Amici Curiae: Cooper Redux, No Loving in Louisana and Judge Not Edition

Cooper v. Hobart, U.S. redux
Two victims of Bernard Madoff, the fraudster who ran a multi-billion dollar Ponzi scheme and is now serving a 150-year prison sentence, are suing the U.S. Securities and Exchange Commission for negligence, reports. The complaint argues that the SEC had “countless opportunities to stop the Ponzi scheme Madoff operated over 16 years, and botched all of them.” Howard Elisofon, lead counsel for the plaintiffs, said in a statement: “Now it is time for the SEC to be held accountable and for the federal government to do what the law says it must do: compensate the victims for its negligence.” Elisofon, a former SEC official, told that the suit was the first-ever seeking to hold the government liable for the SEC’s alleged negligence. The complaint was brought under the Federal Tort Claims Act, which waives sovereign immunity in limited circumstances. Nevertheless, Elisofon conceded that getting over the sovereign immunity hill would be a “formidable impediment” to the suit, but said he will argue the case fits within the exception to that doctrine.

Competent enough to die
The intrinsic vileness of the exercise aside, why are American courts unwilling to rule on whether or not criminal “incompetents” should be medicated into criminal liability? When, for instance, his psychosis went untreated, Gregory Thompson, the self-confessed murderer in the recently decided Sixth Circuit case, Thompson vs. Bell, occupies a legal limbo as regards his criminal responsibility. Thompson, according to expert medical testimony admitted at the appeal, was “floridly psychotic”, “largely incomprehensible,” and ignorant of the fact that has acts could mean his execution by the state of Tennessee. Mick Collins of The American Constitution suggests that the courts are squeamish about playing fast and loose with the Eighth Amendment which proscribes “cruel and unusual punishment.” According to Collins, Thompson v. Bell established a standard of “absolute necessity” when considering healing an accused who may be put to death.

No loving Louisiana: Interracial couple denied marriage license
A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple because of concern for the children who might be born of that union, the Hammond Star reports. Keith Bardwell, the justice of the peace, also told the paper it is his experience that most interracial marriages do not last long. “I’m not a racist … I do ceremonies for black couples right here in my house. My main concern is for the children,” he was quoted as saying. “In my heart, I feel the children will later suffer.” Over at The Volokh Conspiracy, Eugene Volkoh notes that, as a practical matter, the couple should easily have been able to get a license from another justice of the peace (apparently Bardwell’s wife referred them to one herself). But, Volokh reminds us, “a Justice of the Peace who’s performing a governmental function should perform it without discrimination based on race — or religion or political ideology or some other constitutionally forbidden category — even if such discrimination wouldn’t create much of a practical burden on anyone.”

The tort of sexiness
The prolonged drought of imaginative and savvy pornographic movie-titling is at an end: the “adult” film industry is set for wholesale renovation with the release of a movie about a sexy golfing experience whose title is “A Sexy Golfing Experience.” In light of the good news, it hardly seems right that the film would acquire greater legal than onanistic notoriety, but that has been the unjust result. Online auteurs made the mistake of filming the Experience on tony Fisher Island — just off the Miami coast and home to the non-sexy Mel Brooks and Oprah Winfrey, among others — under the guise of using the plaintiff’s property for a one-day “modelling and photo shoot.” Apparently unaware of that phrase’s interchageability with porn production, the plaintiff, Raul Quintana, claiming general ridicule and loss of property value, has sued for fraud, breach of contract, and defamation.

Man sues U.S. president, Congress and Supreme Court
Anthony P. Keyter filed a lawsuit this week in federal court against the entire 111th U.S. Congress, alleging that the members are actively aiding and abetting the criminal activities of the U.S. Supreme Court. “And that,” notes Robert J. Ambrogi of Legal Blog Watch, “is only the tip of the iceberg.” The instant suit is the 18th that Keyter has filed since 2003 against U.S. officials, including former President George W. Bush, former Vice President Dick Cheney and Chief Justice John G. Roberts. “Ironically,” Ambrogi observes, “these lawsuits stand together as testament to Keyter’s trust in the system. After all, here is a man who believes that the highest ranking officials in all three branches of the federal government are engaged in a massive conspiracy against him. Yet his lawsuits suggest his faith that a relatively humble U.S. district court judge could do something about it.”

Finns can now invoke right to … the Internet
The Finnish legislature has become the first in the world to make broadband a legal right, The Guardian reports. By July 2010, service providers will be obliged to provide all Finnish residents with broadband lines that can run at speeds of at least 1 megabit per second. The country’s telecommunications minister said that bringing high speed access to all would improve the quality of life in some of the country’s most sparsely-populated regions through numerous salutatory effects, including making online banking more accessible. Finland is already well connected, with 96% of its citizens online.

Judge not
Jay Bybee of so-called “torture memo” fame is now a judge on the U.S. federal appeal court for the Ninth Circuit. If that weren’t hair-raising enough for some, Harper’s’ Scott Horton reports a complaint of misconduct was the subject of a hearing by the court’s Judicial Council.  Here, the Judicial Council declined to consider any of the actual accusations about Bybee’s conduct prior to his appointment. Because the Council narrowly construed its mandate as being confined to misconduct after Bybee became a judge, as Horton says, “the complaint was ‘dismissed for failure to allege judicial conduct prejudicial to the effective and expeditious administration of the business of the courts.’ ” 

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