22 thoughts on “President Obama nominates Butler to federal bench once again”

  1. Lets hope once again the senate does the right thing and blocks this far left activist judge, we need judges who rule by the law not by political affilation

    1. You ever heard the one, “elections matter.”
      Obama won the election and the GOP has obstructed an enormous number of his judicial picks, far more than ever in the past.

      And btw, what does your brilliant legal mind know about the far-left-activist-ness of Butler?

  2. Notalib,

    “we need judges who rule by the law not by political affilation”

    I agree. But read a few of Butler’s decisions before you cast him in that category. Don’t believe the hype.

    Frankly, his decison were much better leagally reasoned than say Roggensack’s who frequently makes logical leaps not supported by case law or statutes (I’ve heard her state that money is not property).
    Losing Sykes to the 7th circuit and Wilcox to retirement has left a huge intellectual void for the conservatives on the court. It’s unfortunate, but the “conservaties” on do not currently have an intellectual on the court and it shows

    1. Thank you for getting here before me and writing what I had to say, because that is sadly true about conservatives for the most part at the moment in terms of having no intellectual in court.

      (The sad thing is I think it’s because the current conservative movement is demonizing intellectuals as well which is why they moved more towards in a position all their own and have been hesitant.)

    1. Based on your failure to even provide the name of the case, I’m going to go out on a limb and bet that you’ve never read the decision. It’s Thomas v. Mallett. http://scholar.google.com/scholar_case?case=9309395955844685078&hl=en&as_sdt=2&as_vis=1&oi=scholarr

      After you read it get back to us and then we can have a discussion of enterprise liability and we will look forward to your well-reasoned explanation regarding why you believe it “points to a lack of intelligence.”

      1. Something tells me you’ll be waiting a long time for a well-reasoned explanation of why he feels that decision points to a lack of intelligence.

  5. Interestingly enough, while Butler lost the State Supreme Court election to Gableman, he actually carried the vote in the counties he’d represent as a federal judge.

  6. I don’t have to read it.Forcing paint manufactures to pay for bad parenting is just wrong.There was no proof that the paint is what got the kid sick. Lead is everywere in those old houses.In the pipes ,in the windows.The pollution from A hundred years of lead gas.Non of that stuff mattered because A kid said he eat paint chips when he was two years old. How many teens know what they eat when they were two? And then Louie made paint companies that never even made lead paint pay! Thats just wrong

      1. Well as long as he’s not the type of person to cry about people having to be a certain age to drive ATVs and not sob when his kid is smashed under them because they take their eye off of him for a second I suppose you can live like that.

    2. Ray, I give you credit for responding. I’m a teaching hospital so I’ll explain why your assumptions are wrong.

      “Forcing paint manufactures to pay for bad parenting is just wrong.There was no proof that the paint is what got the kid sick. Lead is everywere in those old houses.In the pipes ,in the windows.The pollution from A hundred years of lead gas.”

      Wether the kid’s injuries were caused by these factors is an issue of fact that are appropriate for determining whether there was proof that paint caused the injuries. Juries decide fact issues not courts. In fact, when the case proceeded to trial the paint companies the kid was unable to show that his injuries were caused by the paint.

      But that’s not what the Thomas decision was about, the issue was whether there should even be a trial or do the paint companies get immunity because they could point to each other and claim that the plaintiff could not establish which paint company’s product the plaintiff was exposed to.

      “And then Louie made paint companies that never even made lead paint pay!” Wrong on two points. First, Louie didn’t make any body pay, the decision just determined that there should be a trial. Second, all of the companies in the lawsuit manufactured lead paint, had knowledge of the danger, and choose to put their product in the stream of commerce. The Thomas decision,held that based on the enterprise liability precedent, that had previously been adopted in the Collins case, a pharmaceutical case, where the defendants also argued that the plaintiff could not establish which drug maker’s product injured her but all the manufactured the drug, the companies could potentially be liable in the percentage of the drugs they put into the market, in the event that the plaintiff could establish at trial that the drug caused her injuries.

      The Thomas majority (with Louie) held that the Collins case was similar enough that its holding was required to be applied, whereas the dissent attempted to factually distinguish the circumstances.

      )

      1. In the decision, the majority decided:
        (1) that that because [the plaintiff] couldn’t prove what kind of white lead carbonate he ingested, he only had to prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses’ existence; and
        (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The court’s majority further said that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”

        I simply cannot comprehend this. The leap required in part one is one that makes no logical sense to me. I’ll admit that might not have bearing on whether it makes legal sense.

        How would it be any different than holding me responsible for a traffic accident in the next town over because I failed to stop at a stop sign just like the car that plowed into another one did.

        How can our legal system hold that someone can be liable absent evidence to actually tie them in any way to the specific person harmed? How can we reverse the burden of proof such that a defendant must prove they did not do something? How is this different than – you stole my lunch. Prove you didn’t or give me $10. Now in a class action suit where there’s a pool of victims and a pool of manufacturers, I get it. But in a specific case? I just don’t.

        Finally, how about this:

        “Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business.”

        How in the hell, should some one’s ability to pay be considered in a ruling of whether they were guilty/liable or not? Seriously, somebody please explain that to me. Should we not convict people based on their ability to do the time? Sorry family, the drunk driver killed your daughter but prison time would be too tough on him, so we’re not going to even convict him.

        1. Locke, clearly I am surprised that you would challenge the concept of ‘social justice’,to wit: something bad happened to me because of something that other people did that was a normal part of society at one time, ergo, somebody should compensate me now because of it.

          I mean how can one argue the sensibility of that?

          Seriously now, one must prove the source of the damage and one cannot blame a faceless industry.

        2. Locke, thanks for the thoughtful post. I will do my best to respond.

          As a starting point, I would like to use the scenario in Summer v. Tice. http://en.wikipedia.org/wiki/Summers_v._Tice

          In Summers, two individuals tortiously fired their guns in the Plaintiff’s direction. It was undisputed that one of the two hunters caused the injury but the plaintiff could not prove which individual’s shot hit him. Having determined that both defendants had been negligent the court then decided that justice required that the burden of proving which of the defendants had caused either or both of plaintiff’s injuries be shifted to the defendants, so either could absolve himself, if possible, because it would be impossible for the plaintiff to show which of the two negligent actors had caused his harm.

          Under such a scenario, do you still think its such a logical leap to require the defendants to prove their innocence or take 50% of the blame? I guess my own thought, and admittedly it’s an area of law I do not practice, is that when a defendants’ actions are the cause of the plaintiff’s inability to prove which defendant was responsible, the burden should shift to the defendants. In product cases, such as DES and lead paint, the defendants have possession of the records that could potentially exonerate them from liability, whereas the plaintiff would not. Thomas specifically referred to access of records. see fn 46.

          “How would it be any different than holding me responsible for a traffic accident in the next town over because I failed to stop at a stop sign just like the car that plowed into another one did.”

          Because cars are not fungible and the plaintiff could show which car he had been hit by.

          “Now in a class action suit where there’s a pool of victims and a pool of manufacturers, I get it. But in a specific case? I just don’t.”

          Based on my limited understanding of class actions, you need to have similarly situated plaintiffs. In a lead paint case, you won’t ever have that. Different houses, different injuries, different circumstances. etc..

          “How in the hell, should some one’s ability to pay be considered in a ruling of whether they were guilty/liable or not? Seriously, somebody please explain that to me. ”

          I think you have to go back to the DES cases, Wisconsin’s precedent was Collins but there were similar cases across the Country. Probably the most notable was the California Supreme Court’s decision of Sindell v. Abbott, which created a risk contribution rule that was adopted by the majority of the states including Wisconsin. http://en.wikipedia.org/wiki/Sindell_v._Abbott_Laboratories

          In the DES cases, the courts were faced what commentators have referred to as a “devil’s choice” either fashion a dramatic, perhaps revolutionary, new means of allowing plaintiffs to recover, or force gravely (and wrongfully) injured “DES daughters” to leave the courthouse empty-handed. (Note, that in both Collins and in Thomas the Wisconsin Supreme Court discussed its authority to fashion a remedy under the Wisconsin constitution). In those cases, the courts determined that one of the factors influencing the choice was the ability to absorb the cost of the injuries.

          That being said, I think the Thomas majority was uncomfortable with that statement but recognized that it was bound by Collins. Note Footnote 44: “We read Collins as establishing that the predominant policy reasons undergirding the risk-contribution theory were that the defendants contributed to the risk of harm and that the defendants were in a better position to absorb the cost.

          We also note an additional policy consideration here that was not present in Collins: deterring knowingly wrongful conduct that causes harm.”

          I think that footnote suggests that the Court was more convinced by the additional policy consideration, rather than the ability to pay reason articulated by Collins.

          In any event, the original issue presented by Ray was whether Butler lacked the intelligence based on Thomas to be a district court judge, presumably because he believes it was a judicially active decision. To reach that determination, I think the inquiry is not whether risk contribution theory is judicial activism. The fact is risk contribution had already been adopted in Wisconsin well before Butler was appointed to the supreme court. Absent a legislative change, the Court is bound by past precedent. Thus, to me at least, the appropriate inquiry for determining whether Thomas is “judicial activism” is whether Thomas is factually distinguishable from Collins.

          1. First thanks for the reply. To some extent, I knew I was heading off topic but have not heard an explanation of some of the elements of that case that made any sense and figured if anyone could provide one, it would be you.

            I can understand where some argue that Summers is the same – on some level, I guess there is a similarity. But two people firing guns at someone is just so drastically different than a bunch of manufacturers making products. Two guys being careless when firing a gun – a clearly and obviously highly dangerous situation – is not at all comparable to manufactures using lead in their paints 100 years ago. It’s just not the same at all. That that case had any impact at all on product liability is just…screwy. Often it seems to me that precedent is applied too broadly at the cost of looking past the specific elements of a unique situation because they share some similarities. I’m also not exactly comfortable with our judicial system venturing so far into quantum-like situations where probabilities takes the place of what can be proven.

            In the DES cases, the courts were faced what commentators have referred to as a “devil’s choice” either fashion a dramatic, perhaps revolutionary, new means of allowing plaintiffs to recover, or force gravely (and wrongfully) injured “DES daughters” to leave the courthouse empty-handed…In those cases, the courts determined that one of the factors influencing the choice was the ability to absorb the cost of the injuries.

            Quite literally to make up new law from whole cloth. Crappy things happen to people all the time – we cannot remedy everything. Absent direct proof, we’re saying that it’s OK to punish the innocent because “somebody’s gotta pay.” That also completely falls apart (in Thomas) in face of the fact that the plaintiff had already sued and reached a settlement with his landlords. So even if it were reasonable to be concerned that he might walk out the door empty handed (which I don’t grant) as a matter of fact, that was already impossible.

            If we’re talking about the punishment/award of damages, taking ability to pay into consideration is fine. But it has no place in determining guilt/liability. As we shouldn’t bias towards the rich or big corporations, we should no more be biased against them.

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