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.