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6th Circuit Chides Lawyers on Law

The case before the 6th U.S. Circuit Court of Appeals questioned whether the state of Michigan could bar strippers from dancing bottomless. But in this Detroit Free Press report about the case, one sentence that stood out was this:

"The judges also chided state lawyers for misapplying legal theories, relying on outdated law and inadequately explaining how the ban furthered state interests."

That piqued my curiosity, so I pulled up the case, Hamilton's Bogarts Inc. v. Michigan, decided yesterday. As it turns out, that one paragraph from the Free Press sums up virtually the entire decision, which chastises the state's lawyers for the legal inadequacy of their case on three major points:

  • The state "appears to confuse the doctrines of res judicata and collateral estoppel." Even though the state's brief argued the former, the court "forgave" it and treated it as an argument for the latter, noting, "Latin is a dead language anyway."
  • The state "relies almost entirely" on a 21st Amendment legal argument that, while once considered viable, the Supreme Court expressly disavowed a decade ago. Given this, the state's primary legal argument "is no longer correct."
  • The state fails to address the most critical First Amendment issue, that of whether the regulations on nude dancing are content-based or content neutral. "We are left to guess about the governmental interest at stake ..., not to mention the critical question of which standard governs the case."

The case is not over. The appeal to the 6th Circuit addressed only the lower court's refusal to enjoin enforcement of the nude-dancing ban pending litigation. The circuit court said the injunction should be granted and remanded the case for further proceedings, adding, "Hopefully the case will be litigated differently after remand."

Posted by Robert J. Ambrogi on August 31, 2007 at 06:18 PM | Permalink | Comments (0)


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