Ciceronian Review

Secession in the North

Apparently the Secretary of State for Ohio has approved for inclusion on the fall ballot a proposed amendment to the Ohio Constitution which would bar enforcement of federal health insurance laws.  The Secretary thinks the proposal has enough signatures to get to the ballot.  Okay.  But the proposal is unconstitutional -- state laws, even state constitutions, cannot supersede federal law.  Not in some contested sense or on the margin.  The Supremacy Clause of the US Constitution says so.  I don't grasp how patently unconstitutional provisions get approved -- is it just that the Secretary has a purely ministerial role of counting signatures?  Why would one not be able to enjoin inclusion on the ballot of a proposal which, even if passed, cannot be law?  It is puzzling.  Isn't this just an effort at state nullification?  How could a lawyer defend it?  Will have to look a bit further.

Fees

Gilbert Development is a long complicated case about real estate sales, fiduciary duties, and contracts.  I’m not going to talk about the facts or those aspects of the law.  What I found interesting is the Court of Appeals’ discussion of the award of attorney’s fees to the prevailing party (reasonable fees award under contract).  The discussion does not even start until paragraph 44 of the opinion, so you have to go a good way into the opinion to find the fee discussion.  It is quite interesting, and in some places troubling.  Among other points, the Court holds that fees are recoverable for vindication of contract rights – kind of boilerplate.  An unsuccessful motion for summary judgment is not under that description.  (¶ 52)  In this instance the Court points to a number of factors leading to the conclusion – the motion was denied, of course, but also that although the claim at issue was dismissed two years later, there was nothing showing a connection between the dismissal and the motion, and that the trial court never adopted the major argument of the motion.  That seems reasonable – no vindication no fees. 

Consider, however, how likely it is that the paragraph will next show up in an argument that fee recovery is limited to successful dispositive and non-dispositive motions.  The argument will be that a motion that does not get granted should not be included in fees.  The possibility is raised by the cursory treatment by the Court of Appeals of the trial court’s explanation of how and why unsuccessful motions, even for summary judgment, are valuable and advance both the case and the vindicated claims.  The trial court’s explanation is summarized without comment and then ignored.  The Court of Appeals treats that part of the decision below as just stuff to recite, and then drop.  That is problematic because of implications, beyond the inevitable efforts to expand (and efforts to expand by losing sides will be inevitable and pervasive).  It suggests that fee requests will need to be even more detailed and even more difficult to obtain: even more detailed time keeping and allocations, ever more detailed memoranda memorializing strategic values of motions, ever longer chains linking motions or other work to ultimate outcomes.  Where the case is simple, those conditions may be easy to satisfy, but in complex cases (like Gilbert) that can be an enormous undertaking.  In Gilbert the fee request included a 67-page declaration justifying fees – people went over every time entry covering six years.  Coupled with the increasing bar on block billing, attorneys need to start recording time with it in mind that there may be a fee recovery, and that means ever longer entries broken into ever small segments and ever longer applications and ever longer oppositions and ever greater burdens on the trial courts.  Judges do have to assess whether the fees are reasonable, but I am a little worried that they have insufficient understanding of the increasing burdens they are creating.  (It is unclear whether the preparation of a fee request is a recoverable expenditure of fees.)

I should also note that the Court of Appeals took the right course on the “locality” factor:  the trial court can consider whether the case justified counsel from elsewhere who charged rates appropriate for their home, that there is no presumption in favor of the rates in the immediate vicinity of the courthouse.  

Go Nino

In an interview released this week, Justice Scalia, talking about the 14th Amendment said: "It's not about nine superannuated judges who have been there too long, imposing these demands on society."  Quite right, and as you recognize the problem, please follow through -- step down.

Natural Justice Unnaturally Presented

I finished Binmore's Natural Justice and am thinking about taking on the longer two volume work.  I probably won't.  Binmore has a writing style of a game theorist, and I doubt I would make it through two long volumes of the style.  It is not opaque writing, but it has habits that I find uncongenial.  Chief among them is the supposition that a diagram is a proof or even an argument.  I need the narrative argument.  It is a style, I would say, of understanding.  At the more basic level, Binmore argues for a view that cooperation and fair allocations arise on their own given moderately favorable circumstances, that notions of fairness involve wider applications of distributive patterns (and rules) which are natural equilibria for smaller groupings.  I have not put that at all well.  It is a very Humean and Darwinian approach to justice and political theory.  The discussion of game theory in connection with political theory was, albeit breif, fascinating.  Thankfully, there was a manageable bibliography and note system for the book.

The variation in social organization and circumstances of human life suggest that, to the extent, political and moral thinking is not delusional, it must be strongly conditioned by happenstance of time and place.  The notion of political values as cultural values is what is involved.  Binmore gives some response to accusations of relativism, and in the brief address gets things largely right.  The underlying point, for me, is the inadequacy of Kantian and like idealisms.  The rules which do any work of governing social life are not usefully universal, and so not universalizable.  A bugbear I suppose, but the anti-Kantian approach is what led me to read the book in the first place.

Cooperation and social organization, which ends up entailing something about political theory or justice, have to be the result (or instantiation) of ordinary processes.  Can't be that a moral sense and contructed on conern for justice are just born it, like eye color.  We don't get to justice or political theory because such ideas come at some age of their own, like wisdom teeth.  The notions come into play because of the ways in which people live together, the dynamics of success of the pre-existing (and existing) social groupings.  Because those social groupings are multivalent, and remain subject to variation and adaption, they seem unlikely to be dependant on an independently existing set of rules, actual or hypothetical.  It is easier to see the sisters before one's self and accomdate to the local group, in competition against other groups and so on, than to find a set of imminant set of rules remaining at hand following exile. 

Not So Wrong Really

In State v. Doyle, the Utah Court of Appeals both found that the prosecutor engaged in egregious misconduct and that there is no remedy for the misconduct, but, it was still bad.  The relevant portion of the decision can be summarised as follows:

The prosecution uses a witness it knew (or should have known) gave false testimony -- also known as suborning perjury -- when she claimed she had not been given a deal in exchange for testimony.  (Actually, the "should have known" language is unwarranted mincing -- it was the same prosecutor who made the deal and put up the witness against Doyle.  The prosecutor knew the testimony was false and did nothing to correct it.)  No reversal of conviction because the defense lawyer did a very good job.  The lawyer figured out the lie and, on her own, found the deal and presented it to the jury.  Of course, having done all that, the lie was no longer reasonably likely to affect the judgement. 

"The effective advocacy by Doyle's attorney in this case rendered the false testimony harmless. Cuenca's motive for testifying had clearly been revealed because of Doyle's diligent efforts to locate the plea agreements, thorough cross examination of Cuenca, and the introduction of the testimony of Cuenca's lawyer.  Moreover, the prosecutor ultimately acknowledged the existence of the plea agreements in his closing argument. Doyle and the State thus provided the jury with the facts it needed to weigh Cuenca's
credibility. Consequently, Doyle was not prejudiced by Cuenca's false testimony and the prosecutor's failure to timely correct it." 

There you go -- you would have had grounds for reversal but the defense lawyer did a very good job, no harm from the prosecutor's lying.  But wait, there is more.  During discovery, defense had requested documents which would include any plea agreements with co-defendants or witnesses.  None were produced.  Still, as the defense found the agreements on their own and used them, again no real problem. 

Once more the defense tries -- defense points to the patent violation of Criminal Rule 16 by the prosecution.  Unfortunately, the defense waited to long to raise the issue with the trial court.  Defense raised it towards the close of trial (when it had established clearly that there had been a serious violation), but that is too late.  So while this time there might have been a real foul, it was too late. 

At the end of the day, the conviction stands because the defense cured the serious of lies by the prosecution.  What an outcome -- had the defense lawyer been less diligent, the misconduct might have mattered (but then the lack of diligence would have been waiver), but given the great job by the defense there was no prejudice.  And, by the by, don't expect any sanctions to be imposed on the prosecutor -- the court is completely silent on that point and so the only inference one can draw is that there will be and were none. 

But take heart, the court does sort of care:

"We do, however, recognize that the prosecutor committed several discovery, see Utah R. Crim. P. 16(a), and ethical violations, see, e.g., Utah R. Prof'l Conduct 3.3(a)(3), 3.4(a)-(c), 3.8(d), and we are compelled to again address the prosecutor's serious misconduct."  That i s followed by a listing of the misconduct and not a word about sanctions or referral.  Compelled indeed.  Apparently, so long as no one says anything mean about the courts or opposing counsel, all will be forgiven at every opportunity.  Not one of the Court's better days.

Another Hadfield

Finished the second of the Hadfield articles.  Informative in several ways.  First, confirmed that she intended in the first article to draw a line between kinds of legal services such that a certain kind would largely remain under a profession model.  Services connected with individuals associated with constitutional and political issues would be differentiated from services to basically economic interests.  She has not really defended the line, but one can see what the idea is.  There is a place for the loyalty and privilege stuff when the services are to individuals connected, for example, to criminal cases or political activity.  (One wonders how far that side of the line tracks the low-prestige low-pay sorts of practices.)

Second, there is better articulation of what the ‘unfettered’ side of the legal markets would look like, and affirms that the focus is on reducing costs of services to corporations and other economic actors.  (It is not my distinction, so don’t complain to me.)  For example, at 114 Hadfield says:

“It is to say that the values at stake in the regulation of legal

services that reduce transaction costs in global supply contracting, increase the

liquidity of financial markets, or promote collaborative investment in

innovation are categorically different from those at stake in the regulation of

legal services ensuring that police searches are in compliance with the Fourth

Amendment, hiring is accomplished in a non-discriminatory manner, and

products are safely designed and produced.”

That distinction is basic to her analysis and normative suggestions.  A few points about it.  It is preceded by a short history of legal self-regulation and a discussion of the difficulty of defining the limits or nature of practicing law.  The latter offers up some mocking of circular definitions and murkiness.  Deserved, but cheap.  Try writing a definition of practicing medicine that does not encompass parents dealing with their children.  Not hard to show that defining such social activities ends up with a lot of gesturing.  The history is still useful to limiting the indoctrination of selfless professional regulation.  Of course, all that self-regulation was work by the lawyers dealing with the equivalents of Hadfield’s global suppliers and their contracts.  The substantive question is whether the distinction she draws is a good one, for present purposes.  (Bracket for now skepticism about corporations being agents or persons.)  One route to test the strength of her distinction is to look at the employment and product liability pieces and see if they can be carved away from the global supply contract piece.  Don’t the product liability issues feed back to what is in the contracting sphere?  Isn’t the fair employment involved in who gets where in the companies and in how they go about contracting?  In the legal world, at least the BigLaw part, corporations are frequently imposing requirements on staffing reflecting corporate views about demographics of suppliers.  Are such contracts not part of what she has in mind for the global supplies?  Or consider the fourth amendment bit – white collar crime falls on which side of the divide?

Hadfield discusses contracting parties agreeing to a private law regime for interpretation of agreements and dispute resolution.  I am not at clear why that is not already available to those who want it.  One can always agree to private dispute resolution, and if they want to, to interpretation rules.  Lots of contracts already have both.  I don’ think there are any regulations requiring lawyers to be involved in contract drafting, or requiring that parties turn to courts for dispute resolution.  Corporations that want to leave lawyers out of the agreements can already do that.

One of the interesting (to me) aspects of the article is that it has very little to say about litigation.  I found the focus on transactional and regulatory work interesting because it is so different from what I am familiar with.  

 

Too Slow

One of the lawyers involved in the unsuccessful prosecution of Ted Stevens, former Alaska Senator, committed suicide.  At least part of the explanation is that he was depressed and under great stress as a result of the still open investigation of his part in alleged prosecutorial misconduct.  I was surprised to learn that the investigations are still open, more than a year after the conviction was reversed, in part because of misconduct.  I can't come up with a legitimate explanation for why the investigation would take that long.  It should not involve very many people or very many documents.  Are the DOJ investigators so overwhelmed with complaints or so understaffed?  I don't have a view about whether Mr. Marsh had any responsibility, but I do think that the investigation should have closed long ago.  

Nothing Is Secret

In Rehberg v. Paulk, the 11th Circuit observed:

A person also loses a reasonable expectation of privacy in emails, at least
after the email is sent to and received by a third party. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (An individual sending an email loses “a legitimate expectation of privacy in an e-mail that had already reached its recipient”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy [] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”); see also United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation”) (collecting cases).  Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but alleges Hodges and Paulk subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages.   [at 21-22]

At the point of these remarks, the issue concerns the Fourth Amendment, not attorney client privilege.  Nevertheless, I wonder about this language.  It indicates that communications between lawyer and client via email are not protected.  Email always goes to an Internet Provider.  Virtually all Internet Providers retain email for a period as part of the overall process of transmission.  The Court here seems to be saying that there is no reasonable expectation of privacy in email once the email leaves the sender's computer.  IF that is so, then no attorney client privilege for email, no matter what the header, subject, or text may say.  Which would be a very serious problem.

The underlying cases seem to be built on the notion that there cannot be an objectively reasonable expectation of privacy once one understands the technical details of email transmission.  That seems to me a bad way to think about the issues.  Objectively reasonable should not be based on an understanding of the technical details of transmission or storage.  That standard should be based on what a reasonable person would believe in the situation, which should tie closely to the reasonable understanding of one in the situation.  Here, one is that people who use email believe.  Reasonable beliefs about the use of email should be closely connected to what people using email believe about email, not what technical experts believe. 

But maybe the standard for protecting privilege involves a completely different sense of reasonable expectation of privacy.  But I rather doubt it, and it may be a very big problem.

Update: I should note that there are a a number of opinions from bar and ethics organizations and decisions from courts saying there is a reasonable expectation of privacy in email.  Most recently, New Jersey's Supreme Court.

Canned

David Brooks' column in the NYT today elicited some nostalgia during the morning espressos.  The column is a thumbnail history of economics as a science or discipline.  The early years of struggle to found a science, phase two investigation of the mathematics of the rational agent in a market, and so on to the new 'behaviorist economics' and the future of economics as art.  Nostalgia because so much of the development he sketched as new, at the edge, etc., isn't.  All the problems of rational agents and the import of psychology and sociology on economics was the subject of extensive discussion and exploration back in the long dead days of 1980's, at least in graduate philosophy programs addressing political theory.  (And, by the by, Tversky is not an economist - his work is psychology.)  From which one might draw inferences about the superiority, etc., but I wouldn't.  I think the interesting aspect is that the work done in the philosophy departments never filtered out, or did so only decades later.  Another aspect of the silo effect is the paucity of attention paid in philosophy departments to either the Milgram experiments or the Stanford prison experiment.  One would think those studies tremendously important for moral psychology and for virtue theories.  Mostly, however, that work was ignored.  (John Dorris' Lack of Character, after all has only been out about 5 years.)  A lot of ideal theory, not so labeled, and no much consideration of how people live -- duty under despotism, that is what we need more of.

No Good Letter

The continuing fights over California Proposition 8 have moved to the California Supreme Court.  Along with the briefing, we now get letter campaigns.  There are campaigns to get people to write to the California Supreme Court, urging it to strike or uphold the Proposition.  As a tool to motivate and involve, I think the campaigns have a point.  Rally and rile the troops, keep money flowing, and so on.  As a practical strategy, i.e., a strategy to affect the outcome of the Court's decision, it seems a very poor idea.  Poor in several senses.  First of all, it will not affect the decision-making.  The Court knows enough to ensure that all the various letters go elsewhere, are read by no one, at least not while the case is pending.  I find it hard to think of a reason why the letters would ever be read by anyone.  I would send them all right to the shredder.  Second, it is a bad idea because it is entirely inconsistent with what judging and law is about.  California had one election, run properly.  Why hold a second election, done in a completely unreliable way?  Third, it is still a bad idea.  Here in Zion, people do write to judges.  In fact, recently had the head of the Senate Judiciary Committee write to a judge about a matter pending before the judge; on behalf of the Senator's friend.  Not much difference here.  Fourth, these kinds of campaigns do nothing for politics or for judicial integrity.  So, there you have it.  Sanctimony for the day.  Well, something has to keep us warm in Zion.