Rule 62 -- Stay of Proceedings to Enforce a Judgment
I am not a federal lawyer, so I do not have much experience with federal injunctive practice. But in my state practice, I have sought and obtained Temporary Restraining Orders and Preliminary Injunctions successfully several times.
What struck me about the Congressional act for Terri Schiavo is that it omitted any language authorizing a stay of the state court's judgment. This means that the federal court could just stop the enforcement of the state court judgment. This is a wholly different animal than a preliminary injunction. To seek an injunction is like climbing Mt. Everest: it is very difficult but manageable in the right circumstances. The judge must find that very strict elements are met. Fed. R. Civ. Proc. 65. First and foremost, the party must be likely to prevail at trial. This is what the federal courts have refused to find.
This procedure, though, is much different than a stay. Stays are handed out automatically on the filing of bankruptcy. They usually stay several state court cases all at once. Stays are at the complete discretion of the trial court judge without great elvels of proof required. Fed. R. Civ. Proc. 62.
I feel sorry for Terri's family's counsel. They are under stress from massive scrutiny, but I think they missed the real opportunity that Congress gave them. I hope it is not too late.
Even without statutory authorization, it seems that the stay is the best interim remedy. That would deprive the state court's judgment from being used to prevent her feeding. It would not force the feeding again, but would make it difficult for the medical facility not to re-insert the tube for fear of malpractice in the absence of clear judicial authority pending.
Thursday, March 24, 2005
Wednesday, March 23, 2005
Schiavo's appeal to US Supreme Court: which Justice?
Justice Kennedy would decide Schiavo's extraordinary remedies later today, if the court does not make a decision per curiam.
SUPREME COURT OF THE UNITED STATES
Allotment of Justices
It is ordered that the following allotment be made of the Chief
Justice and Associate Justices of this Court among the circuits,
pursuant to Title 28, United States Code, Section 42, and that such
allotment be entered of record, effective September 30, 1994, viz.:
For the District of Columbia Circuit, William H. Rehnquist,
Chief Justice.
For the First Circuit, David H. Souter, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Third Circuit, David H. Souter, Associate Justice.
For the Fourth Circuit, William H. Rehnquist, Chief Justice.
For the Fifth Circuit, Antonin Scalia, Associate Justice.
For the Sixth Circuit, John Paul Stevens, Associate Justice.
For the Seventh Circuit, John Paul Stevens, Associate Justice.
For the Eighth Circuit, Clarence Thomas, Associate Justice.
For the Ninth Circuit, Sandra Day O?Connor, Associate
Justice.
For the Tenth Circuit, Stephen Breyer, Associate Justice.
For the Eleventh Circuit, Anthony M. Kennedy, Associate
Justice.
For the Federal Circuit, William H. Rehnquist, Chief Justice.
September 30, 1994.
Monday, March 21, 2005
OpinionJournal - Featured Article
OpinionJournal - Featured Article
A well-considered look at the Middle East. Discomforting but optimistic.
A well-considered look at the Middle East. Discomforting but optimistic.
Tuesday, March 15, 2005
Democratic thoughts run through the Arab land
WorldTribune.com
The words "Bush" and "right" don't often go together in newsprint, especially regarding the Middle East let alone from the Middle East.
The words "Bush" and "right" don't often go together in newsprint, especially regarding the Middle East let alone from the Middle East.
Monday, March 14, 2005
Historical Budget Data
Historical Budget Data
If you are ever in a debate over the federal budget or its deficit history, here is a very useful website from Congressional Budget Office.
If you are ever in a debate over the federal budget or its deficit history, here is a very useful website from Congressional Budget Office.
Thursday, March 10, 2005
GOP transformation - The Washington Times: Editorials/OP-ED - March 10, 2005
GOP transformation - The Washington Times: Editorials/OP-ED - March 10, 2005
Rove makes it sound like Republicans have discovered liberty and freedom. That is a huge disservice to Republicans. Reagan didn't just discover the value of these principles.
What Rove is missing is that Bush is taking advantage of an interregnum. On the horizon, we can see a high risk of China becoming the replacement for the Soviet threat. Controlling the threat of anti-democratic thought in the Muslim world is crucial for strengthening ourselves and the world for the coming threat of China.
If the whole world is aligned with us -- not based on philosophy, yet -- based on similar governmental selection methods, we are in stronger steed vis-a-vis China in fifteen years. We will still have skirmishes with the France-s (forgive the poor puncuation but I want to clearly put it in the plural and not my mother's name) and Germanies of the coming era. Still, we will be able to debate the Chiracs and Schroers we then face without picking up arms. I would rather deal with a Chirac than the capitalist-funded-Mao-Tse-Tung-yet-to-come.
Think of it: the Arab world with parliaments, parliamentary India with economic strength, and NATO with Eastern Europe.
Who does China turn to for help? Maybe Iran -- if the mullahs survive that long. Maybe Pakistan -- if the Musharef fails and no parliament is ever reinstated. North Korea if the Korean detente-movement continues. Indonesia if the tsunami good-feelings era has little long-term effect.
Rove is porbably wise not to speak such truths. Politics has a strong component of quantum physics qualities: things observed with accuracy tend to change their behavior because of the observation. If the observation is not quite true, maybe the behavior won't change and your goal can yet be achieved on the current trend line. As a result Rove is serving the president well even if it misses the truth. Sad. But true.
Rove makes it sound like Republicans have discovered liberty and freedom. That is a huge disservice to Republicans. Reagan didn't just discover the value of these principles.
What Rove is missing is that Bush is taking advantage of an interregnum. On the horizon, we can see a high risk of China becoming the replacement for the Soviet threat. Controlling the threat of anti-democratic thought in the Muslim world is crucial for strengthening ourselves and the world for the coming threat of China.
If the whole world is aligned with us -- not based on philosophy, yet -- based on similar governmental selection methods, we are in stronger steed vis-a-vis China in fifteen years. We will still have skirmishes with the France-s (forgive the poor puncuation but I want to clearly put it in the plural and not my mother's name) and Germanies of the coming era. Still, we will be able to debate the Chiracs and Schroers we then face without picking up arms. I would rather deal with a Chirac than the capitalist-funded-Mao-Tse-Tung-yet-to-come.
Think of it: the Arab world with parliaments, parliamentary India with economic strength, and NATO with Eastern Europe.
Who does China turn to for help? Maybe Iran -- if the mullahs survive that long. Maybe Pakistan -- if the Musharef fails and no parliament is ever reinstated. North Korea if the Korean detente-movement continues. Indonesia if the tsunami good-feelings era has little long-term effect.
Rove is porbably wise not to speak such truths. Politics has a strong component of quantum physics qualities: things observed with accuracy tend to change their behavior because of the observation. If the observation is not quite true, maybe the behavior won't change and your goal can yet be achieved on the current trend line. As a result Rove is serving the president well even if it misses the truth. Sad. But true.
Monday, March 07, 2005
John A. Barnes on Filibusters on National Review Online
John A. Barnes on Filibusters on National Review Online
Should we kill the filibuster? Here's how it was done in the House.
Should we kill the filibuster? Here's how it was done in the House.
Wednesday, March 02, 2005
Tuesday, March 01, 2005
Foreign Affairs - The Overstretch Myth - David H. Levey and Stuart S. Brown
Here is a stunning article about the dollar's position in the world. Foreign Affairs - The Overstretch Myth - David H. Levey and Stuart S. Brown
Rich Lowry on AARP & Social Securty on National Review Online
Rich Lowry on AARP & Social Securty on National Review Online
When I was a teenager in the Reagan years, I had a barber who had immigrated to the US at age 40. Conversations with him about comparative culture were always fascinating -- if not difficult to follow through his thick Sicilian accent and loud hair dryer.
In one conversation, I told him that it shocked me why Communist and Socialist labor unions were so popular throughout Europe. My barber said it was really very simple -- if I were in an Italian labor union, he would be cutting my hair for free. Legal fees, free. Other costs of life, free.
The AARP has discovered one of the Communist secrets of artificially creating political power: power founded on membership numbers and not on a common agenda within the membership. This trick is used throughout the American body politic. How many people are like me and approve of conservation as a goal and would like to support organizations that favor conservation? Yet how many conservation groups that look inviting are pushing some of the most damaging political notions?
If conservatives want to leverage their voice, they need to steal a powerful political notion -- serving your members with desired services. Forget the coffee mugs.
This is not a shocking idea because businessmen are always looking at ways to improve their business by better serving their customers? Aren't conservatives fond of businessmen for this service mentality?
When I was a teenager in the Reagan years, I had a barber who had immigrated to the US at age 40. Conversations with him about comparative culture were always fascinating -- if not difficult to follow through his thick Sicilian accent and loud hair dryer.
In one conversation, I told him that it shocked me why Communist and Socialist labor unions were so popular throughout Europe. My barber said it was really very simple -- if I were in an Italian labor union, he would be cutting my hair for free. Legal fees, free. Other costs of life, free.
The AARP has discovered one of the Communist secrets of artificially creating political power: power founded on membership numbers and not on a common agenda within the membership. This trick is used throughout the American body politic. How many people are like me and approve of conservation as a goal and would like to support organizations that favor conservation? Yet how many conservation groups that look inviting are pushing some of the most damaging political notions?
If conservatives want to leverage their voice, they need to steal a powerful political notion -- serving your members with desired services. Forget the coffee mugs.
This is not a shocking idea because businessmen are always looking at ways to improve their business by better serving their customers? Aren't conservatives fond of businessmen for this service mentality?
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