Monday, March 31, 2008

New Jersey v. Delaware -- Well, They Weren't Fighting About How Awesome They Are

One of the neatest aspect's of the U.S. Supreme Court's docket is that it is the court of first impression for disputes between the states. This is generally pretty high stakes stuff. And if you put to one side the fact that these nine justices are not so well-suited to the machinations of trial practice, it sort of makes sense. The constitutional intellectual smell test is this: if you were a state and you were sued by another state, where would you want the case to be heard. Your instinctual reaction (after you think "in my own darn courts") is probably the Supreme Court. So there you go.

Today, the U.S. Supreme Court decided New Jersey v. Delaware, No. 134 Orig. New Jersey and Delaware have basically been fighting about who controls the Delaware River since they entered the Union. And before you make snide remarks about the Delaware River, remember that it's the one that Washington crossed on a cold morning all those years ago. We will stipulate, however, that jokes about both Delaware and New Jersey can be funny under the right circumstances.

Now the issue in today's case was whether New Jersey gets to build a big liquified natural gas (LNG) facility that pokes out onto the Delaware side of the river. We Bostonians know all about LNG and how awesome it is. The case is full of juicy tidbits, like the fact that an unnamed New Jersey legislator "looked into recommissioning the museum piece battleship U.S.S. New Jersey, in the event that the vessel might be needed to repel an armed invasion by Delaware." (Page 12)

The Court ruled for Delaware (and therefore against the LNG facility). Justice Scalia dissents, which is, of course, a shock. Especially because when you think of the Supreme Court justices that are going to be concerned about the construction of a big industrial facility in a riparian area, doesn't Antonin Scalia just leap to mind?

Friday, March 28, 2008

Jonathan Saltzman, Call Your Office

The Boston Globe has decided to cover the First Circuit's dismissal of the Michael Moore defamation suit. How this week-old story counts as news is not clear. Maybe the Globe's news chops are a little rusty, though, given that they've rented out ninety percent of their front section to the wire services and the few remaining national papers that still do some actual national and international news reporting.

Thursday, March 27, 2008


A few years ago, big real estate developers realized that a great way to limit public discussion of contemplated developments was to sue people that criticized said developments. Legislatures in various of the fifty states, including Massachusetts, responded by enacting Anti- SLAPP (Strategic Lawsuits Against Public Participation) statutes. The Massachusetts statute protects "petitioning", an activity that courts have interpreted with astonishing inconsistency. And to qualify for the statute's protection, defendants have to establish that their petitioning activity wasn't a sham. Lawsuit plaintiffs who violate the statute have to pay defendants' attorneys' fees, which is a big deal.

Today the Appeals Court and the SJC each decided SLAPP cases.

In Wenger v. Aceto, SJC 10065, the SJC applied the statute to a lawsuit filed by a client against his former attorney. This case is more interesting for its facts than anything else; it's basically a road-map for how not to conduct an attorney-client relationship. The client bounced a $10,000 check to his lawyer. So the lawyer upped the ante and swore out a criminal complaint against his former client in Dedham District Court. The district court looked at the case and politely sent the attorney on his way. And then his client sued him. The SJC held that even though the criminal complaint lacked merit, the attorney still could use the SLAPP statute to dismiss two of the three claims against him.

Moriarty v. Town of Holyoke, 06-P-1554, is more interesting from a legal perspective. There, the issue was whether government employees could qualify for the statute's protection since the statute aims to protect citizens who petition the government. The Appeals Court today said no. The decision's logic is not so easy to follow, and it would not be surprising if this case is distinguished by courts more often than it is followed.

Friday, March 21, 2008

Michael Moore Call Your Office (Part 2)

How is it possible to root against an American hero who has had both hands and most of one arm blown off in Iraq?

When he files a lawsuit against Michael Moore because there's a clip of him in Fahrenheit 911 talking to NBC News about how much it sucked to have his hands blown off. Because if you're talking about how much it sucks to have your hands blown off -- and I think Peter Damon gets a free lifetime pass to talk about this for as long as he wants with anybody who the thinks needs to hear it -- you must be harboring malicious thoughts with respect to our illustrious Commander-in-Chief. Right?

The First Circuit said "Wrong" today in Damon v. Moore, First Cir. No. 07-1365.

Thursday, March 20, 2008

Things That Get You Killed In Jail

A good friend used to work for Super Shuttle in Los Angeles. Apparently the Super Shuttle folks spent a lot of time playing dominoes while they waited around to drive people from the Southwest terminal at LAX to strip clubs. This friend, we'll call him "JG", came to visit when we lived in D.C. and he brought his dominoes. There were certain tactical indiscretions that were not permitted. After committing such an indiscretion, JG would tell us "That's the sort of thing that gets you killed in jail." This was what his Super Shuttle coworkers told him, at least.

This case, Commonwealth v. Perkins, SJC No. 07-8448, involves things you shouldn't do when you're in jail.* When folks from the cold case squad want to interview you and they offer you a soda and a cigarette, SAY NO. Because the cold case guys could use the fingerprints on the soda can and the DNA from the cigarette butts to nail you with a murder charge. And there won't be very much you can do about it.

*It's also just a really freaking scary case. If some guy helps you carry your groceries home and then starts showing up at random hours looking to chat with you, do whatever you have to do to make it stop. Call the cops, the Guardian Angels, your brother, your sister, buy a gun (the Supreme Court would wholeheartedly approve!). Just make it stop before something bad happens.

Giveth, Taketh, Etc.

The reporters are just littered with suits claiming that lenders are violating federal statutes governing disclosure and reporting requirements. Plaintiffs win on occasion, but they probably lose more often. Such is the case in Sullivan v. Greenwood Credit Union, First Cir. No. 07-2354.

If you look at this case, you'll notice two things. First: the plaintiff's claims clearly don't mesh with the statute under which he sued the lender. It's almost as if the plaintiff's lawyer didn't read the statutory provision under which he was suing before he filed suit. Stranger things have happened.

Second: the statute doesn't mesh with itself. It's complicated, but the essence of it is that Congress creates a cause of action with one hand and then yanks it off the table with the other. The statute prohibits conduct, but then it defines the conduct such that nobody could ever conceivably violate it.

Good to know that Congress continues to spend the people's time so wisely.

Wednesday, March 19, 2008


We're back from a two-day mediation. And thanking goodness that the current U.S. Supreme Court has finally found a liberty in the Bill of Rights that it considers worthy of protection! After all, the last ten years have established that state and federal legislators are far too willing to throw the gun industry under the bus. If there's one group of Americans whose interests need to be protected by the courts, it's those 55 million gun-owning households.


Tuesday, March 11, 2008

One Time is a Blip . . .

Two times is a pattern. Could three times (or more?) be a trend?

If you’ve ever wanted to know the ins and outs of staffing at the U.S. Marshal’s office here in Massachusetts, DeCaire v. Mukasey, First Cir. No. 07-1539, is the case for you. Today the First Circuit reversed the trial court’s finding for the defendant in this employment discrimination case. Apparently, the trial judge ruled against the plaintiff based on a view of the evidence for which the defense had not advocated, nor, it seems, even suggested.

There’s some language in here that would seem unusual were it appearing in a different context. “We have great concern,” they state at page 43 of the opinion, “over the district court’s utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake.”

Not so strange here.

Monday, March 10, 2008

Or What?

Want to vote on an initiative guaranteeing universal health care coverage? Too bad.

In Committee for Health Care for Massachusetts v. Secretary of the Commonwealth, SJC No. 10021, the SJC again tells the legislature that it has a duty to vote on all pending initiative amendments before it recesses.

Yet again, however, the SJC refuses to enforce the law based on a respect for the concept of separated powers.

The whole thing feels very passive aggressive. But it also feels right: if you don’t like what your legislator is doing, or don’t think she’s doing what she’s supposed to be doing, vote for somebody else and convince your friends and neighbors to do the same. Or run against her yourself.

Monday, March 3, 2008

Before You Cut Down Your Neighbor's Trees . . .

. . . For the love of Pete, read this case, Glavin v. Eckman, Appeals Ct. No. 07-P-383.