Category: Law 2002-04

Really, really big news from the Supreme Court Monday, although thus far among the major bloggers and blawgers I’ve seen only a brief, non-analytical writeup by Eugene Volokh and a bare-bones announcement from Howard Bashman (Tung Yin, call your office!). The Court’s decision in Crawford v. Washington, No. 02-9410 (U.S. Mar. 8, 2004) amounts to a revolutionary reassessment of the Confrontation Clause of the Sixth Amendment, one that will have wide-ranging effects on the criminal justice system. Justice Scalia wrote the opinion for a 7-2 Court; the Court’s decision to reverse the conviction was unanimous, but Chief Justice Rehnquist, joined by Justice O’Connor, disagreed with the Court’s analysis.
The Sixth Amendment provides: �[i]n all criminal prosecutions, the accused shall enjoy the right � to be confronted with the witnesses against him.� Crawford holds that the Clause bars the admission in criminal prosecutions of prior testimony unless the witness is unavailable and there was a prior opportunity for cross-examination. In so doing, the Court rejected the prior rule of Ohio v. Roberts, 448 U.S. 56, 66 (1980), under which such testimony, to be admitted, “must either fall within a ‘firmly rooted hearsay exception’ or bear ‘particularized guarantees of trustworthiness.'”. It was the latter part of the Roberts test — allowing un-cross-examined prior testimony to be admitted if it was deemed to have sufficient indicia of reliability — that prompted Justice Scalia’s characteristically pithy observation that

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

Slip op. at 27. The Court described the scope of its holding as follows:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers� design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of �testimonial.� Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Slip op. at 33 (emphasis added). The Court thus left unsettled such traditional hearsay exeptions issues as dying or other spontaneous declarations, and was also careful to note that its holding did not address non-hearsay statements such as statements in furtherance of a conspiracy.
Crawford is interesting academically; a good constitutional law professor could find much to discuss in the way Justice Scalia proceeded, after determining that the language of the Clause did not answer the questions at bar, to offer a historical exegesis of why the Framers of the Constitution feared inquisitorial practices under which out-of-court statements could be given to judicial or law enforcement officers and then admitted as evidence without cross-examination, as well as his explanation of why the Court should depart from its prior decision in Roberts: “[t]he framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations.” Then there’s his enviably concise explanation of how the new rule could be squared with past cases: “If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached.”
But its real significance is in practice, where the decision – while it may handcuff law enforcement in some cases – will also do much to prevent abuses in the system:

Continue reading Confronting The Sixth Amendment

Nothing revolutionary in here, but I thought this Law.com article from January was, in my experience at least, a good summary of what corporate clients expect from law firm associates.

1010 WINS Radio reporting that Martha Stewart was convicted on all charges. MSNBC will have more here. Trading halted on stock of her company.
Back to work.

Elliot Spitzer concludes that same-sex marriage is not recognized by New York law, but then concludes that New York courts would recognize same-sex unions from other states. So much for the argument that an amendment is not needed to prevent one state’s court ruling from imposing itself on the nation?
On the other hand, if you look at Spitzer’s actual ruling (opens in PDF form) rather than his press release, you’ll see that his conclusion on the latter issue is much less certain and relies on a lower court decision (involving civil unions) that’s currently on appeal to the Appellate Division, Second Department. So stay tuned.

Judge Cedarbaum’s opinion in United States v. Stewart, 03 Cr. 717 (S.D.N.Y. Feb. 27, 2004), dismissing the securities fraud charge against Martha Stewart, is now available online in PDF form. (You can read a news account of the decision here). The case provides an interesting look at the difficulty of proving intent in criminal securities fraud cases, especially in situations such as this one, where the alleged misrepresentations did not relate directly to the business of the issuer.
The securities fraud charge was always somewhat novel, in that it accused Stewart of fraud in connection with the purchase and sale of stock in her own company, Martha Stewart Living Omnimedia (MSLO), by misrepresentations during the investigation of her sales of ImClone stock in which she [1] “described the [alleged standing order] agreement to sell ImClone at a predetermined price, [2] stated that her trade was proper and [3] denied trading on nonpublic information.” Slip op. at 5. For purposes of the analysis of the Rule 29 motion on the sufficiency of the evidence, the court assumed the falsity of these statements. Id. at 7 n.1. The court found sufficient evidence that Stewart, who owned 60% of MSLO stock in addition to being CEO, closely tracked the stock’s price (including the impact on that price of insider sales, as evidenced by an informal company policy restricting insider sales), and was aware of the importance of her personal reputation to the company, as well as evidence that MSLO stock began dropping on news of disclosure of the investigation into Stewart’s sale of ImClone stock.
The court’s dismissal was based on the finding that the jury would need to rely entirely on “speculation and surmise” to find beyond a reasonable doubt that Stewart’s statements were made with the intent to affect the price of MSLO stock, and that the issue could not be permitted to go to the jury where “the competing intentions appear to be nearly in equipoise.” Id. at 16, 20. As the court concluded, in light of the fact that Stewart had made no statements indicating a concern about the response of MSLO’s stock price to the ImClone controversy (and, apparently, had made no suspicious sales of MSLO stock):

Continue reading Ain’t No Crime

We litigators have all been on the other end of lawyers like this . . . my favorite is the part where the guy wrote to the court to defend all the typos in his work, and he misspelled the judge’s name.

I didn’t really see this get much attention around the blogosphere: the Supreme Court’s opinion two weeks ago in Verizon Commun., Inc. v. Law Offices of Curtis Trinko, LLP, No. 02-682 (U.S. Jan. 13, 2004). The Court’s decision was interesting enough, for those who closely follow antitrust law: the Court unanimously rejected an attempt by a customer of a long-distance telephone company (AT&T) to sue the local exchange carrier, or “LEC” (Verizon) under the Sherman Antitrust Act on the theory that Verizon harmed long-distance competition (and thus the customer and a putative class) by failing to provide AT&T with sufficient access to Verizon’s facilities pursuant to the 1996 Telecommunications Act. Justice Scalia, writing for 6 members of the Court, found that the plaintiff failed to meet fit within the narrow class of cases where antitrust law imposes a duty on companies to assist their rivals, given that the alleged duty to do so arising from the Telecommunications Act was a creature of statute:

In the present case, by contrast, the services allegedly withheld are not otherwise marketed or available to the public. The sharing obligation imposed by the 1996 Act created �something brand new�-�the wholesale market for leasing network elements.� . . . The unbundled elements offered pursuant to �251(c)(3) exist only deep within the bowels of Verizon; they are brought out on compulsion of the 1996 Act and offered not to consumers but to rivals, and at considerable expense and effort. New systems must be designed and implemented simply to make that access possible . . .

(Citation omitted). (Justices Stevens, Souter and Thomas thought that the case should have been dismissed because the plaintiff lacked standing to sue). The Court also refused to embrace or reject the so-called “essential facilities” doctrine (a controversial doctrine of antitrust law, never directly ruled upon by the Supreme Court, under which it is sometimes argued that access to private facilities like railway switching stations — or desktop operating systems — are so essential to competition that all competitors must be given access). The Court reasoned that the plaintiff had failed to state a claim under the doctrine in light of the fact that the fact of federal legislation showed that the facilities could be accessed by means other than recourse to antitrust law — in other words, if Congress can regulate the facility directly, it isn’t so essential that only antitrust law can do so.
What really makes the Verizon opinion interesting, though, was Justice Scalia’s strongly-worded expression of skepticism (still joined in by a 6-Justice majority) about the value of extending antitrust law to create duties of companies to aid their rivals in already-regulated industries:

One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny. Where, by contrast, �[t]here is nothing built into the regulatory scheme which performs the antitrust function,� the benefits of antitrust are worth its sometimes considerable disadvantages. Just as regulatory context may in other cases serve as a basis for implied immunity, it may also be a consideration in deciding whether to recognize an expansion of the contours of �2.
The regulatory framework that exists in this case demonstrates how, in certain circumstances, �regulation significantly diminishes the likelihood of major antitrust harm.� Consider, for example, the statutory restrictions upon Verizon�s entry into the potentially lucrative market for long-distance service. To be allowed to enter the long-distance market in the first place, an incumbent LEC must be on good behavior in its local market. Authorization by the FCC requires state-by-state satisfaction of �271�s competitive checklist, which as we have noted includes the nondiscriminatory provision of access to UNEs. Section 271 applications to provide long-distance service have now been approved for incumbent LECs in 47 States and the District of Columbia.
* * *
Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs. Under the best of circumstances, applying the requirements of �2 �can be difficult� because �the means of illicit exclusion, like the means of legitimate competition, are myriad.� United States v. Microsoft Corp., 253 F.3d 34, 58 (CADC 2001) (en banc) (per curiam). Mistaken inferences and the resulting false condemnations �are especially costly, because they chill the very conduct the antitrust laws are designed to protect.� The cost of false positives counsels against an undue expansion of �2 liability. One false-positive risk is that an incumbent LEC�s failure to provide a service with sufficient alacrity might have nothing to do with exclusion. Allegations of violations of �251(c)(3) duties are difficult for antitrust courts to evaluate, not only because they are highly technical, but also because they are likely to be extremely numerous, given the incessant, complex, and constantly changing interaction of competitive and incumbent LECs implementing the sharing and interconnection obligations. Amici States have filed a brief asserting that competitive LECs are threatened with �death by a thousand cuts,� Brief for New York et al. as Amici Curiae 10 (internal quotation marks omitted)-the identification of which would surely be a daunting task for a generalist antitrust court. Judicial oversight under the Sherman Act would seem destined to distort investment and lead to a new layer of interminable litigation, atop the variety of litigation routes already available to and actively pursued by competitive LECs.
Even if the problem of false positives did not exist, conduct consisting of anticompetitive violations of �251 may be, as we have concluded with respect to above-cost predatory pricing schemes, �beyond the practical ability of a judicial tribunal to control.� Effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed decree. We think that Professor Areeda got it exactly right: �No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise. The problem should be deemed irremedia[ble] by antitrust law when compulsory access requires the court to assume the day-to-day controls characteristic of a regulatory agency.� Areeda, 58 Antitrust L. J., at 853. In this case, respondent has requested an equitable decree to �[p]reliminarily and permanently enjoi[n] [Verizon] from providing access to the local loop market � to [rivals] on terms and conditions that are not as favorable� as those that Verizon enjoys. App. 49-50. An antitrust court is unlikely to be an effective day-to-day enforcer of these detailed sharing obligations.

(Emphasis added; citations omitted). The Court clearly ‘gets it’: in fast-moving markets, the blunt instrument of antitrust law is usually more trouble than it is worth (note the citation to the DC Circuit’s Microsoft opinion). And where regulatory agencies already tread, adding private treble damages litigation to the mix is likely to reduce, rather than enhance, free and open competition.

So, I had to report for jury duty yesterday in state Supreme Court; didn’t get put on a panel, but sat in the back for the voir dire of prospective jurors for a criminal case. One juror – I won’t mention any identifying information about him – was asked the following questions and gave the following answers (this is a rough approximation, of course):

Q: Have you ever been a victim of a violent crime, charged with any crime or involved in any way with the criminal justice system?
A: Yes. I was a victim of an attempted carjacking.
Q: How was it stopped – did you fight off the attacker yourself?
A: Yes. I’ve been trained in the martial arts. [At this point, I and the other jurors are deeply impressed]
Q: Were you satisfied with how the justice system handled the case?
A: No. They said that because I continued hitting him after he dropped his weapon, they couldn’t press charges. He actually brought charges against me, and there was a civil suit, and it was resolved by both sides dropping all charges.

You just gotta love our legal system sometimes. You can’t make this stuff up.

A contest reveals the most unbelievable warnings that have been placed on products to protect against lawsuits by people with no brains and less common sense. The winners:

1. “[A] bottle of drain cleaner which says: ‘If you do not understand, or cannot read, all directions, cautions and warnings, do not use this product.'”
2. A “label on a snow sled which says: ‘Beware: sled may develop high speed under certain snow conditions.'”
3. “[A] 12-inch-high storage rack for compact disks which warns: ‘Do not use as a ladder.'”
4. “A five-inch fishing lure which sports three steel hooks and cautions users that it is, ‘Harmful if swallowed,’ . . . ” (The link has a picture of the lure).
5. “[A] smoke detector which warns: ‘Do not use the Silence Feature in emergency situations. It will not extinguish a fire,’ . . . “

(I know I found this through Pejman, but I couldn’t trace back the link).

Harvard Law Professor Mary Ann Glendon, one of the few socially conservative members of the HLS faculty, argues that the Massachusetts Legislature could still work around the Goodridge decision on gay marriage by propounding legislative findings on the benefits of traditional marriage and the significance of the distinction between the two. (Link via Howard Bashman). Her reasoning: the Massachusetts Supreme Judicial Court didn’t say that the distinction lacked a rational basis, just that the Legislature had failed to provide one. I’m not really convinced that this would work, since the SJC could and probably would then find any proferred distinctions to be irrational (courts are not known for being willing to cede to legislatures once they’ve stuck out their necks on an issue like this). But it’s true that the SJC would probably feel compelled to at least address the findings.

The subtitle of this BBC article says it all:

A chef who cut his finger is suing a hotel for �25,000 compensation by claiming no-one warned him about the danger posed by an avocado.

Um, isn’t a professional chef supposed to be familiar with the properties of the avocado?

I meant to get to this one when it ran in November — this column by liberal legal commentator Michael Dorf criticizes Justice Scalia for writing “what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies.” Dorf observes:

Why does Justice Scalia repeatedly characterize decisions from which he dissents in ways that will likely give ammunition to those with whom he disagrees, enabling them to extend what he regards as improper precedents even further?
One possibility is tactical. Justice Scalia may think that if he doesn’t point out the logical consequences of his colleagues’ decisions, somebody else will. Our nation faces no shortage of creative lawyers who know how to read a Supreme Court opinion for all it’s worth. Perhaps Justice Scalia reasons that he does his own causes no harm by skewering his colleagues with what he regards as the plainly undesirable consequences of their decisions.
But such tactics–if that is what they are–seem ill-advised. There is a world of difference between a lawyer arguing that a precedent entails some result and a Supreme Court Justice doing so. In the latter case–especially if the majority does not specifically respond to the dissenting Justice’s parade of supposed horribles–it is a plausible inference that the majority accepts those results as consequences of the principle it has announced (and may not even find them so horrible after all).
Ultimately, Justice Scalia’s pointed dissents in the Texas sodomy case and the Denver affirmative action case seem more the product of ill temper, than of careful tactics.

Dorf concludes that the “problem” is that Scalia so fundamentally differs in his outlook from his colleagues as to regard their decisions “as not merely different from his own, but as fundamentally illegitimate.” (Emphasis in original).
That’s one way to put it, although I doubt that Scalia really believes that the cases are always that cut-and-dried. But I think that, at bottom, Dorf just doesn’t understand Scalia’s concept of the role of a judge, which is not “tactical” in any sense, but rather that a judge should be trying to derive the right answer to a question — and should, when he sees his colleagues get it wrong, criticize them in the strongest terms. Admittedly, no judge – even Scalia – can avoid having his or her reasoning in reaching such decisions colored by policy preferences, but the point is that Scalia simply doesn’t look at it as his job to do anything but give the answer to the question posed. And if that’s impolitic or un-tactical, so be it; tactics and politesse are the job of legislators and litigants.

Via Ernie the Attorney, for all my colleagues who are at the office today as I wind down my much-needed vacation: let’s just say that recruiting for Wall Street lawyers has changed a lot between this letter (opens as a PDF file) and today.

Stuart Buck links to an interview with leading Supreme Court advocate Carter Phillips, who observes that Clarence Thomas is hardly unusual, even by the standards of recent history, in rarely asking questions at oral argument:

When I argued in 1981, you could pretty much bet you weren’t going to get any questions from Justice [William] Brennan [Jr.], and you might get one question from Justice [Thurgood] Marshall. Justice Blackmun would ask a question that you weren’t always sure you were quite ready for because you could never quite understand necessarily what the purpose of the question was, although I think he usually had one. And my old boss, Chief Justice Burger, very rarely asked one. I don’t think he ever asked me a question at all in the years that I argued there.

Of course, Thomas’ detractors, who use his silences to paint him as a stupid man, are generally huge fans of people like Brennan and Marshall.

As I noted two weeks ago, the United States Court of Appeals for the Ninth Circuit ruled in Ileto v. Glock, Inc., No. 01-09762 (9th Cir. Nov. 20, 2003), an opinion written by Judge Richard Paez with a dissent from Judge Cynthia Holcomb Hall, that the alleged “oversupply” of guns by Glock and other gun makers — including legal sales of guns in states with lax gun laws, allegedly with the knowledge that they would make their way to states with more restrictive gun laws, such as California — could subject the gun manufacturers and distributors to liability under the common law of negligence and public nuisance in California. Now, I’m not a huge gun-rights guy, but this decision strikes me as an obvious affront to the limits of state power laid down by the Commerce Clause.
The case arises from the notorious shootings of several children and the murder of a postal worker in California as part of a shooting rampage by neo-Nazi Buford Furrow; the plaintiffs are the shooting victims and the mother of the postal worker. The plaintiffs allege, among other things, that by selling “more firearms than the legitimate market demands,” the gun companies facilitate the creation of a secondary market in guns that enables purchases by people like Furrow, who should not have been able to buy guns due to a pending felony indictment and a prior commitment to a mental hospital. The Ninth Circuit stated that the complaint alleges that

Glock knows that by over-saturating the market with guns, the guns will go to the secondary markets that serve illegal gun purchasers.

(Slip opinion at 16444). Note that it is not alleged that any of Glock’s sales are themselves illegal (as Eugene Volokh notes, the ATF “warnings” cited in the opinion refer to gun dealers whose licenses ATF had made no moves to revoke), nor that the secondary markets are illegal (see footnote 9 of the decision, at page 16449); only that the secondary market for guns has fewer safeguards, and that in the absence of those safeguards, sellers in the secondary markets have been known to sell guns to people like Furrow.
Significantly, the guns sold to Furrow had been sold by Glock and the other defendants in Washington state, leading to the most problematic part of the plaintiffs’ theory:

Glock allegedly targets states like Washington, where the gun laws are less strict than in California, in order to increase sales to all buyers, including illegal purchasers, who will take their guns into neighboring California.

(Slip opinion, at 16458).
Under these circumstances — sales of a non-defective product, legal where made, with at least an element of liability premised upon the tendency of the sales to lead to resales in a legal secondary market — extending state common law liability to Glock’s sales made outside California seems to me to transgress as many as three distinct constitutional limitations on state power:
1. The prohibition, arising principally from the Commerce Clause, on states enacting extraterritorial legislation that exports their own domestic public policy to legal commercial activities in other states;
2. The prohibition, also arising under the Commerce Clause, on state regulation on the means and instrumentalities of interstate commerce itself; and, possibly,
3. Washington State’s right, under the Second Amendment, to regulate the rights of its citizens to bear arms so as to constitute a well-regulated militia.
Let’s examine each of these in a bit of detail:

Continue reading Gunning For Interstate Commerce

Eugene Volokh has multiple posts tearing into the Ninth Circuit’s decision today in Ileto v. Glock, Inc., No. 01-09762 (9th Cir. Nov. 20, 2003), authored by controversial liberal Clinton appointee Richard Paez. Apparently, the decision holds that the “negligent oversupply” of guns by Glock — including legal sales of guns in states with lax gun laws, allegedly with the knowledge that they would make their way to states with more restrictive gun laws, such as California — could subject Glock to liability under the common law of negligence in California. Volokh argues, among other things, that the decision severely oversteps the boundaries of state negligence law by imposing restrictive California laws to the legal sales of guns in other states.
I’ll have to read the 61-page opinion soon (it’s on the list along with the gay marriage decision in Massachusetts, which may similarly threaten to export a single state’s judge-made law to the whole nation), and I’ll have more to say then. (Unlike Prof. Volokh, I feel pretty confident that I know the dormant Commerce Clause cases in this area quite well, having briefed similar issues fairly exhaustively a few years back and continued to follow developments in the area.). For now, you can read my take here and here on why I think the ‘oversupply’ theory violates the dormant Commerce Clause; a sample:
The problem with this theory is twofold. First, this directly imposes liability on the very act of interstate commerce – a serious problem under existing Commerce Clause cases. Second, by making legal sales in State A illegal under State B’s law because of their impact on State B, State B has effectively overstepped the very boundaries that the Supreme Court’s State Farm v. Campbell decision purports to police.
For more on the theory of Federalism’s Edge that unites the gun issue, the gay marriage issue and a host of other hot-button issues, see my lengthier essay here.

Jerk.

Instaman notes that Donald Luskin is threatening to sue Atrios over calling him a stalker, which was Paul Krugman’s charge. Luskin does some valuable work dismantling Krugman’s unhinged and fact-challenged rants, but he often gets himself too worked up, and this is just way over the line for a fairly simple internet spat. Den Beste has some thoughts on what real libel is here (and on why these are tough claims to win here), and I’ll say that for a non-lawyer he’s got a pretty good handle on the basics.

Speaking of lawsuit mania, McDonald’s has settled a suit brought by a 420-pound man who claimed disability discrimination (oh, the irony) based on his weight. The amount of the settlement was undisclosed and may well have been just for nuisance value, but what caught my eye was the claimed damages of $300,000 for loss of a $6.75/hour job. I ran the numbers, and this comes to 44,444.44 hours of work. Assuming that the hourly wage has a constant present value of $6.75, working 40 hours a week, that comes out to 1,111.11 weeks of work, which assuming 2 weeks off a year (for the sake of argument) would mean holding the job for 22 years.
Leaving aside the question of how many people actually work at McDonald’s for 22 years, isn’t it wonderful that people think our legal system can be used to get paid for 22 years of dreary, unfulfilling work — without having to do the work itself?
(Yes, I know the article says he also wanted an order to give him the job, but if the damages aren’t supposed to be a substitute for salary, then they are really just pure fluff pulled from the air).

Law.com reports that a ballot initiative is underway to repeal those portions of California Business & Professions Code 17200 that permit the filing of mass actions challenging “unfair” or “unlawful” business practices without proof that the plaintiff was injured or even ever did business with the defendant and without meeting the standards for class actions. I’ve previously commented here on this liability monstrosity, which to me at least is the single most business-unfriendly aspect of California’s uniquely business-unfriendly legal environment.
While I think it would be a wonderful thing to return to the core principle of law that only one who has been harmed can sue, I’m not so sure the initiative process is the best way to do this. First, the plaintiffs’ bar will be very well-funded and is likely to distort the issue; they’re already framing this as a question of “the ability of private attorneys to prevent impending harm to the public by filing suit,” which is ridiculous. The statute, as currently used by the plaintiffs’ bar, doesn’t aim at preventing businesses from commencing conduct that will cause grave harm; rather, it is more commonly employed to tie down companies over existing business practices that can’t be found to have caused actionable harm under traditional legal principles. Second, the new Governor has promised to make 17200 reform a key part of his revival of the business environment; while Schwarzenegger may well fail in getting legislative action on this (the plaintiffs’ bar has such a tight grip on the legislature that before the recall the legislature was pressing to expand 17200), he should be given a chance to prove that it can be done through normal channels; the initative process should, at most, be a last resort for the Governor to go over the heads of the legislature if they obstruct any changes.

In the news down here in Washington, students at Georgetown University�s Law Center protested the school�s decision to allow the military to recruit on campus, since the �Don�t Ask, Don�t Tell� policy allegedly conflicts with school policies mandating �anti-discrimination� compliance by employers. Similar grumbling recently took place at my former law school and, I suspect, goes on at virtually every such institution.
These protests, however, highlight the wisdom of the Solomon Amendment, which threatens revocation of all federal funding from a school if it refuses to allow the military to recruit on campus. Since the Vietnam War, liberal academic institutions, while proudly welcoming the most outrageous of advocacy groups, always find some reason to oppose allowing military or national security-related institutions to recruit or organize on their campuses. The �Don�t Ask, Don�t Tell� policy, an imperfect product of political meddling by the Clinton Administration, is their most recent target and, indeed, the merits of that policy are quite debatable.
Yet, in a post-9/11 world, one would think that schools would show a little more gratitude to the military, perhaps the most highly respected profession in modern America, and would somehow find a way to hold their noses and their tongues while the services come to speak to a new generation of willing individuals, prepared to serve their country and to defend the lives and rights of ungrateful idiots who dwell in ivory towers.

The SEC rounds up stock promoters who are alleged to have falsley touted an anti-anthrax drug in the fall of 2001.

Lawrence Solum has much, much to say about Estrada.

Looks like that order I noted Monday night in the John Hinckley case was bigger news than I suspected: Hinckley is trying to get released, at least partially, and until the order unsealing the files, even Ronald Reagan’s family didn’t know about this. A hearing will be held on Tuesday to determine the status of his request.

You often hear debates about frivolous or abusive litigation that stay on the level of abstraction or generality, or focus on outrageous verdicts where the plaintiff was the one who did something horrible or complained about something trivial. But an aspect that gets missed is how many truly meritless cases get filed, and how many of those are enabled, aided and abetted along by vague theories of law, liberal pleading and discovery rules, and (in various types of tort cases) hard to disprove allegations of psychological harm or emotional trauma. The collective cost of this stuff, to the economy and the judicial system, is tremendous.
Read this opinion from the United States District Court for the District of Columbia (opens as PDF file) — in, what else, a case charging disability discrimination, sexual harrassment and retaliation, plus a few other brainstorms of the Democratic Party in the late 80s and early 90s — to see a particularly lethal cocktail of these elements and how they appear to have been badly abused by a dishonest plaintiff. As you are reading this, reflect on the fact that the federal agency at issue has been stuck defending this case since March of 1998, and on how much lawyering and how many hours of time of not only attorneys but witnesses, doctors, investigators and a federal judge were wasted by this one individual litigant.
Now, you can say that this is an extreme case, and it is, at least in the extent to which the plaintiff’s misbehavior was caught out, documented and sanctioned. But talk to any employment lawyer — whether they represent the government or private business — and you will hear story after story of people who use litigation like this to cover for the fact that they are just unable to bear the adult responsibilities of the working world, or to squeeze some extra dollars out of a company that had layoffs and had to pick somebody to let go.

The United States District Court for the District of Columbia has ordered that the sealed record of recent proceedings in the ongoing matter of United States v. John Warnock Hinkley jr. be unsealed, with one exception. Wonder if there’s anything interesting there; probably not, since it’s pretty recent stuff.

Canadian immigration authorities rejected a Venezuelan woman’s claim for asylum under Canada’s “Gender-Related Persecution guidelines”: she claimed she’d be persecuted in Venezuela because she was overweight. The story suggests that this was a classic example of a bogus claim by someone who had no other leg to stand on:
Ian Clague, the adjudicator, had doubts about her claim, including questions on just how overweight the woman actually is.
“At the hearing, the claimant did not appear to fit the dictionary definition of obese. According to her personal information form, she had gained weight since she had been in Canada. No evidence was presented as to what her weight actually was, if she was medically overweight, or how her weight compared to others, male or female, in Venezuela,” says the decision summary.
Mr. Clague also questioned how damaging being overweight is to life in Venezuela. “She graduated from university.

Got this one from a colleague: the Arkansas Supreme Court ruled that a contingent fee lawyer was not entitled to a percentage of a settlement, but only to payment for services actually rendered, where the client fired him after he who neglected the case and then responded to the client’s complaints about delays in the case with “I don’t have a speedometer up my ass.”

Ah, the long arm of the law: did you know that bars in California can get sued for having “Ladies Night”?

Law Professor Jeff Cooper (link via Howard Bashman) criticizes Justice Scalia’s theory of originalism on the basis that it’s too much work: because serious historical research into the original meaning of a particular provision is expensive for litigants, nearly impossible for trial and appellate judges, and often unreliable when done by Supreme Court Justices and their clerks, the argument goes, originalism simply doesn’t work even if it’s attractive in theory.
There’s some weight to this objection; what’s interesting is that it essentially mirrors one of Scalia’s own objections to the use of legislative history in statutory interpretation (from his concurrence in Crosby v. National Foreign Trade Council):
[T]he portion of the Court�s opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion�s size and (since it is in footnote type) even more of the opinion�s content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel�which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes.

Via Professor Tung Yin, a hilarious parody of Justice Ginsburg’s ode to foreign law:
[T]he Supreme Court today voted 6-3 to jettison the Constitution in favor of Sharia law, effective immediately.
“Once we decided that foreign attitudes towards the law were more important than the framers’ intent, the decision was a natural,” said Justice David Souter. “Islam is the fastest growing religion on the planet, so it was obvious which law system was the most popular, and thus the most correct.”
Dissenting from the decision were Justices Scalia and Thomas, who were last seen drinking bourbon straight from the bottle in a local watering hole before it was shut down by the newly organized American Religious Authority. Justice Bader Ginsburg also dissented from the decision, saying “This isn’t what I meant at…..” before she was dragged from the building, beaten, forced into a burkha and imprisoned for general immorality, standing in judgement over men, and being a Jew.
* * *
Former Justice O’Connor, who arrived before the vote clad in a burkha, has since resigned from the Court and directed all questions regarding her vote to her husband, which is only natural and proper.
ScrappleFace has a similar thought.

Eugene Volokh had some useful thoughts on the issue noted by The Mad Hibernian below: the use of foreign precedents in American courts. I agree with Volokh that there’s nothing wrong in theory with using foreign precedents from similar cases as persuasive authority regarding genuinely unsettled questions, the way the courts of one state will do with decisions from another state. The key issues, though, are whether the cases are similar and whether the issues are truly unique:
1. European opinions (let’s not pretend that “international” law means anything but Europe) may be persuasive in construing similar constitutional or statutory provisions, moreso if they are rendered by courts with a similar common law tradition such as Britain. They are not, however, persuasive merely because they reach a particular result. Thus, for example, decisions about the death penalty would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from “cruel and unusual punishment,” and decisions about homosexuality (the latest hot button discussed in many of these debates) would not be persuasive if rendered by a jurisdiction whose governing rule is something distinct from “equal protection of the law.”
2. Likewise, European decisions should have no weight in cases, such as Lawrence v. Texas or Atkins v. Virginia, where there is already binding precedent from our own Supreme Court. This is the real objection of conservatives: not to considering European cases as persuasive of the meaning of unsettled interpretive questions, but to the use of European opinion to declare our own precedents to be “out of step with world opinion” or some such nonsense.
Democracy, civil liberties, the rule of law and separation of powers have been out of step with European opinion for most of our history. The Justices would do well to remember that.

Harvey Fierstein, writing in last Thursday’s NY Times about his view that too many young gay men are too cavalier — or worse — about HIV, argues that “Many of our young men see infection as a right of passage, an inevitable coming of age.”
Um, shouldn’t that be a “rite of passage”?
The article, by the way, reminded me of something interesting. Maybe I missed something, but in all the hoopla over the Supreme Court’s determination in Lawrence v. Texas that there was no legitimate state interest in banning homosexual sodomy while not banning heterosexual sodomy, I didn’t see anybody — parties or commentators — argue that homosexual sodomy is uniquely likely to spread disease. Certainly, such an argument would not be entirely implausible, given the history of the AIDS virus and the fact (correct me if I’m wrong about this, but I’m sure I’ve read this somewhere) that anal sex in particular is conducive to passing germs from one bloodstream to the next, as well as the fact that the Court in the past has accepted restrictions on liberty (such as mandatory vaccinations) in the name of medical science.
The absence of this argument is interesting on a couple of levels. First, I suspect that the proponents of the law either wanted to test the assertion that morality alone is a valid basis for law or felt that Justices Kennedy and O’Connor would be more receptive to that argument. Second, it now seems that people may feel that a “medical” argument connected to AIDS is actually more offensive or stigmatizing than a moral one, and thus may have felt it improper to make the argument. Third, times have changed since 1986 and Bowers v. Hardwick; while the opinion says nothing on the subject, the AIDS epidemic was certainly on many minds on the time; today, not a peep was heard about it in all the commentary. And fourth, perhaps the “medicalization of morality” — so prevalent today in debates over smoking or even guns — has its limits.

The Wall Street Journal carries an alarming op-ed by Walter Olson of Overlawyered.com (it actually ran in the print edition on Tuesday) on moves to further expand California Business & Professions Code section 17200, which permits anyone (whether or not they have been injured, suffered any damages, or even been a customer of the business) to sue a business for any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” As I’ve noted before, Justices Breyer and O’Connor recently questioned this statute’s constitutionality, at least when applied to lawsuits challenging businesses that seek to defend their reputations in public controversies:

Continue reading Anyone Can Sue

The story of the shooting of a NY City Councilman by a “political rival” (really just a crackpot who got close to the Councilman styling himself a politician) just keeps getting more complicated. But perhaps the most bizarre twist is this NY Daily News article indicating that one of the triggers for Othniel Askew’s panic over the possible revelation of his criminal record and his private life was . . . a cover story in Monday’s Daily News!