SBM Blog

In Memoriam: Hon. John H. Hausner

John Hausner, of St. Clair Shores, died May 27 at the age of 77.  Judge Hausner was a graduate of the University of Detroit School of Law and joined the State Bar of Michigan in 1967.  He was appointed to the Wayne County Circuit Court by Gov. William Milliken in 1976 and served on the court through 1994.  He is survived by his wife, Alice.  Visitation is Friday from 2-9 p.m. at Kaul Funeral Home, 28433 Jefferson, St. Clair Shores. Judge Hausner will lie in state Saturday 9:30 a.m. until the time of liturgy, 10 a.m., at St. Basil Byzantine Catholic Church, 4700 Metropolitan Parkway, Sterling Heights (between Mound & Ryan).

In Memoriam: William Boyer Daniel

William Boyer Daniel, of Detroit, past president of the Wolverine Bar Association, died May 22 at the age of 68.  Mr. Daniel was a graduate of Michigan State University and Wayne State University Law School, and received a master's in criminal law from New York University.  He is survived by his wife Cheryl; three daughters, Shari Morton, Lori Mausi and Cecily Daniel; a son, Eric; a grandson, Dwayne Talon; two granddaughters, Lucia Daniel and Saamia Mausi; his mother, Jessie M. Daniel; and six siblings, Jeannette Willis, Bernadine Wilson, Juanita Ellerson, James, Norma Jones. A son Rodney and his father, the Rev. William J. Daniel predeceased him.  The funeral service is at noon Friday at Oak Grove AME Church, 19801 Cherrylawn, Detroit.Memorial tributes may be made to the William B. Daniel Scholarship Fund, 1632 First National Building, Detroit, MI. 48226.

Another Kilpatrick Attorney Off the Case

Another member of Kwame Kilpatrick's legal team is jumping ship. Daniel Hajji says he won't be representing the former mayor through the appeals process. Kilpatrick's spokesman, Mike Paul, says the attorney who will handle the appeals process will be announced soon.

The Detroit Free Press has the story.

Posted by Samantha Meinke

Now and Then: Sherwood v Walker and the NASDAQ

Who in Michigan can resist a good Sherwood v Walker rumination? (Reminder: this Michigan case involved the contract to sell the supposedly barren cow, Rose of Aberlone. The Michigan Supreme Court allowed the contract to be rescinded on the basis of the parties' "mutual mistake" about her barrenness.)  Usha Rodrigues at Conglomerate Blog likes teaching the case because it illustrates that most market transactions are premised on a mistake --  "sellers think the buyer is paying too much (caveat emptor), and buyers think the seller is charging too little (caveat vendor)."  What prompts her to write about Sherwood now is the Dow's almost 1,000 drop on May 6 and the fact that, according to James B. Stewart writing in the Wall Street Journal, "Nasdaq alone canceled more than 10,000 trades involving at least 1.4 million shares."  "On what grounds?, Rodrigues asks, and answers, "mutual mistake." Rodrigues wonders how the risk should be allocated, and so does Stewart:

If the trades resulted from sophisticated algorithms that failed to take into account the possibility of such volatile trading conditions, do those investors deserve to be bailed out by having the trades unwound? Should MIT-trained engineers turned professional traders be protected from their lack of foresight? Conversely, should those traders who devised programs to take advantage of such a free fall be denied their profits?

In pursuit of the answer, Rodrigues called NASDAQ, where she turned up the Clearly Erroneous Transactions Policy, "which in turn refers to Rule 11890, which predictably enough gives Nasdaq the power to unwind transactions if it thinks 'extraordinary market conditions or other circumstances in which the nullification or modification of transactions may be necessary for the maintenance of a fair and orderly market or the protection of investors and the public interest' have occurred.  Although NASDAQ has reserved the power to nullify transactions in the underlying contract, Rodrigues still wants to know who should bear the risk of clearly erroneous transactions.  She concludes that somehow "Aunt Marge in Omaha who mistakenly buys P&G at $400/share seems a lot more sympathetic than Derek the Flash Trader whose formula failed."

Indeed. 

Albert Pinkham Ryder, Evening Glow, The Old Red Cow, ca 1870

The Loneliness of the Long Distance Moderate

"No natural constituency automatically supports a moderate position."

ScotusBlog has a running series featuring the thoughts of several of retiring Justice John Paul Stevens' former clerks.  Today's, from George Rutherglen, a law professor at the University of Virginia, is noteworthy for its comments on the inherent difficulties of being a moderate.

Before he was appointed to the bench, Justice Stevens was identified as a moderate Republican, an apt description certainly of his principal political supporters when he was nominated to the Seventh Circuit and then to the Supreme Court: Senator Charles Percy and President Gerald Ford.  The moderate wing of the Republican Party has since almost entirely disappeared.  To the extent that Justice Stevens represents its legacy in the judiciary, it comes as no surprise that he has been resourceful and combative.  No natural constituency automatically supports a moderate position, and certainly not in the current political climate in which we find ourselves, where extremist rhetoric often drowns out reasoned argument.  Perhaps second thoughts about this predicament have led so many people so recently to celebrate Justice Stevens’ career on the Court.

Often in that career, he was in the difficult position of fending off criticism on two fronts.

Kagan Nomination: This Kind of Apathy May Be a Good Thing

Dahlia Lithwick in Slate says the younger generation just doesn't care about the prevailing media chatter about Elena Kagan and her qualifications for the Supreme Court:

Every time I've been on a radio show on the subject of Kagan's wardrobe/softball playing/marital status, some twentysomething caller has taken me to school. It turns out, they invariably tell me, that twentysomethings just don't care if their Supreme Court justices are black, white, Jewish, Protestant, gay, or straight. Every day someone under the age of 30 either sends me an e-mail or tweet or a Facebook post reminding me that those of us making a huge big fat media deal about the nominee's race, religion, sexual preferences or marital status are quickly becoming cultural dinosaurs.

Kagan Nomination Update: Sitting Pretty

The Kagan nomination stories are coming so fast and furious now, from her all-too-human first semester law school grades (here's the transcript) to her towering ambition (wanting to be President of Harvard -- for shame!), there's really no point in trying to keep up.  But just when we think we've seen everything along comes a story that not only critiques Kagan's wardrobe, but also how she crosses, or doesn't cross, her legs.  Well, I guess we just can't be too picky when it comes to choosing our Supreme Court justices.

Oh, and speaking of vacuity and farce, it's worth taking a look at Our idiotic Supreme Court confirmation process, in the New Republic.

Congressman Pushes Investigation of Gitmo Lawyers

The New York Times reports that Florida Congressman Jeff Miller has added a provision to a defense bill unanimously approved by the House Armed Services Committee that would direct the Pentagon’s inspector general to investigate suspected misconduct by lawyers for Guantánamo Bay detainees. Democrats on the committee agreed to Rep. Miller’s proposal after several changes.  The full House is expected to debate the bill this week. 

Miller is taking special aim at the John Adams Project, jointly supported by the ACLU and the National Association of Criminal Defense Lawyers to provide research and legal assistance to the uniformed lawyers defending Gitmo detainees facing prosecution before a military commission. He calls the project a "treacherous enterprise."

Breaking News: Kwame Kilpatrick's Attorney Quits Case

Michael Alan Schwartz, who has defended Kwame Kilpatrick for the past year throughout his probation violation proceedings, announced this morning that he will not continue to represent Kilpatrick through his appeals process, and that he will be taking a new job as general counsel to "The Word Network," a religious and gospel broadcasting network.

The Detroit Free Press has the story.

Intellectual Property: Musty Old Doctrine Gets Hot in Internet Age

  Once upon a time, long, long ago in a universe without the Internet, there was a doctrine called "hot news."  It was first announced in 1918 in International News Service v. Associated Press, 248 U.S. 215, which you can read on your own here, or, you can take SBM Blog's word for it that it involves William Randolph Hearst stealing AP news stories through various means, including bribery, actions AP sought to enjoin.  A justice you've never heard of (Pitney) wrote the opinion holding for the AP, in which he announced the new "hot news" doctrine, drawing the contempt of a Justice you have heard of (Brandeis), who wrote:

The creation or recognition by courts of a new private right may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest,it may be necessary to prescribe limitations and rules for its enjoyment; and also to provide administrative machinery for enforcing the rules.