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.