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.

Right Wing Hearts Local Government Until It Doesn't

So we know folks on the right side of the legal spectrum express concern about a few parts of the bill of rights. The Second Amendment is a good example. The First Amendment, too; but not all the time. And the Fifth Amendment's protection for private property. They're big fans of that. The right's response to Kelo v. City of New London was predictably flecked with prodigious quantities of spittle.

Ilya Somin returns to the site of this egregious crime against humanity in a recent post over at Volokh's. Somin furrows his brow and wrings his hands about Jeffrey Toobin's portrayal of the Kelo case in his recent book about the Supreme Court. Apparently, according to Somin, Toobin under-reports the amount of spittle that left wing folks spread around after the Kelo decision. But it's really just another opportunity to talk about how Kelo was such an abomination.

Conservative top-blowing about the Kelo decision is, well, annoying for two reasons. First, the decision is defensible, justifiable, and maybe even correct. Second, it's another example of the right conveniently overlooking its traditional deference to state and local authorities. But who needs intellectual consistency when sacred private property rights are at stake?

Unsung Heroes Of The Flight Patterns

The next time you fly into Boston, remember those faceless, dedicated bureaucrats at the Federal Aviation Administration who worked hard to make your flight as short as possible. In Town of Marshfield v. FAA, No. 07-2820, the First Circuit tells their story.

The FAA used the Integrated Noise Model (INM). Marshfield found this to be very uncool. Marshfield insists that the FAA should have used the Noise Integred Routing System (NIRS). Well of course it should have.

The First Circuit was not persuaded. In part because, it seems, neither side did all that great a job being persuasive. As the Court states: "Where neither side has shed much light on a matter, judges tend to fault the appellant; . . . In this case, the FAA's assessment of minimal impact is not implausible. If there is a stronger argument for insisting that the FAA use NIRS or some other computer modeling program in cases like this, it can await an instance in which a more powerful argument is presented."

There's other stuff going on here, but it's so exciting that you'll just have to read the case for yourself.

The Dog Ate My Memory

Yesterday, in a patient and thorough opinion, the First Circuit clarified the circumstances under which a court can summarily dispose of a case in which the only argument one side can muster is that it's possible the jury might not believe the other side's testimony. The case is LaFrenier v. Kinirey, First Cir. No. 07-1644.

It involved civil rights claims against two police officers arising from arrest in Townsend, Massachusetts. The twist is that the plaintiff "had no memory of the key events". Kind of a red flag, that.

Light Cigarettes Are Bad For You Too Dept.

The United States Supreme Court issued its opinion today in Altria Group v. Good, No. 07-562.* The Court held that the plaintiffs' fraud claims against the makers of "light" cigarettes were not preempted by a federal cigarette labeling law. In other words, people can sue tobacco companies for claiming that light cigarettes pose fewer health risks.** Justice Kennedy swung this case to the left.

Though the plaintiffs in this case are from Maine, Massachusetts plays a supporting role.

One of the key precedents the majority had to find its way around is Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). That case concerned Attorney General Tom Reilly's attempt to regulate cigarette advertising. The Supreme Court held that this is a job for the federal government, not the states. In today's decision, the majority states that the Lorillard case is distinguishable because it involved state regulation and this involves a private plaintiffs' common law claims.

We have one of these light cigarette cases pending in Massachusetts right now, Aspinall v. Philip Morris, SJC No. 9981. The SJC put it on hold until the Altria case was decided. So we'll see what happens there.

*As of now, this link loads v-e-r-y slowly.
**Feel free to be totally outraged by this or not.

Did You Even Know What Emoluments Were Two Weeks Ago?

From Prof. Volokh, we learn that Congress has passed its "Saxbe fix." This should protect Sen. Clinton from a successful challenge to her Secretary of State nomination based on the emoluments clause* of the United States Constitution.

Note the word "successful" in the previous sentence. Someone's going to file a lawsuit about this. And the lawsuit will find its way to the Supreme Court as a cert. petition. And there might be four votes to hear it. It seems, however, too bizarre to imagine that there would be five votes for nullification of Senator Clinton's appointment.**

*"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office."

**Those counting votes at home should consider this wikipedia article, which implies that Justice Kennedy owes his seat on the Court to the emoluments clause. See Michael Scott's brilliant thoughts on Wikipedic reliability here.

Sarah Palin And Her Followers Should Take Note . . .

In an election cycle that featured approximately ten thousand moments that kind of just made you have to shake your head, one of the more awe-inspiring instances was when Sarah Palin accused the press of threatening her First Amendment rights. People all across the ideological spectrum were quick to jump on Governor Palin. Because, for one thing, the Bill of Rights protects us from government action. Not from each other.

This, tangentially, is what the First Circuit dealt with today in Broadley v. Hardman, No. 08-1342. Not Sarah Palin. No. They dealt with the question of when a private person becomes a government actor. And they held that a lawyer who issues a subpoena in a civil case is not a state actor.

Both parties to the appeal represented themselves, by the way, which must have been great fun for the judges on the panel and their clerks.

SJC Rules On Subprime Mortgage Chaos

One of the mortgage implosion's interesting characteristics is how commentators have found it difficult to allocate blame. Some blame the borrowers, since they should have known better. Some blame the lenders, since they should have known better. And some blame real estate agents for marketing properties to people who couldn't afford to buy them.

Today the SJC adventures into this murk in Commonwealth v. Fremont Investment & Loan, No. SJC 10258. The decision is long-ish. The facts are complicated. The procedural elements are a bit different, since this an enforcement action by the Commonwealth.

But everything flows from this conclusion by the Court: "it was unreasonable, and unfair to the borrower, for Fremont to structure its loans on . . . unsupportable optimism."

Expect much animated debate -- about personal responsibility, unfair business practices, and the propriety of hope -- to ensue.

Decisionism Treads Upon Dangerous Terrain

Ross Douthat has been singled out for his share of praise as being a smart voice among the next generation of right wing commentators. And he was often a voice of reason during the campaign. His op-ed on abortion in yesterday's New York Times, however, substitutes ideology for logic and reason with predictable results.

Let's start with his initial premise, which he drops on us in his very first sentence. "An iron law of recent American politics," Douthat writes, "dictates that any Republican setback at the polls will be quickly pinned on the pro-life movement." But this is just wrong. Barack Obama beat John McCain because he ran a better campaign and wasn't saddled with eight years of the worst presidential performance quite possibly in American history. The Republicans owe their poor performance in 2006 to the horrible confluence of Katrina, Iraq, and corruption. And the last bad year for Republicans before 2006? That would be 1998, when the public punished Republicans for trying to impeach a popular and effective president.

The meaty part of the piece, though, is Mr. Douthat's claim that pro-life folks are really quite reasonable at heart. They're just trying to compromise, see? Now what will the first step toward compromise be according to Mr. Douthat? Pro-choice acceptance of tight limits on abortion in the final trimester? Pro-choice agreement that doctors at Catholic hospitals can opt out if they don't wish to perform abortions?

Not quite. "[N]o . . . compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books." In other words, if you pro-choice people would just give up on the notion that there is a constitutional right to terminate a pregnancy, we could work out our differences.

"Compromise" and "surrender" are not synonyms. Mr. Douthat writes for a living, so it's not too much to expect him to know that. Is it?

Litigators are quite familiar with this way of going about one's business. "I'm just trying to be reasonable," our adversaries say. "If you would just give up and accept my view of the world, we could work this out." This is always an interesting dispute-resolution strategy, but rarely a very effective one.

The Right Line Of Work

If you're a lawyer -- a litigator -- and someone tells you there's a case in the First Circuit involving the question of whether a Maine wilderness waterway enactment is preempted by the federal Wild and Scenic Rivers Act, and your response is "Ooohhh! Cool issue!", that's a good sign you've chosen the proper line of work. (Though if you draft ghastly run-on sentences like the foregoing, you ought to reconsider any profession involving the written word.)

It's also the issue decided (no preemption) by the First Circuit today in Fitzgerald v. Harris, No. 08-1306.

Watch Yourselves

Today's decision in Steinert v. Steinert, Appeals Ct. No. 07-P-1661, is the latest example of an appellate court expressing displeasure at one attorney trying to disqualify opposing counsel in a lawsuit.* And we can stipulate that this practice is occasionally, for lack of a better word, scuzzy.

But don't forget that lawyers often put themselves in these positions. Lawyers who call an opposing party directly and learn some incriminating bit of information. Lawyers who inject themselves into parties' attempts to resolve a dispute before it heads to litigation. Does it go without saying that a great deal of care must be employed when dealing with a party not yet represented by counsel? Yes.

But it bears repeating (if that makes any sense).

*In this instance, a divorce.

Clash Of Titans

If you want to see what it looks like when two extremely smart people have a profound disagreement in a public forum, take a look at the First Circuit's lengthy decision (and dissent) in Securites & Exch. Comm'n v. Tambone, No. 07-1384P-01A.

The dispute comes down to the extremely pedestrian question of whether people "make" a false statement when they "use" a false statement made by someone else and disseminate it to the masses.* The judges in question are Kermit Lipez (for the majority) and Bruce Selya (in dissent), so this is serious business.

The majority opinion is measured and methodical. Judge Selya, on the other hand, opens up a bit of a judicial can. He accuses the majority of "judicial adventurism" and, toward the end of things on page 105 says: "[T]he majority's result, I fear, has the potential to cause a great deal of mischief. At the very least, the majority opinion will garble the law and cause confusion in an industry much in need of clarity."**

Stating that a fellow federal appellate judge is garbling the law may not be all that unusual in more colorful circuits (the 6th and 9th come to mind). In the First Circuit, though, it's quite the big deal.

*A radical oversimplification. If you disagree with it, post a comment and explain why or start your own blog.
**The industry in question? The securities industry.

Does Johnny Damon Wish He Worked At Jiffy Lube?

Back when George Steinbrenner was Yankee overlord, he had this facial hair/hair length rule. No beards. No long hair. Whether the rule survives Steinbrenner's recently confirmed departure from the scene remains an open question.

What we learn from Brown v. F.L. Roberts & Co., Inc., No. SJC-10155, however, is that if Steinbrenner ran a Jiffy Lube in Hadley, his long/facial hair rule might cause him some legal problems with Rastafarians.

But then if Steinbrenner was Jiffy Lube overlord, a lot of us (as opposed to just Rastafarians) would think that Jiffy Lube was evil. Which would be bad for business.

Not That There's Anything Wrong With That

There was a time about ten or fifteen years ago when liberal people didn't like to be called liberals. For a while they liked the term "moderate" (e.g., "I supported NAFTA ergo I'm a moderate"). Then "progressive" became the term of choice (though it's now more of a synonym for "I'm-so-liberal-that-calling-me-liberal-won't-do-me-justice"). Regardless, the first instinct when being accused of being a liberal was to deny it.

Something similar may be happening in the conservative legal blogosphere, and it's slightly hilarious to watch. Take a look at this post by Jonathan Adler. He quibbles with the notion that the current Supreme Court is a conservative one. Is there really any doubt that when you put Scalia, Thomas, Roberts, and Alito together you have the strongest conservative base on the Court that we've seen in a very long time? Like since Earl Warren was nominated?

Glenn Reynolds is also a reliable exemplar of this trend, as evidenced here, here, and here. Message to Prof. Reynolds: when you're debating between voting for John McCain and Bob Barr, that's a pretty good indication that you tilt toward the right. And more than just a tad.

The Outer Reaches

Did you know that it's illegal for a Massachusetts tavern to serve alcohol to an intoxicated person? That's what G.L. c. 138, § 69 says. The statute plays a supporting role in Justice Cordy's concurrence today in Commerce Ins. Co. v. Ultimate Livery Serv., Inc., SJC No. 10149.

So now you know that (whether you believe/agree with it or not is your own business).

The decision is more interesting than all that, though, because it delivers us to the way-outer penumbra of negligence liability. The Court reverses a trial judge and holds that a livery service can be liable if it drops off a drunk person, has reason to think that the drunk person is going to get in a car and drive somewhere, and said drunk person does just that and causes harm.

This is a very hard call. Any time you see a court state that its "finding of possible liability in this case is limited to the facts described above", you can bet there's some discomfort with the ramifications of the holding. And you can bet that blue-faced law students will argue this issue into the ground for years to come.

High Steaks (Sorry . . .)

If you've ever driven past the Hilltop Steakhouse in Saugus, this case, Giuffrida v. High Country Investor, Inc., Appeals Court No. 07-P-751, might interest you. Or make you hungry.

But if you have anything to do with business deals of any stripe, whether as a litigator, a transactional attorney, or as a businessperson, the case will definitely interest you.

The Appeals Court holds that liability is possible under the Commonwealth's unfair business practices statute, Chapter 93A, where a party fails to follow through on oral promises made in the context of a pretty sophisticated business deal that are either contrary to the deal documents or not incorporated in the deal documents. Some might quibble with this interpretation of the case and say that it's not controversial since people often get tagged for making (and breaking) promises they don't intend to keep.

Still, doesn't this add a thick layer of stickiness to virtually every deal? Doesn't this case mean that the black and white of the deal documents can be negated by the spoken words of one of the principals? Isn't it usually the other way around?

There will be a predictable rush to limit this case to its facts, on one side of the bar, and an equally predictable rush to expand the scope of its holding, on the other. If it stands, the Giuffrida case and its implications will be briefed if not to death, then very close to it. With triple damages and attorneys' fees in the balance, you can count on that.

If You're Going To Tell A Story, Tell The Whole Story

George Lardner, Jr. had an op-ed on the Marc Rich pardon in Saturday's New York Times. Jonathan Adler apparently thought it was awesome.

The obvious reason for the op-ed is that Eric Holder, Barack Obama's possible nominee for attorney general, had a role in the pardon.

This blog has no truck with Marc Rich, but the op-ed is woefully incomplete. In February 2001, Bill Clinton felt the heat on the Rich pardon enough to write an op-ed (or, more likely, have an op-ed written) in the Times explaining the eight separate reasons that he granted the pardon.

Mr. Lardner assesses one or two of the former president's justifications at least a little bit, but he doesn't look at the one reason that President Clinton identifies as being important:

[M]any present and former high-ranking Israeli officials of both major political parties and leaders of Jewish communities in America and Europe urged the pardon of Mr. Rich because of his contributions and services to Israeli charitable causes, to the Mossad's efforts to rescue and evacuate Jews from hostile countries, and to the peace process through sponsorship of education and health programs in Gaza and the West Bank.

There's a passing reference to Ehud Barak toward the end of Mr. Lardner's piece. But that's all. If you're going to say someone "brokered one of the most unjustifiable pardons that an American president has ever granted", assessing major counterarguments should be on your agenda, too.

Predators Everywhere: Rejoice!

Think about this.

You have a daughter. She is fourteen. She works at a mall. As she is leaving her job one day, a guy in a red truck drives up next to her in the parking lot. He asks her if she needs a ride. She says no. The guy raises his voice. He says "Get in the truck." She flees.

The red truck guy has broken the law somehow, right?

In Commonwealth v. LaPlante, No. 07-P-1541, the Appeals Court says no. The Court states that the evidence "was insufficient to prove intent forcibly to confine the victim . . . ." As a matter of law, that is, meaning no reasonable jury could find that Mr. Red Truck intended forcibly to confine your daughter.

There's a conspicuous absence in this case of the panel having any notion that their result is even the slightest bit problematic. Not that they need to agonize or anything. Just a slight nod, maybe. To those of us who look at the facts of this case and say: "What else is Mr. Red Truck trying to do other than kidnap the girl?"

What Actual Judicial Activism Looks Like

Commonwealth v. Ross, No. 07-P-1183, is an Appeals Court case that came down a couple of days ago. It's a simple case about a guy who fled from a police officer, which is not something this blog endorses. He was convicted, he appealed, and he lost.

He shouldn't have.

The criminal statute that governs in situations where someone fails to stop for a police officer is simple. It punishes those who fail to "stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment." G.L. c. 90, § 25.

So that's the law. The police officer must be in uniform or display the badge conspicuously. If you fail to stop at that point, you get to go to jail.

In this case, though, the police officer was not in uniform and did not display a badge. Game over, right? Wrong. Though there is nothing in the statute providing them with the latitude to do so, the Court disregarded the uniform/badge requirement because the officer was in hot pursuit.

Will conservatives raise holy hell about this? Probably not, since the bad guy lost. But if people think that police shouldn't always have to flash a badge as a prerequisite to a failure to stop charge, they should talk to their legislators about it. Changing the statute would be easy enough. It would probably pass on a voice vote.

Is the badge requirement objectively absurd? Maybe. But absurdity, like so much else, is relative.

Conservative Win In The SJC

Commonwealth v. Santiago, SJC No. 10117, is significant insomuch as it is a decision by the highest court in Massachusetts about search warrants. The issue is whether the 4th Amendment requires police to knock when they know their target has a BB gun and pit bulls. The majority held that the 4th Amendment does not require police to knock.

But what is far more interesting is that this is the first case since Justice Botsford joined the Court in which the conservative-leaning wing of the Court can claim a clear victory. Chief Justice Marshall, Justice Ireland, and Justice Botsford all dissented in this case. And dissents are a relative rarity in the SJC. Dissents by any of those three justices are very, very rare.

For those who care, this probably doesn't portend a massive shift rightward by our high court. But it does remind us that yes, there are some more conservative justices sitting on the SJC and every now and then they're going to have enough votes to win. This isn't necessarily bad news for those of us who lean left. It's just what a healty justice system looks like.

Were There Any Whales In Grant Park Last Tuesday Night?

Two things leap to mind after skimming the Supreme Court's decision in Winter v. National Resources Defense Council, No. 07-1239.

First: if there was any doubt about how beaked whales would have voted (if, that is, they had hands) last Tuesday, this opinion puts that doubt to rest. The conservative majority basically threw our marine mammal friends under the bus so that the Navy could train for enemy submarine invasions.

Second: enemy submarines? Does Al Qaeda have submarines? We know North Korea does. That hasn't worked out so well for them. Is China an "enemy"? If so, point taken.

Questions, Answers, Preparation

Our Attorney General, Martha Coakley, learned yesterday that arguing before the United States Supreme Court is really, really hard. The issue in the case is whether the government needs to make the person who prepares a lab report in a criminal case available for cross examination. That, it seems, is the way they do it in California.

So Justice Kennedy asked how that's been working out in the Golden State. Good question, right? Especially when one of the arguments against requiring live testimony is that it wouldn't be workable.

Attorney General Coakley didn't have an answer to Justice Kennedy's question.

One of the keys to oral argument in appellate courts is coming up with an exhaustive list of potential questions from the judges and, of course, answers to those questions that help (or at least don't hurt) your case. A good way of filling in gaps in your list is to have a moot court. Or, if you're arguing before the United States Supreme Court, a *bunch* of moot courts.

Did that just not happen here? Or did the moot court judges not think of this question?

Dept. Of Maybe Understandable Shamelessness

It's been a good week for the excessive fines clause in the 8th Amendment. In Maher v. Retirement Bd. of Quincy, No. SJC 10182, the Supreme Judicial Court determined that the clause did not bar forfeiture of the former Quincy plumbing and gas inspector's pension. The amount of the forfeiture? $576,000.

The inspector broke into the office where Quincy's personnell files were stored and stole a portion of his own file. It seems there were some things in that file that Mr. Maher didn't want Quincy's new mayor to know when he was deciding whether to keep Mr. Maher in his inspector post.

Mr. Maher pled guilty to breaking and entering etc. in July 2003. The following month, the Quincy retirement board commenced an administrative proceeding to determine whether Mr. Maher would have to forfeit his retirement allowance. In December 2003, the board informed him of the bad news.

He sued. And made the shameless but not necessarily frivolous argument that the forfeiture was an excessive fine under the Eighth Amendment. With more than a half a million dollars on the line, can you really blame him?

In Case You Were Wondering

For your information and contemplation on this Wednesday morning unlike any other, the age of each member of the United States Supreme Court:

Roberts: 53
Stevens: 88
Scalia: 72
Kennedy: 72
Souter: 69
Thomas: 60
Ginsburg: 75
Breyer: 70
Alito: 58

This is all fine and good. But the real issue is how much each of these justices like their work and their colleagues. For pretty much each of these nine, the answer is "a lot" and "a lot".* So don't go expecting five SCOTUS retirements or anything.**

*Totally uninformed guess!
**Expecting one or two retirements? More reasonable.

Common Sense Alert

The result in United States v. Levesque, 1st Cir. No. 08-1344, feels like it's right. A woman who drove marijuana shipments all over the Eastern seaboard was hit with a $3 million dollar forfeiture order because that's what the stuff she shipped was worth. The woman told the district court that she had made $37,000 on her illegal activities. The court said, in essence, that's great but you might do well in the future and be able to pay the government back.

The First Circuit reversed, in no small part based on the Magna Charta (!) and the excessive fines clause of the Eighth Amendment (remember that?).

Just at a really basic level, didn't the First Circuit do the right thing? How can a person who made $37,000 on drug transactions worth $3 million be put on the hook for the whole $3 million?

This one could go all the way. The holding is based in no small part on a fractured Supreme Court decision where Justices Scalia and Breyer broke with their usual allies and did exactly the opposite of what the conventional wisdom would have them do. So as much as this blog has beaten the drum of result-based decision-making, there are exceptions out there. Not enough. Better not to be greedy, though.

Splitting The Difference

There's a fascinating instance of the First Circuit attempting to do something that all clients hate (until, that is, they benefit from it): split the baby. The case is Jensen v. Phillips Screw Co., First Cir. No. 07-2766.

The parties were fighting about a $9,000 sanction order imposed by the district court judge on plaintiffs' counsel in a class action. Now $9,000 isn't a lot of money. That's true. But getting sanctioned is a pretty big deal and will at the very least hurt the feelings of even the most thick-skinned table-thumper. So plaintiffs' counsel fought the ruling. And the First Circuit largely agreed with them, reversing the award.

The most interesting portion of the decision is the last paragraph. This is the kind of thing that every lawyer always suspects that a judge or arbitrator is thinking. It's rather momentous to see it actually committed to writing:

The battle that is presently being fought is obviously about principle, not money (experience suggests that each side has spent more than the dollar amount of the sanction in briefing and arguing this appeal). As a matter of mutual interest, the time may have come for the protagonists to call it quits. On the one hand, Phillips prevailed in the district court and can credibly claim a moral victory. On the other hand, SE&D has prevailed in large part on this appeal and, at that point, has erased the stain on its escutcheon.

Tales From The Cryptic

The Supreme Court has reversed the 6th Circuit's determination that the Secretary of State of Ohio had to match voter registration rolls with department of motor vehicles records under a federal statute. The case is Brunner v. Ohio Republican Party, No. 08A332. This makes Democrats happy, because it probably means more people will be able to vote. It makes Republicans less happy, because they think that more people being able to vote means a greater chance of voter fraud.*

The decision is short and a little bit cryptic. But its basis is that the Ohio Republican party, nor any private person, can file suit under the statute in question. Helpfully, the Supreme Court provided no guidance on who or what can file such a suit. Maybe the Department of Justice?

*Like wolf attacks on humans since 1900, Republicans can point to precious few (any?) instances of actual fraudulent votes being cast.

Decisions That Have Not Yet Been Made, Etc.

This seems slightly problematic. A question to think about: might this testimony "have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people"? It just might.

AIG Off The Rails

This hasn't been the best couple of weeks for AIG. Today, in Maxwell v. AIG Domestic Claims, Inc., No. 07-P-1858, the Appeals Court lays into the crippled insurance giant. And it seems that this laying-into is entirely justified. AIG denied workers' comp benefits to the plaintiff because he was doing volunteer work as part of a community service program -- a program in which he had to participate to keep his spot at a YMCA homeless shelter. And then it got the Suffolk County District Attorney to institute charges against him for insurance fraud.* Shortly thereafter, the plaintiff tried to kill himself. The Commonwealth pursued the charges for a time and then dropped them when it became clear that AIG's fraud contentions were not based on, well, actual facts.

Maybe AIG thought it had a blank check to browbeat homeless people since it put cute kids in its advertisements. Who knows? But if you can't believe an insurance company's advertising campaign, you just have to wonder what you can believe.

*Charges to which he initially pled guilty and then withdrew the plea given his precarious mental state.

Another Reason Sarah Palin Is Glad She's From Alaska

In Cachopa v. Town of Stoughton, No. 07-P-1247, the Appeals Court today held that political infighting, if it's too aggressive, can be actionable. Given what we know about politics as practiced in the Commonwealth, it would not be surprising to see a noticeable surge in civil case filings. As if Sarah Palin needed another reason to thank her stars that she doesn't live in Massachusetts.

Trend vs. Blip Dept.

Again? Yes, again. We may be reading more into this than we should, but isn't the First Circuit's tone in McGill v. U.S. Express Truck Co., No. 08-1101, a little bit exasperated?

Suffolk County Sherriff Weirdness Update Number Two

You may remember several months ago a weird case involving a lease and the Suffolk County Sheriff's office. The idea was that the lease wasn't enforceable because the auditor had approved the lease but not issued a document certifying that there were funds available to make rent payments. There was even a comment, probably by someone involved in the case, that included the landlord being derivatively "hoist by its own petard."

Well, today in Bradston Associates, LLC v. County Sheriff's Department, No. SJC 10139, the SJC issued its own decision in the case. It held, contrary to the Appeals Court, that the lease was enforceable even accounting for the auditor's bizarre certification.

"To hold otherwise," the Court stated, "would sacrifice substance to form and perpetrate an unfairness . . . ." Petard, consider yourself unhoisted.

Decisionism's Newest Reader*

Beatrice Sobel Klein! Born August 15, 2008 at 1:33 a.m.

*Also the reason for recent light posting, along with the lack of interesting stuff happening because everybody is on vacation.

Not Every Day? Who Is This Guy?

Yesterday, this blog included a post stating that it's really rare for appellate courts to reverse a trial judge who is trying to control his or her docket. So rare, in fact, that it's happened two straight days in two separate appellate courts located in the Commonwealth.

Today, it's Wilkins v. Cooper, No. 07-P-26. The procedural history here is Byzantine. But the nut of the issue is whether a trial court can dismiss a case where one attorney misses a status conference and, at that very same status conference, the Court can decide on its own to convert the status conference into a motion hearing and toss the case. The answer is no.

One other interesting fact here: there was at least one motion in this case on which the Superior Court held a hearing and then failed to issue an order for four years. The Appeals Court calls this a "remarkable delay." The Court, generously,* does not identify by name the judge who held these motions under endless advisement.

*Don't you want to know who it was?

Not Something You See Every Day

Appellate courts tend to give trial courts a lot of leeway when it comes to controlling their dockets. The only way a trial court will be reversed in this context is if the judge abuses his or her discretion. And appellate courts, especially the First Circuit, are very reluctant to find that a federal trial judge has abused that discretion. When they do make such a finding, they usually explain themselves in quite a bit of forceful detail.

So Beetz v. Ambrosi, First Circuit No. 07-2449, is just weird. The essence of it is that the trial judge allowed a motion to withdraw that also sought a 30-day extension of the time in which to file an amended complaint, then dismissed the case 23 days later. The First Circuit didn't call the trial judge onto the carpet, however. It just sent the case back.

Two other odd aspects of this case:

1. The plaintiff claimed that he'd filed an amended complaint in a timely fashion, the First Circuit believed him, but there was no electronic record of the filing. As most folks who practice in federal court will tell you, that doesn't happy very often. If ever.

2. The defendant claimed that since the trial judge had not explicitly allowed the original attorney to withdraw and stated that the time for filing the amended complaint was extended, that the order should only be interpreted as allowing the withdrawal. Some would call this argument "creative." Others would call it "stupid."

Loss Of A Less Than Even Chance

The SJC expanded medical malpractice liability today. The significance of the expansion remains to be seen.

In Matsuyama v. Birnbaum, SJC No. 9964, the Court holds that a patient whose chances of survival decrease from less than fifty percent to something less than that has suffered a compensable injury. This is a tough problem, and whether it challenges a lot of notions about tort law probably depends on how you feel about tort law as a general matter. If you have no thoughts about tort law as a general matter, you are either (a) sane, (b) not a lawyer, or (c) both.

But the logical problem, the conundrum, boils down to this: (1) you are more likely than not to die because of a certain medical condition; (2) a doctor is negligent in her treatment of you; (3) because of that negligence, it becomes even more likely that you'll die. In other words, the doctor's negligence itself hasn't caused the person to die. The SJC considers this issue in the context of someone who has passed away, but expressly leaves open the possibility that this claim can be pursued by a person who is still alive. See n. 33. Another interesting question is whether this theory would cover a plaintiff whose chance of survival decreased, but only by a small amount. The Court outlines a five step process for calculating damages, but you probably haven't seen the last of that issue.

The health care sector is, um, a bit of a big deal in Massachusetts. And the presence here of some of best medical minds on the planet means that a lot of very sick people come seeking help. Whatever you think of the result, it must be acknowledged that this case will affect the willingness of practitioners to pursue innovative solutions. And that's not a good thing.

Thrown To The Dogs, Er, The Voters

You may remember that eight years ago, voters in the Commonwealth narrowly defeated an initiative to ban dog racing here. Some folks who like dogs tried to place a similar initiative on the ballot in 2006. In response, some folks who like dogs, but especially when they're chasing a mechanical lure and running really fast, sued and got that initiative stricken from the ballot.

The people who like dogs as a general matter tried to get another initiative on the ballot this year. In response, the people who like dogs that chase mechanical lures sued again to keep the initiative off the ballot. Today in Carney v. Attorney General, SJC No. 10158, the SJC ruled for the people who like dogs as a general matter.

So we get to vote on dog racing this fall. Suggestion: let's just flip a coin and then have the people on each side of the issue donate the money they would have spent on consultants, mail, and advertising to nonprofits that help low-income kids in Revere (or Lynn or Chelsea or Everett, for that matter).

A Pesky Claim

With some frequency, enterprising plaintiffs include in their complaints claims for violations of the Massachusetts Civil Rights Act. The Act provides a cause of action when someone -- anyone: government, civilian, whatever -- interferes with another person's exercise of his or her constitutional rights. The SJC has been quite clear that the Act does not create a "vast constitutional tort", but it sort of, well, does just that.

Yesterday, in Kennie v. Natural Resource Dept. of Dennis, SJC-10052, the SJC reversed a trial court's summary judgment dismissal of a claim under the Act. The Act requires a plaintiff to establish that the interference with the constitutional right have been carried out by means of physical threats, physical intimidation, or coercion (which need not be physical). It's this last prong that makes claims under the Act so pesky.

Kicking claims like the one in this case to the jury gives plaintiffs a pretty formidable weapon. We each have an expansive collection of constitutional rights. And there are an expansive number of ways in which another person could interfere with those rights via moral or economic coercion. Most civil complaints filed in the Commonwealth probably include a claim for violation of the unfair business practices statute, Chapter 93A. Might we be entering an era where plaintiffs also, as a matter of course, also include claims for violation of the Civil Rights Act? Time will tell.

UPDATE: HT BB.

Unsolicited Observation

Not that any of the observations are solicited, but, well, you know.

The case, Commonwealth v. Smith, Appeals Ct. No. 07-P-446, is from last week.

But the question it raises should be asked every single day: what the hell does it say about us that there are metal detectors at the entrance to Brighton High School?

Retired Supreme Court Justices Don't Even Fade Away

There had been rumors out there that Former U.S. Supreme Court Justice Sandra Day O'Connor was sitting on panels of various Circuit Courts of Appeal. The rumors are true. And we are fortunate enough to have Justice O'Connor delivering opinions in our very own First Circuit.

Her decision in United States v. Novak, First Cir. No. 07-1826, is really interesting. The First Circuit was reviewing the trial court's decision to exclude recorded conversations between an attorney and a client. Writing for a unanimous panel, Justice O'Connor reversed the trial court's decision.

What is so interesting about this decision is that it's clear that Justice O'Connor didn't want to rule as she did. She is quite transparent in her belief that the recording of the conversations between an attorney and a client violates the Sixth Amendment to the U.S. Constitution. But the defendant had not relied upon a Sixth Amendment argument in the trial court; he'd used the Fourth Amendment protection against unreasonable searches and seizures and the trial court had agreed. And since we're engaged in what is at least nominally an adversarial process, the First Circuit didn't feel that it could step in for the defendant and make an argument that he, for some reason, had chosen not to make.

It all goes back to issue spotting in the end, doesn't it?

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

. . . Say it in an Appeals Court opinion.

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

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

When A Win Is Not A Win

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

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

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

A Question While We Wait

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

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

A Tough Call

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

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

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

Barney Alert: Summary Judgment Escape Route

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

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

First Circuit Hearts Intellectual Property

June, apparently, is intellectual property month in the First Circuit. Today's decision in Warren Freedenfeld Assocs., Inc. v. McTigue, First Cir. No. 07-1602, concerns application of a statute of limitations defense in the copyright context and other matters. It's also a relatively rare First Circuit reversal of a trial court's decision to allow a Rule 12 motion to dismiss.

The Winner: Duck Tours!

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

Divergent Dissents

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

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

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

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

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

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

Not surprisingly, the plaintiffs lost.

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

It's a close call.

History Shall Not Absolve Him

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

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

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

Jeez.

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

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

First Circuit Hearts Oprah

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

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

Is This Heaven? No, It's Everett.

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

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

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

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

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

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

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

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

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

Another Must-Read For Business Litigators

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

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

Cautionary Tales About Indecisive Real-Life Events

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

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

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

Decisionism Eats Some Crow

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

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

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

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

Again? Really?

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

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

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

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

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

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

Two Lessons

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

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

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

Nonmutual Collateral Estoppel In The Criminal Context

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

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

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

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

Open Meeting Plaintiffs Prevail (Sort Of) In Appeals Court

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

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

Still reading through this; updates possible.