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Cross-posted in The Wizard of Laws.
Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey. Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.
Continued below the fold
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By The Wizard of Laws, Section News
Cross-posted in The Wizard of Laws.
I recently received an anonymous email criticizing Bill Schuette for certain decisions on the Court of Appeals. The email was so ludicrously awful, I almost deleted it immediately, but then I thought again -- it's an election year, and people who aren't familiar with the law might accept this as some sort of authority. Hence, we set the record straight here, by reposting my emailed response:
I join with Joan Fabiano in condemning this ridiculous attack on Bill Schuette. While everyone has a right to his or her opinion, no one has a right to be wrong on the facts. The anonymous person who attacked Judge Schuette for decisions in three cases involving criminal sentencings clearly does not understand the law or criminal procedure. These decisions show that Judge Schuette understands and applies the law as it is written. Moreover, the anonymous sender completely mischaracterizes the decisions themselves.
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By The Wizard of Laws, Section News
Cross-posted in The Wizard of Laws and, by mistake, in the Multimedia section of RightMichigan.
Party delegates to the August 28 State Republican Convention will face the formidable tasks of selecting candidates for Secretary of State, Attorney General, and governing boards of Michigan State University, Wayne State University, and one other whose name escapes me (I think it's in the People's Republic of Ann Arbor).
At least as important as these tasks is the responsibility to select two nominees for the Michigan Supreme Court. Justice Robert Young is running for reelection, and he deserves our unanimous, unwavering support. Justice Young is an extraordinary legal talent with a first rate mind, unshakable integrity, and incredible vision.
The other nomination is between Wayne County Circuit Court Judge Mary Beth Kelly and Court of Appeals Judge Jane Markey. Both are well-qualified. So, how does one distinguish them?
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The Michigan Supreme Court experienced an extraordinary change in last year's elections, when Cliff Taylor was replaced by Diane Hathaway. This month, the new court begins its first full year together. Check here for one observer's keen predictions as to how the court will decide its first eight cases. Among other things, the cases involve home invasion, a vehicular homicide, and apples. Enjoy!
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Cross-posted in The Wizard of Laws
We have all experienced puffery, although some may not be familiar with the term itself. "Puffery" is an exaggeration or statement that no reasonable person would take as factual. Typically occurring in advertising and sales, the fact that a statement is not believable means that you cannot sue someone for saying it. For example, "This is greatest car ever made" is puffery, and if you buy the car and discover it isn't the greatest car ever made, you cannot sue over it.
The most common example of puffery besides sales is in resumes and job applications. There was an attorney who left our firm and, applying for other jobs, billed himself as experienced in ERISA transactions. Technically true, but the experience consisted of getting COBRA notices after being canned.
Among resumes and job applications, the worst subset has to be political biographies. These magnify every kid with a lemonade stand into a "job-creating small business owner" and anyone who flips off a light switch into a "green energy activist."
With the 2010 election season beginning to form like a high pressure system over the Rockies, we're going to hear a lot of biographical puffery from candidates.
Gretchen Whitmer? No exception.
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Many people are aware when the U.S. Supreme Court issues a landmark opinion. Think Roe v Wade or Brown v Board of Education. These decisions are of transcending importance to our national fabric.
What most people are not aware of are the thousands of decisions made every day by lower courts. These decisions have a profound impact on our courts, our businesses, our institutions, and our own responsibility and accountability. These decisions magnify the critical nature of selecting judges to sit on the bench. One such case was recently decided by the U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Kentucky, Ohio, and Michigan.
In Gass v Marriott Hotel Services, the Sixth Circuit reinstated a lawsuit filed by two women against Marriott and an exterminating company, in which the women claimed that they were injured by pesticides sprayed in their Maui hotel room after they complained about seeing a dead cockroach.
This case is especially troubling because of the following:
1. The two plaintiffs did not seek treatment from a physician specializing in environmental medicine until a month and a half after they returned to Michigan from Hawaii (they did see a general practitioner -- the husband of one of the plaintiffs -- when they got home);
2. The specialist tested the plaintiffs for -- but could not find -- any detectable levels of the chemical compounds found in the pesticide used, and he did not test for any others;
3. An expert toxicologist testified that there has never been any peer review study linking the one pesticide admittedly used to any toxic effect in humans;
4. A renowned clinical psychiatrist testified that the physical symptoms of the two plaintiffs were likely a psychological reaction to stress, and that the plaintiffs had "demonstrated a tendency to react to stress in the past with physical symptoms";
5. There was no evidence that any of the pesticides that potentially could have caused the plaintiffs' problems were used in the hotel room; and
6. There was no evidence that the pesticide admittedly used in the hotel room was used in sufficient quantity to cause any problems, nor was there any evidence about the length or intensity of the plaintiffs' exposure, the ventilation, etc., all factors that bear on whether the defendants caused the plaintiffs' alleged injuries.
Thus, there was no evidence that the plaintiffs were actually exposed to any harmful chemicals or that the exposure was at a level that is harmful. As a result, there is no way the plaintiffs could establish that exposure to a chemical actually caused them any harm. Nevertheless, in a 2-1 decision, the Sixth Circuit found there was enough to send the case to trial.
Of course, this result was a foregone conclusion. The majority consisted of Judges Eric Clay and Karen Nelson Moore, both appointed by Bill Clinton, while the dissenter, Chief Judge Danny Boggs, was appointed by President Reagan.
This case and others like it weaken evidentiary requirements, making it easier to file and pursue marginal, even frivolous, lawsuits. This increases the expense of doing business, will drive up insurance costs and prices, and further burden our courts while making it more difficult to get rid of groundless claims.
This is nothing new, of course -- read The Litigation Explosion or anything else by Walter Olson. It illustrates, however, the continuing crisis in our courts, driven by the tension between the rule of law and the political desire to bend (or ignore) the rules to promote a social agenda.
Just another reason why judges -- and votes -- matter.
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Politics RSS from The Detroit News
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