ABA Journal Interviews Scalia and Garner

Justice Scalia and Bryan Garner gave an interview recently to the ABA Journal in which they discuss their new book, “Persuading Judges,” and advocacy, both written and oral. You can view the full transcript of the interview on the ABA Journal’s website via this link. Regardless of whether you agree with Justice Scalia’s judicial philosophy or not, he is perhaps one of the finest legal writers of this generation, or any other, and his thoughts on effective advocacy are compelling. I highly recommend that you read both the ABA Journal interview and “Persuading Judges.”

Filed under: Legal Writing

Slots Lawsuit a Bombshell

The Pennsylvania League of Women Voters has clearly struck a nerve with its lawsuit against former state Chief Justice Ralph Cappy.

Time will tell if it’s more serious than that.

In its filing in U.S. District Court, the usually low-profile good-government group paints a disturbing scenario in which Cappy’s Supreme Court may have negotiated a secret deal that provided generous pay raises for judges in exchange for upholding the state’s 2004 slot-machine gambling law.

The league, a plaintiff in the slots-law challenge that the court rejected, says such a deal , or, if there wasn’t a deal, the fact that many legislators believed there was one , violated its due-process rights in the slots case.

“The case presents the fairly unremarkable and simple argument that secret discussions by judges with those who had interests then pending before them poses the appearance and risk of impropriety, and thus compromises the due process we expect of our judicial system as Americans,” said league director Bonita Hoke.

Reaction from the state’s high court was swift and indignant.

Cappy was a vocal advocate of higher salaries for the state’s 1,000 judges, arguing that the increases were necessary to compete with private firms for top legal talent. He said the allegations have “absolutely no truth” and are based on “falsehoods, speculation and innuendo.”

“I intend to defend myself vigorously in court,” Cappy, who left the court at the end of last year and is now a partner in a Pittsburgh law firm, said in a statement issued through the Administrative Office of Pennsylvania Courts.

The suit also mentions Ronald Castille, Cappy’s successor as chief justice.

It says an unnamed House member encountered Castille at a Harrisburg restaurant before the court ruled on the slots challenge, inquired about its status and received a “wink and nod” from Castille that the representative interpreted as a signal that the law would be upheld.

Castille said the lawsuit “slanders the entire Supreme Court” and suggested that the league and its lawyer might be subject to official sanctions or disciplinary actions.

Naturally, any lawsuit that links allegedly improper , and possibly illegal , activity to two of the most important state laws enacted in recent memory is a magnet for media attention. The question is whether the league’s lawsuit can survive intense judicial scrutiny.

The slots law has spawned what is expected to be a multibillion-dollar gambling industry, much of it still on the drawing board, that is financing property-tax cuts for Pennsylvania homeowners. The court upheld the slots law on June 22, 2005.

Barely two weeks later, the Legislature passed the pay-raise law , including not only the judicial raises but increases of as much as 54 percent for legislators , in a middle-of-the-night vote that provoked a strong public backlash. Lawmakers responded by repealing the law four months later, but the Supreme Court restored the judicial raises only in September 2006.

One potential problem with the lawsuit is that it is based primarily on hearsay from unidentified legislators, who could simply be embellishing rumors that circulated during the pay-raise debate.

The allegations in the lawsuit were widely discussed in the Capitol during that time period, said Michael Greer, a leader of Pennsylvanians Against Gambling Expansion Fund Inc., the lead plaintiff in the slots-law challenge.

“At that time, pinning them down and attributing them to a specific source proved difficult, but it raised doubts in the minds of many people as to whether there would be a fair result in the case,” he said.

League lawyer Paul Rossi said Cappy’s accusers would be identified in court.

“I anticipate we will be calling (many) current and former state legislators as witnesses,” Rossi said.

Another obstacle for the league will be persuading U.S. District Judge Yvette Kane to accept a case involving state issues.

Two years ago, Kane threw out a suit challenging the Legislature’s handling of the pay-raise law, saying it’s up to Pennsylvania voters to decide whether to retain or oust their legislators.

John Burkoff. a University of Pittsburgh law professor who teaches and writes about legal ethics, called the lawsuit “irresponsible.”

“This kind of due-process argument is simply not something that courts have recognized to this point and it’s not something that courts are likely to recognize,” said Burkoff, suggesting that any alleged judicial misconduct should be handled through the court’s disciplinary process.

Source: Philly.com

Filed under: Pennsylvania Courts

Rendell to Send New Nominees to State Senate

Gov. Ed Rendell says he will not renominate the four candidates who were rejected by the Senate last week to fill temporary openings on the state appellate courts.

Instead, he said Thursday he will send the names of new candidates to the Senate as early as next week. He would not say in advance who they are.

Rendell also would not say whether the new candidates will include any minorities, as the Legislative Black Caucus has requested, but said he would not sacrifice quality for diversity.

The Republicans who voted against Rendell’s nominees complained that he had not considered their opinion on whom he should pick.

A two-thirds majority vote in the Senate is necessary to confirm a judicial nominee.

Source: Pennlive.com

Filed under: Judicial Nominations, Pennsylvania Courts

Abolish the Bluebook

Ilya Somin has a post up at the Volokh Conspiracy on an issue that, although esoteric, is near and dear to my heart. The Bluebook is an over sized, ridiculously opaque and complicated manual that governs the form of citations to source materials in scholarly work in almost all publications, as well as briefs and other documents filed in most courts. I have long believed, beginning during my tenure as a managing editor of my law school’s law review, that the Bluebook rules are needlessly complicated and enormously wasteful. If the purpose of citation is to enable a reader to easily locate source material, it is almost certainly true that the cumbersome Bluebook rules are not really necessary. Certainly for practicing lawyers and judges Bluebook rules and format are little help, and not much more than a source of frustration or amusement, mostly honored in the breach. I applaud Professor Somin for his stand against the Bluebook. Abolish it, I say.

(Hat tip: Feddie at Southern Appeal)

Filed under: Legal Writing , Bluebook, citation, Legal Writing

Judge Posner on Legal Writing

In a recent opinion, Seventh Circuit Judge Richard Posner, who some describe as perhaps the greatest living appellate judge (a claim with which I would not necessarily disagree), offered some useful advice on the subject of brief writing. Specifically, he addressed the dense legalese that littered the briefs that had been submitted in a complex reinsurance case, and offered some advice that all attorneys ought to take to take to heart:

A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

(Hat tip to the Wall Street Journal’s Law Blog)

Filed under: Legal Writing

Supreme Court Rejects Scheme Liability in 10(b) Cases

The Supreme Court on Tuesday handed a solid win to third-party defendants in securities litigation — including law firms, accountants and bankers — by shielding them from broad “scheme liability” for their tangential role in corporate fraud.

The victory came in the much-awaited case of Stoneridge Investment Partners v. Scientific-Atlanta Inc. and Motorola Inc., in which investor groups that sued the cable operator Charter Communications for fraud also pursued the companies that sold cable boxes that figured in some of Charter’s fraudulent transactions.

By a 5-3 vote, the Court said that because investors victimized by Charter did not rely on any statements or omissions made by the vendors Scientific-Atlanta and Motorola, the vendors could not be held liable under Section 10(b) of the Securities Exchange Act of 1934.

The ruling, authored by Justice Anthony Kennedy, may curb what business defendants have portrayed as a relentless search by plaintiffs for alternative deep pockets in securities class actions when the main company involved has collapsed. One such piece of litigation, by Enron investors seeking billions in damages from bankers and Wall Street firms that did business with Enron, may be directly affected by Tuesday’s ruling.

“The proper way to look at it, I think, is that the Enron case is dead after today,” says Ted Frank of the American Enterprise Institute. Mayer Brown’s Stephen Shapiro, who won the case for respondents Scientific-Atlanta and Motorola, was happy with the decision and said it should not be viewed as a loss for investors. “It is a win for investors, because suits like this one take money from one group of investors at the expense of another group of investors, with big rake-offs for lawyers. And it is a win for the U.S. economy.”

John Engler, president of the National Association of Manufacturers, said in a statement, “The petitioners in this case were seeking an opening to go far beyond the law in search of deep pockets, and we really don’t need any more of that in our country. This decision will prevent creeping liability in this area of securities law.”

Lawyers representing investor-plaintiffs attacked the Court for succumbing to overblown corporate complaints and also cautioned that the ruling leaves the door open for suits against third parties, especially financial institutions, in some circumstances.

Stanley Grossman, a partner at Pomerantz Haudek Block Grossman & Gross in New York who represented Stoneridge, says bankers, lawyers and others who are directly involved in a corporation’s fraud should feel “little comfort.”

Steven Toll, a plaintiffs litigator in class actions at Cohen, Milstein, Hausfeld & Toll in Washington, says the Court took too narrow a view of “reliance,” when in the case before the Court, investors relied on financial statements by Charter that had been rendered false by its transactions with the vendors.

“The Supreme Court’s decision is yet another unfortunate example of the pro-business, anti-investor sentiment of a majority of judges on the Supreme Court,” says Toll.

The Stoneridge case took on larger-than-life proportions as it made its way before the Supreme Court, with some commentators billing it as the Roe v. Wade of securities law. Intrigue increased when Chief Justice John Roberts Jr. recused in the case, and then rejoined it — apparently after selling stock in Cisco, which is Scientific-Atlanta’s parent company. Justice Stephen Breyer, who also reported owning Cisco stock and apparently did not sell it, remained out of the case. Adding to the mix was conflicting pressure on Solicitor General Paul Clement — first from the Securities and Exchange Commission to side with investor-plaintiffs, and then from President George W. Bush and other top administration officials to side with corporate defendants. Clement ultimately filed a brief favoring the defendants.

But as important as Stoneridge was, it was also just the latest in a series of recent rulings by the high court that have raised the bar for securities class actions.

“Stoneridge completes the trifecta of recent securities fraud cases before the Supreme Court that have been decided in favor of business,” said Lisa Wood, a securities litigator at Foley Hoag in Boston, in a statement. She added that the ruling will “help relieve a huge amount of anxiety on the part of professional service providers working for public companies.”

The other rulings she referred to were last year’s Tellabs Inc. v. Makor and Dura Pharmaceuticals v. Broudo in 2005, which tightened pleading and causation standards for securities class actions, respectively.

Kennedy, the Court’s swing vote, was joined by Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.

Kennedy’s majority opinion displayed the Court’s distaste for class actions, asserting that expanding causes of action in securities litigation “would allow plaintiffs with weak claims to extort settlements from innocent companies.”

Kennedy also voiced policy concerns that “overseas firms with no other exposure to our securities laws could be deterred from doing business here. … That, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets.”

But third parties with unclean hands are, Kennedy cautioned, still subject to prosecution by the SEC and other kinds of civil litigation. Congress, Kennedy said, had decided that the SEC, not civil litigation, should be the arena in which third parties in fraud should be handled.

Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, dissented. Stevens criticized the majority’s “mistaken hostility towards the 10(b) private cause of action.” He invoked the old common law rule that “every wrong shall have a remedy” and even cited a 1980 decision by the 2nd U.S. Circuit Court of Appeals, Leist v. Simplot, written by Judge Henry Friendly during the year that Roberts, now chief justice, clerked for Friendly. In that decision, Friendly reviewed the history of implied causes of action in securities and other laws.

Source: Law.com

Filed under: Corporate law, Securities law, The Supreme Court

Congratulations, Justice McCaffrey!

Former “Eagles Court” judge Seamus McCaffrey was sworn in this past week as a justice on the Pennsylvania Supreme Court. Justice McCaffrey has a compelling life story, and is a committed public servant. Congratulations, Mr. Justice, I wish  you well. You can read the Philadelphia Inquirer’s story on Justice McCaffrey’s swearing in here.

Filed under: Pennsylvania Courts

Boehner v. McDermott Headed Back To Supreme Court

You may – or more likely don’t – remember the case that sprung out of the surreptitious tape recording of a telephone call that took place in 1996 and involved, among others, current US House Minority Leader John Boehner on the subject of how the GOP ought to deal with then pending ethics charges against then Speaker Newt Gingrich. You may also remeber – or likely do not – that the tape found its way into the hands of a Democrat Congressman, James McDermott. Out of this sequence of events, and a few more, sprang the lengthy Boehner v. McDermott litigation. The case is now headed to the US Supreme Court, for the second time. The SCOTUS Blog ran the following post on the case today:

The following column, featuring a selected petition up for consideration at the Justices’ private conference on November 30, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

Conference Call: GOP Spying Case Heads to Supreme Court

Justices asked to decide whether nearly $1 million in civil penalties against House Democrat should stand

In 1998, Rep. John Boehner (R-Ohio) filed what is believed to be the first lawsuit against a fellow member of Congress. The target was Rep. Jim McDermott (D-Wash.), who during the previous year had shared with reporters a tape of an embarrassing phone call involving Republican Party leaders originally recorded by a Florida couple using a police scanner from RadioShack.

While the making of the recording violated federal law, McDermott, who had merely received a copy of the conversation, has consistently maintained that the First Amendment protected his right to pass its contents along. Now, more than a decade after the original conference phone call – and more than six years after the Supreme Court remanded the case in light of another decision – the justices will decide on Nov. 30 whether to settle the matter once and for all. (The petition is No. 07-439, McDermott v. Boehner.)

The call in question occurred in 1996, just hours before then-House Speaker Newt Gingrich admitted wrongdoing in a House ethics subcommittee probe. In lieu of embarrassing hearings, members agreed to accept Gingrich’s mea culpa on the condition that Gingrich not launch a counterattack against the committee itself. On a December morning in Florida, however, John and Alice Martin overheard a conference call involving Boehner, who was talking on a nearby cell phone; Gingrich; and other Republican leaders orchestrating the GOP’s response to the charges.

Recognizing Gingrich’s voice, the couple recorded the conversation and, less than three weeks later, arrived in Washington to give it to McDermott, then the highest-ranking Democrat on the House Ethics Committee. Presented in a sealed envelope, the tape came with an attached letter stating that the call was “heard over a scanner” and indicating the couple’s belief that they would be granted immunity for turning it over. After listening to the tape, McDermott played it for reporters from The New York Times and Atlanta Journal-Constitution, while insisting they not name him in their stories.

Shortly thereafter, the Florida couple publicly acknowledged giving the tape to McDermott and paid a $500 fine for illegally recording the conversation. The following year, Boehner sued McDermott under the federal wiretapping statute for disclosing an illegally intercepted communication.

In the first round of proceedings, Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia dismissed the suit on First Amendment grounds. A divided panel of the U.S. Court of Appeals for the D.C. Circuit reversed. The Supreme Court granted the case, vacated the judgment, and remanded the decision in light of its 2001 opinion in Bartnicki v. Vopper, in which the Court – by a vote of 6-3 – held that radio commentators could not be prosecuted for their role in playing an illegally recorded tape they had received from an anonymous source.

On remand, Hogan ruled that because McDermott was aware the tape had been illegally intercepted, Bartnicki did not shield him from liability. The court imposed $60,000 in damages, plus attorney fees now estimated at nearly $900,000. A divided D.C. Circuit panel affirmed the judgment, as did the court last May, sitting en banc.

In a 5-4 opinion written by Judge A. Raymond Randolph, the majority reasoned that Bartnicki did not grant blanket First Amendment protection to disclose any information of public importance that a person had lawfully obtained – citing, among other examples, speech limits on grand jurors, intelligence officials, and Internal Revenue Service employees. Relying instead on the Court’s 1995 decision in United States v. Aguilar, the panel held that officials who accept “positions of trust” inherit special duties not to disclose information acquired while performing their responsibilities.

In McDermott’s case, Randolph noted that the House Ethics Committee itself had admonished him for violating a committee rule against disclosing evidence involving individuals under investigation. “If the First Amendment does not protect Representative McDermott from House disciplinary proceedings,” Randolph concluded, “it is hard to see why it should protect him from liability in this civil suit.”

McDermott’s petition for certiorari – filed by Christopher Landau of Kirkland & Ellis in Washington – contends that any sanction leveled by the House is wholly irrelevant to McDermott’s liability under the federal wiretapping statute. On the First Amendment question, the petition says, the D.C. Circuit opinion so blatantly disregarded Bartnicki as to threaten “the hierarchy of the federal court system.”

Landau further argues that the D.C. Circuit violated separation-of-powers principles by linking the Ethics Committee’s report to McDermott’s First Amendment claim. “The courts are not in the business of enforcing internal House rules, either directly or indirectly, or attaching adverse collateral consequences to internal legislative activity,” the petition says.

In any event, Landau contends, McDermott had no knowledge of the Florida couple or the tape before they handed it to him, and he could not recall whether he read the accompanying letter stating how they had recorded the conversation.

Boehner’s brief in opposition, filed by Michael Carvin of the D.C. office of Jones Day, counters that McDermott was unquestionably aware the conversation had been recorded illegally – as evidenced by the subsequent New York Times account stating that the couple told McDermott they heard the call over a radio scanner.

Carvin further contends that it makes “perfect sense” for public officials in sensitive positions to enjoy fewer First Amendment protections over the disclosure of illegally intercepted information. Such officials, he argued, “voluntarily relinquished any ‘right’ to disclose information that comes to them in the course of their job.”

Source: SCOTUS Blog

Filed under: Political Cases, The Supreme Court

When can you make a “new” argument on appeal?

Anthony Caso of the California Appellate blog Opening Briefs has an interesting post, which I have reproduced below, in which he briefly discusses a recent decision from the federal Ninth Circuit Court of Appeals in which the court allowed the State of California to raise on appeal an argument it had not raised in the district court, reasoning that only claims are waived, not arguments. I am quite frankly stunned by this assertion, even notwithstanding that it does not apepar to have been central to the ultimate disposition of the case. It is contrary to a fundamental rule of appellate practice, and is, I believe, directly contrary to case law in almost every federal circuit. I will update with cites as soon as I am able. In the meantime, Anthony’s post is set forth in full below, and feel free to correct me if I am wrong:

The Ninth Circuit’s decision this week in California Pro-Life Council v. Randolph makes an interesting distinction between new arguments and new claims on appeal — the former are allowable but the latter forbidden.

At issue is whether the nonappealing party (the state in this case) was permitted to raise a new argument on appeal that they had not made in the District Court. The District Court had ruled that a presumption in the state’s regulations was not rebuttable. On appeal, however, the state argued for the first time that this presumption was rebuttable. The appellant attacked this as a ‘new argument on appeal.’

The court noted in a footnote, however, that the legal conclusions of the District Court in this case were reviewed de novo, and that there was no bar to the state raising a new argument on appeal. The bar to new matters on appeal, according to the panel, was limited to new claims.

A later footnote pointed out, however, that any arguments (new or otherwise) must be presented in the parties’ opening briefs. New arguments raised for the first time in a party’s reply brief will not be considered.

(Via The Opening Brief.)

Update: In a 1997 decision, Southwestern Pennsylvania Growth alliance v. Browner, 121 F.3d 106 (3d Cir.1997), then Third Circuit Judge Samuel Alito held that issues raised for the firts time on appeal are waived, except in “extraordinary circumstances.” While Judge Alito noted that courts have wide discretion to determine when such circumstcnes exist, this seems to me to be far different from what the Ninth Circuit has done in the California Pro Life Council case, in which it has essentially held that a party is always free to raise new issues, so long as it does not raise a new claim.

Filed under: Procedure, preservation of arguments

Popular Elections for Judges is a Bad Idea

The Wall Street Journal today published an interesting op-ed piece authored by retired Supreme Court Justice Sandra Day O’Connor criticizing the role that special interest groups and campaign cash have come to play in state judicial elections. Justice O’Connor points out that 39 states currently have some form of judicial elections. In my own state of Pennsylvania, the recent races for 2 open Supreme Court seats were the occasion for record expenditures by judicial candidates in the Commonwealth, and saw the employment of campaign tactics heretofore not widely seen in judicial races.

Filed under: Judges, Judicial Elections