Save Your Work!

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

Separation Of Powers Is More Interesting Than Charles Nesson*

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

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

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

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

*He might agree with that, by the way.

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

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

Supreme Court Abolishes Michigan Trial Court*

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

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

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

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

*Kidding!

So . . . How Was *Your* Fall?

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

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

Shocker? Not So Much

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

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

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

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

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

Gates

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

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

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

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

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

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

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

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

It Happened Here, Too

If you listened to NPR this morning, you probably heard Nina Totenberg's typically excellent report on the Supreme Court's decision in Ricci v. DeStefano, No. 07-1428. Totenberg interviewed Richard Primus, a professor at the University of Michigan,* about the decision. Professor Primus talked about the limits of the holding in this case. The argument, which kind of strays into Kübler-Ross territory, is that this isn't that big of a deal.

But that's just wrong. A quite similar case arose from a promotional decision made by the Boston Police Department. In that case, Cotter v. City of Boston, First Cir. No. 02-1404,** the white plaintiffs lost. Whether the Cotter case remains good law -- I think it does, just barely -- would make for an interesting article topic.

*Go Blue.
**Full disclosure: I worked on this case when I was a pup, helping out with representation of an intervening party, the Massachusetts Association of Minority Law Enforcement Officers.

Decisionism Is Just Like Mark Sanford*

Remember how Martha Coakley argued in the U.S. Supreme Court? The thinking at the time was that she did not do so well. Today, unsurprisingly, she lost. It's interesting, though, that the justice who asked her a question that nearly catastrophically tripped her up, Justice Kennedy, wrote an impassioned dissent supporting her position. So you just never know.

*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.

Oh, Please

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

Note To Self

Never, ever, ever do anything that attracts Nate Silver's attention. The thing of it is that mere mortals would read Prof. Mankiw's argument and say to themselves, "Hmm. Not such a good argument. But OMG he's way smart so I'll just take a flyer on this." Nate Silver is no mere mortal. He looks at the argument. He unpacks it. And then he blows it up into ten zillion pieces. Is he afraid of offending someone's grandmother? No. He is afraid of nothing. He is a magician with numbers. And he can write. Stay out of the man's way.

I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!

An Actually Big Development

Thanks to 23 Neighborhoods for highlighting Judge Tauro's decision in Real Estate Bar Ass'n for Massachusetts, Inc. v. National Real Estate Information Services, D. Mass. No. 07-10224-JLT. This is a significant case. It emanates from the United States District Court for the District of Massachusetts, which gets shafted by this blog because its opinions aren't distributed electronically (understandable, but disappointing). It's also more than a month old, so it's not news per se.

Judge Tauro holds that requiring retention of Massachusetts attorneys to close real estate transactions here is unconstitutional. The practice is unconstitutional because it discriminates against interstate commerce and thus runs afoul of the Dormant Commerce Clause.* The Court's analysis of the issue starts at Page 15. It's not simple at all, but it probably didn't help REBA that one of its officers defended the lawyer requirement and was quoted in the Globe as stating "We don’t need outsiders coming into Massachusetts and telling us how to do things." That's usually not going to win you very many dormant commerce clause cases. It also didn't help REBA that it adopted an almost identical argument to one that the First Circuit rejected in an earlier case about a Rhode Island debt collection law.

With the pesky Constitution involved, there isn't a whole lot REBA can do about this except appeal. That seems likely; running real estate closings is a massive source of income for a large segment of the Massachusetts bar. The First Circuit will probably decide whether that continues to be the case.

*A legal doctrine that is neither dormant nor a clause, but hey.

Tradition!

There are not insignificant corners of the blogosphere supposedly devoted to documenting the stupid things said on occasion* by Mickey Kaus and the Instapundit, Prof. Glenn Reynolds. They probably should have dropped their copies of the Little Red Book or Das Kapital yesterday and done some blogging, because Kaus and Instapundit sure did join forces and serve up a hanging curveball.

They each try to raise a stink about the fact that the administration is talking about appointing a new U.S. Attorney for the District of North Carolina. It seems that the current person in the job, who was appointed by George W. Bush, is investigating John Edwards. So, they ask, why isn't the media freaking out about this like it did when Bush fired U.S. Attorneys who weren't bringing frivolous election fraud cases again Democrats? As the cool kids say, it's teh bias!

Except it's not. The modern tradition is that when a new administration comes to power, U.S. Attorneys from the previous administration move on to bigger and better things. Why don't Kaus or Reynolds mention this in their posts? The author of the article to which they link certainly does.** Maybe Reynolds overlooked it in his haste to post photographs of a sparsely attended tea party and Kaus did the same because he had to go patrol the border since Obam won't build the fence. Or perhaps there were other reasons. We'll never know.

*Or more frequently, as it were.

**The N&O headline writer's hilarious predilections notwithstanding.

Pro-Business Court? Eh.

No, no the U.S. Supreme Court's decision today in Iqbal v. Ashcroft, No. 07-1015, did not grant John Ashcroft, Robert Mueller, or anybody else blanket immunity for their actions in the aftermath of September 11, 2001. That just is not what happened today. If you want to understand what *did* happen, go over to Scotusblog and read Lyle Denniston. After that, you're on your own.

The decision is more interesting, at least to me, because it involves the Supreme Court's first exploration of the new pleading standard that it announced in Bell Atlantic v. Twombly. Before the Twombly case, the question was whether the plaintiff could prove "no set of facts" that would entitle it to relief. This was a bit tough from a metaphysical standpoint, the whole proving a negative thing was confusing, etc. It also allowed a lot of cases to make their way into discovery. So people -- at least those who didn't represent plaintiffs all the time -- were fed up.

The new standard requires the plaintiff to show that it has "a plausible claim for relief." The Court endorsed the 2d Circuit's formulation of what (the heck) this means: "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." (Page 15).

Once they figure out that this is what really happened today (as opposed to Loook! There's John Ashcroft! Booooo!), at least one very smart person on the left side of the legal spectrum will decry this holding as being yet another example of the Roberts Court's pro-business leanings. And I will want to agree with that person.

But it just isn't, er, plausible. First off, businesses file lawsuits, too. And some of those suits are based on some pretty flimsy facts to which discovery will (they hope) add necessary heft. Second, though, if the Court's motivation is to help businesses, they've done a very poor job of it in the Twombly and Iqbal cases.

Here's why: businesses crave certainty. They want to know what the best-, worst-, and medium-case scenarios are when they find themselves embroiled in disputes. And they want to know before the scenarios actually happen. Twombly and Iqbal make this a much more complicated analysis than it was under the old pleading regime. Before, the advice was simple: "We can move to dismiss. It will be expensive. And we probably won't win because the judge will have to accept all the facts in the complaint as true. But it might be worth it because if we win, there's no discovery and that's when things get really expensive."

Now it's all about whether a particular district court judge thinks a claim is "plausible." And that will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." It's difficult to see a there there. Oh and it's not enough for plaintiffs to show a possible path to victory. You'll have to do something that "nudges" your clients' claims "across the line from conceivable to plausible."

So what do we know? We know that possible isn't enough. We know that conceivable isn't enough. Plausible is enough. But what's plausible again? That depends? How does that help anybody?

Does The Spread Offense Violate The Constitution?

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

Gratuitous Guidance From The First Circuit

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

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

Yes: You Gotta Read The Errata

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

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

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

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

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

People And Guns Killing Each Other

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

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

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

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

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

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

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

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

Santelli-Glendon 2012!

Professor Mary Ann Glendon is obviously extremely smart. She's a professor at Harvard Law School, not some intermittently-blogging, fair-to-middling litigator. And standing by one's principles is quite honorable. But this just seems like a dopey and hyper-dogmatic maneuver.

It's one thing if Prof. Glendon wants to engage in a reasoned debate about the merit of "the Church's position on issues involving fundamental principles of justice." It's another thing, though, if Prof. Glendon realizes that a reasoned debate about those positions will end up revealing their foundational weakness. And it's quite another thing still if her goal is to ingratiate herself with the right wing blogosphere and Rush Limbaugh.

In the end, all this means is that Notre Dame gets more Barack Obama and less Mary Ann Glendon. Which will devastate some portion of the student population there. For sure. Nothing that a little Galt and English Breakfast can't fix, though.

See! Some Lawyers *Can* Write

The Supreme Court's decision in Nken v. Holder, No. 08-681, is worth a quick look for a couple of reasons. The issue is whether a "stay" is the same thing as an "injunction". Seven justices say no, they aren't the same thing. Two of these seven concur and write separately. And two of them dissent.

The first interesting aspect of this case is the lineup. Justice Roberts writes the majority opinion (more on that in a second). He is joined by, er, Justices Stevens, Souter, Ginsburg, and Breyer. Weird, eh? Doesn't happen a whole lot. Justice Kennedy writes a concurrence and he's joined by . . . Justice Scalia. That doesn't happen a whole lot, either. Justices Alito and Thomas, finally, dissent. This is less weird.

The second interesting aspect of the decision is that Justice Roberts' majority opinion is really well-written. Especially that first paragraph. There are still way too many lawyers who insist upon writing like it's 1899. Part of this is law school, where often-unintelligible opinions written a million years ago are fetishized in large part because it's nearly impossible to figure what in the world the judge is talking about. And part of it is arrogance: we write like crap because they took our powdered wigs away from us and we need some other way to differentiate ourselves from the masses. But opinions like this one by Justice Roberts -- clear, simple, logical, and no longer than it needs to be -- come along every once in a while. We'll take them where we can get them.

Why Lawyers Are Nuts About Spotting Every Possible Issue

It's always a bit tough to predict the legal issue that will resonate with the judge or judges hearing your case. This is one of the reasons that many conscientious lawyers have big problems with page limits: you don't want to miss an issue that could win the case for you. That seems to be what happened in Barrasso v. Hillview Condo. Trust, Appeals Ct. No. 07-P-1057.

Judge Kantrowitz concurs and directs the full force of his exasperation at all comers in this slip-and-fall case. The issue, as he sees it, is whether a person of average intelligence would climb over three feet of snow to throw a small plastic bag of trash in a dumpster. Judge Kantrowitz makes it clear that he thinks the answer is no, a person of average intelligence wouldn't do such a thing. He compares it to diving into the shallow end of a swimming pool and sledding down snow-covered stairs.

Maybe the defendants didn't think this was an issue they could raise on summary judgment. One would hope that they'll at least give it a go on remand. "While it is difficult to imagine how, once raised, it would not prove successful," Judge Kantrowitz writes, "I leave that for another day."

Bye-Bee?

This weekend, the New York Times published an editorial calling for the impeachment of Ninth Circuit Court of Appeals Judge Jay Bybee. This followed the release last Thursday of a new batch of torture memos, including one authored by Judge Bybee. The impeachment concept subsequently caught fire, even in somewhat improbable (and near and dear) quarters. The most comprehensive analysis of why this is such a big freaking deal is here.

I am very, very hesitant to say that the legal analysis of a sitting federal judge is stupid. But for current purposes, I'll stipulate that the legal opinions presented in the memo make rocks look smart and, if set forth in a law school exam answer, could get their author kicked out of school.

But does the act of authoring the memo constitute a high crime or misdemeanor? Let's think about that for at least a couple of days. A couple of days? Yeah: take a deep breath. Assignment of criminal responsibility to the author of even a poorly reasoned and generally deficient written legal opinion is still the assignment of criminal responsibility to the author of a written legal opinion. And that's a huge deal.

But so, in the end, is torture. Some guy somewhere put it in a simple and straightforward way: The United States "does not torture people." Maybe Judge Bybee didn't get that particular memo.

First Circuit Friction

It is starting to get warm in Boston, thank goodness.

But the First Circuit's en banc decision in Aronov v. Napolitano, No. 07-1588, throws off a different kind of heat.

The dispute involves a $4,270.94* fee award entered by the District Judge Nancy Gertner against United States Citizenship and Immigration Service in a suit by a private plaintiff. The issue really is whether the plaintiff prevailed before Judge Gertner, which is prerequisite to the fee award. Judge Gertner said that he had. The First Circuit saw it differently, going so far as to hold that Judge Gertner incorrectly interpreted her own ruling on a joint motion by the parties.

Judge Torruella was having none of this and he dissented.** Vigorously. It's a bit rare see a judge on the United States Court of Appeals address his colleagues like this (page 37):

With due respect, I suggest that our jurisprudence would better reflect the time-honored motto, "Equal justice under law," if we showed the same doctrinal flexibility and credulity to policy arguments presented by citizens asking us to limit governmental power, or for compensation for harm caused by governmental error, as shown by the majority to the government in this appeal.

Let's stipulate that this is the kind of statement that would lead a law professor to upbraid, humiliate, and generally disembowel a first year law student. We can agree on that. But that doesn't make the esteemed judge wrong, now, does it?

*Really? Really.

**As did Judge Lipez. His dissent reads more like a majority opinion, which is not insignificant.

Decisionism Gets Ink, Or Bytes, Or Whatever

Last week Mass High Tech published a short piece my partner, Matt Henshon, and I wrote about the Supreme Court's recent, slightly wacky opinion about FDA preemption. I alluded to the opinion briefly and semi-snarkily here.

I'm also quoted in an article that appears on StorefrontBacktalk concerning the First Circuit's recent decision in the TJX identity theft ugliness.

So now we're all on the same awesome page.

Why Decisionism Exists

So everyone can enjoy paragraphs like this one:

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

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

Scalia v. The English Language

This is why people adore lawyers.

Today's majority opinion in Entergy, Inc. v. Riverkeeper, Inc., No. 07-588,* contains the following sentence penned by Justice Scalia: "But minimize is a term of degree and is not necessarily used to refer exclusively to the 'greatest possible reduction.'" Page 11 (emphasis supplied).

This stinks a little bit of something, doesn't it? Justice Scalia gets some help from one online dictionary. Not so much from two others. The problem really is that "reduce" and "minimize" don't actually mean the same thing. Would our friends on the right be happier if Sarah Palin said "Gosh darn it, I will reduce your taxes!" or if she said "Doggone it, I'm gonna minimize your taxes!"? Can we stipulate that the John Galts of the world would be more pleased in the second scenario? And isn't insisting that "minimize" doesn't refer to "the greatest possible reduction" a little, well, tricky?

*For more on this case, check out Scotusblog's typically excellent analysis here.

Two Less Exciting Points From The TJX Identity Theft Case

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

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

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

Working Mothers: Rejoice

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

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

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

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

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

No Mulligan For Staples

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

Some Of My Best Friends Are Supreme Court Justices*

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

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

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

And:

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

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

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

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

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

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

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

*Not really. That might be cool, though.

**No way. Barney Frank said something impolitic?

***See ** above.

Way, Way Off Topic

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

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

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

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

Form, Function & Aesop

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

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

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

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

Decisionism Sees Moxie And Confusion Everywhere

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

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

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

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

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

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

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

Decisionism Plays Beautiful

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

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

California Marriage Case

Apparently it's marriage week here at Decisionism.

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

Two unsurprising things we learn:

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

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

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

Credit Where Due. Maybe.

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

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

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

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

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

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

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

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

One First Street Snow Globe

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

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

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

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

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

Justice Thomas asks no questions.

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

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

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

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

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

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

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

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

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

Coakley And The Supremes Deliver A Blow To Casino Gambling

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

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

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

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

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

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

Everyone Needs To Calm The Heck Down

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

Okay.

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

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

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

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

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

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

A Post Repeatedly Using The Word "Bizarre"

A pipeline rupture. A cautionary tale.

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

But there are two especially bizarre aspects of this case.

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

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

Glenn Reynolds: Not Paying Taxes Is Just Like Waterboarding

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

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

Eggplant *Is* Obscene, Though

Think about this for a second.

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

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

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

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

Elections Do Matter

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

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

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

Random Question About Mr. DeLeo And Boston Latin

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

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

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

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

Andover Student Enables Confirmation Of Common Sense

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

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

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

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

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

Supreme Court Causes Head Scratching

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

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

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

The Commonwealth Beats Back Rampaging Visigoths

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

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

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

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

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

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

A Closer Call Than It Should Be

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

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

That's right: six!

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

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

Wow.

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

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

New Bedford, Guns & Dangerousness

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

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

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

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

Is that true, though?

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

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

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

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

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

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

*But only probably.

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

Alberto Gonzales Can Kiss My Constitution

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

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

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

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

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

A Thought Or Two On The Burris Mess

Happy New Year, etc.

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

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

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

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

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

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