And behold, I saw a pale horse....
And behold, I saw a Pale Horse, and the name of him that sat on it was Hecht. And Hell followed with him.
Those in the know will recognize that something's up in the Supreme Court of Texas. In this case, it's an absolutely atrocious, and damn near incohrernt opinion by Nathan Hecht in Humble Sand and Gravel v. Gomez, yet another case on which I did all the breifing for the Good Guys. Unfortuneately, I'm beginning to feel a bit like Job. At least in the Supreme Court. Maybe one of these days I'll write down my analysis of the opinion. Right now, I think that my language might be so intemperate that it could get even an off-duty lawyer in trouble. So I'll hold my tongue for now.
Justice O'Neill, joined by Justice Scheinder wrote a cogent and coherent dissenting opinion that pretty well lays out what is wrong with the majority opinion. Justice Schneider, who has since resigned from the court to become a United States District Judge for the Eastern District of Texas, wisely joined Justice o'Neill in her dissenting opinion. While Bush was Governor of Texas, I thought his judicial appointees were one of his strong points. I haven't gotten the same impresion of his appointees (or attempted appointees) as President. His appointment of Justice Schneider is a hopeful sign.
But it leaves the Supreme Court with one Justice, six Adjusters, and two empty seats.
God save this Court and these United States.
Those in the know will recognize that something's up in the Supreme Court of Texas. In this case, it's an absolutely atrocious, and damn near incohrernt opinion by Nathan Hecht in Humble Sand and Gravel v. Gomez, yet another case on which I did all the breifing for the Good Guys. Unfortuneately, I'm beginning to feel a bit like Job. At least in the Supreme Court. Maybe one of these days I'll write down my analysis of the opinion. Right now, I think that my language might be so intemperate that it could get even an off-duty lawyer in trouble. So I'll hold my tongue for now.
Justice O'Neill, joined by Justice Scheinder wrote a cogent and coherent dissenting opinion that pretty well lays out what is wrong with the majority opinion. Justice Schneider, who has since resigned from the court to become a United States District Judge for the Eastern District of Texas, wisely joined Justice o'Neill in her dissenting opinion. While Bush was Governor of Texas, I thought his judicial appointees were one of his strong points. I haven't gotten the same impresion of his appointees (or attempted appointees) as President. His appointment of Justice Schneider is a hopeful sign.
But it leaves the Supreme Court with one Justice, six Adjusters, and two empty seats.
God save this Court and these United States.
posted by Jack at 9/23/2004 10:07:00 PM
11 Comments:
Perhaps you disagree with the Supreme Court merely because you are a greedy plaintiffs' lawyer who earns his living by exploting the proletariat's misery.
Thanks, Bambi. I'm sure that's it.
Except for the part about the "proletariat." We don't have those in Texas. Just workin' men and women. And the part about "exploiting" their misery. I think the word you're looking for is "ameliorating."
All this talk about exploitation and proletariarians-- what are you, a f**kin' commie or somethin'?
Oh yes, and your conclusion. I disagree with the Supreme Court because they were dead wrong. Their decision was not justified by existing law, the facts of the case, or sound policy. It was an atrocious, outcome-driven opinion.
Your last paragraph is merely rhetoric. They were only wrong in that there was insufficient evidence to decide the issues. The holding is based on out of state persuasive rules of law.
I am not a commie. I would expect someone of your education to understand that working people are the proletariat. A member of the proletartiat must earn his living by selling his labor; he lacks capital and property.
Bambi! Welcome back! I have just a couple of comments:
1. On the Supreme Court's opinion:
Actually, my last paragraph was an accusation. And, as it happens, a justified accusation. No other jurisdiction does the duty issue in a silica case like the Texas Supreme Court said in Gomez.
Every other appellate court opinion I read oin the issue (and when I was writing the brief, I read them all) holds that if it's delivered in bulk (i.e., rail road cars), the supplier may be exempt from the duty to warn the end user. But when it's delivered in bags, they've got to provide an adequate warning.
Which is a perfectly sensible and easy to follow rule.
What the Texas Supreme Court did in Gomez is turn the duty issue--which is supposed to be a question of law--into an idiotically fact bound question. And the reason they did this is because the jury decides the facts, but the judge decides what the duty is. Gomez is just one of a long string of cases in the Texas Supreme Court's war against the constitutional right to a jury.
If there were anything like the approach the Texas Supreme Court took in Gomez in case law from other jurisdicitons, Humble Sand and Gravel surely would have mentioned it in its brief. But it didn't. Its argument was basically that if the employer should know the risks, there's no duty to warn (which isn't the law anywhere).
It's funny how judges can find a constitutional right to things like homosexual sodomy or abortion that can be found nowhere in the constitution, but when it comes to stuff that's actually there in black and white like a jury trial or the right to keep and bear arms, they can't seem to see it.
2. On you're communist tendencies:
You're not foolin' anybody. Nobody in the Great State of Texas who's not a card carrying member of CPUSA (or someone pretending to be one) uses the word "proletariat." 'Cept maybe the French, and they're worse than commies.
Mr. Chi, I disagree. [Poem was not intentional]. Other jurisdictions recognize the sophisticated user defense on items such as pharmaceuticals.
The Doctor (employer), not the manufacturer (Humble), is responsible to warn plaintiffs because the doctor is a learned intermediator. It has been held for years that it was common knowledge with sophisticated employers that silica was hazardous. The desired rule is a hybrid approach which the Supreme Court side stepped because it was too wimpy to rule as a matter of law that Humble had a defense. You and I can agree on that issue.
Regarding your second insult, my mother's family is French. My name is Bambi St. Romain.
Bambi,
Now you just being silly. The learned intermediary is limited to doctors (and in maybe one case that I've read an advanced practice nurse). The doctrine is based on the unique nature of the doctor=patient relationship. Nobody who is even moderately in touch with reality seriously thinks th doctor-patient and employer-employee relationship are even remotely comparable. It's purely a defense lawyer's fantasy that no appellate court (except maybbe the Texas Supreme Court) would even seriously consider.
An employer is in a better position to communicate with its employee than a physician is with his patient. Employers monitor their employees and communicate with them every day. Physicians only talk to patients for about 5 to 7 minutes. Hence, the doctrine is more appropriate for an employer/employee relationship.
I believe we have beat this pale horse to death. Can we discuss something involving more sexual innuendo? You're really good at that.
Sexual innuendo? I think not. This is the Internet, after all. There are standards of decorum to uphold.
Are you supposed to be the model for high standards or for sexual innuendo? Based on this website and your place of employ, I presume you are a model for the latter.
To change the subject, I am impressed at the amount of time you spend on this blog since you do not have time to return emails.
Whaddaya mean don't have time to return e-mails? Every time anyone posts a comment here, I get a copy by e-mail with a link to the post. And lately, my WCHOP e-mail has gotten to be pretty hard to keep up with.
Yes, Wang, you do a beautiful, superlative job with your website. Perhaps there are other things in your life which need your attention.
With all sincerity, everyone knows you are a genius and a golden boy. You have all the skills, talents, luck, and opportunities that most of us lack. Hence, I'll let you figure it out.
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