If you listened to NPR this morning, you probably heard Nina Totenberg's typically excellent report on the Supreme Court's decision in Ricci v. DeStefano, No. 07-1428. Totenberg interviewed Richard Primus, a professor at the University of Michigan,* about the decision. Professor Primus talked about the limits of the holding in this case. The argument, which kind of strays into Kübler-Ross territory, is that this isn't that big of a deal.
But that's just wrong. A quite similar case arose from a promotional decision made by the Boston Police Department. In that case, Cotter v. City of Boston, First Cir. No. 02-1404,** the white plaintiffs lost. Whether the Cotter case remains good law -- I think it does, just barely -- would make for an interesting article topic.
*Go Blue.
**Full disclosure: I worked on this case when I was a pup, helping out with representation of an intervening party, the Massachusetts Association of Minority Law Enforcement Officers.
Tuesday, June 30, 2009
Thursday, June 25, 2009
Decisionism Is Just Like Mark Sanford*
Remember how Martha Coakley argued in the U.S. Supreme Court? The thinking at the time was that she did not do so well. Today, unsurprisingly, she lost. It's interesting, though, that the justice who asked her a question that nearly catastrophically tripped her up, Justice Kennedy, wrote an impassioned dissent supporting her position. So you just never know.
*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.
*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.
Saturday, May 30, 2009
Oh, Please
Wednesday, May 27, 2009
Note To Self
Never, ever, ever do anything that attracts Nate Silver's attention. The thing of it is that mere mortals would read Prof. Mankiw's argument and say to themselves, "Hmm. Not such a good argument. But OMG he's way smart so I'll just take a flyer on this." Nate Silver is no mere mortal. He looks at the argument. He unpacks it. And then he blows it up into ten zillion pieces. Is he afraid of offending someone's grandmother? No. He is afraid of nothing. He is a magician with numbers. And he can write. Stay out of the man's way.
I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!
I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!
Friday, May 22, 2009
An Actually Big Development
Thanks to 23 Neighborhoods for highlighting Judge Tauro's decision in Real Estate Bar Ass'n for Massachusetts, Inc. v. National Real Estate Information Services, D. Mass. No. 07-10224-JLT. This is a significant case. It emanates from the United States District Court for the District of Massachusetts, which gets shafted by this blog because its opinions aren't distributed electronically (understandable, but disappointing). It's also more than a month old, so it's not news per se.
Judge Tauro holds that requiring retention of Massachusetts attorneys to close real estate transactions here is unconstitutional. The practice is unconstitutional because it discriminates against interstate commerce and thus runs afoul of the Dormant Commerce Clause.* The Court's analysis of the issue starts at Page 15. It's not simple at all, but it probably didn't help REBA that one of its officers defended the lawyer requirement and was quoted in the Globe as stating "We don’t need outsiders coming into Massachusetts and telling us how to do things." That's usually not going to win you very many dormant commerce clause cases. It also didn't help REBA that it adopted an almost identical argument to one that the First Circuit rejected in an earlier case about a Rhode Island debt collection law.
With the pesky Constitution involved, there isn't a whole lot REBA can do about this except appeal. That seems likely; running real estate closings is a massive source of income for a large segment of the Massachusetts bar. The First Circuit will probably decide whether that continues to be the case.
*A legal doctrine that is neither dormant nor a clause, but hey.
Judge Tauro holds that requiring retention of Massachusetts attorneys to close real estate transactions here is unconstitutional. The practice is unconstitutional because it discriminates against interstate commerce and thus runs afoul of the Dormant Commerce Clause.* The Court's analysis of the issue starts at Page 15. It's not simple at all, but it probably didn't help REBA that one of its officers defended the lawyer requirement and was quoted in the Globe as stating "We don’t need outsiders coming into Massachusetts and telling us how to do things." That's usually not going to win you very many dormant commerce clause cases. It also didn't help REBA that it adopted an almost identical argument to one that the First Circuit rejected in an earlier case about a Rhode Island debt collection law.
With the pesky Constitution involved, there isn't a whole lot REBA can do about this except appeal. That seems likely; running real estate closings is a massive source of income for a large segment of the Massachusetts bar. The First Circuit will probably decide whether that continues to be the case.
*A legal doctrine that is neither dormant nor a clause, but hey.
Tuesday, May 19, 2009
Tradition!
There are not insignificant corners of the blogosphere supposedly devoted to documenting the stupid things said on occasion* by Mickey Kaus and the Instapundit, Prof. Glenn Reynolds. They probably should have dropped their copies of the Little Red Book or Das Kapital yesterday and done some blogging, because Kaus and Instapundit sure did join forces and serve up a hanging curveball.
They each try to raise a stink about the fact that the administration is talking about appointing a new U.S. Attorney for the District of North Carolina. It seems that the current person in the job, who was appointed by George W. Bush, is investigating John Edwards. So, they ask, why isn't the media freaking out about this like it did when Bush fired U.S. Attorneys who weren't bringing frivolous election fraud cases again Democrats? As the cool kids say, it's teh bias!
Except it's not. The modern tradition is that when a new administration comes to power, U.S. Attorneys from the previous administration move on to bigger and better things. Why don't Kaus or Reynolds mention this in their posts? The author of the article to which they link certainly does.** Maybe Reynolds overlooked it in his haste to post photographs of a sparsely attended tea party and Kaus did the same because he had to go patrol the border since Obam won't build the fence. Or perhaps there were other reasons. We'll never know.
*Or more frequently, as it were.
**The N&O headline writer's hilarious predilections notwithstanding.
They each try to raise a stink about the fact that the administration is talking about appointing a new U.S. Attorney for the District of North Carolina. It seems that the current person in the job, who was appointed by George W. Bush, is investigating John Edwards. So, they ask, why isn't the media freaking out about this like it did when Bush fired U.S. Attorneys who weren't bringing frivolous election fraud cases again Democrats? As the cool kids say, it's teh bias!
Except it's not. The modern tradition is that when a new administration comes to power, U.S. Attorneys from the previous administration move on to bigger and better things. Why don't Kaus or Reynolds mention this in their posts? The author of the article to which they link certainly does.** Maybe Reynolds overlooked it in his haste to post photographs of a sparsely attended tea party and Kaus did the same because he had to go patrol the border since Obam won't build the fence. Or perhaps there were other reasons. We'll never know.
*Or more frequently, as it were.
**The N&O headline writer's hilarious predilections notwithstanding.
Monday, May 18, 2009
Pro-Business Court? Eh.
No, no the U.S. Supreme Court's decision today in Iqbal v. Ashcroft, No. 07-1015, did not grant John Ashcroft, Robert Mueller, or anybody else blanket immunity for their actions in the aftermath of September 11, 2001. That just is not what happened today. If you want to understand what *did* happen, go over to Scotusblog and read Lyle Denniston. After that, you're on your own.
The decision is more interesting, at least to me, because it involves the Supreme Court's first exploration of the new pleading standard that it announced in Bell Atlantic v. Twombly. Before the Twombly case, the question was whether the plaintiff could prove "no set of facts" that would entitle it to relief. This was a bit tough from a metaphysical standpoint, the whole proving a negative thing was confusing, etc. It also allowed a lot of cases to make their way into discovery. So people -- at least those who didn't represent plaintiffs all the time -- were fed up.
The new standard requires the plaintiff to show that it has "a plausible claim for relief." The Court endorsed the 2d Circuit's formulation of what (the heck) this means: "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." (Page 15).
Once they figure out that this is what really happened today (as opposed to Loook! There's John Ashcroft! Booooo!), at least one very smart person on the left side of the legal spectrum will decry this holding as being yet another example of the Roberts Court's pro-business leanings. And I will want to agree with that person.
But it just isn't, er, plausible. First off, businesses file lawsuits, too. And some of those suits are based on some pretty flimsy facts to which discovery will (they hope) add necessary heft. Second, though, if the Court's motivation is to help businesses, they've done a very poor job of it in the Twombly and Iqbal cases.
Here's why: businesses crave certainty. They want to know what the best-, worst-, and medium-case scenarios are when they find themselves embroiled in disputes. And they want to know before the scenarios actually happen. Twombly and Iqbal make this a much more complicated analysis than it was under the old pleading regime. Before, the advice was simple: "We can move to dismiss. It will be expensive. And we probably won't win because the judge will have to accept all the facts in the complaint as true. But it might be worth it because if we win, there's no discovery and that's when things get really expensive."
Now it's all about whether a particular district court judge thinks a claim is "plausible." And that will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." It's difficult to see a there there. Oh and it's not enough for plaintiffs to show a possible path to victory. You'll have to do something that "nudges" your clients' claims "across the line from conceivable to plausible."
So what do we know? We know that possible isn't enough. We know that conceivable isn't enough. Plausible is enough. But what's plausible again? That depends? How does that help anybody?
The decision is more interesting, at least to me, because it involves the Supreme Court's first exploration of the new pleading standard that it announced in Bell Atlantic v. Twombly. Before the Twombly case, the question was whether the plaintiff could prove "no set of facts" that would entitle it to relief. This was a bit tough from a metaphysical standpoint, the whole proving a negative thing was confusing, etc. It also allowed a lot of cases to make their way into discovery. So people -- at least those who didn't represent plaintiffs all the time -- were fed up.
The new standard requires the plaintiff to show that it has "a plausible claim for relief." The Court endorsed the 2d Circuit's formulation of what (the heck) this means: "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." (Page 15).
Once they figure out that this is what really happened today (as opposed to Loook! There's John Ashcroft! Booooo!), at least one very smart person on the left side of the legal spectrum will decry this holding as being yet another example of the Roberts Court's pro-business leanings. And I will want to agree with that person.
But it just isn't, er, plausible. First off, businesses file lawsuits, too. And some of those suits are based on some pretty flimsy facts to which discovery will (they hope) add necessary heft. Second, though, if the Court's motivation is to help businesses, they've done a very poor job of it in the Twombly and Iqbal cases.
Here's why: businesses crave certainty. They want to know what the best-, worst-, and medium-case scenarios are when they find themselves embroiled in disputes. And they want to know before the scenarios actually happen. Twombly and Iqbal make this a much more complicated analysis than it was under the old pleading regime. Before, the advice was simple: "We can move to dismiss. It will be expensive. And we probably won't win because the judge will have to accept all the facts in the complaint as true. But it might be worth it because if we win, there's no discovery and that's when things get really expensive."
Now it's all about whether a particular district court judge thinks a claim is "plausible." And that will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." It's difficult to see a there there. Oh and it's not enough for plaintiffs to show a possible path to victory. You'll have to do something that "nudges" your clients' claims "across the line from conceivable to plausible."
So what do we know? We know that possible isn't enough. We know that conceivable isn't enough. Plausible is enough. But what's plausible again? That depends? How does that help anybody?
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