(The Return of) Ignatz, by Sam Heldman

Wednesday, July 31, 2002

Alabama Supreme Court Last Friday's Supreme Court cases are now up on Findlaw: Waldrop,the one about attorneys' fees here, and Carroll, the death penalty case, here. Still wishing that the Court had free public web dissemination of opinions! Look at this nice site from Mississippi, for pete's sake! If Mississippi can afford it, surely Alabama can.

posted by sam 1:14 PM 0 comments

Oh yes, our President is hot on the heels of those corporations! Yes he is! Sure he is! Nathan Newman calls our attention to the fact that, on the very day he signed the corporate reform law, the President has taken steps to weaken it. Here's the Statement by the President, and here's a Reuters article about it.

The text at issue is section 806 of the new law, which is in pdf format here. President Bush's judicial hero Justice Scalia, lover of "plain language," could no doubt explain that the President's interpretation is just plain WRONG. The President says that whistleblowers are only protected, when they give information about corporate fraud to members of Congress, if there is already an official congressional investigation going on. In addition to being silly -- the point of whisteblower laws is to provide information to GET investigations going -- the plain text of this law shows otherwise:

No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee --

`(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by--

`(A) a Federal regulatory or law enforcement agency;

`(B) any Member of Congress or any committee of Congress; or

`(C) a person with supervisory authority over the employee ...

The President's implicit argument -- that "in an investigation" modifies "provide information" as well as "assist" -- is a linguistic stretch to say the least. That phrase "in an investigation" quite obviously modifies only the word "assist", which is the only one of the three activities ("provide information, cause information to be provided, or assist") that needs further words of explanation ("assist what?"). Moreover, look at the last clause before subparagraph (A), which further separates "provid[ing] information" from assisting in an "investigation."

Note also that the President's argument would apply equally well to the giving of information, by whistleblowers, to federal agencies; on this theory, if you're the FIRST person to tip off the SEC, you're hosed because the SEC wouldn't already have an investigation going on. It would also apply, equally well, to interal whistleblowing; if you're the FIRST person to tell your boss, then you're hosed because the company doesn't already have an internal investigation going on. And that's absurd, both linguistically and as a matter of congressional intent. Justice Scalia wouldn't buy the President's argument, at least if the President were Clinton; and we shouldn't either.

Quite impressive to gut a law on the very day you sign it with fanfare and credit-mongering.

posted by sam 11:46 AM 0 comments

NLRB The New York Times reports that the changed makeup of the Board since the Clinton era (and, though the Times doesn't specifically note it, the change in General Counsel is just as important here) could affect the world of baseball, by affecting the tactics that each side thinks that it can get away with. (Thanks to the the creator of the Hauser Report, who pointed this article out to me; the sports pages aren't my turf).

posted by sam 11:23 AM 0 comments

Arbitration of employment claims File this one, from the U.S. Court of Appeals for the Second Circuit, under "court-shopping by employer". The employer, sued for discrimination under federal statutes, convinces the District Court to dismiss the case and compel arbitration. The employee appeals, and when the appellate judges at oral argument start asking difficult questions that indicate that they might hold that the employer's arbitration agreement is unenforceable (because it's too slanted in various ways in favor of the employer), the employer says "never mind! forget about arbitration! forget we said anything! reinstate the lawsuit! just don't issue an opinion holding our arbitration agreement invalid, ok???"

posted by sam 7:27 AM 0 comments

The Pledge It is no surprise to learn that Alabama AG Pryor is opposed to the Ninth Circuit's decision on the Pledge. What's more, having litigated against him in our younger days, I think that he -- in contrast to many politicians -- probably has a deeply-felt, well-thought-out, intelligent (but wrong) constitutional theory in mind, rather than just politics, and that's to his credit. But I also think that, as Attorney General of the State of Alabama, he should find more respectful things to say, about judges and their decisions, than that they are "ridiculous and outrageous." Alabama's had way too much of politicians badmouthing judges.

posted by sam 6:53 AM 0 comments

ERISA preemption and the tort of bad faith refusal to pay A few years ago, this issue was all the rage, particularly at Judge Acker's motion docket: does ERISA preempt Alabama's tort of bad faith refusal to pay insurance benefits? The Eleventh Circuit kept saying "yes", but that answer never quite satisfied some of us. Recently, the Alabama Supreme Court (wisely, I think) declined an invitation to get into a fight with the Circuit on this, on a certified question; this was Palmore v. First Union, June 28 2002, though I can't find it on Findlaw to link to. (The Alabama Supreme Court recognized that the real issues were federal, not state, law, so it couldn't really tell the Circuit what to do on this question). Now, again thanks to law.com, is an article noting new caselaw in Pennsylvania that will give new inspiration to those fighting against ERISA preemption; a judge there has ruled that state's bad faith statute not preempted, in light of more recent Supreme Court cases.

posted by sam 6:17 AM 0 comments

Commodity Futures Trading Comm'n An article from law.com about the Eleventh Circuit's decision the other day holding that the CFTC can't reach those who make the ads for trading in (as opposed to those who actually sell) commodity futures. This article makes it sound like a bigger deal than it seemed to me.

posted by sam 6:10 AM 0 comments

Guns A very well-done opinion piece from law.com, regarding the 2d Amendment and Attorney General Ashcroft's now-abandoned promise, in his confirmation hearing, to defend federal gun-control laws vigorously. I understand that this gun stuff is a divisive issue, and that it plays different in Alabama than in Washington DC (where all handguns are illegal, a law that is jeopardized by the AG's new stance), but I think that if you tell the Senate under oath that you're going to defend federal gun-control laws vigorously, that's what you ought to do.

posted by sam 6:03 AM 0 comments

Tuesday, July 30, 2002

Tort reform? Courtesy of Ernie the Attorney comes this link to the U.S. Chamber of Commerce's 2002 study as to what states' judicial systems are most and least fair. (big pdf file). The fact that Alabama ranks near the bottom sounds important, until you realize that the study, in its entirety, was simply asking corporate in-house lawyers to spout off as to their subjective impressions. I look forward to the next big study, asking current and potential crack dealers which judicial systems they believe to be most fair, and then advocating major changes in the law based on their answers.

UPDATE: It occurs to me that it might be useful to go beyond the snitty comments I made above, and address the argument "yes, but the perceptions of corporate inhouse lawyers are important, because their perceptions can affect whether companies do business in Alabama, and business is good." This is unconvincing to me because, among other reasons, IN FACT Alabama law has become vastly more pro-business in various ways in the last few years (regarding, among other subjects, certifiability of class actions, the enforcement of arbitration agreements, etc., etc.). If these business lawyers don't recognize those substantial changes that have already occurred in Alabama law, there is no reason to believe that further pro-business changes in the law would affect their perceptions either.

posted by sam 10:25 AM 0 comments

Alabama legislation The periodic report from the Alabama Bar's magazine, recounting what the Legislature did in its latest session, always contains at least a couple of things to make me slap my forehead. The one that came in the mail yesterday is no exception. (Apparently you can access these Acts through the Legislature's site, but the site seems to be so Microsoft-centric that I can't make it work on my Microsoft-avoiding system).

* Just one more instance of casual establishment of religion: SB 124, Act 2002-408, says that new teenage drivers can't drive without a grownup between midnight and 6 am, unless they're going to (among the very few exceptions) an event sponsored by a religious organization. If any kid out there gets stopped in the middle of the night coming back from a local-union-sponsored event, or a NOW-sponsored event, or even the Young Republican Club's Abstinence Week sock hop, don't forget to call me.

* There is near-unanimous consensus, among people who care about such things, that Alabama's tax system is disastrously incoherent, inadequate, and regressive. And as Paul Krugman notes today (New York Times, registration required), Alabama is in financial distress. So what does HB 35, Act 2002-414, do to change this? While former law (sec. 40-26(b)-2) had taxed prescription drugs that cost more than $3, this Act closes that loophole, making sure that even the prescriptions that cost less than $3 are taxed!

posted by sam 9:46 AM 0 comments

Drug testing in the schools When the Supreme Court recently ok'd mandatory drug testing of all public-school students who want to participate in extracurricular activities (you know how bad those Chess Club kids are to smoke reefer!), various commentators explained that the real-world impact would be minimal because such a widespread testing program is so expensive (and causes so little actual benefit) that no sensible school district would consider it. Those commentators, plainly, were not from Alabama. Now who's going to join the Chess Club? Instead, they'll just stay home playing D&D, puffing away. Progress.

posted by sam 6:28 AM 0 comments

Monday, July 29, 2002

Eleventh Circuit A pretty interesting case today about contact lenses. Johnson & Johnson v. 1-800 Contacts reverses the grant of a preliminary injunction against an advertising campaign under the Lanham Act (which, to make a long story short, prohibits false or misleading ads). Various interesting sub-holdings about what it takes to prove something false, about the element of materiality, about the distinction between "false" and "misleading", about when it's necessary to have evidence of consumer reaction to the ads, etc. Many consumer-rights lawyers in Alabama have tended to avoid the Lanham Act because (I think) they wanted to avoid federal jurisdiction. Maybe it's worth another look; this case, despite its pro-defendant outcome, makes it look tantalizing.

posted by sam 7:49 PM 0 comments

Alabama update

Here's what happened in the Alabama Supreme Court and Court of Civil Appeals on Friday. No links, because as mentioned before there's no free web distribution of opinions in Alabama to my knowledge. So, you'll have to take my word for it, or pay $ to Lexis/Westlaw, or wait a few days til Findlaw puts up the Supreme Court cases.

Supreme Court

State Bd. of Ed. v. Waldrop is about attorneys' fees. The underlying suit was about teacher salaries. The Court describes the suit, essentially, as having achieved no relief; prospective relief was mooted by new legislation, and damages were barred by sovereign immunity. The trial court had awarded fees anyway (on something like a catalyst theory, that the suit had been the inspiration for the new legislation, and that this had conferred a benefit on the public). The Supreme Court reverses, holding: (a) review of a fee award is de novo where the trial court's decision was made on a paper record; (b) something incomprehensible to me (if anything at all) about whether the trial court had continuing jurisdiction to award fees, some weeks after it had issued a final judgment denying relief; (c) there was no common benefit to the general public and thus no basis for a fee award. (Note that, under AL law, the "common benefit" doctrine, which allows fees in limited cases even when there is no monetary award, is different from and more limited than the "common fund" doctrine regarding fees in cases that do generate a monetary fund of relief.). The opinion, it should be noted, does NOT reject "catalyst" fee awards across the board under Alabama law; the decision is more focused on the facts of the particular case.

Ex parte Carroll is the death penalty case that I mentioned yesterday, in which the jury (by vote of 10-2) had recommended life but the trial court preferred death. Reversing, the Supreme Court relies primarily on two things: (1) the trial court had continued to rely, as support for its decision, on the defendant's youthful offender history as a reason to negate the "no criminal history" mitigator, even after having been instructed on a prior appeal that this was legally erroneous; and (2) the trial court's reliance on the "pain of the victim's family" as a reason for death made no sense, given that the victim's family explicitly asked for life rather than death. The Court also makes some more general remarks about the weight to be given to a jury's recommendation. The Court drops a footnote noting that issues under Ring v. Arizona can wait, given the disposition of this case. Chief Justice Moore says that he concurs in the result only because of Ring, which implies that he recognizes the correct conclusion that the current statutory scheme is unconstitutional under Ring.

Court of Civil Appeals

SCD v. Etowah County affirms a termination of parental rights.

MHE v. BE is about who has statutory standing to bring an action to determine paternity.

Haraway v. Phillips is about stalking. The alleged stalker wins, overturning a restraining order telling him to stay away, because the statute at issue (the "protection from abuse" act) is only about intra-family or intra-household abusive behavior. The Court notes, however, that other sources of law might provide a basis for relief.

Barngrover v. Medical Licensure Comm'n is about a doctor who was reprimanded because he said on a form that he wasn't under investigation by any other medical licensing body, when really he was. Among other things, the court holds that reciprocal discipline (i.e., disciplining the doc in Alabama because he was disciplined in Georgia) doesn't have to wait until the doc's appeals from the Georgia discipline are final.

posted by sam 2:12 PM 0 comments

One more post, and then I swear I'll get off of it Back to the med-mal caps just for a second. Sasha doesn't think much of (and, by the way, thanks to the bloggers who taught me how to link to specific posts) my half-baked theory that the Tenth Amendment bars federal micromanagement of state tort suits, even where the Congress could preempt the field entirely. Not quite on topic -- but close enough that it bears watching -- is this case from the Washington Supreme Court, on which the U.S. Supreme Court has granted cert., holding that the Congress exceeded its constitutional powers by purporting to bar the use of certain documents in state court trials. The U.S. Supreme Court will probably reverse, I suppose, but they're not always right, you know.

posted by sam 11:21 AM 0 comments

Sunday, July 28, 2002

Ring, Apprendi, and Death in Alabama We will soon see how the Supreme Court's decision in Ring v. Arizona (holding that findings of aggravating circumstances in death penalty cases must, in general, be made by juries rather than judges) plays out in Alabama. The statute there (go to sec 13A-5-39 et seq.) allows a judge to override a jury's recommendation as between life and death (and it happens with some frequency in Alabama that a jury recommends life but a judge goes for death); for this reason among others, seems like a pretty clear violation of Ring to me. The question, I bet, is whether the AL S.Ct. will rewrite the statute in order to save it, or will strike it down as I think they should (leaving current defendants alive, and putting the issue back in the Legislature). As I understand it, the Court is considering the issue now, having appropriately asked for amicus input from various learned folks including the admirable Equal Justice Initiative. No answer yet -- but according to this news report, the Court sidestepped the issue in one case this week by overriding a judge's override on non-Ring grounds. More on this case when I get the opinion.

posted by sam 7:38 AM 0 comments

Saturday, July 27, 2002

The President's proposal for med-mal caps A couple of days ago I was pontificating about the President's proposal to cap non-economic damages in medical malpractice cases. Now this further thought occurs to me -- like all good law-thoughts, it begins with a hypothetical to focus the mind.

Imagine it's 2000. The Congress (believe it or not) has passed, and President Clinton has signed, a law -- under the authority of the Commerce Clause, with vigorous findings to the effect that insufficiently-careful physicians cause many injuries which put a drain on America's productivity -- declaring that, in every state-law malpractice case in which the jury finds for the plaintiff, the judgment must include AT LEAST $250,000 in non-economic damages.

How long would it take the Federalist Society grownups to convince the U.S. Supreme Court that this was was (a) beyond the authority conferred by the Commerce Clause; (b) a violation of the 10th Amendment; (c) whatever else necessary, including that it violated the 7th Amendment as to cases tried in federal court? I think it's fair to say that the answer is "about five seconds."

So how can the result be different as to the President's mirror-image proposal? Even though I don't personally love medical malpractice litigation, this bothers me.

UPDATE: Sasha, of the Volokh crew, says (sorry, I don't know how to link to the specific entry yet!) that consistency among conservatives as a bloc isn't required, and its absence shouldn't bother me. He's right on this. What does bother me is the hunch that even many of the erudite legal minds of the right -- like many of the erudit legal minds of what passes for the left these days -- aren't even internally consistent, each within his or her own mind, on important principles. (I also think that the President, having sworn to uphold the Constitution too, owes it to us to have a pretty-well-thought-out view on what the constitution allows and what it prohibits; maybe our current President does have this, but if so it differs dramatically from my view in various ways ... but I digress). And I think that every lawyer -- at least when thinking and speaking on his or her own behalf, not representing a client -- has the obligation to be a #2 in Sasha's well-stated taxonomy, i.e., one of those people who will not advocate the adoption or enforcement of a law that he or she believes to be unconstitutional. So, for instance, if I'm right about how S.G. Olson would have come out on my Clinton hypothetical, if lecturing to the Fed Soc, then I hope that he's writing a memo to the President right now urging him to abandon this med-mal proposal.

And because it's always easier to take potshots at the other side's inconsistencies than to offer a consistent position of one's own, here's a stab at mine. I take it as given -- under the mainstream of current law -- that the federal government COULD, under the commerce clause, preempt the whole field of medical malpractice with a uniform federal statute. And I also take it as given (though I'd like to argue against it on behalf of a client) that such statute could, consistent with the Fifth Amd's due process clause, include a cap on noneconomic damages OR include my Clinton-hypothetical rule. Does this mean that the greater power includes the lesser, and therefore that the Congress could enact ONLY these damage-cap or damage-additur rules, leaving the rest of state law intact? I don't think so. Somehow it seems to me that the 10th Amendment is MORE offended by a more piddly intrusion into state judicial practice and state common law (e.g., legislating about only one type of damages in one type of state-law case, leaving the rest of state law and practice intact), than by a more significant intrusion. This may be paradoxical, wrong, or even silly, but I think it makes some sense; though federal law is supreme, this doesn't mean that the Congress should get to micromanage state common law.

posted by sam 2:24 PM 0 comments

NLRB update This week's output from the Board is as follows:

Two General Counsel memoranda, giving advice to Regional staff (and, by virtue of public dissemination, to the rest of us) on:

"Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens" in light of the Supreme Court's decision this Term in Hoffman Plastic Compounds (holding that the Board could not award backpay to undocumented aliens who were the victims of unlawful anti-union discrimination by their employer); and

"Collection cases", reaffirming old GC memoranda, essentially indicates that if a pension fund has some other way to get a recalcitrant employer to make its required contributions (such as through a lawsuit), that's what it should do, rather than file an 8(a)(5) charge.

Turning to the Board itself, this week's summary includes the following cases:

Franklin Home Health Agency is about the ever-popular issue of supervisory status of nurses. The Board, without significant discussion of its own, denies review of the Regional Director's conclusion that these nurses are employees rather than supervisors. The case reaffirms the point that, in order to be a supervisor, one has to supervise employees of the employer rather than employees of some other employer. Beyond that, it's essentially a pure "fact" case, showing once again how important a case-by-case analysis of the facts is, in these supervisory-issue dispute.

US Postal Service finds that the employer violated its duty to provide information that the union had requested, where the information was relevant to the processing of a grievance. The case reaffirms basic law in this area, including the fact that these request-for-info cases aren't to be deferred to arbitration; and holds that the case is NOT moot even though the union proceeded with the grievance despite not having received the information. HERE'S THE SICK PART: the charge was filed in 1997. It's 2002 now. The Board needs a bigger budget so that it can process cases promptly.

In Paul Mueller Co., it was stipulated that the company contracted-out some work without notice to the union, and without an opportunity to bargain over the decision or the effects; and it was stipulated that the contracting-out was a mandatory subject. A plain-as-the-nose-on-your-face violation of Section 8(a)(5), agrees the Board. The ALJ had held the complaint barred by Section 10(b)'s six-month limitation period, but the Board reversed: (a) the company hadn't raised the 10(b) issue until its post-hearing brief, which is too late and counts as a waiver; and (b) anyway, the evidence shows that the union didn't know about the contracting-out more than six months prior to filing the charge.

Lafayette Grinding finds the employer guilty of various unfair labor practices. The main discussion is about its unilateral decision to discontinue making health-and-welfare-fund contributions after the expiration of the prior collective bargaining agreement. The employer argues that, since it never signed that prior agreement, there's no ULP here; but the Board says (correctly) that the failure to sign is irrelevant, because the 3-year practice of making payments was at the very least a past practice, an implied term and condition of employment, that the employer could not unilaterally change. Second, the employer argues that the parties reached impasse on this issue of contributions; but the Board says (in paraphrase) that there was no lawful impasse, because the employer's unlawful unilateral cessation of payments made actual good-faith bargaining impossible.

Reading Medlar Electric, you may find it hard to believe that this much time and effort has been spent on an R-case for a unit with fewer than 10 members. So it goes. The issue here is whether one guy, a "dual function" employee in that he does more than one type of work, does enough truck driving to belong in the truck drivers' unit. The answer, if you care, is "yes".

South Coast Refuse is a backpay proceeding (liability having already been established in prior proceedings). Pretty standard stuff. The Board, for the most part, rules in favor of the Board by virtue of the employer's too-lame Answer, which said only "Denied." You've got to be more specific than that.

IBEW Local 98 (Fairfield Co.) is a section 8(b)(4)(D)/section 10(k) case. [If this flies over your head, but you nonetheless care to decipher it, read the Act and then read the case]. The Board holds essentially that peaceful area standards picketing, and seeking to represent current employees, don't amount to jurisdictional disputes within the purview of those sections of the Act.

Finally, MV Transportation -- which I mentioned yesterday -- holds that "an incumbent union in a successorship situation is entitled to —and only to—a rebuttable presumption of continuing majority status, which will not serve as a bar to an otherwise valid decertification, rival union, or employer petition, or other valid challenge to the union’s majority status". Chairman Hurtgen, and the two recess appointees, thus overrule St. Elizabeth Manor, 329 NLRB 341 (1999), which had given the union, in a successorship situation, a reasonable period of time to bargain free from such pressures. Member Liebman has a scholarly and sensible dissent.

posted by sam 1:10 PM 0 comments

A note on style I now find myself -- by virtue of actually seeing that a few people are reading, and wondering who else might stumble in -- a little queasy in the effort to balance candor and style, on the one hand, with not-alienating-people on the other. It's related to what I mentioned the other day, in the context of Justice Owen, about the difficulty of getting lawyers to give candid assessments of sitting judges, for fear of alienating them. I see to my amazement that some folks within the U.S. Courts' and Alabama's judicial-and-related-agencies' networks may be occasionally looking in here. I hope that they will find it interesting. And I assure them, and everyone else, that -- just as I know that everyone disagrees with me from time to time, often vigorously, and I don't take offense at that -- even my criticisms are meant with the utmost respect. I'm not just sucking up here, I promise. I mean it. I appreciate your public service, even when I think you're doing something wrong. And if I piss you off, please let me know rather than remain pissed off. Thanks!

posted by sam 9:29 AM 0 comments

New URL for 11th Circuit daily log Turns out that the reason the Eleventh Circuit's daily log wasn't updating, to show newly-released cases, is that the URL for the daily log has changed to this. (It's not an ftp file anymore, which is good for those whose browsers would annoyingly download, rather than read, the old site). Thanks to the Data Network Mgr of the Circuit for letting me know this, in response to a whining email from me to the webmaster. Update your bookmarks, all you obsessives! I'll let you know if I learn of any other changes to the Circuit's site.

posted by sam 8:53 AM 0 comments

The Post has a story today on how much the Bush and Gore camps spent on the election litigation (remember that?). The answer, of course, is a boatload. It's not quite clear, from this story alone, whether any or all of the lawyers were getting paid for their time, or just for expenses. I would have thought that any lawyer in the country would be honored to work on such a case pro bono, for one side or the other. I used to regularly bang my head against the wall in election-law messes, and never got millions in fees from it. Was I missing something?

posted by sam 7:01 AM 0 comments

What the Circuit did yesterday Two cases:

Woodard v. Fanboy REVERSES the grant of judgment as a matter of law for defendant in a Fair Housing case. The core issue is whether the plaintiff adduced sufficient evidence that she was evicted because of her familial status (i.e., that she had kids). The Court says "yes". The opinion is a mixed bag -- it reiterates a number of the most pro-defendant aphorisms regarding proof of discriminatory motive from the Court's prior employment-discrimination cases, but ultimately creates a precedent that gives plaintiffs in all sorts of discrimination cases (employment, housing, etc.) a roadmap for avoiding summary judgment or judgment as a matter of law. Good reading.

MCI v, Bellsouth. Telecommunications law is a world completely unto itself. I don't understand it one bit. If you do, then you may want to read this case.

posted by sam 6:29 AM 0 comments

Qualified immunity in the Eleventh Circuit The latest sign that I am a true law nerd (aside from the fact that I'm writing this before 6 am on a Saturday) is that I am awaiting, with bated breath, the Eleventh Circuit's first post-Hope v. Pelzer qualified immunity decision. Qualified immunity, of course, is the judicially-created doctrine that 42 U.S.C. sec. 1983 -- which says flatly that anyone who violates my constitutional or statutory rights under color of state law is liable to me for damages -- doesn't really mean what it says, in that they're only liable if the violation of law was "clearly established". (You can cite the qualified immunity doctrine to anyone who says that only liberal judges do anything other than simply read the statutes and apply them according to their obvious meaning). For many years, the Eleventh Circuit has taken a very tough line on this -- tough on plaintiffs, that is. It's been QUITE hard to convince most panels of that Court that a proposition is clearly established unless there's a prior reported Eleventh Circuit (or state supreme court) case on all fours. Hope, the Supreme Court's end-of-term decision holding that the prohibition against chaining a prisoner to a hitching post in the hot sun was "clearly established", either changes that drastically, or doesn't, depending on how the Circuit will read it; and it's amazing to me that no panel has so far been eager, in the month since Hope was issued, to get the first (and therefore potentially dispositive, given the prohibition against one panel overruling another) word on what Hope means. Stay tuned.

posted by sam 6:04 AM 0 comments

Friday, July 26, 2002

Alabama opinions online An anonymous correspondent tells me I've overlooked an official site making Alabama appellate opinions available online. It's not working for me so far -- and it had earlier been a subscription-only service -- but I'll report back in due course.

UPDATE: The site in question is http://www.alalinc.net. But for the life of me I've never been able to get it to work. It nearly always refuses to load any "inside" pages, and on those rare occasions when I can get inside, the information suggests that it's a $ubscription-only service. I am torn here -- it would be monstrously embarrassing to be wrong about such a fundamental thing about my practice, but on the other hand it would be good to know. Anybody else have any luck with this?

posted by sam 5:49 PM 0 comments

The NLRB makes me eat my words Remember how I applauded the recess appointees to the NLRB yesterday? Forget what I said. As shown by today's issuance of new opinions, the Board has -- over the dissent of Member Liebman -- begun the process of overruling precedents from the last few years, starting with the new opinion in MV Transportation. More on the substance of today's rulings, including this one, later. A little over a year ago, when management-advocates were yelling about the "Clinton" Board's supposed politicization and its (awful, they said) willingness to overrule precedents, my colleagues and I pointed out in this (huge pdf file) article from The Labor Lawyer (note: this link downloads the whole issue, not just our article) that this spin was hollow -- because, after all, conservative-management-right folks are just as apt to overrule precedents as anybody else. Of course, we were right, and now it has begun. I am, to be clear, not adopting the anti-overruling stance as a supposed neutral principle, now that the shoes are on the other feet. I'm just against the coming wave of overrulings, because they will tilt the law too far in favor of management.

posted by sam 1:52 PM 0 comments

no shame It's hard to tell whether anybody really believes, anymore, that the Republican establishment believes that most things should be left up to state and local government rather than to those out-of-touch, inside-the-beltway, folks in Washington. We know (remember assisted suicide) that AG Ashcroft's support for that view is thin rhetoric, which he discards when convenient. And we know it, too, of the President, who wants a federal statutory cap on noneconomic damages in medical malpractice cases. These are, and always have been, purely state law cases. Each state is, and always has been, free to cap damages in these cases, at least to the extent allowed by its own constitution. The states, or many of them, have chosen NOT to enact the caps that the President wants to impose by federal mandate. And, unlike areas of justifiable federal intervention, here there's no convincing argument that one state's failure to act will have negative consequences on the rest of us; to the contrary, if physicians really are driven out of (say) Nevada by high jury verdicts, that would just mean more docs for the rest of the states. (Something like pollution, on the contrary, does call for federal involvement, as the negative consequences of that behavior do cross state lines in many ways). It's quite obviously something on which those who really BELIEVE in decentralized government, and a limited role for the feds, should speak up in opposition to the President. Otherwise, everything (again) is just spin.

UPDATE: Cooped Up (look left for the link, along with other good law blogs) has a similar post today, but more erudite because he's a law professor. In my defense, though, mine was a more bleary-eyed early morning posting.

posted by sam 6:03 AM 0 comments

Thursday, July 25, 2002

The NLRB As long as I'm ranting in general, I'll say something nice. Thumbs up -- at least so far, and I reserve the right to change my mind any time -- to the two January recess-appointees to the National Labor Relations Board (see here), for NOT taking the opportunity to do wacky things to the law during their few months in office. They will apparently not be getting full appointments, as I understand it, and have -- so far as I can tell from reading the opinions as they come out -- been helping to plug away at the case backlog without issuing anything very controversial. If I'm wrong, I trust that somebody will tell me, or else no one is reading and so no one will ever know that I was wrong. That's what we call a no-lose situation here on the web.

posted by sam 3:36 PM 0 comments

A post that only a true web-obessive lawyer could care about The problem with doing a weblog focusing on the Eleventh Circuit and the Alabama appellate courts is that both of those courts are horrible in terms of web-presence. The only way to tell whether the Circuit has issued an opinion today is to look at its "daily log" in ftp format, but that's too-often not even updated correctly. (Yesterday's opinions aren't even listed on it, so we'd never know about them but for findlaw. And then you have to go elsewhere on the Circuit's site to download a zip file containing all of the day's opinions, unzip them, translate them from wordperfect to word, and blah blah blah.

The Alabama Supreme Court and Court of Civil Appeals are even worse -- if you can believe it, in this day and age, they DON'T EVEN HAVE A FUNCTIONING WEBSITE that offers opinions to the public without a fee. This must change.

posted by sam 3:30 PM 0 comments

Can't stop thinking about Justice Owen! Having gone back and read the opinions more carefully, I'm now almost convinced that then-Justice Gonzales was talking about Justice Owen, along with the other dissenters, in his jab about judicial activism. But it's still not the reason to vote against her confirmation. Nor, by the way, are campaign contributions the reason. The reason is the SUBSTANCE, not the now-meaningless label of "judicial activism" or the well-recognized problems with judicial elections. The substance is that she was the right-right-right wing of a Republican court, much more right wing than other Texas Republican judges. And that's not what the federal bench needs. Period.

posted by sam 2:58 PM 0 comments

More Eleventh Circuit cases from 7/24/02 Utility Automation 2000 v. Choctawhatchee Elec. Coop. is about the always-perilous Rule 68, offers of judgment. The defendant made the too-common mistake of not being clear enough, in its offer of judgment, that it wasn't offering to pay any attorneys' fees beyond the amount of "costs" mentioned in its offer. So, the plaintiff snaps up the offer, and then seeks fees on top of it. Plaintiff wins; defendant is sad; defendant's lawyer is really really sad. Read this so you won't be sad, if you're ever thinking of making an offer of judgment.

Calhoun v. Southern Baptist Convention affirms summary judgment against the plaintiff in a copyright infringement case. Though the compositions were practically identical, the Eleventh Circuit says that there is undisputed evidence that this was "independent creation" -- that is, essentially, just a coincidence. I'd be troubled by this ruling, but for the fact that I think that this ruling was crucially dependent on the complete lack of evidence of "access" (i.e, there was no showing that the second songwriter could or would have heard the plaintiff's song). Judge Birch, who knows a lot about this area of law, concurs with some thoughts about laches.

McCorvey v. Baxter Healthcare involved a catheter balloon that burst inside the plaintiff. The Circuit affirms the District Court's decision to strike the affidavit of plaintiff's engineering expert -- Daubert, discretion, gatekeeping, and all that -- but nonetheless reverses summary judgment, holding that under Florida law the plaintiff was entitled to a rebuttable presumption of product-defect on these facts.

Itani v. Ashcroft affirms an order of deportation.

posted by sam 2:35 PM 0 comments

The Eleventh Circuit is back in gear yesterday afternoon after several days without opinions. Two orders taking cases en banc, though neither particularly exciting from a real-world perspective. Here are my predictions for how they will come out, when the opinions are issued in a few months:

(a) Atlanta Journal v. Atlanta and consolidated cases is about First Amendment arguments regarding newspaper racks in the Atlanta airport -- the sort of case that first-year law students think that it would be really sexy to argue ("I'm a constitutional lawyer!") but are hard for me even to get excited about reading. The Court majority will (incorrectly, in my view) adopt a proprietary/governmental distinction as to the permissibility of (at least some) governmental regulation of speech, but will nonetheless affirm on other grounds the district court's decision in favor of the papers; and

(b) Wagner v. Daewoo, in which the en banc court will say that, upon affirming the grant of a motion to dismiss, the court of appeals doesn't have to remand to allow the plaintiff to amend the complaint if the plaintiff didn't seek leave to amend in the district court. The impact on everyone but Wagner and Wagner's lawyer will be minimal; we will just do what we've almost always done, which is to ask for leave to amend in the district court if we think that we could justifiably make the crucial allegations that would allow the case to proceed.

posted by sam 7:26 AM 0 comments

Tuesday, July 23, 2002

From Forbes (registration required) comes this story showing that some plaintiffs' lawyers had Worldcom all figured out a year ago -- but a conservative District Judge dismissed the case (on motion to dismiss!) and the company kept right on trucking down the road to bankruptcy, rather than saying "thanks, plaintiff's lawyers, for kicking us in the ass in order to save us."

posted by sam 6:42 AM 0 comments

You can see that the whole theory of "less pontificating, more focused legal updates" is on hold, because the Ala. S.Ct. didn't do anything on Friday, the Court of Civil Appeals did little other than family law, and the Eleventh Circuit only put out one little case yesterday, on the reach of the Commodity Futures Trading Commission, and I don't care a bit about that today. So pontificate on.

posted by sam 6:28 AM 0 comments

Appellate judges let their hair down Here, from an intermediate appellate court in California, is an opinion of the type that's always fun to see: a unanimous opinion in formal legal language reaching a certain result, with a concurrence JOINED BY THE WHOLE COURT explaining in colorful and human language why the decision is a little crazy even if legally correct. The opinion is about a fee award to class action lawyers; the facts are so unique that it doesn't make much precedent, but it's fun to read.

posted by sam 6:22 AM 0 comments

Monday, July 22, 2002

Rather than working, I've been doing some more delving around on Justice Owen. Here, courtesy of Texans for Public Justice, is good information of the sort that the public discussion ought to consist of, in this sort of debate. I'm fully convinced that, for all the right reasons, Justice Owen is not the sort of person whom the Fifth Circuit (or any Circuit, for that matter) needs.

posted by sam 1:25 PM 0 comments

Howard Bashman links to an op-ed by Terry Eastland (I just can't bring myself to link to it directly). We've seen the opponents of 5th Circuit nominee Priscilla Owen claiming that Alberto Gonzales called her a judicial activist when they were both on the Texas Supreme Court. This is pretty much taken as true in all the media reports. Eastland says it's not right, and that Gonzales was really talking about one (or more, maybe) of the other Justices. I hate to say it, but I will because there's virtue in honesty: from having skimmed the opinion in question this weekend, I think Eastland's probably right. (I'm not saying that Owen's dissent was well-reasoned, or that Eastland is right in her opinion about her, or that she'd be a good federal judge; just that it seems probably true that Gonzales was not aiming the "judicial activist" label at her dissenting opinion but at one or more of the others). I wish that I didn't, because my bet is that, if confirmed to the Fifth Circuit, Justice Owen will issue many decisions with which I vehemently disagree. But -- consistent with what I said a couple of days ago -- I think it's more important that these nomination battles be fought based on actual useful information about the nominee's record and philosophy. If her record shows that she's a judicial activist on behalf of corporations, police, pro-lifers, etc., then that IS a good reason to oppose her nomination; but it doesn't have to be on the basis of a not-quite-correct "gotcha" to Gonzales. When politics (even the politics of law) is ALL spin, as it's rapidly becoming (with most of the blame going to the Right, as shown for instance by the "outrage" on the Pledge decision), then there's no hope for sustained progress.

posted by sam 11:51 AM 0 comments

In an article published here on law.com, a class action lawyer named Roger Mandel says, "With a decision in one case and an order declining to hear another, the U.S. Supreme Court sent a strong signal that the federal circuit courts have been improperly favoring corporate defendants in class actions by using overly strict standards." He's talking about Devlin v. Scardelletti (holding that objectors to a class settlement don't have to be granted intervention in order to appeal approval of the settlement) and the denial of cert in an antitrust class action case.

Much as I'd like to agree with his assertion -- it would help both my practice, and the fairness of our economic system, I think, if the Supreme Court really did send that message -- I can't. Devlin was a pretty obviously correct decision, I think, but can't really be described as correcting some lower-court habit of "improperly favoring corporate defendants"; after all, every appealed settlement has (by definition) been agreed to by a plaintiff's class as well as by a corporate defendant, so a decision that makes it incrementally easier to overturn such a settlement is no more tough on defendants than it is tough on plaintiff classes. And as to the antitrust case, I applaud the writer's effort, but in the end I think that you can never read anything into the denial of cert -- the factors going into any such decision are just too complicated.

posted by sam 10:21 AM 0 comments

Music More important than law, is that the streaming tracks from Beck's upcoming record are excellent -- not a joke about funk like his last record (which was great too, don't get me wrong), but strumming and crooning in a very human way.

posted by sam 6:57 AM 0 comments

Sunday, July 21, 2002

I'm working on a little article that discusses the principle, often seen at work in criminal cases that reject defendants' "sufficiency of the evidence" arguments, that a jury can disbelieve a defendant's self-exculpatory testimony and then take that disbelieved testimony denying guilt as being actual affirmative substantive evidence of guilt. In other words, if there's even just a little bit of evidence against you, and you take the stand in your own defense, you're basically sunk as far as a sufficiency-of-the-evidence argument. That's the rule in the Eleventh Circuit, at least, and it has some Supreme Court support. My thesis in this little article is that what's good enough for criminal convictions is good enough for civil liability -- and that this same principle (and logical corollaries to it) ought to apply for instance in employment discrimination cases, such that many more plaintiffs would get to trial and many more plaintiff's verdicts would be upheld. Anybody else out there thought of this? Anybody got any ideas? Anybody listening?

posted by sam 2:16 PM 0 comments

Judicial nomination in the news: The nomination of Texas Supreme Court Justice Priscilla Owen to the Fifth Circuit is in the news these days. The frustrating thing is that -- even in this linked article from law.com, specifically written for lawyers, and all the more so in the general press -- there's very little ACTUAL INFORMATION that would allow a reader to make up her own mind. It is supremely unhelpful, for instance, to know that Victoria Toensing says for public consumption that Owen is a moderate: of course she says that, as a political actor making "spin" in a political drama. Nobody's rational decisionmaking process is actually helped by a quote from her. Nor does negative commentary from NARAL tell us, frankly, anything other than that NARAL's against Owen; and though this is enough information for some people, others would prefer the underlying data so as to make up their own minds.
But the news media so rarely give us the underlying data. Part of the problem -- a big part of the problem, I think -- is that practicing lawyers are understandably cautious about giving frank negative assessments about sitting judges, even when those negative assessments can be accompanied by actual supporting facts. Surely every good appellate lawyer in Texas knows whether Justice Owen understands and applies the basic principles of how to do appellate judging fairly, or not. They could also tell us whether she ever, or often, joins or writes an opinion that is pro-individual rather than pro-corporate in difficult and disputed tort cases; whether she ever, or often, joins or writes an opinion that is pro-defendant rather than pro-government in difficult and disputed criminal cases; or whether on the other hand her vote is nearly always predictable on the cases that divide the Justices. They could tell us, bottom line, whether her judicial opinions conveniently wind up in line with her politics even when it requires lots of fancy footwork to reach that convenient result, or whether they don't. They could give us, even better, specific examples of cases where she's gone out on a limb or ignored the record or ignored precedent in order to reach a result in line with her politics, or they could tell us that nobody can come up with a case where she's done that. Then, further, they could tell us whether, even on cases that involve honestly disputable novel issues of law, she always (or usually or only sometimes) reaches legal views that coincide with the Republican Party's political views; even if this wouldn't necessarily show dishonesty, it is relevant for the legitimate political aspect of the confirmation process. These are the sorts of things what we, and the Senate, need to know, rather than battling spin-quotes from the usual CNN suspects.

posted by sam 6:26 AM 0 comments

Saturday, July 20, 2002

Eleventh Circuit update: Nagle v. Experian holds that a plaintiff can't get an award of attorneys' fees under the Fair Credit Reporting Act if there is only a finding of liability but no award of damages.

In Perez v. Miami-Dade, the defendants had failed to respond to requests for admission; the District Court therefore held that all of the facts were admitted, and granted plaintiffs' motion for summary judgment, and held a trial only on damages (at which plaintiffs got a big verdict). The Court of Appeals reverses, holding -- apparently for the first time -- that a trial court MUST allow a party to withdraw its admissions if the factors set forth in Rule 36(b) are satisfied, even though the Rule says that the trial court "MAY" do so. Cynics among us may wonder if the Court would have so held, if the shoes were on the other feet (i.e., if it were a plaintiff's lawyer who had messed up).

posted by sam 12:35 PM 0 comments

NLRB update: Only one case on the National Labor Relations Board's weekly summary this week: The Boeing Co. (July 10, 2002). It's somewhat dense, factually, but it comes down to this in the end: the Board affirms the dismissal of an 8(a)(5) charge, on the grounds that the company had expressed its willingness to keep talking but the union didn't take the company up on that offer and instead filed a ULP charge. In this sense, the case is related to the decision in AT&T a few days ago, dismissing 8(a)(5) charges on the basis that the union was the one that had dropped the ball. Moral of the story: don't think that you can have great success with an 8(a)(5) charge unless you've got a good showing that you tried really hard to get the company to bargain.

posted by sam 11:19 AM 0 comments

I'll get to the substance soon, I promise. First, though, a little more about the specific concept here. There are already plenty of people doing a good job on general law punditry and news: the Volokh crowd, Reynolds, and most especially well-done (and, of these three, it's the least full of politics with which I disagree!), How Appealing. The world doesn't really need one of those from me right now (though I'm sure I won't be able to resist pontificating from time to time about topics of general interest). This site will instead have a more narrow major focus, on posting updates on a narrower range of cases and courts in hopes of being of reliable specific usefulness to some, but not all or even most, lawyers and law-observers.

posted by sam 9:09 AM 0 comments

Good morning. We will be seeing, over the next few weeks, whether I have enough of the obsessiveness and love-of-hearing-myself-speak that may be the prerequisites to successful blogging. The topic here will be law, for the most part. I will post updates, and my thoughts, on decisions issued by the National Labor Relations Board, the U.S. Court of Appeals for the Eleventh Circuit, and Alabama's appellate courts. If I'm still doing this in the fall, I'll also include the U.S. Supreme Court. And I'll post about any other decisions from any other courts that catch my eye, if and only if I feel like it.

The focus on 11th Cir. and Alabama comes about because, though I live and work in Washington DC, I used to live and work in Alabama -- and much of my practice still comes from there, and the rest of my firm is there. We do union-side labor law, class actions, civil rights litigation, and other sorts of legal work where we generally try to represent the good guys. I've also started a new firm here in Washington, focusing on progressive appellate work and environmental litigation. To see more about me and my practice, go here.

posted by sam 7:27 AM 0 comments

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