The birds and the Indians

It turns out D.O.M. reads the comments. I know, I know. I couldn't believe it either. He says to me, "You need to write about civil cases. And someone said you're posting too much. Also, some people want to see pictures of handsome men."

"D, those are anonymous. There's no accountability. They can say anything. You have to treat them like fortune cookies."

Anyway, there's no convincing him, so here's one about a civil case with a picture of a cute bird. That's as far as I'm giving in:

Your gambling losses may help save an endangered Everglades species of hawk from the government's efforts to save an endangered Everglades species of sparrow. The Miccosukee Indians sued the Fish & Wildlife Service alleging that its efforts to protect the sparrows were flooding the hawks' habitat, a third of which happens to be on tribal lands. The Eleventh Circuit affirmed on Tuesday most of Judge Moore's decision in favor of the government. It agreed with the Tribe, however, that the Service had to specify a low-point in the population of hawks that would trigger further review. The Service had claimed that the birds were too hard to count and elected to use water levels as a trigger instead. Noting that the Service seems to have counted the birds every year since 1969, Judge Carnes vacated that part of Judge Moore's decision and remanded the case:

The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.

It's a pretty entertaining read as these things go. The Tribe was represented by Lehtinen Vargas & Riedi.

Zarabozo sentenced to life

Judge Huck imposed five consecutive life sentences plus 85 years on 21-year-old Guillermo Zarabozo for his role in the murders and other crimes committed aboard the Joe Cool. Zarabozo maintained that his accomplice Kirby Archer, who is serving a life sentence, was solely responsible for the killings.

Faculty disapproves Acosta's bid for FIU deanship

The FIU College of Law faculty recommended that the university not offer the deanship to U.S. Attorney R. Alexander Acosta, reports the DBR (whose article is available only with a paid subscription) and the Sun-Sentinel. The faculty endorsed two candidates, Beto Juarez, dean of the DU Sturm College of Law—a fantastic place to spend spring semester teaching criminal procedure and skiing—and Joel Friedman, a Tulane Law professor. The recommendations are not binding on the FIU president and provost but traditionally are seriously considered.

The "maybe-nots" have it (updated)

Have a rough day at the office ahead of you today? I bet Judge Lenard can sympathize. Apparently, "sternly order[ing]" the jurors in the Liberty City 6 trial "to follow the law and obey her instructions regarding their duty to deliberate" (as Curt Anderson put it for AP) did not do the trick. But she is not giving up on them yet. Motion for mistrial denied.

UPDATE: Deliberations are starting again with a new alternate subbing-in for the person now known as "the recalcitrant juror".

A tiresome rant on grammar but you get a free DFW essay out of it

So, the other day I'm at the gym over at the U and one of the undergrads who works there is all excited about his LSAT score and can't wait to apply to law school. I ask him how he feels about grammar and diagramming sentences, and he looks at me like I'm some kind of walking non-sequitur because what he's really good at is arguing.

If only I'd had a copy of yesterday's Flores-Figueroa v. United States in my pocket. This was reported under such headlines as "Justices Limit Use of Identity Theft Law in Immigration Cases" and "High court removes tool for deporting illegals." Those are, of course, much more grabby than the more accurate, "Court rules adverb 'knowingly' modifies entire predicate and its object." Few under 35 would have any idea what that headline meant. (The late, great David Foster Wallace explains why in this brilliant piece that takes a little while to download because it's a pretty big file but is completely worth it.) I can't imagine what they would make of the crux of Justice Breyer's reasoning, which was this:

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Dismaying as it is, a world where judges and lawyers don't have a command of grammar—the kind you get from diagramming hundreds of sentences—is anarchic.

The Court's other decisions yesterday would probably reinforce the point (if I had a really good reason to slog through them) because they all involve "statutory interpretation," which is legalese for grammar. Two are about civil procedure issues—a remand of state claims to state court is appealable even though the statute says it isn't and the circuit courts of appeals have jurisdiction to review a denial of a stay of arbitration. One is about liability under CERCLA. (Shell won; that's as far as I want to get into that one.)