Why Decisionism Exists

So everyone can enjoy paragraphs like this one:

A famous fairy tale, of ancient vintage, tells of an ugly frog who, when befriended by a beautiful damsel, turns into a handsome prince, marries his rescuer, and (presumably) lives happily ever after. See Jacob Grimm & Wilhelm Grimm, The Frog-King, reprinted in 17 The Harvard Classics 47 (Charles W. Eliot ed., P.F. Collier & Son 1909). The coquí is a tree frog indigenous to Puerto Rico. Plaintiff-appellee Coquico, Inc. has not yet managed to turn the coquí into an imperial presence. It has, however, fashioned a popular stuffed-animal rendering of the coquí and, thus, turned the frog into dollars.

That's how Judge Selya's opinion begins in Coquico, Inc. v. Rodriguez-Miranda, First Cir. No. 07-2786. It's probably a good thing that all judges don't write like this. But it's definitely a good thing that at least one judge does.

Splitting The Difference

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.

First Circuit Hearts Intellectual Property

June, apparently, is intellectual property month in the First Circuit. Today's decision in Warren Freedenfeld Assocs., Inc. v. McTigue, First Cir. No. 07-1602, concerns application of a statute of limitations defense in the copyright context and other matters. It's also a relatively rare First Circuit reversal of a trial court's decision to allow a Rule 12 motion to dismiss.

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: “The overarching themes are chicanery and greed”
Tone: Bemused disappointment
Importance: 4.2

Why does he get his very own feature on this blog? Because he writes paragraphs like this:

The circus impresario, P.T. Barnum, is famously reputed to have said that “there’s a sucker born every minute.” That droll commentary on the human condition, whether or not fairly attributed to Barnum, appears to be as insightful in cyber-commerce as in face-to-face business transactions. This conclusion is borne out by the case at bar, which involves an Internet fraud.

And while the opinion in United States v. Deppe, No. 07-1048, adds just a single entry to the roster of Selya-esque words and expressions (COMPRISE MORE CRY THAN WOOL*) it provides another great moment in the history of the lawyer-client relationship:

When the district court held a sidebar conference to discuss its further [jury] instructions, the appellant injected himself into the conversation[**], bypassing his counsel and explaining how he thought the instruction should be worded. The court then asked defense counsel whether appellant’s objection was counsel’s objection. Counsel equivocated; he disavowed the objection but then enigmatically observed that, whatever he happened to think, “it’s Deppe’s life.”

Lawyers: we love our clients so much.

*Note, incredibly, that this definition references a judicial opinion from the First Circuit. Wonder who wrote that.

**What the heck he was doing there is anyone’s best guess.

Tonight in Bruce Selya

The Widget

Court: First Circuit
Judge: Selya
Subject: Asylum
Tone: Incredulous, Whitmanesque
Importance: 4.0

He is large, he contains multitudes:

ANENT
MULTITUDINOUS
MENDACIOUS
PLAINT
IMPORTUNINGS
PARRY[ING] [A] THRUST
SUPEREROGATORY

Update: Judge Selya also wrote the opinion in Aguilar v. United States Immigration and Customs Enforcement Division, First Circuit No. 07-1819. It is 48 pages long and actual news outlets are all over it.

Today in Bruce Selya

What better day than today to begin an occasional feature: TODAY IN BRUCE SELYA? Known for his preposterous vocabulary, this First Circuit luminary is equally notable for the rarity with which he reverses summary judgment decisions. Today is no different. But the words, the words. They fill us with glee, especially those of us who feel we underperformed on the English SAT. In any event, some highlights from the opinion:

BREVIS
EXEGETIC
TAMISAGE
CARTING COAL TO NEWCASTLE
FLOGGING A MORIBUND MARE