Wednesday, December 3, 2008

Clash Of Titans

If you want to see what it looks like when two extremely smart people have a profound disagreement in a public forum, take a look at the First Circuit's lengthy decision (and dissent) in Securites & Exch. Comm'n v. Tambone, No. 07-1384P-01A.

The dispute comes down to the extremely pedestrian question of whether people "make" a false statement when they "use" a false statement made by someone else and disseminate it to the masses.* The judges in question are Kermit Lipez (for the majority) and Bruce Selya (in dissent), so this is serious business.

The majority opinion is measured and methodical. Judge Selya, on the other hand, opens up a bit of a judicial can. He accuses the majority of "judicial adventurism" and, toward the end of things on page 105 says: "[T]he majority's result, I fear, has the potential to cause a great deal of mischief. At the very least, the majority opinion will garble the law and cause confusion in an industry much in need of clarity."**

Stating that a fellow federal appellate judge is garbling the law may not be all that unusual in more colorful circuits (the 6th and 9th come to mind). In the First Circuit, though, it's quite the big deal.

*A radical oversimplification. If you disagree with it, post a comment and explain why or start your own blog.
**The industry in question? The securities industry.

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