READ THAT BACK: Ostriches, Bums, and Daredevil

So we’ve got hurricanes to the southeast (three! as of this writing, while we’re still recovering from Harvey), wildfires in the west (countless! The smoke is visible from space), and a massive earthquake (8.2! The strongest to hit Mexico in a century) to the south. The tragedies are so close in time, and on such a massive scale, that it feels impossible to comprehend. But real people need real help. Please do what you safely can.

Perhaps it’s fitting that we’re facing these challenges on the 16th anniversary of 9/11, an event that shook us to the core but also united the nation in purpose and spirit.

Now, let’s go to the courts.

POSNERAMA: So as you may recall the Court Reporter was on vacation last week, and of all the things that happened during that absence, the one genuine surprise was the retirement of Judge Richard A. Posner. It seems that friction with his colleagues was the cause—the Court Reporter is somewhat relieved that it wasn’t the complaint about his…unorthodox opinion-writing style. Although some seem to think that may be his most enduring legacy. (“Mozart” might be a bit of a stretch.) But the legal lion will leave his mark on class actions and labor and employment, too.

Of Flightless Birds and Fish: To the surprise of ostriches, perhaps, or maybe these guys, Attorney General Jeff Sessions made the announcement that the administration was ending the broadly popular DACA program, drawing criticism right, left, and center. The announced justification for the policy reversal is that DACA is “legally indefensible.” The facts that it, unlike its less popular cousin DAPA, hasn’t been seriously legally challenged, and that this administration hasn’t shied away from aggressive executive action on immigration, suggest to some that this rationale is, like communism, a red herring (subscription required).

And Speaking of Aggressive Executive Action: The NFL season has begun (sorry, Pats fans—but not really), and for once I mention football not in the context of concussion litigation. No, I mention it because the Trump administration lost another round of travel ban litigation at the Ninth Circuit, this time over whether grandparents, in-laws, and aunts and uncles count as “family” for purposes of the exception to the ban. I suspect this court- and issue-specific losing streak is leaving them feeling rather like the 2008 Lions.

Hazardous Harvey: The explosion and subsequent controlled (and uncontrolled) burning at an Arkema plant near Houston (which is already generating lawsuits) is the most recent example, but hazardous releases in the wake of natural disasters are all too common. These “Acts of God” probably aren’t going to let the companies responsible for the pollution off the cleanup hook.


And Now…Justice Truly is Blind: Daredevil is a Marvel superhero, and he is a lawyer, and he is blind. He is also the subject of a popular Netflix TV show, and an unpopular movie. As with most superheroes, though, he got his start in the funny books, and his story continues in that medium today. Recently, his nemesis hasn’t only been the usual panoply of supervillains bent on global domination—although it has been that, too—but rules of evidence. And he’s taking his fight all the way to the Supreme Court. Daredevil apparently takes umbrage at the fact that the masked heroes can’t testify in costume. In order to give evidence against those they have captured, they’d have to reveal their secret identities. He also seems upset that the superheroes, much more Johnny-on-the-spot than the police, can’t actually collect evidence on their behalf. The writer of this story arc is apparently (at least trained as) a lawyer, too, and using that training to examine how the justice system would cope with a world where vigilantism were to some degree necessary. For those of us here in what passes for the real world though, this idea screams with problems. Chain of evidence issues! Confrontation clause! In fact, this sounds like the kind of puzzle that you might give a first year law student, to see how many legal problems they could find! Er, but calling it an “issue spotter” might be in poor taste.