Shocker? Not So Much

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

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

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*

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

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

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

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!

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.

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?

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

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

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

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!

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

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

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?

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

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

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

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.