an agenda.”  He continues:

“Bottom line: make up your own mind.  Do some

research on non-partisan sites (SCOTUSblog is

always a good place to start, and any Alito opinion

published in 1996 or later should be available at Findlaw). 

And wait for the confirmation hearings, where you can

bet that Alito will be questioned for hours about many

of the opinions that the lefties are worried about - that,

after all, is what the hearings are for.”

 

                                                                                                                  

 

  

 

 

 

[Note: The serious comments on Judge Alito start

with the “afterthought” section below.  But, don’t let

that stop you from reading the lighter stuff.]

 

The nomination of Samuel Anthony Alito for the U.S.

Supreme Court probably has quite a few lawyers and

law students Turning Italian right about now.  If they

don’t have time for a deep-immersion course in the 

language, I want to recommend Don Cangelosi’s

Italian Without Words (Meadowbrook Press, 1989),

as a practical substitute for serious study. [you can

even look inside the book here for quick pointers]

 

  After spending a little time with Ultralingua,

I can tell trivia lovers that ”alito“ means “breath,” as

well as “puff,” in Italian.

 

alito!

puffs from the right

huffs from the left

 

        dagosan:   [Oct. 31, 2005]

 

Although “scalia” does not appear to be a word in the 

Italian language, “scala” is a scale (measure) or staircase

(think escalator).  Hmm.

  A note to ethnology buffs:  If Sam Alito is anything like

your humble Editor, he does not consider himself to be

“Italian.”  He’s American and, if you insist on further

ethnic classification, he’s Italo/Italian American.  Italian

ancestry is a very good thing, but no one’s taking the

boat back to the Old Country to stay.

 

orig.  

 

afterthought (midnight):  Blue Mass Group weblog has a

very interesting post entitled “One Liberal’s Positive View

of Alito.”  The remarks of a progressive democrat who

clerked for Judge Alito are reassuring and well worth

your attention — especially if you are tempted, like

the self-promoting Chuck Schumer, to react very nega-

tively to Judge Alito, merely because he is clearly a

conservative jurist.   Go now, read Katherine Pringle’s

assessment of her old boss.  (via SCOTUS Blog)

update (Nov. 1, 2005): There are two New York Times pieces

today for those of us who are left-of-center, don’t have to please

constituencies, and want to give Samuel Alito thoughtful consid-

eration.  See “Methodical Jurist/Clear Record” and Ann Althouse’s

“Separated at the Bench,” Nov. 1, 2005).  And, here’s a question

that I believe is worth pondering:

If Judge Alito would indeed be an independent, highly
respected, consensus-building, conservative Justice,
couldn’t he be the best possible person to counter
the extremism of Justice Scalia (pointing out over-

reaching, finding narrower grounds, etc. ) on a Court

that is very likely to have a “conservative” majority

for a very long time?

update (Nov. 2, 2005): In the run-up to the Alito Senate hearings,

I will list here links to other materials from “unexpected” sources

that caution against a knee-jerk reaction to Sam Alito’ nomination.

From TalkLeft: A Defender Praises Alito (Oct. 31, 2005).

Peter Goldberger, a Pennsylvania lawyer, starts his

description of Alito with: Don’t guess at Judge Alito’s

predilictions. I am a full-time criminal defense appellate

litigator, and more than half my cases are in the 3d Circuit.

Alito — unlike some judges we both know — does not “twist

the facts, ignore facts, and even make up facts to make the

facts fit the argument they want to make.” He is intellectually

honest in the highest degree.  . . . He is very conservative,

but he is neither knee-jerk nor dishonest.”

 

From Blue Mass Group: The Alito MoveOn Didn’t Mention

(Nov. 1, 2005): David Kravitz shows how easily the record

of any long-sitting judge can be manipulated.  Kravitz

notes:  “All that this - or any of the other “lists” floating around -

can prove is that Alito has been a judge for a long time; that

 he has decided a lot of tough cases that could have gone

either way; and that you should be very careful about reading

too much into selective “case summaries” proffered by interest

groups with an agenda.”  He continues:

“Bottom line: make up your own mind.  Do some

research on non-partisan sites (SCOTUSblog is

always a good place to start, and any Alito opinion

published in 1996 or later should be available at Findlaw). 

And wait for the confirmation hearings, where you can

bet that Alito will be questioned for hours about many

of the opinions that the lefties are worried about - that,

after all, is what the hearings are for.”

 

                                                                                                                  

 

  

 

 

In a Memo to the American Antitrust Institute, Michael J. Freed, a member

of the AAI Advisory Board, reviews the antitrust record of Judge Samuel Alito,

and concludes that Judge Alito “is unlikely to be a supporter of antitrust en-

forcement.” (”Sam Alito and Antitrust,” Oct. 31, 2005)

 

“BertFoerS”  AAI President Albert Foer gives this summary:

“[Freed] found no relevant articles by Judge Alito, but identified a

small group of cases in which Alito sat as judge where antitrust

issues arose. While one must to some extent read between the

lines in order to find the outlines of a position, it appears that Judge

Alito is not favorably disposed toward the private enforcement of the

antitrust laws. The one case in which he seemed most friendly to

an antitrust claim was decided over fourteen years ago. Mr. Freed

concluded from this research that “Judge Alito is not likely to be a

supporter of antitrust enforcement.”

Freed, a well-respected expert on class actions and complex litigation,

who is a Principal in the Chicago firm of Much Shelist, briefly discusses

eight Alito antitrust cases from the 3rd Circuit.   The cases are:

 

1.  LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (in dissent) cert. den.,

124 S.Ct. 2932 (June 30, 2004).

 

2.  Joint Stock Society v. UDV North America, Inc., 266 F.3d 164

(3d Cir.2001) (wrote opinion)

 

3 .  Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc.,

165 F.3d, 221 (3d Cir. 1998) (wrote opinion).

 

4 .  Barton & Pittinos, Inc. v. SmithKline Beecham Corp., 118

F.3d. 178 (3d Cir. 1997) (wrote opinion).

 

                                                                               “AAIS”

 

5 .  David Lerman v. Joyce International, Inc., 10 F.3d 106

(3d Cir.1993) (wrote opinion).

 

6 .  In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144

(3d Cir. 1993) (Alito sought rehearing en banc, which was denied) . 

 

7 .  TICOR Title Insurance Company et al. v. Federal Trade Comm-

ission, 998 F. 2d 1129 (3d Cir. 1991) (Alito dissented).   

 

8  . Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334

(3d Cir. 1991) (Alito dissent)

 

 

 

 

In Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334 (3d Cir. 1991),

Judge Alito refused to apply the State Action exemption to the antitrust laws.

The case involved suit by a physician who had staff privileges revoked. He

sued a state hospital and a number of doctors for antitrust violations. The

district court granted summary judgment to the defendants under state-action

antitrust immunity provided in Parker v. Brown. On appeal, the Third Circuit,

in an opinion written by Alito, reversed, holding that it had not been established

that Pennsylvania actively supervised the peer group decision which resulted

in the revocation of staff privileges.  This is the most-recent antitrust case in

which Judge Alito decided favorably to the plaintiff.

 

alito - 

the plaintiff’s bar

shivers

 

            haikuEsq

 

 

 

In a Memo to the American Antitrust Institute, Michael J. Freed, a member

of the AAI Advisory Board, reviews the antitrust record of Judge Samuel Alito,

and concludes that Judge Alito “is unlikely to be a supporter of antitrust en-

forcement.” (”Sam Alito and Antitrust,” Oct. 31, 2005)

 

“BertFoerS”  AAI President Albert Foer gives this summary:

“[Freed] found no relevant articles by Judge Alito, but identified a

small group of cases in which Alito sat as judge where antitrust

issues arose. While one must to some extent read between the

lines in order to find the outlines of a position, it appears that Judge

Alito is not favorably disposed toward the private enforcement of the

antitrust laws. The one case in which he seemed most friendly to

an antitrust claim was decided over fourteen years ago. Mr. Freed

concluded from this research that “Judge Alito is not likely to be a

supporter of antitrust enforcement.”

Freed, a well-respected expert on class actions and complex litigation,

who is a Principal in the Chicago firm of Much Shelist, briefly discusses

eight Alito antitrust cases from the 3rd Circuit.   The cases are:

 

1.  LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (in dissent) cert. den.,

124 S.Ct. 2932 (June 30, 2004).

 

2.  Joint Stock Society v. UDV North America, Inc., 266 F.3d 164

(3d Cir.2001) (wrote opinion)

 

3 .  Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc.,

165 F.3d, 221 (3d Cir. 1998) (wrote opinion).

 

4 .  Barton & Pittinos, Inc. v. SmithKline Beecham Corp., 118

F.3d. 178 (3d Cir. 1997) (wrote opinion).

 

                                                                               “AAIS”

 

5 .  David Lerman v. Joyce International, Inc., 10 F.3d 106

(3d Cir.1993) (wrote opinion).

 

6 .  In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144

(3d Cir. 1993) (Alito sought rehearing en banc, which was denied) . 

 

7 .  TICOR Title Insurance Company et al. v. Federal Trade Comm-

ission, 998 F. 2d 1129 (3d Cir. 1991) (Alito dissented).   

 

8  . Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334

(3d Cir. 1991) (Alito dissent)

 

 

 

 

In Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334 (3d Cir. 1991),

Judge Alito refused to apply the State Action exemption to the antitrust laws.

The case involved suit by a physician who had staff privileges revoked. He

sued a state hospital and a number of doctors for antitrust violations. The

district court granted summary judgment to the defendants under state-action

antitrust immunity provided in Parker v. Brown. On appeal, the Third Circuit,

in an opinion written by Alito, reversed, holding that it had not been established

that Pennsylvania actively supervised the peer group decision which resulted

in the revocation of staff privileges.  This is the most-recent antitrust case in

which Judge Alito decided favorably to the plaintiff.

 

alito - 

the plaintiff’s bar

shivers

 

            haikuEsq

 

 

 

Our plea from a year ago is as fresh as ever - vote for a kid-centered halloween. This morning’s post at Overlawyered.com shows that the spoilsports are at it again this year in Canada (don’t want to upset the wiccans). And, in Hammonton, New Jersey, the school district (nbc10news.com):

“decided to do away with scary outfits and the traditional procession because they were worried about too many unidentified family members descending on the school.

So, no costumes in Hammonton schools — instead, they’ll be having a (very exciting) “Orange and Black Day.” There are no details on just how you might celebrate O&B Day.

halloween twilight
again this year my son waits
alone by the door

……………………… by Roberta Beary, The Unworn Necklace (2007)
1st place, Tokutomi Memorial Haiku Contest 2006

 

tawny sunset
and a family of crows –
empty treat bowl

……………………………………….. dagosan [Oct. 31, 2005]

Of course, good haijin everywhere will be penning haiku and senryu for Halloween. Check out today’s Morden Haiku, and Saturday’s, too. There’s also a treat for you from David at haikupoet.com.

Also, DeVar Dahl

frozen pumpkin-
the little ghost’s
parka and mitts

and Roberta Beary

Halloween twilight
army helicopters
fill the sky

. . . were among a couple dozen poets contributing to the Shiki Kukai Halloween contest in 2001. Click to find over 40 other one-breath Halloween poems.

 

Preter-naturally, the always-generous ed markowski has been brewing a batch of goodies for haikuEsq to hand out to you this Halloween Day (in addition to the pair we shared yesterday):

halloween snow
the yeti’s
tiny footprints

halloween party
she qualifies each sentence
with ‘honest’

halloween mail
a bill arrives
from the plastic surgeon

devil’s night
father john’s profile fills
the confessional screen

…………………………………………..ed markowski

The f/k/a gang hopes everyone, young and old and in between, will have a fun and safe Halloween. We may have a few more haiku treats throughout the day, so don’t be to shy to knock on our door again.

- got time to kill before trick-or-treating? Float over to Blawg Review 30, for the Denise Howell-ween special.

who are you
today?
Goth kids yell “trick-or-treat”

……………………………………………………. by dagosan [Oct. 31, 2005]

The scariest sights I’ve seen so far this trick-or-treat season are 

the stern faces and contorted postures of politicians, masquerading

as super-heroes in the fight to protect our children against a horde

of halloween sex offenders.  As the New York Times described

earlier this week (”Sex Offenders See New Limits for Halloween,”

Oct. 26, 2005):

“All across the country this year, local and state authorities

are placing registered offenders under one-night curfews or

other restrictions out of fear that in only a few days, costumed

children asking for candy will be arriving on their doorsteps.”

Examples: “In Westchester County [NY], high-risk sex offenders

on probation will be required to attend a four-hour educational program

on Halloween night. In New Jersey, state officials are instructing paroled

sex criminals not to answer their doors if trick-or-treaters come knocking.

And in counties throughout Texas, parolees with child contact restrictions

are being told to stay away from Halloween activities, even family gatherings.”

 

Such restrictions are also being imposed and — just a few days before

elections — heavily publicizied in Wisconsin (article), Kansas (article), Delaware

(article), and Minnesota (article) .   It’s such a sexy issue for politicians this year,

that Michigan State Rep. Fran Amos, R-Waterford, rushed to submit House Bill

5377 on Thursday, October 27.  The bill would prevent sex offenders from handing

out Halloween candy or participating in any other Halloween activities.  Of course,

it’s too late to “help” for Halloween 2005. (see this and that). 

 

halloween

i only tell the priest

so much

 

   ed markowski

                                                                                                  

 

There must be a good reason for all this extra protection at Halloween, right? 

In the NYT article, “Edward Bray, the acting deputy executive director of the

NJ State Parole Board, said the plan was necessary.”  Bray brayed:

“The State Parole Board has been trying in the last year to be

more proactive. . . . And Halloween seemed like a time that

was ripe for so many potential abuses and risks to children.”

In “Megan’s Law vs. Halloween” (Oct. 26, 2005), Prawfsblawg’s Dave Hoffman asks

cogently “if the state had empirical evidence of a higher-than-average rate of illegal

behavior on Halloween?”   Not according to the NYT article, which stated: “In effec-

tively detaining sex offenders on Halloween, most officials say they are not respon-

ding to any attacks known to have occurred on past holidays.”  For those who

don’t trust the Gray Lady:

An editorial from Indiana notes today that: “there are no known attacks

of trick-or-treating children on past Halloweens.” (KPC Media Group,

“Offender series shows need for open eyes, Oct., 30, 2005).  Also,

per CBS3.com, the Spokeswoman for the Delaware Department of

Corrections “says no Halloween incidents involving sex offenders and

trick-or-treaters have been reported in Delaware.”

Across the border in Canada, the Halloween (non)experience sounds very similar

(TriCityNews [Victoria], “No Halloween for sex offenders,” Oct. 30, 2005):

“Dave Keating, Vancouver Island area director for Corrections Canada . .

said he has never heard of a sex offender on federal or provincial parole

who has preyed on trick-or-treaters.”

So far, I seem to be the only weblawger who believes there’s something unsavory,

 in this rush (just in time for the elections) to “do something” and “be proactive” to

“protect our children” from this year’s favorite political whipping boy, the sex offender

 [For an example from New York State, see North Country Gazette, “Pataki Advocates

Enforcing Halloween Curfew on Sex Offenders,” Oct. 28, 2005] 

 

battery weakened

the low, slow laughter

of a demon

 

     John Stevenson from Some of the Silence 

 

Trenton lawyer John S. Furlong, while admitting that New Jersey has the right to 

impose the Halloween restrictions on his clients, put the problem very well ((AP/

msnbc, “NJ issues curfew for Offenders,” Oct. 26, 2005):

“My own view is that it?s unfair, expensive and inane. In other words,

it?s just stupid. Nobody is going to be safer. Nobody is going to be

less at risk. No purpose is served other than the arbitrary abuse of power

by people who can.? He added: ?The best monitors in the world for

children are their parents. You want to keep your kids safe? Go trick

or treating with them.?

Today’s editorial from Indiana’s KPC newspapers also makes several very

important points:

“Because abuse of our children tears at our hearts, it is tempting

for people to go over-board.

 

“For example, in many states local and state authorities are placing

registered offenders under Halloween night curfews or other restrictions.

However, there are no known attacks of trick-or-treating children on

past Halloweens.

 

“Rather than one night of over-reaction, we encourage alertness every

day and night of the year. One-fifth of the nation?s 500,000 sex offenders

are ?missing? ? meaning they have failed to register and no one knows

where they are. That underlines the importance of teaching children not

to talk to strangers.

“On the other hand, since most sex offenders are known to their victims ?

and possibly could be the new neighbor who moved in next door, and who

now invites youngsters over to play in his pool or watch TV ? it?s even

more important to keep track of where your children are and what they?re

doing.”

  In addition to pointing out that “The vast majority of sex offenders remain at

large, undiscovered and unmonitored,” victim’s advocate Douglas Larsen sums up his

strong reaction to these ”all show/no go” laws: 

“Why am I being so negative? Because these kinds of laws generate a

lot of publicity, and tend to lull the public into thinking that something

worthwhile is being accomplished. But funding for Child Abuse Prevention

efforts remains criminally low; Child Abuse Prevention agencies remain

horribly understaffed; education and training of children remains unacceptably

low, and monitoring and supervision of sex offenders is still dangerously

inadequate because budget cuts have completely over-stretched the capabilities

of the officers that remain. A high-profile law like this Halloween restriction gives

elected officials a way to seem like they’re tough on sex offenders, without

having to do anything that would cost any money or make a significant difference

in the problem.”

Prof. Hoffman has pointed out that “there are costs (perhaps ones we can justify) to

rules like this,” relating the story of a low-level risk offender in NJ, who will not

be able to take his own children out trick-or-treating.  That is just one example of

how over-reaching in restrictions actually