Decisionism

Decisionism Flashes Back

2010-08-05T09:07:00.004-04:00

See, I was planning to make my next post about why I've stopped blogging.* But then Judge Tauro did his thing and Judge Walker did his and now I can't resist linking to some early thoughts I had on all of this.

One thing to watch for here is what I hereby dub the "Reverse Cocktail Party Effect". Recall that one stubborn response to instances in which Justice O'Connor or Justice Kennedy strayed from the conservative line in individual rights cases has been that they just want to keep getting invited to Washington cocktail parties. In this vein, keep your eyes peeled for enlightened right-leaning legal thinkers expressing support for equal marriage rights but furrowing their brows at application of the rational basis test to denial of those rights.

*Other than abject laziness, of course.

Put That In Your Musket And Shoot It!

2010-03-10T20:07:00.006-05:00

As noted on Universal Hub, today in Commonwealth v. Runyan, No. SJC-10480, the Supreme Judicial Court held (i) that the Second Amendment does not apply to the states; and (ii) that even if it did, requiring people to lock up their guns would still pass constitutional muster. The former issue is currently under intense consideration in the United States Supreme Court. For much more on that, the best place to go is here.

As for the latter issue, Justice Gants makes what appears to be an unassailable point in footnote 8:

We also note that, even if a firearm were secured in the manner required by G.L. c. 140, § 131L (a ), a gun owner threatened in his or her home today would be able to fire the weapon in self-defense at least as quickly as would a gun owner in 1791, when the Second Amendment was adopted. At that time, laws were in effect requiring that gunpowder be stored separately from firearms, which meant that a law-abiding homeowner acting in self-defense would need time to load and fire a musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J., dissenting). A skilled soldier of that time using specially prepared cartridges required a minimum of fifteen to twenty seconds to load and fire a musket; a less skilled soldier could fire no more quickly than once per minute. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner today could remove a firearm from a locked container or release a trigger lock more quickly than that.

If you're going to be an originalist, you'd better be prepared to deal with the consequences.*

*I predict without fear that the usual suspects will try with all their might to puncture Mr. Hicks's "once per minute" datum. (The good thing about this prediction is that I'll even be happy if I'm wrong . . . .)

For The Record: I Am Opposed To Death By Stoning

2010-02-15T20:16:00.005-05:00

This morning's New York Times featured another article about Eric Holder's decision to try Khalid Sheikh Mohammed in a civilian court. It's a nice companion to Jane Mayer's piece last week in the New Yorker. Both discuss at length the political tempest in which Mr. Holder now finds himself.

And yeah, duh, it's bad politics.* But I don't want to talk about that. What interests me is the totally crass and craven nature of the opposition to trying KSM in the Southern District of New York. As Mayer's comprehensive piece points out, Holder's investigators have been able to cobble together a much stronger and more compelling case than anything that been extracted by, uh, different means from KSM at Gitmo or elsewhere. And Mayer also describes the downright ineffectual nature of the military commissions that people like Lindsay Graham seem to love so much. You want to convict? You want a tough sentence? Yes? The same military commissions that just released Osama Bin Laden's driver and sent him to Yemen (yes, Yemen)? Okay. Who's soft on terror again?

I have not seen a single legal or tactical argument against a criminal trial for KSM that has any merit whatsoever. If you've seen one, send it to me.

One last thing. If the administration really wanted to play a smart game of politics,** they'd announce that there will be no trial for Khalid Sheikh Mohammed. They'd call a press conference and announce that sometime this Spring they'll tie KSM up to a post at Ground Zero and let the 9/11 families stone him to death. That would be super popular.

I really hope that the next member of the press who interviews Lindsay Graham or Scott Brown or, heck, Rahm Emanuel asks a simple question:

Do you support death by stoning for Khalid Sheikh Mohammed without a trial?

*Which makes the administration's lack of political groundwork for the decision pretty disappointing.

**When I said I didn't want to talk about politics, I lied.

Reporters Left Hanging

2010-02-01T19:46:00.004-05:00

Adam Gaffin at Universal Hub and Dan Kennedy* each report today on the SJC's decision in Fustolo v. Hollander, SJC No. 10485. If you've spent time with me, or read this blog, you probably know that I have a genetic inclination toward a broad interpretation of the First Amendment, especially as it relates to the press. But the decision in the Fustolo case feels right to me.

The issue in the case is whether a person who writes an objective news story is petitioning the government. If she is, the case against her would probably be dismissed in its earliest stages and she would be awarded her attorneys' fees. I agree that the statute is not as artfully crafted as we might like it to be. Especially on this front. But it protects petitioning. A reporter who objectively provides citizens with information about an issue of public concern is performing a valuable service in our democracy. She may be providing information that others use to petition. But she's not petitioning. Which is what the statute protects.

So the most important sentence in the opinion, to me, pops up early on: "she expressly stated in her affidavit that in writing all her articles, she was 'always careful to present an objective description of the subject matter, including the positions of both sides where applicable,' and that while she had personal views on the issues she covered, 'they were not reflected in the articles I wrote.'"

Again: not petitioning. No matter what you think of the plaintiff, no matter what you think of the press, if you're not presenting personal views you just aren't petitioning.

*I can't resist noting that Mr. Kennedy links in his post to an affidavit that he was paid, presumably by Ms. Hollander to the submit to the Court. As with just about everything he writes, it's persuasive and beautifully written. But I'm not so sure it's a particularly helpful document to file in a civil dispute to which he's not a party.

At Least They Had Good Seats For The Speech

2010-01-28T09:38:00.006-05:00

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

*Again, I haven't read a word about this yet.

SJC Tackles Fee Application; Subtle Sausage-Like Aroma Sniffed At Adams Courthouse

2010-01-25T20:08:00.008-05:00

If you litigate, chances are that at some point in your career you'll submit to a court (or oppose) an application for attorneys' fees. If you do business, chances are that some point you'll have to retain an attorney to fight like pit bull on your behalf. Either way, you should take a few minutes and read Haddad v. Wal-Mart Stores, Inc., SJC No. 10261A., decided last week.

It's all here: how competent and careful attorneys bill their time, the degree of attention with which lawyers pick over bills submitted by their prevailing opponents, how courts do their best to reach rough justice and make both sides feel like they've won (or lost). After reading it, you may feel like you need to take a shower. Or, if you're like me, you might revel for a moment in the messiness of our very public legal system.

Some Thoughts On Martha Coakley

2010-01-20T08:33:00.005-05:00

In the middle of October, I received a call from a reporter for a major local publication. He had seen this post and seemed to expect that I would have bad things to say about Martha Coakley, who at that point had not yet won the primary election. Coakley, remember, had a rough time when she argued in front of the Supreme Court, at one point not knowing the answer to a predictable question and at another misstating the record and being corrected by the Chief Justice.

I was reluctant to criticize the Attorney General, in part due to cowardice and in part because arguing in front of any appellate panel is an immensely difficult skill to master. Much less the United States Supreme Court. So I wouldn't give this reporter the juicy quote he unabashedly sought and he moved on.

But I had misgivings. The Attorney General's performance before the Supreme Court was a signal that something was amiss. Perhaps it was a lack of diligence. Or an inability to engage in complex strategic thinking. Perhaps it was a lack of respect for an important institution. Or all three. Or something else. Whatever it was, I was spooked. My vote in the primary reflected that.

There are smarter, snarkier, more eloquent folks than me spilling bytes and barrels of ink about HOW ON EARTH THIS HAPPENED. It could have been a wave (maybe) or sexism (maybe) or tepid support from the party (er, probably not). I find myself returning to that Supreme Court argument. You don't back into a seat in the United States Senate. If you don't work for it -- I mean put every ounce of your being into it -- and you don't understand the strategic significance of looking like you're not working for it, people are going to think that you don't respect them and vote for the candidate who *is* working hard. Which seems to be what happened.

As for Scott Brown, well, he's to be congratulated. I can't restrain myself from providing one word of unsolicited advice to our new Senator: you probably don't want to join Jim DeMint and Tom Coburn's Ayn Rand book club or anything. You are, after all, a Senator from Massachusetts, not Oklahoma. You'll want to have that in mind as you make your way.

Charlie Baker Is Licking His Chops Somewhere (Or Should Be)

2010-01-05T21:21:00.007-05:00

Law-and-order types in the legislature -- and law-and-order types who want to be in the legislature but aren't right now -- should take a look at the Supreme Judicial Court's opinion today in Souza v. Sheriff of Bristol County, No. SJC 10508, helpfully reproduced by Adam Gaffin at Universal Hub.

The Court affirmed the trial court's determination that the "sheriff lacked authority to impose the cost of care, medical care, haircut, and GED fees" on inmates. But it didn't hold that such fees were unconstitutional. No -- just that the legislature hasn't authorized the sheriff to collect them. If there *isn't* some diligent staffer drafting a bill at this very moment, I'd be a bit surprised.

Save Your Work!

2009-12-22T14:12:00.002-05:00

This case will probably settle now, yes? Otherwise we're all going to have to reacquaint ourselves with WordPerfect. I'm trying to think of another distinct consumer product (as opposed to a brand or company) that has ever been as dominant in its field and generally ubiquitous as MS Word has been for the last ten years. Maybe Kleenex at some point? The iPod?

Separation Of Powers Is More Interesting Than Charles Nesson*

2009-12-07T20:52:00.005-05:00

Adam Gaffin at Universal Hub points us to Judge Gertner's decision today in what will probably be come to known as the Charles Nesson file-sharing case (but for now is just Sony BMG Music Entertainment v. Tenenbaum, D. Mass. No. 07-CV-11446-NG). There's all manner of juiciness in the discussion of Professor Nesson's performance as trial counsel.**

But it's a good indication of the magnitude of my nerditude that I found the following graph on page 35 of the opinion to be way more interesting:

As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores -- Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.” Sony, 464 U.S. at 430-31. It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.

I'm really not all that sure how I feel about Article III judges telling Article I legislators what to do. Though not a huge believer that judicial activism poses a danger to the Republic, I do suppose it's not that far of a leap from telling Congress to change a statute in an opinion to just going ahead and invalidating it yourself. Which, by the way, is the right thing to do if the statute offends core constitutional principles. At least until Marbury v. Madison gets flipped.***

*He might agree with that, by the way.

**Prof. Nesson seems to have represented Judge Gertner before the First Circuit in 1984. See In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984). Slightly awkward, no?

***You chuckle, but it could happen. You know it could.

Supreme Court Abolishes Michigan Trial Court*

2009-12-07T20:01:00.003-05:00

Today, in Michigan v. Fisher, U.S. Supreme Ct. No. 09-91 (pages 11 -18), seven members of the U.S. Supreme Court decided that they were better judges of a police officer's credibility than the trial judge who heard the actual evidence.

The whole thing stems, as is often the case, from a police officer's decision to enter a house without a warrant. The trial court held an evidentiary hearing and found that the officer's belief that someone was inside the house in need of immediate aid to be objectively unreasonable. Six years later, seven judges who sit four hundred miles and three states away -- not one of whom has served as a trial judge -- disagreed. The one justice who *has* presided over any significant number of trials and evidentiary hearings, Justice Sotomayor, dissented.

The majority's rationale is captured in a sentence on the final page of its opinion: "It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here." Justice Stevens dissented (joined, again, by Justice Sotomayor). "[I]t is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind," Justice Stevens wrote. "We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court."

It's surprising that there were only two dissenting justices here. I'm ready for just about anything, but a universe in which any five justices can flip a state trial judge's findings of fact that they find disagreeable or contrary "to the needs of law enforcement", that's a bit much even for me.

*Kidding!

So . . . How Was Your Fall?

2009-12-07T19:51:00.004-05:00

I read some post somewhere by someone I trust and it was about the top five indicators that a blog is fading away. The winner going away was "Posts become infrequent." Uh. Yeah.

Thus begins my attempt to debunk conventional wisdom, subvert the dominant paradigm, and stick it to the man.

Shocker? Not So Much

2009-07-27T10:03:00.005-04:00

Here's the latest breathlessness from the Herald on the Gates fiasco. This is a situation that generates more questions than answers, but let's add a few more to the mix.

Is the witness trying to exonerate herself because she didn't mention the race of the people on the Ware Street porch? Does this mean race had absolutely nothing to do with it? Does the witness call the police if she sees a 58 year-old white guy in glasses and a little polo shirt trying to force his door open?

And did she really and truly have to retain an attorney? Was that the only way she could let the whole world know that she has “olive-colored skin and is of Portuguese descent”?

Let's just all have one last good collective cringe and move on. Okay?

UPDATE: A typically excellent and thoughtful post from Dan Kennedy here.

Gates

2009-07-21T08:32:00.006-04:00

Wow. That's just about all I can say after reading these stories about the arrest of Henry Louis Gates at his home a few days ago. Some thoughts:

1. To say that Gates has the better of the two arguments here would be a laughable understatement. He showed the arresting officer his license and Harvard ID card, and the good Officer Crowley continued to question him? And then Officer Crowley arrests Gates because he's yelling at him? That's a joke. And a bad one, at that. Just turn around. Get back in your cruiser. And drive away.

2. Cambridge had better lawyer up. It was bad enough that its officers seem to have accosted a high-profile public intellectual in his home. But then they arrested him? And charged him? I hope the city has insurance (with high coverage limits) for this sort of thing.

3. The person with the hardest job in Eastern Massachusetts today is Gerard Leone. He's going to alienate someone before the day is over. Even if he just sits in his office and refuses to comment.

4. If the arraignment does go forward on August 26, 2009, it might be the slightest tad bit chaotic, no?

5. Cambridge should call John Linehan and ask for the number of his PR people. Because this is officially a fiasco.

6. Police officers have incredibly difficult jobs. But this is America and we're allowed to criticize them when they seem to do stupid things. Those traditionally sympathetic to law enforcement might keep that in mind.

UPDATE (12:30 p.m.): Charges dropped. There's your answer to No. 3.

It Happened Here, Too

2009-06-30T08:57:00.002-04:00

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.

Decisionism Is Just Like Mark Sanford*

2009-06-25T16:45:00.005-04:00

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.

Oh, Please

2009-05-30T08:52:00.004-04:00

It borders on preposterous that on the morning after a respected and reliable Supreme Court observer publishes this post and this one, the supposed paper of record puts this on its front page. That darn liberal media strikes again!

Note To Self

2009-05-27T20:14:00.005-04:00

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!

An Actually Big Development

2009-05-22T20:09:00.007-04:00

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.

Tradition!

2009-05-19T20:28:00.004-04:00

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.

Pro-Business Court? Eh.

2009-05-18T20:28:00.007-04:00

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?

Does The Spread Offense Violate The Constitution?

2009-05-11T20:21:00.003-04:00

Is the comment board of a Michigan football blog a secret bastion of sophisticated jurisprudential debate? And you're surprised by this?

Gratuitous Guidance From The First Circuit

2009-05-08T17:10:00.004-04:00

There's a terrific sequence in this morning's decision by the First Circuit in LPP Mortgage, Ltd. v. Sugarman, No. 08-2134. The Court was faced with a situation in which the parties disagreed about whether Maine or Massachusetts law applied to their dispute, and the district court decided to use a hybrid of the two. "Neither side complains about this approach on appeal," the Court writes, "and we mention it only because both sides were probably wrong." (emphasis mine).

See, this was one of those rare instances where federal common law applied to the claims in question. No real harm done, but it always stings a bit to have a judge tell you that you whiffed on an argument.

Yes: You Gotta Read The Errata

2009-05-06T20:24:00.005-04:00

This post from a little over a month ago discussed a couple of Chapter 93A points from the TJX identity theft case. Yesterday, the First Circuit issued its "errata" from the initial opinion. But the errata aren't really errata.

Instead, the Court expands quite substantively on the significance of Federal Trade Commission complaints and consent decrees in the analysis of Chapter 93A claims. The Court replaces two terse paragraphs spanning about a page with five longer paragraphs that run for three and a half pages. What prompted this? It looks like it was TJX's petition for a rehearing (which you can find if you have a PACER account). The response to that petition appears to have been: "Yes, TJX, we'll give you a rehearing. Thanks for the brief! We've reviewed it and we're still ruling against you."

The panel goes a few clicks further than that, though. It emphasizes the magnitude of the plaintiffs' allegations against TJX:

If the charges in the complaint are true (and obviously the details matter), a court using these general FTC criteria might well find in the present case inexcusable and protracted reckless conduct, aggravated by failure to give prompt notice when lapses were discovered internally, and causing very widespread and serious harm to other companies and to innumerable consumers. And such conduct, a court might conclude, is conduct unfair, oppressive and highly injurious--and so in violation of chapter 93A under the FTC's interpretation.

Emphasis mine. But I'm still not clear on what the erratum was.

People And Guns Killing Each Other

2009-05-05T20:17:00.004-04:00

You may remember this post from a few months ago about Bristol County's effort to argue that possession of an unlicensed gun entitles the district attorney to hold offenders without bail pending trial. A Superior Court judge didn't buy the argument. Neither did the SJC, as it revealed yesterday in Commonwealth v. Young, No. SJC-10147.

The question, again, is whether unlawfully carrying a gun is a "felony that by its nature involves a substantial risk that physical force against the person of another may result . . . ." Four of the five justices answer in the negative. They write that the crime of unlawful possession is "passive and victimless." In support of this argument, they persuasively tell us that "the motive of an unlicensed possessor is totally irrelevant to criminal liability . . . ." At the end of the same paragraph, they sort of go off the cliff, though: they tells us that a person who is lawfully possessing a gun might use it for an unlawful purpose. Maybe the point of this digression was edited out. Maybe I'm dense. I'm not seeing the significance of that.

Justice Cowin dissents. And her dissent is the more interesting of the two opinions. She makes it quite clear how she feels about all of this. She says:

The majority's "conclusion may well come as a surprise to those escalating numbers who are victimized, or who have observed others victimized, by the use of unlawfully possessed firearms, as well as to those whose reading of the daily newspaper communicates the stunning social costs of our failure to address seriously the problems associated with the alarmingly increasing use of such weapons."
"The court does not address effectively either the obvious relationship between unlicensed firearms and their use in violent behavior or the alarming proliferation of such weapons and their use in antisocial activity. Instead, the court resorts to a most subtle distinction between possession of an unlicensed firearm and the use of that firearm. Ante at. Reduced to its minimum, that is simply a reiteration of the tired slogan that 'guns don't kill people, people do.' We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed."
"[A] fair reading of the statute would reject the pretense that a firearm is some neutral piece of equipment that is harmless in and of itself, and would recognize at a minimum the deadly sequence that so often follows on the possession of an unlicensed firearm."

The prose is pretty compelling. The certitude of the dissent, however, doesn't quite work. Because this is a tough issue. "Try as I might," Justice Cowin writes, "I cannot understand how possession of a firearm in violation of applicable licensing law can constitute anything other than a substantial risk that the firearm will be used to effect 'physical force against the person of another.'" That's a candid admission of where she's coming from.

But then Justice Cowin says: "When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon's existence." In Justice Cowin's analysis, it looks like a person who lets her registration lapse on a handgun that never leaves her house and is used entirely for self defense in the event all hell breaks loose would have to deal with defending herself at a dangerousness hearing. And that doesn't feel right.

Part of the problem here is the squishy language of the statute. A "substantial risk"? That physical force "may result"? That can mean anything. And when you're talking about taking away a person's freedom, that can't be okay.

A rather hilarious final point is found in Footnote 13 of the majority's opinion: "We note that this case does not require us to decide whether the possession of a pipe bomb, silencer, sawed-off shotgun, or other instrumentality that is generally associated with violence and has little socially useful value, constitutes a predicate offense." That sentence would have made sense if the Court had left out two word: "pipe" and "bomb". A guy with a pipe bomb is dangerous. Period. End of discussion.

Santelli-Glendon 2012!

2009-04-27T14:56:00.005-04:00

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.

See! Some Lawyers Can Write

2009-04-22T20:43:00.006-04:00

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.

Why Lawyers Are Nuts About Spotting Every Possible Issue

2009-04-21T20:12:00.006-04:00

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."

Bye-Bee?

2009-04-20T20:07:00.003-04:00

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.

First Circuit Friction

2009-04-14T20:50:00.005-04:00

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.

Decisionism Gets Ink, Or Bytes, Or Whatever

2009-04-13T20:56:00.002-04:00

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.

Why Decisionism Exists

2009-04-06T20:37:00.005-04:00

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.

Scalia v. The English Language

2009-04-01T20:34:00.005-04:00

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.

Two Less Exciting Points From The TJX Identity Theft Case

2009-03-30T20:21:00.004-04:00

The First Circuit handed down an opinion in connection with the TJX identity theft debacle from a few years ago. The case is In re: TJX Retail Security Breach Litigation, No. 08-2828. Everyone probably remembers the facts, but here's a link to a contemporaneous news account. If you're looking for sexy talk about identity theft, though, you ought to move along.

Now: If you're an attorney and your practice rubs up against commercial litigation, you should skip to page 14 of the opinion. There you'll find a couple of important statements by the First Circuit concerning Chapter 93A, the unfair business practices statute. First, the Court makes it clear that 93A claims need not be based on "egregious" conduct. But the Court doesn't go very far in clarifying what types of unfair conduct do manage to clear the statutory hurdle. "[S]ystematic recklessness may suffice." Might it? Hmm.

Second, the Court discusses the requirement that the unfair act(s) in question must happen primarily and substantially in the Commonwealth. Here we get a bit more clarification, but only a bit. Apparently the requirement is satisfied if a defendant has an office in Massachusetts -- even if the bad acts didn't happen at that office. Communicating with someone via servers located in Massachusetts also seems to get you there. That's good to know, too. Is it entirely consistent with the statute's language? Again: hmm.

Working Mothers: Rejoice

2009-03-26T20:47:00.006-04:00

The First Circuit emphatically supported working mothers today in Chadwick v. Wellpoint, Inc., No. 08-1685. The plaintiff was passed over for promotion and she sued her employer. The trial court dismissed her suit even though she alleged that when her boss explained why she hadn't gotten the promotion, she said "It's nothing you did or didn't do. It was just that you're going to school, you have the kids* and you just have a lot on your plate right now."

The First Circuit reversed, and Judge Stahl was quite clear as to why the Court ruled as it did. And he found the point important enough that he repeated it over and over:

On pp. 9-10: "[T]he assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and that adverse job actions on that basis constitute sex discrimination."
On p. 11: "[U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities."
On p. 11: "[A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities."

It's honestly a little bit surprising that the defendants moved for summary judgment on this record. Though I suppose they can take some cosmic solace in the fact that there was at least one judge out there who thought they should win without a trial.

*The plaintiff has four of them, including triplets. After learning about the triplets, one of her superiors e-mailed her and said "Bless you." Here's what the First Circuit made of that (footnote 10): "The district court erred by concluding that the 'Bless you' comment was was conclusively a 'friendly exclamation.' This is a factual conclusion that a judge at summary judgment is not free to make."

No Mulligan For Staples

2009-03-24T14:02:00.004-04:00

The First Circuit has denied rehearing in Noonan v. Staples, Inc., No. 07-2195. It did so last week, but the order itself appears to have been released to the masses today. The Court's earlier decision, which was surprisingly controversial (surprisingly because the First Circuit did little more than apply a really, really old statute's plain language), therefore stands.

Some Of My Best Friends Are Supreme Court Justices*

2009-03-23T20:16:00.006-04:00

What of Rep. Barney Frank's assertion that U.S. Supreme Court Justice Antonin Scalia is a "homophobe"? This may have been impolitic.** It may have been rude.*** But let's look at the data.

Here's what Justice Scalia said in his dissent in Romer v. Evans:

"This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality . . . is evil. I vigorously dissent."

And:

"Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before."

What was Amendment 2? It basically said that no city or town could pass legislation protecting gays and lesbians from discrimination.

Well, we've all said things we regret. But Justice Scalia doesn't regret a single morsel of what he said in Romer v. Evans. So a few years later, in Lawrence v. Texas, he said:

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Are these the words of a homophobe? Justice Scalia has at least one prominent conservative defender. But as of right now, most of the conservative corners of the blogosphere are so outraged by Rep. Frank's comment that they haven't even weighed in on it.

UPDATE (8:45 a.m.): Not quite outrage, but some typical pseudo-agnostic snark from the Instapundit.

UPDATE (10:14 a.m.): This, from the Corner, approaches outrage, but not head-on.

*Not really. That might be cool, though.

**No way. Barney Frank said something impolitic?

***See ** above.

Way, Way Off Topic

2009-03-23T14:26:00.004-04:00

The Ann Arbor News is dead. This will be bittersweet news for anyone who attended the University of Michigan. By the mid-1990s the News already seemed to be behind the curve, so one can only imagine how it's been dealing with things over the past five years or so. Brian at MGoblog, which/who is awesome and is what would have happened had David Foster Wallace said "Screw it. I'd rather blog about Michigan football than write 1,000-page epic novels", has more.

So here's the question: what's killing newspapers? Folks have offered the following explanations (and often amalgamated them):

1. Not charging for web content.
2. Explosion of web competition, which eliminates the ability to break news and is a brain drain (especially for sportswriters).
3. Craigslist and the annihilation of classified advertising.
4. The death and consolidation of the department store chains and the zillions of pages of ads they reliably bought.
5. Teh liberal bias.
6. The increasing vapidity of the American people.
7. Unions.
8. Arrogance.
9. Evil venture capitalist vultures who blew up newsrooms to try to make a profit.
10. The price of newsprint.
11. The evil recession.

What's pretty telling is that we're seeing one or two major newspapers close or implode or declare bankruptcy every week, newspapers that twenty years ago seemed darn near indestructible, and/but not a whole lot of people seem to care. And other than the excruciating employment implications for those directly affected, it's tough to construct a non-atavistic argument for why they should.

Form, Function & Aesop

2009-03-12T20:24:00.004-04:00

Lynn still has a race-based school assignment policy. Some parents filed suit against Lynn several years back and the First Circuit, en banc, upheld the policy in 2005. The parents appealed to the Supreme Court. The Court denied certiorari. And that was that.

In 2007, however, the Supreme Court struck down raced-based public school assignments in Seattle and Louisville "that bore a distinct resemblance to" Lynn's policy in Parents Involved in Community Schools v. Seattle School Dist. No. 1. Justice Thomas explicitly called out the First Circuit in his concurring opinion. He said that its decision on the Lynn case was "inimical to the Constitution."

So the parents sought to reopen their case. The trial court denied their request. Today, in Comfort v. Lynn School Committe e, No. 08-1735, the First Circuit affirmed the trial court. The Court's reasoning, in short, is that when the Supreme Court denied review of the Lynn case in 2005, it was over. The Court concludes with a footnote that chides the plaintiffs and says all they have to do is file a new suit challenging the assignment policy. "With that option open but unutilized," writes Judge Selya, "the plaintiffs claims of inequity ring hollow."

This is entirely correct from a technical perspective. But is it really fair? Is the First Circuit putting form over function? Would it be less fair if the "inimical" comment had come in the Supreme Court's majority opinion and not a concurrence by Justice Thomas? And might there be an implicit recognition here by the First Circuit that just because the Supreme Court struck down similar policies in Seattle and Louisville, that doesn't mean the Lynn approach is unconstitutional? Or is it just that our commitment to the common law -- as in The Common Law -- will inevitably on occasion cause us to furrow our collective brow?

Decisionism Sees Moxie And Confusion Everywhere

2009-03-10T20:23:00.007-04:00

There is an absolute privilege protecting statements made in connection with pending good faith litigation. This applies to statements made before the plaintiff even files her lawsuit. It applies to slander claims, yes, but also other claims (like tortious interference) that are based on the supposedly slanderous statements.

This is the basis for the Appeals Court's decision today in Visnick v. Caulfield, No. 07-P-1648.

The defendant claimed that the plaintiff sexually harassed her during a job interview at the Cambridge Center Marriott. She sent Marriott a letter and then filed a discrimination charge with the EEOC in May 2005. The defendant (who was confusingly the claimant in the EEOC proceeding) settled with Marriott at some point thereafter, probably based at least in part on the fact that Marriott had terminated the plaintiff (who doesn't seem to have been a party to the EEOC charge) a couple of months earlier.

The plaintiff responded by filing a lawsuit against the defendant (the woman who complained that he had sexually harassed her; is this too confusing?). Which is how the whole absolute privilege issue enters the mix and how the plaintiff loses this case.

One slightly frustrating aspect of this opinion is that it doesn't explain its conclusion that the defendant was clearly acting in good faith when she filed her EEOC charge. That's a tough issue to decide on summary judgment, and the Appeals Court gives us no sense of how it arrived at its conclusion. If a reasonable juror could have concluded that she wasn't acting in good faith, that ought to change things. So: NEI.*

FINALLY: None of this is to say that it isn't objectively, er, problematic to file a slander lawsuit against someone who accuses you of sexual harassment and gets you fired. Because it is.

*Not Enough Information. Sort of the opposite of TMI.

Decisionism Plays Beautiful

2009-03-09T21:13:00.005-04:00

If you spend a lot of time furrowing your brow about litigiousness, Welch v. Sudbury Youth Soccer Ass'n, Inc., SJC No. 10242, is not a case you should read any time soon. The only thing reading this case will accomplish is it will make you furrow your brow a little bit more. If on the other hand you don't shake your head a little bit after you read the first couple of graphs, you either are or should be a plaintiffs' side personal injury lawyer.

But the essence of it all is that kids play soccer. And they get hurt playing soccer. All kinds of crazy ways. If every one of these kids had parents who sued the league when their kid hurt himself, there would be no soccer leagues. That would be a bummer. Even to someone who doesn't entirely understand soccer.

California Marriage Case

2009-03-05T20:26:00.002-05:00

Apparently it's marriage week here at Decisionism.

Dale Carpenter has a couple of very illuminating posts up at Professor Volokh's place on the effort to overturn California's Proposition 8. Here's more of a straight news story on today's oral argument. Andrew Sullivan rounds things up here.

Two unsurprising things we learn:

1. Ken Starr thinks that California's protection of free speech could be overturned by a majority vote. Now remember that Judge Starr had the fate of the most powerful man in the world in his mitts for the better part of a year. How awesome is that?*

2. Jerry Brown is a buffoon, a well-intentioned buffoon.

*And by "awesome", I mean "completely horrifying".

Credit Where Due. Maybe.

2009-03-04T20:18:00.003-05:00

Justice Clarence Thomas has been the unwitting beneficiary of quite a bit of criticism in these virtual pages. So we must give him proper credit for his concurring opinion in Wyeth v. Levine, No. 06-1249. The basic issue was whether a plaintiff could bring a state law tort claim based on a faulty drug label where the FDA had approved the label in question. Six justices said yes. Three said no. And Justice Thomas did something not enough judges do. He supported a legal result that (probably) contradicts the public policy result that he would (probably) prefer and voted with the majority. So: GOOD JOB Justice Thomas.

If you want to be all cynical about it, ask yourself if Justice Thomas would have taken this principled stand if he'd been the fifth vote for the plaintiff here. Was Justice Kennedy's vote the platform that enabled Justice Thomas to leap out into the abyss? Just askin'.

G.L.A.D. v. D.O.M.A.

2009-03-03T20:20:00.005-05:00

Okay. So today, a number of Massachusetts plaintiffs filed a lawsuit challenging the constitutionality of the Federal Defense of Marriage Act.* The case has been assigned to Judge Tauro. The complaint can be found here. G.L.A.D. has a spiffy website up here.

If you are generally sympathetic to gay rights and your first reaction was NOOOOOO!, you may not be alone.** The conventional wisdom is that we have a pretty conservative Supreme Court. But that gets punctured a bit when you look at gay rights cases. If you read the majority opinion in Lawrence v. Texas (especially the pretty majestic third-to-last paragraph), and remember that counsel for the plaintiffs in that case wept tears of joy while Justice Kennedy read it from the bench, you might start to think that these plaintiffs, well, they have a shot. Don't they?

First order of business: watching the Obama Administration agonize about how to respond.

*Signed into law by Bill Clinton on September 21, 1996. What was going on in 1996? That was an election year? REALLY?!

**If you are neutral on the issue or unsympathetic, your reaction probably involved some grumbling about activist judges and then you went on with your day. That's cool. This is America, after all.

One First Street Snow Globe

2009-03-02T20:06:00.004-05:00

It's good that the Supreme Court posts opinion transcripts. Otherwise big nerds would have nothing else to post about on days that are a bit thin in the opinion department.

In any event, today the Court heard oral argument in District Attorney's Office for the Third District et al. v. Osborne, No. 08-6. The transcript is available here. You might have heard about the case. The shorthand issue is whether a person in prison should have a constitutional right to access DNA evidence after he/she has been convicted. The shorthand response is: "Yes. Duh." But this is not as simple a case as it seems. Consider the following wrinkles:

Wrinkle 1: The convicted guy, the respondent, has thus far not sworn under the pains and penalties of perjury that he is actually innocent and that a DNA test would exonerate him.

Wrinkle 2: The respondent had an opportunity to do a DNA test at trial and decided, on the advice of counsel, not to.

The transcript is fascinating in that it is the Court crystallized in miniature. Justices Ginsburg, Souter, and Stevens are generally sympathetic to the idea of a constitutional right to post-conviction DNA evidence. Justice Breyer spins out wacky hypotheticals and tries to find middle ground. Justices Roberts, Scalia, and Alito are generally unsympathetic to the idea of a new constitutional right.

Justice Thomas asks no questions.

And then there's Justice Kennedy. He's mostly quiet during the arguments of Alaska's Assistant Attorney General and the Solicitor General. Then, during the respondent's argument, he pounces. He sees the potential for criminal defendants to game the system, to "shoot the dice" and avoid DNA evidence at trial on the theory that they can always get it post-conviction.

When Alaska rebuts (pages 62-65), though, the entire landscape of the case changes. Justice Kennedy asks Alaska if it would provide the DNA evidence to the respondent if he submitted a sworn affidavit tomorrow. Alaska haws and hems. And this clearly upsets Justice Kennedy.

The question thus becomes: does it upset him enough to tilt the balance?

A Weird Couple Of Weeks For The First Circuit And The First Amendment

2009-02-25T20:38:00.005-05:00

The First Circuit handed down another First Amendment decision today in Del Gallo v. Parent, No. 08-1511. There are a couple of disconcerting things about this opinion.

The first is that it looks a lot like the plaintiff's utterly bizarre campaign conduct had as big an effect on the panel's decision as the actual substantive law. The plaintiff was campaigning for the Governor's Council.* He was hectoring postal patrons and employees in the process. But what if the plaintiff had been a gentle-hearted, polite, intelligent elderly woman? The case might have come out differently.

Here's why: because the postal service regulation in question looks a lot like a content-based restriction on speech. The regulation bars campaign activities in sidewalk areas on postal service property. The First Circuit says on page 29 that "[t]he regulation, which bars election campaigning regardless of the identity of the candidate or the opinions he espouses is clearly viewpoint neutral." This points to a gaping hole (one of many) in current First Amendment jurisprudence: the strained construction of viewpoint neutrality. The reg prohibits campaign speech. It does not bar speech about music. It does not bar speech about birds. No. Just campaign politics. And yet the regulation is called viewpoint neutral. Which is right: unless your viewpoint is that you would rather talk about campaign politics than birds.

There were some other openings here for the First Circuit to hold for the plaintiff. It avoided them all. Which is kind of what the first point is about.

*Why? Because as George Mallory said, it is there. See here for more on this esteemed government body.

Coakley And The Supremes Deliver A Blow To Casino Gambling

2009-02-24T20:10:00.008-05:00

Today the U.S. Supreme Court handed down its decision in Carcieri v. Salazar, No. 07-526. The issue was whether the U.S. Department of Interior could acquire land and hold it in trust for the Narragansett Indian Tribe even though the Narragansetts weren't federally recognized when Congress passed the Indian Reorganization Act in 1934. The case turns on a single word of the Act: "now". The nut of the issue is whether "now" means when the statute was enacted in 1934 or if it is ambiguous and can mean when the Department wants to acquire the land in question.

That's the legal issue. The practical issue is that casino gambling in Indian Country becomes a much tougher proposition under the former interpretation than the latter. The Supreme Court adopted the former interpretation, and the Mashpee Wampanoag are not happy about it.*

The Breyer concurrence (it starts on page 20) makes some sense. He notes that the guy from the Department of Interior who suggested the provision in question way back when "subsequently explained its meaning in terms that the Court now adopts." Of course, Justice Thomas, who wrote the majority opinion, does everything he can to discount the importance of this, er, pretty important fact. Why? Because he hates relying on legislative history that much.

An interesting side note here is that Attorney General Coakley signed on to an amicus brief in support of the Rhode Island position and against the Narragansett position. You can sort of see why she signed on to the brief. Acquisition by the Department of Interior effectively takes the land in question outside of her jurisdiction. But here's the rhetorical question: have we not done enough to screw over the Narragansetts (and the Wampanoags, the Seminoles, the Sioux, and on and on . . .) that we ought to let them build a casino? Or, like, a lot of casinos?

*Note to Matt Viser and the Boston Globe: there are nine Supreme Court justices. Three of them dissented, at least in part. So this was not a 6-1 decision. It was a 6-3 decision. Just because you didn't understand what two of the justices did doesn't mean you don't count their votes. Also: why no quote from Coakley? Finally: monitor your comments; some of them here are pretty offensive.

UPDATE (11:06 a.m.): Matt Viser corrects the vote count in his print piece. Still no quote from Coakley's office, though.

Everyone Needs To Calm The Heck Down

2009-02-23T17:05:00.004-05:00

The world seems to have lost its collective marbles over the First Circuit's recent decision in Noonan v. Staples, Inc., No. 07-2159. The decision refers to Mass. Gen. Law ch. 231, Section 92 and reminds us that truth is not an absolute defense to libel in Massachusetts.

Okay.

What does the statute say? "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved." It dates from 1855.

So if you say or write something about a private citizen in Massachusetts and what you say happens to be defamatory and you say it with actual malice, you can't use truth as a defense. Massachusetts is pretty unique in this respect.

Massachusetts is also pretty unique in its failure to recognize a cause of action for "false light". That is, in Massachusetts as opposed to elsewhere, you can't win a lawsuit against someone if they something true about you that casts you in a false light. Might that be related to Section 92? It just might.

What's interesting about the uproar is that the First Circuit's interpretation is nothing new. The statute is 150 years old, after all. It hasn't just been sitting there up until now: if you take a spin through cases that cite to Section 92, you'll notice that courts recognize the weird uniqueness of the law and then move on. If this were as big a deal as the commentators seem to think, you can bet that Judge Lipez (who was also on the panel and who knows what he's doing) would have dissented or at least concurred.

But the real thing to keep in mind here is that this situation is about as fixable as can be. We don't have to wait around for decades for the right case to come along, pray that the SJC or the U.S. Supreme Court agrees to review it, and then cross our fingers and toes and hope that they get it right.

No. All we have to do is change the statute. So if you're that upset about the Noonan decision, go work on that. This blog will support you 100%.

A Post Repeatedly Using The Word "Bizarre"

2009-02-05T17:52:00.004-05:00

A pipeline rupture. A cautionary tale.

It's bizarre enough that the expert witness in Hammell v. Shooshanian Eng'g Assocs., Inc., Appeals Ct. No. 07-P-147, changed his opinion two weeks before trial. It is also bizarre, but not surprising, that this opinion change benefited the expert's client, one of the defendants. It is very bizarre that the expert witness waited until he was actually on the witness stand to disclose his new opinion to the parties and the jury. It is very, very bizarre that the judge allowed him to do so.

But there are two especially bizarre aspects of this case.

First, the University of Massachusetts, which was ultimately found liable by the jury, knew that the expert in question (and another expert to be offered by another defendant) was going to nail it with responsibility for the pipeline rupture. The responsibility was also allocated to two of the other defendants (including the expert's own client), but still. UMass should have hired an expert and didn't. Bad idea.

Second, the jury seems to have believed the expert who had that last minute realization that, oh, just so happened to exonerate his client. You can almost excuse this given UMass' strange decision against hiring an expert. Almost, but not quite.

Glenn Reynolds: Not Paying Taxes Is Just Like Waterboarding

2009-02-03T20:17:00.005-05:00

Prof. Glenn Reynolds is actually a really smart guy. Just look at his bio. His problem is that he seems to derive irrational amounts of enjoyment from provoking people on the left side of the spectrum to call him an idiot. He is not an idiot. He just says idiotic things sometimes.

Like today. Setting up a false moral equivalence between Bush administration officials legalizing aggressive interrogation techniques and Obama administration officials failing to pay taxes may entertain some minuscule sector of the populace. It may be grade-A quality snark. Let's give him that. But it's doubtful that he actually believes it.

Eggplant Is Obscene, Though

2009-02-02T21:18:00.004-05:00

Think about this for a second.

Let's say our congresspeople decide that the most offensive thing in the universe is eggplant. That eggplant -- raw, cooked, smoked, braised -- is obscene. So obscene that it's dangerous. So obscene that any person having eggplant images on his hard drive has committed a federal crime.

Now say a friend of yours who likes to spend time in the kitchen sends you an e-mail with a .jpg attachment. And that .jpg attachment depicts your pal's unfortunate attempt at eggplant parm. You click the attachment. You look at the eggplant. You are disgusted.

Today the First Circuit confirmed in United States v. Lewis, No. 07-1462, that the use of the internet to convey such an image would satisfy the statutory (and constitutionally-mandated) requirement that the crime affect interstate commerce. Because sending an e-mail over the intertubes constitutes engagement in interstate commerce.

Read that last sentence again. And think about whether there are five United States Supreme Court Justices who would agree with it.

Elections Do Matter

2009-01-28T17:08:00.004-05:00

A couple of years ago, the Supreme Court held that the 180-day limitations period for pay discrimination claims ran from the date that the employee receives her paycheck. This was true whether or not the employee knew that she was being paid less than her male counterparts. The case was Ledbetter v. Goodyear Tire & Rubber Co. Orin Kerr thinks it was a close call.

Justice Ginsburg dissented at the time and didn't think it was such a close call. Toward the end of her dissent, she wrote: "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad purpose. Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."

That is exactly what happened today. Congress didn't just reverse the holding of the Ledbetter case, it kicked the case where it hurts. The law applies to all cases filed since the day before the Court decided Ledbetter. And in one of the whereas clauses, Congress states that the decision "ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended."

Random Question About Mr. DeLeo And Boston Latin

2009-01-27T08:51:00.006-05:00

There are a couple of articles about Robert A. DeLeo in the Boston Globe today. Mr. DeLeo is the state representative who appears to be in the best position to snag the speakership in the wake of Sal DiMasi's departure.

This profile of him by Matt Viser is interesting. First there's this sentence: "He drives an olive-colored Ford Explorer and lives in a modest house on the North Shore, which he grew up in as a child." Not so clear, right? If the man grew up in the Explorer, well, that'd be a heck of a story.

But here's the point: further down, the article notes that Mr. DeLeo is "[a] graduate of Boston Latin". If he grew up in Winthrop, how can that be? Is the Boston residency requirement a recent development? Someone who knows more about the school's history might be able to help out with this.

In any event, best of luck to Mr. DeLeo. Based on the circumstances under which his predecessors departed, he'll probably want to lawyer up ASAP.

Andover Student Enables Confirmation Of Common Sense

2009-01-23T16:32:00.005-05:00

The SJC's decision that being on the high school swim team isn't a constitutionally protected property interest shouldn't surprise anyone. The case is Mancuso v. Massachusetts Interscholastic Athletics Ass'n, SJC No. 10151.

What's surprising is that two states -- Kansas and New Hampshire -- have held that participating in interscholastic sports is a protected property interest. Massachusetts joins California, Illinois, and Pennsylvania among those states that disagree.

Things You Hope Your Kid Won't Learn At School Today

2009-01-16T11:14:00.002-05:00

Commonwealth v. Kaupp, SJC No. 10177, is an interesting case in that it's one of those rare instances in which the SJC flips a conviction based on the trial court's failure to suppress evidence.

Don't expect paper copies of the opinion to be included in the promotional materials distributed by Wakefield's Northeast Metropolitan Vocational High School, however. Yikes.

Supreme Court Causes Head Scratching

2009-01-15T08:58:00.003-05:00

Just a completely bizarre lineup in Oregon v. Ice, Supreme Ct. No. 07-901. The issue, broadly stated, is the role of juries in sentencing decisions. The majority (Ginsburg, Stevens, Kennedy, Breyer, Alito) allowed the judge to impose a harsh sentence in a case involving sexual assaults of an 11-year-old girl. The dissenters (Scalia, Roberts, Souter, Thomas) said this determination should have been left to the jury.

It is really difficult to find the dividing line here. Can it really just be a matter of stare decisis? One thing is for sure, though: when you see Scalia, Roberts, and Thomas dissenting and making vigorous statements regarding the procedural rights of criminal defendants, something strange is going on.

Finally: apologies for the absence of posts thus far this week. Actual work must be done.

The Commonwealth Beats Back Rampaging Visigoths

2009-01-08T20:34:00.003-05:00

And by "rampaging Visigoths", we mean Capital One Bank. The case is Capital One Bank v. Commissioner of Revenue, SJC No. 10105.

The essence of the bank's argument was that it shouldn't have to pay excise taxes in Massachusetts because it doesn't have a physical presence or any employees here. The bank argued that in the absence of a physical presence in Massachusetts, imposing the tax would violate the commerce clause of the U.S. Constitution. The commerce clause constrains state regulation of interstate commerce, while at the same time giving Congress insanely broad powers.*

Capital One did not persuade the Court. In a unanimous opinion, the SJC swept aside seemingly pertinent U.S. Supreme Court precedent because sales and use taxes differ from the excise taxes the Commonwealth sought to impose here. The main difference, says the Court, is that the bank only has to pay the excise tax once a year. But that argument, explored in footnote 17 is a bit tough to follow.

What's really going on here? The Court found it compelling that about 450,000 people had Capital One cards as of 1998, at which point Capital One derived about $60 million in income (fees, interest and penalties) from Massachusetts residents. That was enough for the Court to conclude that Capital One's activities had a "substantial nexus" with Massachusetts.

There appears to be about $2 million for the Commonwealth's coffers at stake here. Think we might be able to use that money for something?

*Though not as broad as, say, thirty years ago.

A Closer Call Than It Should Be

2009-01-07T21:40:00.002-05:00

Adam at Universal Hub already has a short post up about the Appeals Court's decision in Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., No. 06-P-1918. It's worth digging into the facts a bit more, since this is one of those rare Appeals Court cases where a justice takes the time and effort to draft a dissent.

The Court flipped a trial judge's decision to reopen a case after it had been dismissed. Why was it dismissed? Because the plaintiff's lawyer, H. Paul Carroll, couldn't manage to properly deliver a copy of the complaint to the defendant after receiving six emergency time extensions to do so.

That's right: six!

Let's run down counsel's reasons for these six extension.

The First One: he needed to talk to an expert and he put down the wrong deadline on his calendar.
The Second One: he still needed to talk to that expert and he'd been assaulted (the lawyer, not the expert).
The Third One: he needed to talk to the expert some more and was in discussions with the hospital to get the complaint delivered informally.
The Fourth One: the sheriff who was supposed to deliver the complaint couldn't guarantee delivery by a certain date.
The Fifth One: recent inclement weather.
The Sixth One: he needed to draft a new complaint that more fully set out the complicated medical issues.

Wow.

By sheer coincidence, there's a lawyer in Newburyport who goes by the name H. Paul Carroll (same guy? maybe?). His website touts his ability to provide timely solutions to his clients, which is a little bit bizarre. There also seems to be a lawyer named H. Paul Carroll (same guy? maybe?) who was suspended by the New Hampshire Bar for failing to pay a special fee after, you guessed it, he didn't file some administrative paperwork on time.

From a strict legal perspective, this is actually a pretty tough case. That's why there's a dissent. This might just be one of those cases, though, were a mechanical interpretation of the law produces a result that wouldn't inspire a whole lot of public confidence in the profession.

New Bedford, Guns & Dangerousness

2009-01-06T20:28:00.005-05:00

We learn from this morning's Boston Globe that there's some concern about the Bristol County district attorney's practice of putting people who illegally carry weapons in jail pending trial. And when the concern emanates from Chief Justice Margaret Marshall, the issue deserves some consideration.

The details from the Globe story are sketchy. The statute in question is G.L. c. 276 s. 58A, but the Globe doesn't tell us that. Section 58A allows prosecutors to ask district court judges to detain defendants before trial if the person is accused of:

a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof . . . .

The article states as a factual proposition that "[t]he state law that established dangerousness hearings was enacted in 1994 to combat domestic violence after several defendants free on bail killed their wives or girlfriends."

Is that true, though?

If it is true, then defendants who are simply caught with illegal guns have a compelling argument to make. If, however, the statute was enacted to protect the general public from violent crime (including, of course, domestic violence) perpetrated by defendants out on bail, generally, the defendants here have a less strong argument.

The defendants want the core question to be whether a person carrying an unlicensed gun is dangerous per se. Because the answer to this is probably not.* If Bristol County and C. Samuel Sutter are smart, they'll make the core question whether dangerous people carrying unlicensed guns can be detained pending trial. The answer to this has to be yes. This is example number ten zillion showing that it's important to be the one framing the issues in a case, whether you're in a small claims session or the United States Supreme Court.

Remember too that prosecutors must prove that the defendants in question (197 alone in Bristol County in the last two years, of which 141 were detained) are dangerous. They don't do so in a vacuum. There are hearings. Defendants are represented by their own lawyers.

The article doesn't provide the slightest indication as to whether this policy is working from an objective standpoint, whether gun-related crime is down in New Bedford and Fall River over the last two years. This apparently was not an important enough detail for John R. Ellement or Jonathan Saltzman to tell us about it. Or maybe it was in a draft and it was a casualty of the shrinking news hole. A quick scan of the Google indicates that crime in New Bedford is down from two years ago, but up over last year. So a mixed bag.

Overarching point: there's some question as to whether current laws regulating gun possession are even constitutional anymore.** But until that gets resolved, or the Heller case is overturned, expect to see a lot of hand-wringing about issues like this.

UPDATE: A helpful commenter points us to this article, which indicates that the policy is working.

*But only probably.

**Before you say "Oh no there isn't", ask yourself whether the Supreme Court has explicitly ruled on this issue. Not posited certain reasonable restrictions where those restrictions weren't actually under consideration. No. Actually ruled on the issue. So, yeah, there's some question as to whether laws regulating gun possession are constitutional.

Alberto Gonzales Can Kiss My Constitution

2009-01-05T20:27:00.004-05:00

Decisionism entertains you (and itself) with Jeopardy-style trivia!

Answer: The law review articles What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses and Faithfully Executing the Laws: Internal Legal Constraints on Executive Power?

Acceptable Question No. 1: What are the two most recent publications by University of Indiana law professor Dawn Johnsen, Barack Obama's nominee to head the Office of Legal Counsel at the Justice Department?

Acceptable Question No. 2: What is yet another ex post rejoinder to all the people (including some pretty smart folks) who said that there wasn't a big difference between Al Gore and George W. Bush. One hopes that commentators will now keep in mind that regardless of how moderate a candidate for president may seem, he or she's going to be appointing people to a lot of momentous positions a couple of steps down the ladder. That is, the people who actually govern and do things like write torture memos.

Acceptable Unprofessional Question No. 3: What makes blog authors cackle and say "Eat it, John Yoo"?

A Thought Or Two On The Burris Mess

2009-01-02T12:34:00.007-05:00

Happy New Year, etc.

So it was looking like the whole should-the-senate-seat-Roland-Burris-? (STSSRB?) mess was headed toward a not very odd partisan divide.* Then Jonah Goldberg had to come in and muck everything up by giving a tepid endorsement to the left-leaning Amar/Chafetz argument concerning STSSRB.** The rightward-tilted Volokh people believe that the answer to STSSRB? is yes. Though they would tend to frame the question as must-the-senate-seat-Roland Burris-? (MTSSRB?). Brian Kalt agrees. And he's a member of the Federalist Society.***

Through a certain ideological lens, it would appear that the Amar/Chafetz interpretation of the impact of Powell v. McCormack on STSSRB? is the right one. Powell v. McCormack, after all, involved the House's attempt to refuse to seat the clearly-elected Congressman Adam Clayton Powell. On that basis, and based on good ole principles of the common law development, it would seem that Powell doesn't speak at all to STSSRB? or MTSSRB?

UPDATE (2:30 p.m.): Prof. Tribe proves/agrees with at least a couple of points in this post. Without even intending to. He is that cool.

*Why not very odd? Well, because right leaning legal thinkers tend to vote Republican (and vice versa). People who tend to vote Republican tend to want Republicans to win as many seats in the Senate as possible (and vice versa). And, uh, Roland Burris might be a ripe target for a Republican pickup (whereas a Democrat appointed by Pat Quinn might be a bit stronger). Just maybe.

**Of course, the structure of said tepid endorsement is typical Jonah Goldberg. Structure: (A) I don't have a strong about opinion about mildly controversial issue X; (B) But I don't think argument Y about issue X is totally crazy. A + B = Jonah Goldberg can never be wrong.

***He also went to the University of Michigan. This means that he is at least 95% awesome. Membership in the Federalist Society, however, means that he is probably 95% wrong about things not related to the awesomeness of the University of Michigan.

Right Wing Hearts Local Government Until It Doesn't

2008-12-21T16:23:00.004-05:00

So we know folks on the right side of the legal spectrum express concern about a few parts of the bill of rights. The Second Amendment is a good example. The First Amendment, too; but not all the time. And the Fifth Amendment's protection for private property. They're big fans of that. The right's response to Kelo v. City of New London was predictably flecked with prodigious quantities of spittle.

Ilya Somin returns to the site of this egregious crime against humanity in a recent post over at Volokh's. Somin furrows his brow and wrings his hands about Jeffrey Toobin's portrayal of the Kelo case in his recent book about the Supreme Court. Apparently, according to Somin, Toobin under-reports the amount of spittle that left wing folks spread around after the Kelo decision. But it's really just another opportunity to talk about how Kelo was such an abomination.

Conservative top-blowing about the Kelo decision is, well, annoying for two reasons. First, the decision is defensible, justifiable, and maybe even correct. Second, it's another example of the right conveniently overlooking its traditional deference to state and local authorities. But who needs intellectual consistency when sacred private property rights are at stake?

Unsung Heroes Of The Flight Patterns

2008-12-18T20:49:00.004-05:00

The next time you fly into Boston, remember those faceless, dedicated bureaucrats at the Federal Aviation Administration who worked hard to make your flight as short as possible. In Town of Marshfield v. FAA, No. 07-2820, the First Circuit tells their story.

The FAA used the Integrated Noise Model (INM). Marshfield found this to be very uncool. Marshfield insists that the FAA should have used the Noise Integred Routing System (NIRS). Well of course it should have.

The First Circuit was not persuaded. In part because, it seems, neither side did all that great a job being persuasive. As the Court states: "Where neither side has shed much light on a matter, judges tend to fault the appellant; . . . In this case, the FAA's assessment of minimal impact is not implausible. If there is a stronger argument for insisting that the FAA use NIRS or some other computer modeling program in cases like this, it can await an instance in which a more powerful argument is presented."

There's other stuff going on here, but it's so exciting that you'll just have to read the case for yourself.

The Dog Ate My Memory

2008-12-17T11:17:00.004-05:00

Yesterday, in a patient and thorough opinion, the First Circuit clarified the circumstances under which a court can summarily dispose of a case in which the only argument one side can muster is that it's possible the jury might not believe the other side's testimony. The case is LaFrenier v. Kinirey, First Cir. No. 07-1644.

It involved civil rights claims against two police officers arising from arrest in Townsend, Massachusetts. The twist is that the plaintiff "had no memory of the key events". Kind of a red flag, that.

Light Cigarettes Are Bad For You Too Dept.

2008-12-15T13:13:00.007-05:00

The United States Supreme Court issued its opinion today in Altria Group v. Good, No. 07-562.* The Court held that the plaintiffs' fraud claims against the makers of "light" cigarettes were not preempted by a federal cigarette labeling law. In other words, people can sue tobacco companies for claiming that light cigarettes pose fewer health risks.** Justice Kennedy swung this case to the left.

Though the plaintiffs in this case are from Maine, Massachusetts plays a supporting role.

One of the key precedents the majority had to find its way around is Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). That case concerned Attorney General Tom Reilly's attempt to regulate cigarette advertising. The Supreme Court held that this is a job for the federal government, not the states. In today's decision, the majority states that the Lorillard case is distinguishable because it involved state regulation and this involves a private plaintiffs' common law claims.

We have one of these light cigarette cases pending in Massachusetts right now, Aspinall v. Philip Morris, SJC No. 9981. The SJC put it on hold until the Altria case was decided. So we'll see what happens there.

*As of now, this link loads v-e-r-y slowly.
**Feel free to be totally outraged by this or not.

Did You Even Know What Emoluments Were Two Weeks Ago?

2008-12-11T22:04:00.002-05:00

From Prof. Volokh, we learn that Congress has passed its "Saxbe fix." This should protect Sen. Clinton from a successful challenge to her Secretary of State nomination based on the emoluments clause* of the United States Constitution.

Note the word "successful" in the previous sentence. Someone's going to file a lawsuit about this. And the lawsuit will find its way to the Supreme Court as a cert. petition. And there might be four votes to hear it. It seems, however, too bizarre to imagine that there would be five votes for nullification of Senator Clinton's appointment.**

*"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office."

**Those counting votes at home should consider this wikipedia article, which implies that Justice Kennedy owes his seat on the Court to the emoluments clause. See Michael Scott's brilliant thoughts on Wikipedic reliability here.

Sarah Palin And Her Followers Should Take Note . . .

2008-12-10T17:27:00.005-05:00

In an election cycle that featured approximately ten thousand moments that kind of just made you have to shake your head, one of the more awe-inspiring instances was when Sarah Palin accused the press of threatening her First Amendment rights. People all across the ideological spectrum were quick to jump on Governor Palin. Because, for one thing, the Bill of Rights protects us from government action. Not from each other.

This, tangentially, is what the First Circuit dealt with today in Broadley v. Hardman, No. 08-1342. Not Sarah Palin. No. They dealt with the question of when a private person becomes a government actor. And they held that a lawyer who issues a subpoena in a civil case is not a state actor.

Both parties to the appeal represented themselves, by the way, which must have been great fun for the judges on the panel and their clerks.

SJC Rules On Subprime Mortgage Chaos

2008-12-09T13:22:00.004-05:00

One of the mortgage implosion's interesting characteristics is how commentators have found it difficult to allocate blame. Some blame the borrowers, since they should have known better. Some blame the lenders, since they should have known better. And some blame real estate agents for marketing properties to people who couldn't afford to buy them.

Today the SJC adventures into this murk in Commonwealth v. Fremont Investment & Loan, No. SJC 10258. The decision is long-ish. The facts are complicated. The procedural elements are a bit different, since this an enforcement action by the Commonwealth.

But everything flows from this conclusion by the Court: "it was unreasonable, and unfair to the borrower, for Fremont to structure its loans on . . . unsupportable optimism."

Expect much animated debate -- about personal responsibility, unfair business practices, and the propriety of hope -- to ensue.

Decisionism Treads Upon Dangerous Terrain

2008-12-08T09:07:00.005-05:00

Ross Douthat has been singled out for his share of praise as being a smart voice among the next generation of right wing commentators. And he was often a voice of reason during the campaign. His op-ed on abortion in yesterday's New York Times, however, substitutes ideology for logic and reason with predictable results.

Let's start with his initial premise, which he drops on us in his very first sentence. "An iron law of recent American politics," Douthat writes, "dictates that any Republican setback at the polls will be quickly pinned on the pro-life movement." But this is just wrong. Barack Obama beat John McCain because he ran a better campaign and wasn't saddled with eight years of the worst presidential performance quite possibly in American history. The Republicans owe their poor performance in 2006 to the horrible confluence of Katrina, Iraq, and corruption. And the last bad year for Republicans before 2006? That would be 1998, when the public punished Republicans for trying to impeach a popular and effective president.

The meaty part of the piece, though, is Mr. Douthat's claim that pro-life folks are really quite reasonable at heart. They're just trying to compromise, see? Now what will the first step toward compromise be according to Mr. Douthat? Pro-choice acceptance of tight limits on abortion in the final trimester? Pro-choice agreement that doctors at Catholic hospitals can opt out if they don't wish to perform abortions?

Not quite. "[N]o . . . compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books." In other words, if you pro-choice people would just give up on the notion that there is a constitutional right to terminate a pregnancy, we could work out our differences.

"Compromise" and "surrender" are not synonyms. Mr. Douthat writes for a living, so it's not too much to expect him to know that. Is it?

Litigators are quite familiar with this way of going about one's business. "I'm just trying to be reasonable," our adversaries say. "If you would just give up and accept my view of the world, we could work this out." This is always an interesting dispute-resolution strategy, but rarely a very effective one.

The Right Line Of Work

2008-12-05T16:34:00.004-05:00

If you're a lawyer -- a litigator -- and someone tells you there's a case in the First Circuit involving the question of whether a Maine wilderness waterway enactment is preempted by the federal Wild and Scenic Rivers Act, and your response is "Ooohhh! Cool issue!", that's a good sign you've chosen the proper line of work. (Though if you draft ghastly run-on sentences like the foregoing, you ought to reconsider any profession involving the written word.)

It's also the issue decided (no preemption) by the First Circuit today in Fitzgerald v. Harris, No. 08-1306.

Watch Yourselves

2008-12-04T19:56:00.004-05:00

Today's decision in Steinert v. Steinert, Appeals Ct. No. 07-P-1661, is the latest example of an appellate court expressing displeasure at one attorney trying to disqualify opposing counsel in a lawsuit.* And we can stipulate that this practice is occasionally, for lack of a better word, scuzzy.

But don't forget that lawyers often put themselves in these positions. Lawyers who call an opposing party directly and learn some incriminating bit of information. Lawyers who inject themselves into parties' attempts to resolve a dispute before it heads to litigation. Does it go without saying that a great deal of care must be employed when dealing with a party not yet represented by counsel? Yes.

But it bears repeating (if that makes any sense).

*In this instance, a divorce.

Clash Of Titans

2008-12-03T20:31:00.002-05:00

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.

Does Johnny Damon Wish He Worked At Jiffy Lube?

2008-12-02T13:22:00.003-05:00

Back when George Steinbrenner was Yankee overlord, he had this facial hair/hair length rule. No beards. No long hair. Whether the rule survives Steinbrenner's recently confirmed departure from the scene remains an open question.

What we learn from Brown v. F.L. Roberts & Co., Inc., No. SJC-10155, however, is that if Steinbrenner ran a Jiffy Lube in Hadley, his long/facial hair rule might cause him some legal problems with Rastafarians.

But then if Steinbrenner was Jiffy Lube overlord, a lot of us (as opposed to just Rastafarians) would think that Jiffy Lube was evil. Which would be bad for business.

Not That There's Anything Wrong With That

2008-12-01T10:24:00.004-05:00

There was a time about ten or fifteen years ago when liberal people didn't like to be called liberals. For a while they liked the term "moderate" (e.g., "I supported NAFTA ergo I'm a moderate"). Then "progressive" became the term of choice (though it's now more of a synonym for "I'm-so-liberal-that-calling-me-liberal-won't-do-me-justice"). Regardless, the first instinct when being accused of being a liberal was to deny it.

Something similar may be happening in the conservative legal blogosphere, and it's slightly hilarious to watch. Take a look at this post by Jonathan Adler. He quibbles with the notion that the current Supreme Court is a conservative one. Is there really any doubt that when you put Scalia, Thomas, Roberts, and Alito together you have the strongest conservative base on the Court that we've seen in a very long time? Like since Earl Warren was nominated?

Glenn Reynolds is also a reliable exemplar of this trend, as evidenced here, here, and here. Message to Prof. Reynolds: when you're debating between voting for John McCain and Bob Barr, that's a pretty good indication that you tilt toward the right. And more than just a tad.

The Outer Reaches

2008-11-26T13:26:00.004-05:00

Did you know that it's illegal for a Massachusetts tavern to serve alcohol to an intoxicated person? That's what G.L. c. 138, § 69 says. The statute plays a supporting role in Justice Cordy's concurrence today in Commerce Ins. Co. v. Ultimate Livery Serv., Inc., SJC No. 10149.

So now you know that (whether you believe/agree with it or not is your own business).

The decision is more interesting than all that, though, because it delivers us to the way-outer penumbra of negligence liability. The Court reverses a trial judge and holds that a livery service can be liable if it drops off a drunk person, has reason to think that the drunk person is going to get in a car and drive somewhere, and said drunk person does just that and causes harm.

This is a very hard call. Any time you see a court state that its "finding of possible liability in this case is limited to the facts described above", you can bet there's some discomfort with the ramifications of the holding. And you can bet that blue-faced law students will argue this issue into the ground for years to come.

High Steaks (Sorry . . .)

2008-11-25T11:03:00.003-05:00

If you've ever driven past the Hilltop Steakhouse in Saugus, this case, Giuffrida v. High Country Investor, Inc., Appeals Court No. 07-P-751, might interest you. Or make you hungry.

But if you have anything to do with business deals of any stripe, whether as a litigator, a transactional attorney, or as a businessperson, the case will definitely interest you.

The Appeals Court holds that liability is possible under the Commonwealth's unfair business practices statute, Chapter 93A, where a party fails to follow through on oral promises made in the context of a pretty sophisticated business deal that are either contrary to the deal documents or not incorporated in the deal documents. Some might quibble with this interpretation of the case and say that it's not controversial since people often get tagged for making (and breaking) promises they don't intend to keep.

Still, doesn't this add a thick layer of stickiness to virtually every deal? Doesn't this case mean that the black and white of the deal documents can be negated by the spoken words of one of the principals? Isn't it usually the other way around?

There will be a predictable rush to limit this case to its facts, on one side of the bar, and an equally predictable rush to expand the scope of its holding, on the other. If it stands, the Giuffrida case and its implications will be briefed if not to death, then very close to it. With triple damages and attorneys' fees in the balance, you can count on that.

If You're Going To Tell A Story, Tell The Whole Story

2008-11-22T11:06:00.005-05:00

George Lardner, Jr. had an op-ed on the Marc Rich pardon in Saturday's New York Times. Jonathan Adler apparently thought it was awesome.

The obvious reason for the op-ed is that Eric Holder, Barack Obama's possible nominee for attorney general, had a role in the pardon.

This blog has no truck with Marc Rich, but the op-ed is woefully incomplete. In February 2001, Bill Clinton felt the heat on the Rich pardon enough to write an op-ed (or, more likely, have an op-ed written) in the Times explaining the eight separate reasons that he granted the pardon.

Mr. Lardner assesses one or two of the former president's justifications at least a little bit, but he doesn't look at the one reason that President Clinton identifies as being important:

[M]any present and former high-ranking Israeli officials of both major political parties and leaders of Jewish communities in America and Europe urged the pardon of Mr. Rich because of his contributions and services to Israeli charitable causes, to the Mossad's efforts to rescue and evacuate Jews from hostile countries, and to the peace process through sponsorship of education and health programs in Gaza and the West Bank.

There's a passing reference to Ehud Barak toward the end of Mr. Lardner's piece. But that's all. If you're going to say someone "brokered one of the most unjustifiable pardons that an American president has ever granted", assessing major counterarguments should be on your agenda, too.

Predators Everywhere: Rejoice!

2008-11-21T10:55:00.003-05:00

Think about this.

You have a daughter. She is fourteen. She works at a mall. As she is leaving her job one day, a guy in a red truck drives up next to her in the parking lot. He asks her if she needs a ride. She says no. The guy raises his voice. He says "Get in the truck." She flees.

The red truck guy has broken the law somehow, right?

In Commonwealth v. LaPlante, No. 07-P-1541, the Appeals Court says no. The Court states that the evidence "was insufficient to prove intent forcibly to confine the victim . . . ." As a matter of law, that is, meaning no reasonable jury could find that Mr. Red Truck intended forcibly to confine your daughter.

There's a conspicuous absence in this case of the panel having any notion that their result is even the slightest bit problematic. Not that they need to agonize or anything. Just a slight nod, maybe. To those of us who look at the facts of this case and say: "What else is Mr. Red Truck trying to do other than kidnap the girl?"

What Actual Judicial Activism Looks Like

2008-11-20T10:37:00.002-05:00

Commonwealth v. Ross, No. 07-P-1183, is an Appeals Court case that came down a couple of days ago. It's a simple case about a guy who fled from a police officer, which is not something this blog endorses. He was convicted, he appealed, and he lost.

He shouldn't have.

The criminal statute that governs in situations where someone fails to stop for a police officer is simple. It punishes those who fail to "stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment." G.L. c. 90, § 25.

So that's the law. The police officer must be in uniform or display the badge conspicuously. If you fail to stop at that point, you get to go to jail.

In this case, though, the police officer was not in uniform and did not display a badge. Game over, right? Wrong. Though there is nothing in the statute providing them with the latitude to do so, the Court disregarded the uniform/badge requirement because the officer was in hot pursuit.

Will conservatives raise holy hell about this? Probably not, since the bad guy lost. But if people think that police shouldn't always have to flash a badge as a prerequisite to a failure to stop charge, they should talk to their legislators about it. Changing the statute would be easy enough. It would probably pass on a voice vote.

Is the badge requirement objectively absurd? Maybe. But absurdity, like so much else, is relative.

Conservative Win In The SJC

2008-11-17T17:32:00.003-05:00

Commonwealth v. Santiago, SJC No. 10117, is significant insomuch as it is a decision by the highest court in Massachusetts about search warrants. The issue is whether the 4th Amendment requires police to knock when they know their target has a BB gun and pit bulls. The majority held that the 4th Amendment does not require police to knock.

But what is far more interesting is that this is the first case since Justice Botsford joined the Court in which the conservative-leaning wing of the Court can claim a clear victory. Chief Justice Marshall, Justice Ireland, and Justice Botsford all dissented in this case. And dissents are a relative rarity in the SJC. Dissents by any of those three justices are very, very rare.

For those who care, this probably doesn't portend a massive shift rightward by our high court. But it does remind us that yes, there are some more conservative justices sitting on the SJC and every now and then they're going to have enough votes to win. This isn't necessarily bad news for those of us who lean left. It's just what a healty justice system looks like.

Were There Any Whales In Grant Park Last Tuesday Night?

2008-11-12T11:31:00.004-05:00

Two things leap to mind after skimming the Supreme Court's decision in Winter v. National Resources Defense Council, No. 07-1239.

First: if there was any doubt about how beaked whales would have voted (if, that is, they had hands) last Tuesday, this opinion puts that doubt to rest. The conservative majority basically threw our marine mammal friends under the bus so that the Navy could train for enemy submarine invasions.

Second: enemy submarines? Does Al Qaeda have submarines? We know North Korea does. That hasn't worked out so well for them. Is China an "enemy"? If so, point taken.

Questions, Answers, Preparation

2008-11-11T09:09:00.005-05:00

Our Attorney General, Martha Coakley, learned yesterday that arguing before the United States Supreme Court is really, really hard. The issue in the case is whether the government needs to make the person who prepares a lab report in a criminal case available for cross examination. That, it seems, is the way they do it in California.

So Justice Kennedy asked how that's been working out in the Golden State. Good question, right? Especially when one of the arguments against requiring live testimony is that it wouldn't be workable.

Attorney General Coakley didn't have an answer to Justice Kennedy's question.

One of the keys to oral argument in appellate courts is coming up with an exhaustive list of potential questions from the judges and, of course, answers to those questions that help (or at least don't hurt) your case. A good way of filling in gaps in your list is to have a moot court. Or, if you're arguing before the United States Supreme Court, a *bunch* of moot courts.

Did that just not happen here? Or did the moot court judges not think of this question?

Dept. Of Maybe Understandable Shamelessness

2008-11-06T11:48:00.004-05:00

It's been a good week for the excessive fines clause in the 8th Amendment. In Maher v. Retirement Bd. of Quincy, No. SJC 10182, the Supreme Judicial Court determined that the clause did not bar forfeiture of the former Quincy plumbing and gas inspector's pension. The amount of the forfeiture? $576,000.

The inspector broke into the office where Quincy's personnell files were stored and stole a portion of his own file. It seems there were some things in that file that Mr. Maher didn't want Quincy's new mayor to know when he was deciding whether to keep Mr. Maher in his inspector post.

Mr. Maher pled guilty to breaking and entering etc. in July 2003. The following month, the Quincy retirement board commenced an administrative proceeding to determine whether Mr. Maher would have to forfeit his retirement allowance. In December 2003, the board informed him of the bad news.

He sued. And made the shameless but not necessarily frivolous argument that the forfeiture was an excessive fine under the Eighth Amendment. With more than a half a million dollars on the line, can you really blame him?

In Case You Were Wondering

2008-11-05T12:41:00.006-05:00

For your information and contemplation on this Wednesday morning unlike any other, the age of each member of the United States Supreme Court:

Roberts: 53
Stevens: 88
Scalia: 72
Kennedy: 72
Souter: 69
Thomas: 60
Ginsburg: 75
Breyer: 70
Alito: 58

This is all fine and good. But the real issue is how much each of these justices like their work and their colleagues. For pretty much each of these nine, the answer is "a lot" and "a lot".* So don't go expecting five SCOTUS retirements or anything.**

*Totally uninformed guess!
**Expecting one or two retirements? More reasonable.

Common Sense Alert

2008-10-30T17:02:00.003-04:00

The result in United States v. Levesque, 1st Cir. No. 08-1344, feels like it's right. A woman who drove marijuana shipments all over the Eastern seaboard was hit with a $3 million dollar forfeiture order because that's what the stuff she shipped was worth. The woman told the district court that she had made $37,000 on her illegal activities. The court said, in essence, that's great but you might do well in the future and be able to pay the government back.

The First Circuit reversed, in no small part based on the Magna Charta (!) and the excessive fines clause of the Eighth Amendment (remember that?).

Just at a really basic level, didn't the First Circuit do the right thing? How can a person who made $37,000 on drug transactions worth $3 million be put on the hook for the whole $3 million?

This one could go all the way. The holding is based in no small part on a fractured Supreme Court decision where Justices Scalia and Breyer broke with their usual allies and did exactly the opposite of what the conventional wisdom would have them do. So as much as this blog has beaten the drum of result-based decision-making, there are exceptions out there. Not enough. Better not to be greedy, though.

Splitting The Difference

2008-10-29T17:27:00.003-04:00

There's a fascinating instance of the First Circuit attempting to do something that all clients hate (until, that is, they benefit from it): split the baby. The case is Jensen v. Phillips Screw Co., First Cir. No. 07-2766.

The parties were fighting about a $9,000 sanction order imposed by the district court judge on plaintiffs' counsel in a class action. Now $9,000 isn't a lot of money. That's true. But getting sanctioned is a pretty big deal and will at the very least hurt the feelings of even the most thick-skinned table-thumper. So plaintiffs' counsel fought the ruling. And the First Circuit largely agreed with them, reversing the award.

The most interesting portion of the decision is the last paragraph. This is the kind of thing that every lawyer always suspects that a judge or arbitrator is thinking. It's rather momentous to see it actually committed to writing:

The battle that is presently being fought is obviously about principle, not money (experience suggests that each side has spent more than the dollar amount of the sanction in briefing and arguing this appeal). As a matter of mutual interest, the time may have come for the protagonists to call it quits. On the one hand, Phillips prevailed in the district court and can credibly claim a moral victory. On the other hand, SE&D has prevailed in large part on this appeal and, at that point, has erased the stain on its escutcheon.

Tales From The Cryptic

2008-10-17T12:15:00.003-04:00

The Supreme Court has reversed the 6th Circuit's determination that the Secretary of State of Ohio had to match voter registration rolls with department of motor vehicles records under a federal statute. The case is Brunner v. Ohio Republican Party, No. 08A332. This makes Democrats happy, because it probably means more people will be able to vote. It makes Republicans less happy, because they think that more people being able to vote means a greater chance of voter fraud.*

The decision is short and a little bit cryptic. But its basis is that the Ohio Republican party, nor any private person, can file suit under the statute in question. Helpfully, the Supreme Court provided no guidance on who or what can file such a suit. Maybe the Department of Justice?

*Like wolf attacks on humans since 1900, Republicans can point to precious few (any?) instances of actual fraudulent votes being cast.

Decisions That Have Not Yet Been Made, Etc.

2008-10-14T16:51:00.003-04:00

This seems slightly problematic. A question to think about: might this testimony "have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people"? It just might.

AIG Off The Rails

2008-09-23T13:34:00.004-04:00

This hasn't been the best couple of weeks for AIG. Today, in Maxwell v. AIG Domestic Claims, Inc., No. 07-P-1858, the Appeals Court lays into the crippled insurance giant. And it seems that this laying-into is entirely justified. AIG denied workers' comp benefits to the plaintiff because he was doing volunteer work as part of a community service program -- a program in which he had to participate to keep his spot at a YMCA homeless shelter. And then it got the Suffolk County District Attorney to institute charges against him for insurance fraud.* Shortly thereafter, the plaintiff tried to kill himself. The Commonwealth pursued the charges for a time and then dropped them when it became clear that AIG's fraud contentions were not based on, well, actual facts.

Maybe AIG thought it had a blank check to browbeat homeless people since it put cute kids in its advertisements. Who knows? But if you can't believe an insurance company's advertising campaign, you just have to wonder what you can believe.

*Charges to which he initially pled guilty and then withdrew the plea given his precarious mental state.

Another Reason Sarah Palin Is Glad She's From Alaska

2008-09-15T15:04:00.003-04:00

In Cachopa v. Town of Stoughton, No. 07-P-1247, the Appeals Court today held that political infighting, if it's too aggressive, can be actionable. Given what we know about politics as practiced in the Commonwealth, it would not be surprising to see a noticeable surge in civil case filings. As if Sarah Palin needed another reason to thank her stars that she doesn't live in Massachusetts.

Trend vs. Blip Dept.

2008-09-05T10:32:00.002-04:00

Again? Yes, again. We may be reading more into this than we should, but isn't the First Circuit's tone in McGill v. U.S. Express Truck Co., No. 08-1101, a little bit exasperated?

Suffolk County Sherriff Weirdness Update Number Two

2008-08-26T15:57:00.005-04:00

You may remember several months ago a weird case involving a lease and the Suffolk County Sheriff's office. The idea was that the lease wasn't enforceable because the auditor had approved the lease but not issued a document certifying that there were funds available to make rent payments. There was even a comment, probably by someone involved in the case, that included the landlord being derivatively "hoist by its own petard."

Well, today in Bradston Associates, LLC v. County Sheriff's Department, No. SJC 10139, the SJC issued its own decision in the case. It held, contrary to the Appeals Court, that the lease was enforceable even accounting for the auditor's bizarre certification.

"To hold otherwise," the Court stated, "would sacrifice substance to form and perpetrate an unfairness . . . ." Petard, consider yourself unhoisted.

Decisionism's Newest Reader*

2008-08-26T15:49:00.003-04:00

Beatrice Sobel Klein! Born August 15, 2008 at 1:33 a.m.

*Also the reason for recent light posting, along with the lack of interesting stuff happening because everybody is on vacation.

Not Every Day? Who Is This Guy?

2008-07-29T20:10:00.003-04:00

Yesterday, this blog included a post stating that it's really rare for appellate courts to reverse a trial judge who is trying to control his or her docket. So rare, in fact, that it's happened two straight days in two separate appellate courts located in the Commonwealth.

Today, it's Wilkins v. Cooper, No. 07-P-26. The procedural history here is Byzantine. But the nut of the issue is whether a trial court can dismiss a case where one attorney misses a status conference and, at that very same status conference, the Court can decide on its own to convert the status conference into a motion hearing and toss the case. The answer is no.

One other interesting fact here: there was at least one motion in this case on which the Superior Court held a hearing and then failed to issue an order for four years. The Appeals Court calls this a "remarkable delay." The Court, generously,* does not identify by name the judge who held these motions under endless advisement.

*Don't you want to know who it was?

Not Something You See Every Day

2008-07-28T19:56:00.003-04:00

Appellate courts tend to give trial courts a lot of leeway when it comes to controlling their dockets. The only way a trial court will be reversed in this context is if the judge abuses his or her discretion. And appellate courts, especially the First Circuit, are very reluctant to find that a federal trial judge has abused that discretion. When they do make such a finding, they usually explain themselves in quite a bit of forceful detail.

So Beetz v. Ambrosi, First Circuit No. 07-2449, is just weird. The essence of it is that the trial judge allowed a motion to withdraw that also sought a 30-day extension of the time in which to file an amended complaint, then dismissed the case 23 days later. The First Circuit didn't call the trial judge onto the carpet, however. It just sent the case back.

Two other odd aspects of this case:

1. The plaintiff claimed that he'd filed an amended complaint in a timely fashion, the First Circuit believed him, but there was no electronic record of the filing. As most folks who practice in federal court will tell you, that doesn't happy very often. If ever.

2. The defendant claimed that since the trial judge had not explicitly allowed the original attorney to withdraw and stated that the time for filing the amended complaint was extended, that the order should only be interpreted as allowing the withdrawal. Some would call this argument "creative." Others would call it "stupid."

Loss Of A Less Than Even Chance

2008-07-23T10:55:00.004-04:00

The SJC expanded medical malpractice liability today. The significance of the expansion remains to be seen.

In Matsuyama v. Birnbaum, SJC No. 9964, the Court holds that a patient whose chances of survival decrease from less than fifty percent to something less than that has suffered a compensable injury. This is a tough problem, and whether it challenges a lot of notions about tort law probably depends on how you feel about tort law as a general matter. If you have no thoughts about tort law as a general matter, you are either (a) sane, (b) not a lawyer, or (c) both.

But the logical problem, the conundrum, boils down to this: (1) you are more likely than not to die because of a certain medical condition; (2) a doctor is negligent in her treatment of you; (3) because of that negligence, it becomes even more likely that you'll die. In other words, the doctor's negligence itself hasn't caused the person to die. The SJC considers this issue in the context of someone who has passed away, but expressly leaves open the possibility that this claim can be pursued by a person who is still alive. See n. 33. Another interesting question is whether this theory would cover a plaintiff whose chance of survival decreased, but only by a small amount. The Court outlines a five step process for calculating damages, but you probably haven't seen the last of that issue.

The health care sector is, um, a bit of a big deal in Massachusetts. And the presence here of some of best medical minds on the planet means that a lot of very sick people come seeking help. Whatever you think of the result, it must be acknowledged that this case will affect the willingness of practitioners to pursue innovative solutions. And that's not a good thing.

Thrown To The Dogs, Er, The Voters

2008-07-15T10:54:00.004-04:00

You may remember that eight years ago, voters in the Commonwealth narrowly defeated an initiative to ban dog racing here. Some folks who like dogs tried to place a similar initiative on the ballot in 2006. In response, some folks who like dogs, but especially when they're chasing a mechanical lure and running really fast, sued and got that initiative stricken from the ballot.

The people who like dogs as a general matter tried to get another initiative on the ballot this year. In response, the people who like dogs that chase mechanical lures sued again to keep the initiative off the ballot. Today in Carney v. Attorney General, SJC No. 10158, the SJC ruled for the people who like dogs as a general matter.

So we get to vote on dog racing this fall. Suggestion: let's just flip a coin and then have the people on each side of the issue donate the money they would have spent on consultants, mail, and advertising to nonprofits that help low-income kids in Revere (or Lynn or Chelsea or Everett, for that matter).

A Pesky Claim

2008-07-11T08:32:00.004-04:00

With some frequency, enterprising plaintiffs include in their complaints claims for violations of the Massachusetts Civil Rights Act. The Act provides a cause of action when someone -- anyone: government, civilian, whatever -- interferes with another person's exercise of his or her constitutional rights. The SJC has been quite clear that the Act does not create a "vast constitutional tort", but it sort of, well, does just that.

Yesterday, in Kennie v. Natural Resource Dept. of Dennis, SJC-10052, the SJC reversed a trial court's summary judgment dismissal of a claim under the Act. The Act requires a plaintiff to establish that the interference with the constitutional right have been carried out by means of physical threats, physical intimidation, or coercion (which need not be physical). It's this last prong that makes claims under the Act so pesky.

Kicking claims like the one in this case to the jury gives plaintiffs a pretty formidable weapon. We each have an expansive collection of constitutional rights. And there are an expansive number of ways in which another person could interfere with those rights via moral or economic coercion. Most civil complaints filed in the Commonwealth probably include a claim for violation of the unfair business practices statute, Chapter 93A. Might we be entering an era where plaintiffs also, as a matter of course, also include claims for violation of the Civil Rights Act? Time will tell.

UPDATE: HT BB.

Unsolicited Observation

2008-07-07T13:04:00.003-04:00

Not that any of the observations are solicited, but, well, you know.

The case, Commonwealth v. Smith, Appeals Ct. No. 07-P-446, is from last week.

But the question it raises should be asked every single day: what the hell does it say about us that there are metal detectors at the entrance to Brighton High School?

Retired Supreme Court Justices Don't Even Fade Away

2008-07-01T09:25:00.003-04:00

There had been rumors out there that Former U.S. Supreme Court Justice Sandra Day O'Connor was sitting on panels of various Circuit Courts of Appeal. The rumors are true. And we are fortunate enough to have Justice O'Connor delivering opinions in our very own First Circuit.

Her decision in United States v. Novak, First Cir. No. 07-1826, is really interesting. The First Circuit was reviewing the trial court's decision to exclude recorded conversations between an attorney and a client. Writing for a unanimous panel, Justice O'Connor reversed the trial court's decision.

What is so interesting about this decision is that it's clear that Justice O'Connor didn't want to rule as she did. She is quite transparent in her belief that the recording of the conversations between an attorney and a client violates the Sixth Amendment to the U.S. Constitution. But the defendant had not relied upon a Sixth Amendment argument in the trial court; he'd used the Fourth Amendment protection against unreasonable searches and seizures and the trial court had agreed. And since we're engaged in what is at least nominally an adversarial process, the First Circuit didn't feel that it could step in for the defendant and make an argument that he, for some reason, had chosen not to make.

It all goes back to issue spotting in the end, doesn't it?