Longtime Overlawyered readers may remember my tut-tutting the original proprietor of the Bizarro-Overlawyered site for misrepresenting a Southern District of New York opinion by claiming that its disposition of a Rule 12(b)(6) motion was an affirmative finding of fact that Christine Todd Whitman had acted improperly in the wake of the September 11 attacks. (In fact, all the court did was rule that the case could go forward on the allegations of the plaintiffs’ complaint.) The Second Circuit has now spanked the district court for going even that far, and tossed the entire case, ruling that this was not an appropriate inquiry for the judicial branch, given the risk that officials will be deterred from making public statements if they could be held liable for allegedly making a mistake. Good analysis of Benzman v. Whitman by Stephen Bergstein via Bashman.

Filed under: environment, September 11