Archive for 2008

Obama and judicial activism

David Bernstein @ Volokh — not one to be suspected of sugar-coating his treatment of the subject — listens to the Democrat’s 2001 Chicago public radio interview, and finds reasons to be cautiously optimistic about Obama’s view of the role of courts:

…Obama was clearly influenced by [the] Rosenberg/Klarman thesis that the Supreme Court rarely diverges much from social consensus, and can’t be expected to.

On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve.

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he’s an originalist, or otherwise endorses the Constitution as a “charter of negative liberties,” though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn’t have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he’s channeling Rosenberg and Klarman. And this attitude on Obama’s part shouldn’t be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.)

P.S. Was “cautiously optimistic” the right phrase to describe David Bernstein’s reaction? Read his whole post as updated, as well as Ted’s contributions in comments.

Update: Florida Supreme Court rejects “false light” theory

The Florida high court has rejected the invasion-of-privacy tort theory under which a defendant can be held liable for a publication setting forth individually true facts which collectively create a misleading impression. We’ve extensively covered one of the two lawsuits on which the court ruled, in which famed attorney Willie Gary obtained an $18 million jury verdict against Gannett for investigative journalism it perpetrated against one of his clients. An appeals court later threw out the verdict. (WSJ law blog, Pensacola News-Journal, St. Petersburg Times editorial).

However, Marc Randazza at Citizen Media Law Blog (Oct. 24), analyzing the second of the two Florida cases, Rapp v. Jews for Jesus, warns that the decisions fell far short of being the free speech victories some have taken them as, because the Florida court endorsed and strengthened theories of “defamation by implication” which will usually be available in suing over the same fact patterns, the difference being that suits alleging “defamation by implication” must overcome more robust First Amendment defenses. Similarly: Elizabeth Spainhour, Newsroom Law Blog, Oct. 24.

October 27 roundup

  • NYC judge tosses injury suit against Lawyers Athletic League filed by a player on Milberg’s team [NYLJ]
  • Kentucky fen-phen lawyers Gallion and Cunningham disbarred [Lexington Herald-Leader]
  • Worker’s comp doc claims he noticed abnormal lab result and told patient to check with his primary doc. Patient didn’t and harm ensued. Malpractice? [CalLaw Legal Pad, KevinMD, Happy Hospitalist]
  • Federalist Society publishes text of Judge Dennis Jacobs’s speech on pro bono, but Chemerinsky digs in rather than apologize [PoL]
  • Are HIPAA privacy rules suspended during emergencies? No, and what lovely situations that’s likely to cause [HIPAA blog, more]
  • One of the more unusual personal injury lawyer websites is “like a touchy-feely hybrid of Myst and The Office” [Above the Law]
  • Gold-collar criminal defense work? McAfee decides $12 million too rich a sum for defending CFO Prabhat Goyal [Bennett & Bennett, Greenfield]
  • Sounds promising: “Texas Supreme Court decision could end peremptory strikes in jury selection” [SE Texas Record]

Microblog 2008-10-24

  • Legal risks posed to employers by Web 2.0 [HR Exec Online h/t Nicole Black] #
  • Another take on pro bono and its discontents [Carolyn Elefant in ’91] #
  • Stock market “capitulation” is another of those unhelpful concepts w/o real-world referent [Surowiecki] #
  • “In conference call, no one can hear you knit” [Connie Crosby] #
  • October Black Friday crash = “hedge fund going out of business sale” [Ray Lehmann] #
  • What’s the opposite of “peak oil” theory, anyway? Trough oil? #

Associations sued in cheerleader death

Medford, Mass.: 14-year-old Ashley Burns was performing an airborne role in a cheerleading routine when she fell and fatally ruptured her spleen. Now her mother is suing the gym where it happened, two accrediting organizations (the U.S. All Star Federation for Cheer and Dance Teams, and the American Association of Cheerleading Coaches and Administrators) and other defendants. (Donna Goodison, “Mom files lawsuit in cheerleader’s ’05 death”, Boston Herald, Oct. 21).

October 24 roundup

  • Chemerinsky, other critics should apologize to Second Circuit chief judge Dennis Jacobs over bogus “he doesn’t believe in pro bono!” outcry [Point of Law and update]
  • New York high court skeptical of ultra-high contingency fee in Alice Lawrence v. Graubard Miller case [NYLJ; earlier here and here]
  • Panel of legal journalists: press let itself be used in attack on Judge Kozinski [Above the Law]
  • Unfree campaign speech, cont’d: South Dakota anti-abortion group sues to suppress opponents’ ads as “patently false and misleading” [Feral Child]
  • Even if you’re tired of reading about Roy Pearson’s pants, you might still enjoy Carter Wood’s headlines on the case at ShopFloor [“Pandora’s Zipper“, “Suit Alors!“]
  • Rare grant of fees in patent dispute, company had inflicted $2.5 million in cost on competitors and retailers by asserting rights over nursing mother garb [NJLJ]
  • Time to be afraid? Sen. Bingaman (D-N.M.) keen on reintroducing talk-radio-squelching Fairness Doctrine [Radio Equalizer]
  • “Yours, in litigious anticipation” — Frank McCourt as child in Angela’s Ashes drafted a nastygram with true literary flourish [Miriam Cherry, Concurring Opinions]

Microblog 2008-10-23

  • Did the Feds err in letting Lehman fail? [Salmon vs. Carney] #
  • Oh, spare us, Newt: Gingrich says some of SNL’s Palin skits “were slander and were worthy of a lawsuit” [Van Susteren] #
  • Signs of much economic distress in ocean shipping trade [Naked Capitalism] #
  • Seattle municipal archives, tons of cool historical photos [Flickr] #
  • “Journalism is not brain surgery; it’s more difficult than that,” sez (did you guess?) a journalism professor [Happy Hospitalist] #

“Late filing syndrome”

That’s the explanation given by Charles J. O’Byrne’s lawyer for why his client didn’t file income taxes for year after year. I’ve never tried that one myself, but then, I’m not the chief aide to the governor of the state of New York, the way O’Byrne is. He has no plans to resign from his position. (Nicholas Confessore and Jeremy W. Peters, “Governor’s Aide Had ‘Late-Filing Syndrome,’ Lawyer Says”, New York Times, Oct. 23).

Relatedly or otherwise, Carolyn Elefant at Legal Blog Watch notes (Oct. 22) that Harpreet Singh Brar, known to Overlawyered readers for his abusive mass mailing of demand letters to California businesses,

came up with an even better defense to charges of failure to file tax returns on behalf of himself and his professional corporation: ineffective assistance of counsel. Sounds promising, except when you consider that Brar is an attorney who represented himself at trial. On appeal, he’s argued that he did not knowingly waive his right to counsel, and that he may have been under the influence of drugs and alcohol at the time of the waiver. Not surprisingly, the appeals court rejected Brar’s argument. (Source: Metropolitan News-Enterprise.)