Monday, April 27, 2009

Santelli-Glendon 2012!

Professor Mary Ann Glendon is obviously extremely smart. She's a professor at Harvard Law School, not some intermittently-blogging, fair-to-middling litigator. And standing by one's principles is quite honorable. But this just seems like a dopey and hyper-dogmatic maneuver.

It's one thing if Prof. Glendon wants to engage in a reasoned debate about the merit of "the Church's position on issues involving fundamental principles of justice." It's another thing, though, if Prof. Glendon realizes that a reasoned debate about those positions will end up revealing their foundational weakness. And it's quite another thing still if her goal is to ingratiate herself with the right wing blogosphere and Rush Limbaugh.

In the end, all this means is that Notre Dame gets more Barack Obama and less Mary Ann Glendon. Which will devastate some portion of the student population there. For sure. Nothing that a little Galt and English Breakfast can't fix, though.

Wednesday, April 22, 2009

See! Some Lawyers *Can* Write

The Supreme Court's decision in Nken v. Holder, No. 08-681, is worth a quick look for a couple of reasons. The issue is whether a "stay" is the same thing as an "injunction". Seven justices say no, they aren't the same thing. Two of these seven concur and write separately. And two of them dissent.

The first interesting aspect of this case is the lineup. Justice Roberts writes the majority opinion (more on that in a second). He is joined by, er, Justices Stevens, Souter, Ginsburg, and Breyer. Weird, eh? Doesn't happen a whole lot. Justice Kennedy writes a concurrence and he's joined by . . . Justice Scalia. That doesn't happen a whole lot, either. Justices Alito and Thomas, finally, dissent. This is less weird.

The second interesting aspect of the decision is that Justice Roberts' majority opinion is really well-written. Especially that first paragraph. There are still way too many lawyers who insist upon writing like it's 1899. Part of this is law school, where often-unintelligible opinions written a million years ago are fetishized in large part because it's nearly impossible to figure what in the world the judge is talking about. And part of it is arrogance: we write like crap because they took our powdered wigs away from us and we need some other way to differentiate ourselves from the masses. But opinions like this one by Justice Roberts -- clear, simple, logical, and no longer than it needs to be -- come along every once in a while. We'll take them where we can get them.

Tuesday, April 21, 2009

Why Lawyers Are Nuts About Spotting Every Possible Issue

It's always a bit tough to predict the legal issue that will resonate with the judge or judges hearing your case. This is one of the reasons that many conscientious lawyers have big problems with page limits: you don't want to miss an issue that could win the case for you. That seems to be what happened in Barrasso v. Hillview Condo. Trust, Appeals Ct. No. 07-P-1057.

Judge Kantrowitz concurs and directs the full force of his exasperation at all comers in this slip-and-fall case. The issue, as he sees it, is whether a person of average intelligence would climb over three feet of snow to throw a small plastic bag of trash in a dumpster. Judge Kantrowitz makes it clear that he thinks the answer is no, a person of average intelligence wouldn't do such a thing. He compares it to diving into the shallow end of a swimming pool and sledding down snow-covered stairs.

Maybe the defendants didn't think this was an issue they could raise on summary judgment. One would hope that they'll at least give it a go on remand. "While it is difficult to imagine how, once raised, it would not prove successful," Judge Kantrowitz writes, "I leave that for another day."

Monday, April 20, 2009


This weekend, the New York Times published an editorial calling for the impeachment of Ninth Circuit Court of Appeals Judge Jay Bybee. This followed the release last Thursday of a new batch of torture memos, including one authored by Judge Bybee. The impeachment concept subsequently caught fire, even in somewhat improbable (and near and dear) quarters. The most comprehensive analysis of why this is such a big freaking deal is here.

I am very, very hesitant to say that the legal analysis of a sitting federal judge is stupid. But for current purposes, I'll stipulate that the legal opinions presented in the memo make rocks look smart and, if set forth in a law school exam answer, could get their author kicked out of school.

But does the act of authoring the memo constitute a high crime or misdemeanor? Let's think about that for at least a couple of days. A couple of days? Yeah: take a deep breath. Assignment of criminal responsibility to the author of even a poorly reasoned and generally deficient written legal opinion is still the assignment of criminal responsibility to the author of a written legal opinion. And that's a huge deal.

But so, in the end, is torture. Some guy somewhere put it in a simple and straightforward way: The United States "does not torture people." Maybe Judge Bybee didn't get that particular memo.

Tuesday, April 14, 2009

First Circuit Friction

It is starting to get warm in Boston, thank goodness.

But the First Circuit's en banc decision in Aronov v. Napolitano, No. 07-1588, throws off a different kind of heat.

The dispute involves a $4,270.94* fee award entered by the District Judge Nancy Gertner against United States Citizenship and Immigration Service in a suit by a private plaintiff. The issue really is whether the plaintiff prevailed before Judge Gertner, which is prerequisite to the fee award. Judge Gertner said that he had. The First Circuit saw it differently, going so far as to hold that Judge Gertner incorrectly interpreted her own ruling on a joint motion by the parties.

Judge Torruella was having none of this and he dissented.** Vigorously. It's a bit rare see a judge on the United States Court of Appeals address his colleagues like this (page 37):
With due respect, I suggest that our jurisprudence would better reflect the time-honored motto, "Equal justice under law," if we showed the same doctrinal flexibility and credulity to policy arguments presented by citizens asking us to limit governmental power, or for compensation for harm caused by governmental error, as shown by the majority to the government in this appeal.
Let's stipulate that this is the kind of statement that would lead a law professor to upbraid, humiliate, and generally disembowel a first year law student. We can agree on that. But that doesn't make the esteemed judge wrong, now, does it?

*Really? Really.

**As did Judge Lipez. His dissent reads more like a majority opinion, which is not insignificant.

Monday, April 13, 2009

Decisionism Gets Ink, Or Bytes, Or Whatever

Last week Mass High Tech published a short piece my partner, Matt Henshon, and I wrote about the Supreme Court's recent, slightly wacky opinion about FDA preemption. I alluded to the opinion briefly and semi-snarkily here.

I'm also quoted in an article that appears on StorefrontBacktalk concerning the First Circuit's recent decision in the TJX identity theft ugliness.

So now we're all on the same awesome page.

Monday, April 6, 2009

Why Decisionism Exists

So everyone can enjoy paragraphs like this one:
A famous fairy tale, of ancient vintage, tells of an ugly frog who, when befriended by a beautiful damsel, turns into a handsome prince, marries his rescuer, and (presumably) lives happily ever after. See Jacob Grimm & Wilhelm Grimm, The Frog-King, reprinted in 17 The Harvard Classics 47 (Charles W. Eliot ed., P.F. Collier & Son 1909). The coquí is a tree frog indigenous to Puerto Rico. Plaintiff-appellee Coquico, Inc. has not yet managed to turn the coquí into an imperial presence. It has, however, fashioned a popular stuffed-animal rendering of the coquí and, thus, turned the frog into dollars.
That's how Judge Selya's opinion begins in Coquico, Inc. v. Rodriguez-Miranda, First Cir. No. 07-2786. It's probably a good thing that all judges don't write like this. But it's definitely a good thing that at least one judge does.

Wednesday, April 1, 2009

Scalia v. The English Language

This is why people adore lawyers.

Today's majority opinion in Entergy, Inc. v. Riverkeeper, Inc., No. 07-588,* contains the following sentence penned by Justice Scalia: "But minimize is a term of degree and is not necessarily used to refer exclusively to the 'greatest possible reduction.'" Page 11 (emphasis supplied).

This stinks a little bit of something, doesn't it? Justice Scalia gets some help from one online dictionary. Not so much from two others. The problem really is that "reduce" and "minimize" don't actually mean the same thing. Would our friends on the right be happier if Sarah Palin said "Gosh darn it, I will reduce your taxes!" or if she said "Doggone it, I'm gonna minimize your taxes!"? Can we stipulate that the John Galts of the world would be more pleased in the second scenario? And isn't insisting that "minimize" doesn't refer to "the greatest possible reduction" a little, well, tricky?

*For more on this case, check out Scotusblog's typically excellent analysis here.