SBM Blog

How To Research Circuit Splits

It's not a tip for everyone, but when you need it, this will come in very handy. The blog Circuit Splits (a blog about cases ripe for review) explains how to use terms and connectors on Westlaw, NexisLexis, and Google Scholar to find circuit splits.

Make Judges Explain Themselves

Presidential aspirant Newt Gingrich made headlines this weekend for his comments on CBS's Face the Nation about activist judges (in which he explains that he has an advantage in thinking about the problem because he is not a lawyer). Concern about judges not staying within the boundaries of their constitutional authority is, of course, neither new nor confined to one party, but some of Mr. Gingrich's solutions haven't often been heard in mainstream politics. Especially his idea of abolishing some courts "to be rid of judges whose decisions are out of step with the country," and his suggestion that judges could be subpoenaed, arrested and forced to testify about their decisions.

Conservative critics came out of the woodwork to question Mr. Gingrich's ideas, notably NRO's Ed Whelan, and Stanford Law professor (and MSU grad) Michael McConnell, who told the Washington Post:

You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it … You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.

While this blog stays scrupulously away from taking sides on political issues, the idea of making judges explain themselves is downright brilliant.  We should start by requiring written opinions, with citations and arguments, and make the opinions public and appealable to a higher court.  And don't you think lawyers of all political stripes are ready to get behind the idea by citing to those written opinions in their arguments, and spending thousands of dollars every year to research the opinions? Just a thought.

Two Lawyers Make 2011 List of Top Quotes

SBM Blog hopes to have its own list of 2011 notable quotes before the year ends, but in the meantime Yale law librarian Fred Shapiro has already weighed in with the top ten quotes for the next edition of the Yale Book of Quotations. Reflecting the influence of hot stories and viral videos, the choice lawyer quotes are, in chronological order:

• From Elizabeth Warren (Harvard law professor, Financial Consumer Protection Bureau guru, and Massachusetts Senate candidate): “There is nobody in this country who got rich on his own. Nobody. You built a factory out there—good for you! But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for."

• From celebrity lawyer Gloria Allred, in a press conference about her client's allegations that former aspiring Republican Presidential nominee Herman Cain had sexually harassed her when she met with him about a job: "Instead of receiving the help that she had hoped for, Mr. Cain instead decided to provide her with his idea of a stimulus package.”

The Yale Book of Quotations' top quote of 2011?  "We are the 99 percent."

HT: ABA Journal

"A Stew of Confusion And Hypocrisy"

Sadly, this unappetizing phrase might refer to any number of things, but in fact it is a pronouncement by Judge Jed Rakoff in a case from March of this year,SEC v. Vitesse Semiconductor Corp., 771 F. Supp. 2d 304 (S.D.N.Y. 2011), that Eugene Volokh says presages Rakoff's controversial decision last month to reject a settlement between the SEC and Citigroup.  From the Vitesse opinion: 

Long before 1972, the S.E.C. had already begun entering into consent decrees in which the defendants neither admitted nor denied the allegations. This was strongly desired by the defendants because it meant that their agreement to the S.E.C.‘s settlements would not have collateral estoppel consequences for parallel private civil actions, in which the defendants frequently faced potential monetary judgments far greater than anything the S.E.C. was likely to impose. But there were benefits for the S.E.C. as well. First, the practice made it much easier for the S.E.C. to obtain settlements. And second, at a time (prior to 1972) when the S.E.C.‘s enforcement powers were largely limited to obtaining injunctive relief, the S.E.C.‘s focus was somewhat more centered on helping to curb future misconduct by obtaining access to the Court’s contempt powers than on obtaining admissions to prior misconduct.

But, by 1972, it had become obvious that as soon as courts had signed off on such settlements, the defendants would start public campaigns denying that they had ever done what the S.E.C. had accused them of doing and claiming, instead, that they had simply entered into the settlements to avoid protracted litigation with a powerful administrative agency. Thus, the real change effected by the S.E.C. in 1972 was the requirement that a defendant who agreed to a consent judgment “without admitting or denying the allegations of the Complaint” nevertheless agree that the defendant would not thereafter publicly deny the allegations. To this end, each of the proposed Consent Judgments now presented to this Court is accompanied by a formal written “Consent” of the defendant agreeing, pursuant to 17 C.F.R § 205.5, “not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis.”

The result is a stew of confusion and hypocrisy unworthy of such a proud agency as the S.E.C. [emphasis added] The defendant is free to proclaim that he has never remotely admitted the terrible wrongs alleged by the S.E.C.; but, by gosh, he had better be careful not to deny them either (though, as one would expect, his supporters feel no such compunction). Only one thing is left certain: the public will never know whether the S.E.C.‘s charges are true, at least not in a way that they can take as established by these proceedings.

This might be defensible if all that were involved was a private dispute between private parties. But here an agency of the United States is saying, in effect, “Although we claim that these defendants have done terrible things, they refuse to admit it and we do not propose to prove it, but will simply resort to gagging their right to deny it.”

The disservice to the public inherent in such a practice is palpable. Confronted with the same choice, the United States Department of Justice has long since rejected allowing defendants, except in the very most unusual circumstances, to enter into pleas of nolo contendere, by which a defendant accepts a guilty plea to a criminal charge without admitting or denying the allegations....

Moreover, as a practical matter, it appears that defendants who enter into consent judgments where they formally state, with the S.E.C.‘s full consent, that they neither admit nor deny the allegations of the complaint, thereafter have no difficulty getting the word out that they are still denying the allegations, notwithstanding their agreement not to “make any public statement” denying the allegations....

So, the SEC and Citgroup were surprised by Judge Rakoff's decision in their case? The comments to Volokh's post alone are worth a visit...

Meanwhile, WSJ Law Blog has asked three former judges to opine on the decision of federal judge Jed Rakoff to  In sum, a scornful Michael McConnell said "startling," a slightly more sympathetic Stephen Larson called the decision "both understandable but also potentially problematic," and an equivocal Oliver Wanger said "I side with no one." 

NY Study Exposes Crisis in Immigrant Representation

The NYT's "In a Study, Judges Express a Bleak View of Lawyers Representing Immigrants," is even bleaker than its title, describing a "justice" system for immigrants that is neither just nor systematic. The story reports on The New York Immigrant Representation Study to be published later this week. Although the study describes "grossly inadequate" representation, the minority of detained immigrants who do receive representation fare substantially better than those who do not:

Immigrants in 27 percent of cases between October 2005 and July 2010 appeared in court without a legal representative, according to the report. For detained immigrants, 67 percent appeared alone before a judge.

The report found that immigrants’ fate can depend largely on whether they can find legal representation: About 67 percent of all immigrants with counsel during that five-year period had successful outcomes in their cases, while only 8 percent of those without lawyers prevailed.

The Second Circuit judge who guided the study, Robert Katzmann, called the situation a "dire crisis."

In Memoriam: Lara R. Stutz

Lara R. Stutz, of Lapeer, died December 6, at the age of 43. She was a 1993 graduate of Wayne State Law School. She is survived by her children Logen, Larissa, and Natalia, parents David and Mary Jane Herrington, grandmother Margaret Weber, and aunt and uncle and cousins. See also, "Slain Imlay City woman was well-known Lapeer County lawyer."

In Memoriam: William N. Kritselis

William N. Kritselis, of East Lansing, died December 2, at the age of 80. He was a 1962 graduate of Ohio Northern University. Among his many professional honors, Mr. Kritselis was named "Outstanding Attorney of the Year" by the Ingham County Bar, and in 2006 received the prestigious "Most Respected Advocate"  award from the Michigan Defense Trial Counsel. He is survived by his wife Elaine and son Nicholas.

Click here to read the full obituary for Mr. Kritselis.

Click here to read the full eulogy for Mr. Kritselis.

In Memoriam: John S. Barbour

John S. Barbour, of Grosse Pointe, died November 23, at the age of 64. He was a 1977 graduate of the University of Detroit Law School. He is survived by his wife, Monica, and his three children, John Samuel "Sammy" Jr., Katie Leigh and Kimberly.

Whither Legal Language? A Fun, Free Tool With Which to Wonder

Three Michigan profs, Dan Katz and Adam Candeub from MSU College of Law and Michael  Bommarito II from U of M, have teamed up with two Emory scholars to adapt the n-gram explorer we told you about here to the corpus of U.S. Supreme Court opinions, creating the "Legal Language Explorer." Play with it here. The concept and construction is described in their paper "Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language."  As the authors point out, tracking the presence or absence of a particular phrase can offer "quick aggregate insights" on the relative importance of particular legal questions during different time periods.  The graph below shows the frequency of the term "parental rights."

 

 

 

 

 

 

 

 

 

The tool can also be used for more superficial inquiries regarding style. For example, here's the somewhat surprising result of a inquiry about the old-fashioned-sounding word "hereinafter."

"Just Because Something Happens A Lot Doesn't Mean It's Correct"

And then there's precedent. Every once in a while an editorialist says something that sounds exactly like your own mother. A case in point is this WSJ op-ed by Neal Lipschutz, the managing editor of Dow Jones Newswires, who applauds the controversial and much-discussed decision of federal judge Jed Rakoff to rebuff a proposed settlement between the SEC and Citigroup over allegations of fraud in mortgage-backed securities. If you haven't followed the controversy about Rakoff's opinion, you should: the entire strongly-worded opinion can be downloaded here. In essence it says, "I'm not signing off on something this opaque."  Specifically, Judge Rakoff says that the SEC hasn't told him enough to satisfy him that he is "not being used as a tool to enforce an agreement that is unfair, unreasonable, inadequate, or in contravention of the public interest."

The SEC has appealed the decision, and its division of enforcement, Robert Khuzami, has publicly criticized Judge Rakoff for committing a “legal error by announcing a new and unprecedented standard.”  This was too much for Lipschutz, whose piece, "Rakoff Decision May Be 'Unprecedented' But He's Still Right," goes to the heart of the disagreement:

Khuzami’s view is a pragmatic one: the SEC should be able to settle without requiring admissions if it is going to get close to what it likely would via trial. Also, settling where it believes it is justified allows the SEC to take more enforcement actions and in some cases more swiftly return funds to aggrieved parties.

But it seems to me Judge Rakoff essentially was calling ‘stop’ to a long-standing practice that took expediency too far. It seems to this non-lawyer that Judge Rakoff was making the fundamental point that is too often ignored. You shouldn’t be able to say I am not admitting I did something wrong, but I will pay some money and I won’t do it again.