Right Wing Hearts Local Government Until It Doesn't

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

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

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.

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?

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 . . .

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

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

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

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

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

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?

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

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

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 . . .)

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

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!

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

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

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?

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

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

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

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

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

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

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.

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

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

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.

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

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*

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?

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

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

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

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

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

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

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?

If You Don't Have Anything Nice To Say . . .

. . . Say it in an Appeals Court opinion.

Today, in Booth v. Augis, Appeals Court No. 07-P-238, the Court opens up a small can on the attorneys involved. "As a threshold matter," the Court states, "we note that our review has been significantly hampered by the state of the record and the attorneys' disregard of our procedural rules." And if that wasn't clear enough, the Court drops a footnote: "Parties are well advised not to pursue an appeal if they do not know the rules of the road. Unsupported statements of fact in briefs and the omission of pleadings necessary for our review are not acceptable."

By the way, the case involved a dispute over an arbitration award. The amount of the award: $2,290.76.

When A Win Is Not A Win

As just about every sentient being expected it would, the U.S. Supreme Court today held in District of Columbia v. Heller, 07-2901, that the Second Amendment confers an individual right to possess a firearm. Given that this amendment was tucked in, oh, the Bill of Rights, this should really not be a controversial conclusion. It's slightly amazing that this was even an issue.

The opinion, on page 57, contains a massive qualification, however. The Court says that "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." And then, in the next paragraph on page 58, the Court says that the Second Amendment doesn't protect possession of "dangerous or unusual weapons." Justice Scalia's example of a "dangerous or unusual weapon"? An M-16. Wow.

Thus the title of this post: When a win is not a win. The Court today may have struck down the DC handgun ban, but it signaled that it would uphold many of the laws that gun enthusiasts have claimed violate their Second Amendment rights. So if the celebration seems muted today, this post should help explain why.

A Question While We Wait

So here's a question this morning while we all wait for Justice Scalia to confirm that the 2d Amendment confers an individual right: if you're going to squawk relentlessly about judicial activism, shouldn't that squawking extend to cases in which the Supreme Court sets aside jury determinations on punitive damages (as it did in Exxon Shipping Co. v. Baker, USSC No. 07-219)?

That is, unless you only complain about judicial activism when it suits your purposes. Is a tiny little bit of intellectual honesty too much to ask?

A Tough Call

Today, in Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, SJC No. 9974, the SJC shows why being a judge can be a really hard job. At issue were two competing public policies: our preference for letting arbitration awards stand without judicial interference vs. our preference for employing jail officers who don't allegedly enable other jail officers to beat the tar out of inmates.

The problem the Court faced was that the arbitrator's finding as to whether the officer in question had actually enabled other officers to assault an inmate and then impeded the ensuing investigation were "far from a model of clarity." The arbitrator had let the officer in question come back to work after a suspension, which prompted the Sheriff to ask the Superior Court to set aside the arbitrator's decision. Complicating matters further, the arbitrator passed away while the case was pending on appeal.

The Court's decision is refreshingly short and self-aware. It holds that it can't figure out what the arbitrator decided, that it would impractical to send the case back to a new arbitrator, and so it lets the original award stand. But the Court also makes it clear that "where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff's custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer." This is a tough balance to have struck. And it's bound to make everyone a little bit unhappy.

Barney Alert: Summary Judgment Escape Route

This post won't be of much interest to non-lawyers, though if you do find this interesting and you're not a lawyer, law school might be a good option for you.

Those who litigate with any frequency have probably moved for summary judgment (or been served with a motion) before discovery is complete. One somewhat risky way to defeat such a motion without meeting it head-on is to file an affidavit under Rule 56(f), saying, in essence: "I could beat this motion if you gave me discovery on the following issues." In Alphas Co. Inc. v. Kilduff, Mass. App. Ct. No. 07-P-157, the Appeals Court spells out what you need to put in that Rule 56(f) affidavit to stave off the summary judgment bludgeon. It's helpful stuff.

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.

The Winner: Duck Tours!

A bad day for Boston Duck Tours, this. The First Circuit has reversed the trial court's issuance of an injunction barring Super Duck Tours from using the "Duck Tours" mark. The case is Boston Duck Tours, LP v. Super Duck Tours, LLC, First Cir. No. 07-2078. This is another really long decision, but it's like catnip for intellectual property nerds.

Divergent Dissents

Another majority opinion in a 5-4 (actually, 5 to 3 to 1) case by Justice Kennedy today in Dada v. Mukasey, USSC No. 06-1181. And another opinion in which the interesting action is found in the dissents.

The case presents a relatively complex immigration law question. This blog doesn't discuss immigration law all that often, for the obvious reason that its author doesn't want to look any more stupid than he looks already. In any event, the issue, stated simply, was whether an alien could back away from a promise to leave our fine country voluntarily so that he could challenge immigration authorities' order that he leave with the Board of Immigration Appeals.

Stripped to the crass essentials -- a particular strength of this little blog -- the question was whether you wanted to give an illegal immigrant another shot or hold him to his promise to leave. Justice Kennedy (and the others who you'd expect) decided to give him another shot. Justice Scalia (and the others who you'd expect) dissented and said that the petitioner should have kept his promise and gotten the heck out of here.

Except for Justice Alito. He chose a middle ground, which you may want to keep in mind. His conclusion was that both the majority and the dissent were wrong. Justice Alito said that the Board of Immigration Appeals didn't think it could give the alien another shot, but it could have if it had wanted to (though it didn't have to). He would have sent the case back so that the Board could figure it out. This frustrated Justice Scalia enough that he put a gratuitous footnote at the end of his dissent tweaking Justice Alito a tiny bit. Again, something you may want to keep in mind.

Ford Gets Away With . . . Well . . . Nothing, Actually

The SJC issued a fascinating consumer protection decision today, Iannacchino v. Ford Motor Co., SJC No. 10059. The plaintiffs alleged that Ford had violated the Commonwealth's consumer protection law, known as Chapter 93A. They alleged that door latches on certain Ford models were defective when subjected to government-mandated testing. This ended up to be incorrect. And the plaintiffs did not allege they'd been hurt by the supposed defect.

Not surprisingly, the plaintiffs lost.

The reasonably groundbreaking aspect of this case is that it happened at a very early procedural stage. The SJC has now adopted the U.S. Supreme Court's new standard for dismissing complaints on Rule 12 motions, discussed earlier here. Supporters of this approach say that it's protecting defendants who have not done anything wrong from having to pay significant legal fees and engage in expensive discovery. The competing view is that courts are moving away from the simple notice pleading requirements of the Federal Rules of Civil Procedure and injecting unnecessary layers of procedural technicality into the process.

It's a close call.

History Shall Not Absolve Him

Today, in Boumediene v. Bush, USSC No. 06-1195, the United States Supreme Court held that enemy combatants held at Guantanamo Bay can employ the constitutional privilege of habeas corpus to challenge their detention there in the federal court system. The privilege of habeas corpus is pretty significant: it was one of the only individual rights enumerated in the Constitution before the states ratified the Bill of Rights. Justice Kennedy's majority opinion is long.

The real fun in this case can be found in the breathless dissents. Justice Scalia's* dissent is the most breathless of all, maybe the most breathless dissent in the history of the Court. He closes with a bang: "The Nation will live to regret what the Court has done today." Ominous.

You just have to wonder about what would motivate him to write that sentence. What has the Court done today? Affirmed the importance of an individual right enumerated in the Magna freaking Carta, that's what. Rejected an incredible argument by the worst President in modern American history that the habeas privilege doesn't apply at Gitmo because Gitmo isn't technically America -- even though Gitmo is under America's complete control.

Jeez.

You just have to wonder: is there any act at all that the Republic could take in the name of the war on terror that Justice Scalia would reject? Other than, of course, confiscating our guns?

*Stipulation: Justice Scalia is way, way, way smarter than the humble author of this little blog.

First Circuit Hearts Oprah

So a woman from Saugus named Darlene Tracy filed a lawsuit against Oprah Winfrey a while back, claiming that Oprah had stolen her idea for a television show called "The Philanthropist" when she put Oprah's Big Give on the air. The trial court ruled against Ms. Tracy and she took an appeal in the First Circuit. Yesterday the First Circuit affirmed the dismissal of Ms. Tracy's claims in Tracy v. Winfrey, First Cir. No. 07-1630.

The First Circuit's decision is brief, but it's interesting that they make no mention of a bedrock principle of copyright law: that you can't copyright an idea. And if you think about this notion for even a second or two, it makes quite a bit of sense.

Is This Heaven? No, It's Everett.

Everett. Our own little slice paradise. Right here in Massachusetts.

The First Circuit takes a look at a problem that's not unique to Everett in Boston Gas Co. v. Century Indem. Co., First Cir. No. 07-1452. Boston Gas Company used to operate a ton of manufactured gas plants. At the plants, they'd heat coal in large ovens.

This generated gas, which was good. But it also generated some wonderful byproducts. Like ash, drip oil, tar, and coke. As the opinion states, "Many are non-biodegradable and some are carcinogenic, and they now contaminate the ground and water around many former MGP sites; further MGPs were often sited near waterways, which were contaminated in turn." Think about that the next time you're thinking about taking a dip in the Mystic River.

The rest of the case is not hugely interesting. Unless, that is, you want to explore the relative rarity of a federal appellate court certifying an uncertain legal issue to a state supreme court. That's in there, too.

Don't Ask Don't Tell Probably Headed To Supremes

Today the First Circuit affirmed the trial court's dismissal of a challenge to the "Don't Ask, Don't Tell" policy. The case is Cook v. Gates, First Cir. No. 06-2313.

The plaintiffs filed their challenge based on the 2003 Supreme Court decision, Lawrence v. Texas, holding that criminal prohibition of sodomy violates the Constitution's due process protections.

The First Circuit decision conflicts with the Ninth Circuit's decision from a couple of weeks ago. That decision is Witt v. Dep't of the Air Force, Ninth Cir. No. 06-35644. So this is probably headed to the U.S. Supreme Court, where the result will depend almost entirely on what Justice Kennedy is thinking. His opinion in the Lawrence case provides some hints. The critical portion is at pages 17 and 18. It's resounding, but it also gives him some avenues of escape if he's looking to affirm the statute. We'll see.

**Obligatory point about political courage and the power of representational democracy**: Aren't the House and Senate controlled by Democrats? What exactly is stopping them from trying, really trying, to send a bill to the President that ends this nonsense? And, if they don't have the backbone to do it, should we really get all upset if the Supreme Court doesn't either?

Another Must-Read For Business Litigators

If you litigate business disputes, it's in your interest to take a look at Jasty v. Wright Med. Tech., Inc., First Cir. Nos 07-1743, 07-1744. There's quite a bit packed into this thirty page opinion, and it covers issues that seem to come up all the time.

The First Circuit also slaps the appellants' counsel on the wrist for including evidence in the record that the trial court had refused to consider. The Court found that doing so was "inappropriate" but not "vexatious." Either way, not a great thing to have that on the record in a United States Court of Appeals decision.

Cautionary Tales About Indecisive Real-Life Events

Every litigator ought to be compelled to read Peter Boyer's recent piece (abstract only, unfortunately) about Dickie Scruggs* in the New Yorker. The unstated conclusion of the piece is that Scruggs brought about his own demise because he wanted to win every case, no matter how small. Which also happens to be a rather important attribute in most successful litigators you may know. So there you go, counselors. Kick some butt!

For the less faint of heart, check out this string of comments at Universal Hub about the horrific trolley crash in Newton yesterday. It gets messy when the lawyers start posting their phone numbers. Adam Gaffin smacks one of them down, thank goodness. If you still feel like you need a shower after taking a look this, that's completely understandable. Yuck. Just . . . yuck.

*"This is the sovereign state of Mississippi's proceeding. WIPE THAT SMIRK OFF YOUR FACE! Dr. Wigand's deposition will be part of this record. And I'm going to take my witness's testimony whether the hell you like it or not."

Decisionism Eats Some Crow

If you had predicted that this Supreme Court, this nine, would adopt an expansive view of permissible employment discrimination claims, Decisionism would have mocked you to no end. And yet that's exactly what happened today in two cases, Gomez-Perez v. Potter, No. 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Justice Thomas dissented in both cases -- not a big shock -- but his dissent in the Humphries case does provide us with one of the most curiously reasoned passages by any justice in recent memory:

Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather it is the result of his conduct.

The italics, well, those are all Justice Thomas. Screwing around with this passage is unnecessary. It barks for itself.

Again? Really?

So here's another lesson: there are some contexts in which lawyers can rightly celebrate trial court victories and others in which a bit more circumspection is required. Sourcing Unlimited, Inc. v. Asimco Int'l Inc., First Cir. No. 07-254, decided yesterday, is a case in the latter category.

This is a case you should take a look at if you arbitrate. At all.

If You Want To Send Him To Jail, You Should Probably Take Some Testimony

This blog has devoted a lot of oxygen to criticizing lawyers who do a poor job for their clients. Sometimes the fault lies in, er, a different direction.

In Commonwealth v. King, Appeals Ct. No. 07-P-397, the District Court sent the defendant back to jail for 18 months for a probation violation. At the hearing the Court took no testimony, instead choosing to rely on a police report. Making this approximately the ten zillionth instance in which a court has misapplied, overlooked, or plain disregarded the hearsay rule.

The Appeals Court took a look at the record and noted that the defendant quite possibly did engage in some bad conduct, but said, in essence, NSFMF.

Two Lessons

Keep your promises. And read the contract. That's what we learn from NPS, LLC v. Minihane, SJC No. 10134, which the SJC handed down today.

Will this alleviate some of the sting from losing the Super Bowl? Hey, every little bit helps. And a win is a win.

**Disclosure: A few years ago, I was an insignificant member of a team of lawyers representing the plaintiff in this case.

Nonmutual Collateral Estoppel In The Criminal Context

Is that the best headline you've ever seen, or what?

So here's the situation: you and your pal are stopped by the police and they find drugs in the car. You and your pal hire separate lawyers. Your pal's lawyer moves to suppress the drug evidence because it was based on an illegal search. He wins and walks. You then file a similar motion, claiming that the Commonwealth is bound by the earlier determination that the search was illegal. Must the judge find in your favor?

Yesterday, in Commonwealth v. Stephens, SJC No. 9943, the Supreme Judicial Court said no. Interestingly, if you'd been pulled over in New York, the answer would have been yes.

Given that there are two schools of thought on this, don't be surprised if it goes all the way.

Open Meeting Plaintiffs Prevail (Sort Of) In Appeals Court

Today the Appeals Court ruled against Michael Flaherty and his compatriots in McCrea v. Flaherty, No. 07-P-224. The Court held that the defendants violated the Open Meeting law.

The victory for the plaintiffs, including Kevin McCrea, was not unequivocal, however. The Court sent the case back to the Superior Court for a determination of some factual issues. So Mr. Flaherty could still eke out a victory of sorts.

Still reading through this; updates possible.

Must-Read For Commercial Litigators

Our old friend, the Reverend Wright supporter -- kidding -- the McCain supporter who might as well live in New Hampshire alerts us to today's First Circuit decision Trans-Spec Truck Serv. v. Caterpillar Inc., No. 07-1476. And if you practice commercial litigation in the Commonwealth, you really ought to read it.

Why?

Because it's rare to have the benefit of an appellate court's detailed views on how it looks at practicing before magistrates, how it looks at motions to dismiss, when it is willing to convert a motion to dismiss into a motion for summary judgment, how it looks at motions for summary judgment, whether to permit a pleading to be amended. But there's more! The court considers substantive questions of unconscionability, waiver, and warranties.

The afore-mentioned McCainiac thinks that the law firm representing the appellant may have more to worry about than just losing this appeal. As if they didn't have enough to worry about already.

Tom Cruise, John Travolta, Beck, Call Your Office

Via Ron Newman at Universal Hub, this is just sickening. Scientologists, using a Boston lawyer who this blog will not name, have sworn out a criminal complaint against the guy who pulled a protest permit for a gathering at their Beacon Street facility. The charge is harassment.

What, you ask, is the problem? Harassment is illegal! And scary!

Well, the problem is that they can't finger this particular guy for any specific harassing activity. So why are they picking on him? Because they can't identify any of his compatriots. They were all wearing masks, see. So they decided to go after this particular guy because, well, he pulled the protest permit. So his was the only name they could find.

The most shameful aspect of this is that the very same constitutional freedom that enables this organization to operate with almost no government interference in this country is the one they're trying to take away from those who disagree with them. That's bad P.R. And it's bad citizenship, too.

Political? Wha?

There's some discussion in an earlier post about Supreme Court justices' political predilections and whether those predilections affect how they decide cases. So let's do a crude thought experiment.

Today the Supreme Court decided a case involving Indiana's photo ID requirement for voters. Conservatives generally embrace the requirement. Liberals generally do not. Which justices do we think would uphold and which would strike down the ID requirement? Here's this blog's guess:

Uphold: Roberts, Scalia, Kennedy, Thomas, Alito
Strike down: Stevens, Souter, Ginsburg, Breyer

The answer is here, in Crawford v. Marion County Election Bd., No. 07-21. And it's not surprising.

Eh?

There's a lot here that's defensible. But the idea that Bush v. Gore was not a political decision is based either on dishonesty, delusion, or some blinder-inducing cocktail that combines the two.*

*This thought violates the Eleventh Commandment of Legal Academia and Appellate Commentary ("Thou shalt not criticize Scalia"), which is fine. Let's stipulate that Justice Scalia is way, way smart. But (thus?) pretty much every single opinion he writes includes some degree of prestidigitation. And rather than admire that prestidigitation as part of academic intellectual calisthenics, shouldn't we call it out? At least every now and then?

Not Hiding/Hiding The Ball

The First Circuit occasionally tips its hand and lets you know what it's going to do in the very first sentence of an opinion. Such is the case in Ramos-Santiago v. UPS, First Cir. No. 07-1024. The Court begins today's decision by noting the the plaintiff in this employment case "was a driver with the United Parcel Service when he failed to deliver thirty-seven packages over the span of two business days in 2003."

Weird unexplained twist: all 37 packages were addressed to a single recipient. The plaintiff apparently delivered all of his other packages without a problem on the dates in question.

Some Tea Leaves

If you want to know why it will be more or less impossible to succeed in bringing claims against U.S. government employees for based on being tortured while in U.S. custody, read Harbury v. Hayden, D.C. Cir. No. 06-5282. The case stems from U.S. meddling in Guatemala in 1992.

Key takeaway: regardless of what the law says, regardless of what the cases say, courts are going to resolve every question in favor of letting the government off the hook. Noted, as they say, without comment.

"You keep using that word. I do not think it means what you think it means."

Inigo Montoya would have been all over Reliance Ins. Co. v. City of Boston, No. 07-P-066, a case decided today by the Appeals Court.

A statute requires performance and payment bonds on public construction projects. Performance and payment bond companies (a/k/a sureties) occasionally step in to take over for general contractors that can't get their acts together. As a stop-gap, the sureties require the contractor to assign any rights they might have against the owner of the project (though these probably automatically pass to a surety when they step in for general contractors that can't get their acts together).

In this case, the City of Boston included a provision in the contract forbidding the general contractor from assigning any of its rights or duties under the contract to anybody else.

The Appeals Court, in a decision that feels right, essentially reads additional language into this provision to the effect of "but assignment to a performing surety is okay."

If you wait around long enough, you'll find that sometimes common sense rears its head in the courtroom. Just don't hold your breath while you wait.

Two Things A Lot Of People Love

Nudity and Harvard Square. Together in this interesting case, Commonwealth v. Ora, SJC No. 10019.

The SJC affirms the constitutionality of the statute barring public nudity "done in such a way as to produce alarm or shock." Somehow, the SJC concludes that "[n]either the language of the statute nor its legislative history suggests that the statute targets any expressive message contained in any display of nudity."

Why is that important?

Because if the statute aims at an expressive message, it's going to be a lot tougher for it to pass muster. But this statute does target an expressive message, the message I WANT TO SHOCK AND ALARM YOU SO I'M GOING TO TAKE OFF MY CLOTHES! This is a messy reality of First Amendment jurisprudence. Courts are very likely to find that a statute or rule doesn't target a certain kind of expression if the expression that it's targeting (either implicitly or explicitly) offends their puritanic or patriotic sensibilities. We tolerate such obvious illogic because the logical approach would probably result in the invalidation of vast swaths of the American statutory landscape.

Universal Hub, as in Adam, is all over this.

The Big Dig Claims Another Victim

This is actually useful information.

Let's say you're a construction foreman and you supervise a concrete pour that takes 27 hours -- 27 straight hours (in case you were wondering, contractors do really really miss the Big Dig). You didn't really have to stay, in the sense that you could have gone to your boss and whined about having to work for 27 straight hours. But instead of whining, you suck it up. And then you fall asleep at the wheel on the way home from said 27 hours of concrete pouring and slam into a utility pole.

Now let's say you make a workers' comp claim for the injuries you suffered thanks to that effing utility pole with which you're now intimately familiar. Well, today the SJC said "Too bad. Nope. No workers' comp for you."

The next time somebody talks about the SJC being too hard on insurance companies, employers, our capitalist masters, etc., tell them to take a look at Haslam's Case, SJC No. 9915. That's the moral of this story.

Another Justification For Lawyer Jokes

. . . Because we, in our warped skulls, are able to perceive a difference between delivery that's "by hand" and delivery that's "in hand." The Appeals Court's decision today in McMann v. McGowan, No. 06-P-1562, turns on that very issue. And a $760,000 lawsuit hangs in the balance.

FACE-book

Yesterday the First Circuit reinstated the case brought by the Harvard guys who claim they invented Facebook against the guy who they claim stole their idea. The case is ConnectU, LLC v. Zuckerberg, First Cir No. 07-1796. Because it involves Facebook, which is cool, this decision may be of some interest to non-lawyers. Because it involves a complicated jurisdictional question, those of us who litigate should also take note. And because it is written by Judge Selya, we get sentences like this: "Harvard's traditional school color is crimson but the Founders saw red." What more, at long last, can we ask for?

New Jersey v. Delaware -- Well, They Weren't Fighting About How Awesome They Are

One of the neatest aspect's of the U.S. Supreme Court's docket is that it is the court of first impression for disputes between the states. This is generally pretty high stakes stuff. And if you put to one side the fact that these nine justices are not so well-suited to the machinations of trial practice, it sort of makes sense. The constitutional intellectual smell test is this: if you were a state and you were sued by another state, where would you want the case to be heard. Your instinctual reaction (after you think "in my own darn courts") is probably the Supreme Court. So there you go.

Today, the U.S. Supreme Court decided New Jersey v. Delaware, No. 134 Orig. New Jersey and Delaware have basically been fighting about who controls the Delaware River since they entered the Union. And before you make snide remarks about the Delaware River, remember that it's the one that Washington crossed on a cold morning all those years ago. We will stipulate, however, that jokes about both Delaware and New Jersey can be funny under the right circumstances.

Now the issue in today's case was whether New Jersey gets to build a big liquified natural gas (LNG) facility that pokes out onto the Delaware side of the river. We Bostonians know all about LNG and how awesome it is. The case is full of juicy tidbits, like the fact that an unnamed New Jersey legislator "looked into recommissioning the museum piece battleship U.S.S. New Jersey, in the event that the vessel might be needed to repel an armed invasion by Delaware." (Page 12)

The Court ruled for Delaware (and therefore against the LNG facility). Justice Scalia dissents, which is, of course, a shock. Especially because when you think of the Supreme Court justices that are going to be concerned about the construction of a big industrial facility in a riparian area, doesn't Antonin Scalia just leap to mind?

Jonathan Saltzman, Call Your Office

The Boston Globe has decided to cover the First Circuit's dismissal of the Michael Moore defamation suit. How this week-old story counts as news is not clear. Maybe the Globe's news chops are a little rusty, though, given that they've rented out ninety percent of their front section to the wire services and the few remaining national papers that still do some actual national and international news reporting.

SLAPP Happy

A few years ago, big real estate developers realized that a great way to limit public discussion of contemplated developments was to sue people that criticized said developments. Legislatures in various of the fifty states, including Massachusetts, responded by enacting Anti- SLAPP (Strategic Lawsuits Against Public Participation) statutes. The Massachusetts statute protects "petitioning", an activity that courts have interpreted with astonishing inconsistency. And to qualify for the statute's protection, defendants have to establish that their petitioning activity wasn't a sham. Lawsuit plaintiffs who violate the statute have to pay defendants' attorneys' fees, which is a big deal.

Today the Appeals Court and the SJC each decided SLAPP cases.

In Wenger v. Aceto, SJC 10065, the SJC applied the statute to a lawsuit filed by a client against his former attorney. This case is more interesting for its facts than anything else; it's basically a road-map for how not to conduct an attorney-client relationship. The client bounced a $10,000 check to his lawyer. So the lawyer upped the ante and swore out a criminal complaint against his former client in Dedham District Court. The district court looked at the case and politely sent the attorney on his way. And then his client sued him. The SJC held that even though the criminal complaint lacked merit, the attorney still could use the SLAPP statute to dismiss two of the three claims against him.

Moriarty v. Town of Holyoke, 06-P-1554, is more interesting from a legal perspective. There, the issue was whether government employees could qualify for the statute's protection since the statute aims to protect citizens who petition the government. The Appeals Court today said no. The decision's logic is not so easy to follow, and it would not be surprising if this case is distinguished by courts more often than it is followed.

Michael Moore Call Your Office (Part 2)

How is it possible to root against an American hero who has had both hands and most of one arm blown off in Iraq?

When he files a lawsuit against Michael Moore because there's a clip of him in Fahrenheit 911 talking to NBC News about how much it sucked to have his hands blown off. Because if you're talking about how much it sucks to have your hands blown off -- and I think Peter Damon gets a free lifetime pass to talk about this for as long as he wants with anybody who the thinks needs to hear it -- you must be harboring malicious thoughts with respect to our illustrious Commander-in-Chief. Right?

The First Circuit said "Wrong" today in Damon v. Moore, First Cir. No. 07-1365.

Things That Get You Killed In Jail

A good friend used to work for Super Shuttle in Los Angeles. Apparently the Super Shuttle folks spent a lot of time playing dominoes while they waited around to drive people from the Southwest terminal at LAX to strip clubs. This friend, we'll call him "JG", came to visit when we lived in D.C. and he brought his dominoes. There were certain tactical indiscretions that were not permitted. After committing such an indiscretion, JG would tell us "That's the sort of thing that gets you killed in jail." This was what his Super Shuttle coworkers told him, at least.

This case, Commonwealth v. Perkins, SJC No. 07-8448, involves things you shouldn't do when you're in jail.* When folks from the cold case squad want to interview you and they offer you a soda and a cigarette, SAY NO. Because the cold case guys could use the fingerprints on the soda can and the DNA from the cigarette butts to nail you with a murder charge. And there won't be very much you can do about it.

*It's also just a really freaking scary case. If some guy helps you carry your groceries home and then starts showing up at random hours looking to chat with you, do whatever you have to do to make it stop. Call the cops, the Guardian Angels, your brother, your sister, buy a gun (the Supreme Court would wholeheartedly approve!). Just make it stop before something bad happens.

Giveth, Taketh, Etc.

The reporters are just littered with suits claiming that lenders are violating federal statutes governing disclosure and reporting requirements. Plaintiffs win on occasion, but they probably lose more often. Such is the case in Sullivan v. Greenwood Credit Union, First Cir. No. 07-2354.

If you look at this case, you'll notice two things. First: the plaintiff's claims clearly don't mesh with the statute under which he sued the lender. It's almost as if the plaintiff's lawyer didn't read the statutory provision under which he was suing before he filed suit. Stranger things have happened.

Second: the statute doesn't mesh with itself. It's complicated, but the essence of it is that Congress creates a cause of action with one hand and then yanks it off the table with the other. The statute prohibits conduct, but then it defines the conduct such that nobody could ever conceivably violate it.

Good to know that Congress continues to spend the people's time so wisely.

Phew!

We're back from a two-day mediation. And thanking goodness that the current U.S. Supreme Court has finally found a liberty in the Bill of Rights that it considers worthy of protection! After all, the last ten years have established that state and federal legislators are far too willing to throw the gun industry under the bus. If there's one group of Americans whose interests need to be protected by the courts, it's those 55 million gun-owning households.

Right?

One Time is a Blip . . .

Two times is a pattern. Could three times (or more?) be a trend?

If you’ve ever wanted to know the ins and outs of staffing at the U.S. Marshal’s office here in Massachusetts, DeCaire v. Mukasey, First Cir. No. 07-1539, is the case for you. Today the First Circuit reversed the trial court’s finding for the defendant in this employment discrimination case. Apparently, the trial judge ruled against the plaintiff based on a view of the evidence for which the defense had not advocated, nor, it seems, even suggested.

There’s some language in here that would seem unusual were it appearing in a different context. “We have great concern,” they state at page 43 of the opinion, “over the district court’s utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake.”

Not so strange here.

Or What?

Want to vote on an initiative guaranteeing universal health care coverage? Too bad.

In Committee for Health Care for Massachusetts v. Secretary of the Commonwealth, SJC No. 10021, the SJC again tells the legislature that it has a duty to vote on all pending initiative amendments before it recesses.

Yet again, however, the SJC refuses to enforce the law based on a respect for the concept of separated powers.

The whole thing feels very passive aggressive. But it also feels right: if you don’t like what your legislator is doing, or don’t think she’s doing what she’s supposed to be doing, vote for somebody else and convince your friends and neighbors to do the same. Or run against her yourself.

Before You Cut Down Your Neighbor's Trees . . .

. . . For the love of Pete, read this case, Glavin v. Eckman, Appeals Ct. No. 07-P-383.

Carnival Of Buffoonery

A very smart rule of thumb for consumer class actions: unless the facts make you say (preferably out loud) that’s unconscionable, it’s probably not a case that’s worth a whole lot.

So.

Remember a couple of years ago when Listerine said that it was “as effective as floss.” Pretty silly, right? Not as silly as filing a class action lawsuit and claiming that the ad campaign duped you. Those are the facts in Kwaak v. Pfizer, Inc., Appeals Court No. 07-P-317. The issue in the case relates to whether the plaintiffs should be entitled to proceed with a class action, rather than pursuing their claims individually. The Court held that they’d have to do it individually.

The plaintiffs’ lawyer does have a blog, which is interesting.

On Obama And Judges

Some awfully smart people are going after Barack Obama for saying (gasp!) that a good judge has to be able to do the empathy thing. They claim that empathetic judges pose a risk to the rule of law.

Well, smart folks are occasionally wrong and this is such an occasion.

A good judge has to be able to see, understand, and sink his or her teeth into multiple perspectives in just about every case. Some people call this empathy. Some people call it judiciousness. It ain’t liberal or conservative per se.

The larger point is that Profs. Kerr and Bainbridge really aren’t concerned about the rule of law in this context; they’re concerned about the likelihood that a President Obama would appoint judges with whom they disagree. Liberal judges.

The Federalist Society has done a great job over the last 25 years convincing everyone that it’s liberal judges who are sacrificing the rule of law, who are the activists. This discourse has been politically successful, but it’s raised the stakes in an irresponsible manner.

We should all just get over ourselves. Republican presidents are supposed to appoint qualified conservative judges.* Democratic presidents are supposed to appoint qualified liberal judges. That’s just politics, not Armageddon.

*Our current President, regardless of how much you despise him, has been quite successful in this regard.