Ed Brayton's outrageous potshots

Considering that Ed Brayton has banned me from posting on his blog, his taking potshots at me on his blog is outrageous. They are here and here.

I will comment on a few of his claims.

First, Ed was totally wrong in his statement that the "ACLU likely got only a small portion" of the $1 million attorney fee award in the Dover case -- the ACLU and the AUSCS split what was left of the award after the deduction of expenses (as I remember, the expenses came to about $250,000). Also, I read somewhere that the ACLU requires its volunteer attorneys to agree to not accept any compensation from attorney fee awards, but I cannot now find proof of that.

Also, Ed also took issue with my following statement from my post titled, Hypocritical Ed Brayton still doesn't get it on HR 2679:

What if this $1 million bill had been called "punitive damages" or a "fine"? As Juliet in Romeo and Juliet would say, "What's in a name? What we call an attorney fee award, by any other name would ...", well, you know the rest. This draconian penalty virtually violates the 8th Amendment's prohibitions against "excessive fines" and "cruel and unusual punishment.

Ed is too dense to understand that (1) my comparison of the $1 million fee award to excessive punitive damages or an excessive fine was perfectly reasonable and that (2) "virtually violates" does not mean the same as "literally violates."

Also, Ed took issue with my following statement from the same post:

(7) The ruling in Blum v. Stenson, 465 US 886 (1984), that the attorney fee award of 42 USC §1988(b) may not be reduced on the grounds that the legal representation was by a non-profit organization (this ruling also presumably applies to representation that was initially pro bono) was based on an erroneous interpretation of a Senate report accompanying the statute. The Supreme Court's quotation of the Senate report said, "It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature......" S. Rep. No. 94-1011, p. 6 (1976). (emphasis added) The quotation of the Senate report said that the fees should not be reduced on the grounds that the rights involved are nonpecuniary in nature, but the quotation nowhere expressly said that the fees should not be reduced on the grounds that the representation was non-profit and/or initially pro bono.

Note the emphasis on the word "expressly" in my above statement. There is simply no proof that the Senate committee ever considered the issue of whether or not the fee award should be reduced on the grounds that the legal representation was non-profit and/or initially pro bono. The Senate report's mere citation of court cases where there was such representation is not proof that the committee specifically considered that issue. Generally, people who read the report rely on what the report expressly says -- this is not a guessing game of trying to read the minds of the report's authors. The court's claim that its decision was based on the Senate report was completely erroneous -- the court might as well have not cited that Senate report at all. That is all there is to it.

Ed Brayton thinks that the fact that the decision in Blum v. Stenson was unanimous is significant. Apparently he never heard the story of the little boy who said that the emperor had no clothes.

I was banned from Ed Brayton's blog mainly because I interpreted a federal court rule in a way that he didn't like, but my interpretation was literal. And a friend of Ed's who claimed to be a teacher of constitutional law chimed in with a response that contained nothing but insults and ad hominems.

On second thought, maybe I should not be so mad at Ed for taking potshots at my blog -- he is giving me some free publicity. I just wish that Panda's Thumb would do the same.