The Old Roman by Orlando Plumbe

High stakes poker-but who wins?

Link: law.com - Article.

Senate Democratic Leader Harry Reid of Nevada has said that if the judicial filibuster is eliminated, his party would bring much of the Senate's business to a halt. Given the Senate's need for unanimous consent for even the simplest actions, that threat could be easy to carry out. Frist set a schedule Wednesday that calls for each party to alternate one hour of debate on both Owen and, presumably, the validity of the judicial filibuster itself. Formal debate was set to end at 7:45 p.m. EDT, Wednesday. It was not immediately clear whether debate on Owen, first nominated just more than four years ago for a seat on the 5th U.S. Circuit Court of Appeals, will continue today or even until Friday. But it is widely expected that Frist will make an effort to end debate on Owen by the end of the week by laying down a cloture petition. The petition would then require at least one intervening day that the Senate is in session to "ripen." Under normal Senate rules, a three-fifths majority, or 60 votes, is required to end debate. If that number is not reached, the debate theoretically can continue unabated, with the nominee never coming to the floor for a vote. Senate Republicans, who hold 55 seats, may not win over enough Democrats to invoke cloture and shut off debate, especially on Owen, who was successf

No Fun Being a Judge

If anything, I think many judges suffer from having to live too much in a bubble. From: WSJ.com - FREE No More.

The FREE seminars are now under attack from something called the Community Rights Counsel, one of those highly litigious outfits that shouts "conflict of interest" at the drop of a hat. Chief agitator Douglas Kendall has run a campaign against the seminars because FREE "receives its funding from both corporations that litigate in federal court" and because the seminars include trips to "resorts where judges are wined, dined, and instructed on how and why to strike down federal environmental laws." His implication is that a week in the Montana air amounts to a re-education camp in which judges will emerge like Cambodians indoctrinated by the Khmer Rouge.

In fact, such seminars are common, and useful. Groups ranging from Ivy League universities to bar associations to the Aspen Institute routinely host them. So do trial lawyers, who then pitch new litigation strategies -- not that Mr. Kendall seems concerned about those seminars. Because the sponsors often reimburse judges for their expenses, the U.S. Judicial Conference's Codes of Conduct Committee long ago established guidelines for attendance.

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The latest Naderite twist is that CRC has filed ethics complaints against four judges who sit on FREE's board. And rather than deal with the hassle, three of the four recently resigned. One of those judges, Douglas Ginsburg of the D.C. Circuit, explained that he wasn't in "a position to constantly be correcting the false impressions and calumnies that appear in the press."

Meta-Litigation

Morgan Stanley gets whacked for $604.3 million, in large part because of its post-claim conduct. WSJ.com - Perelman Beats Morgan Stanley.

In most fraud cases, plaintiffs have to prove they actually were defrauded. In this unusual trial, the judge told jurors to accept as fact that Morgan Stanley helped Sunbeam defraud investors. The issue then: Did Mr. Perelman rely on Morgan Stanley's statements concerning the Sunbeam deal? Florida State Judge Elizabeth Maass, angered by what she called Morgan Stanley's bad-faith actions in turning over documents relevant to the case, entered a so-called default judgment against the firm, making Mr. Perelman's case decidedly easier than establishing that he had been defrauded.

Plaintiffs regulalrly use post claim conduct to bolster damages and support punitive damages.  Here litigation monkey business, which needs to be kept in check, apparently cost Morgan Stanley big. But the trend to  make litigations about the conduct of the liitgations themselves brings a sort of endless regress to the litgation process. One has to ask if the punsihment fits the crime. The sanction for Morgan Stanley's document production error would seem to be something less than this.

President's Statement on Judicial Nominations

Link: President's Statement on Judicial Nominations.

Four years ago today, I nominated Justice Priscilla Owen and Judge Terry Boyle to serve on the Federal courts of appeals. Four years later, neither has received an up-or-down vote in the Senate. Both have been rated well-qualified by the American Bar Association, the highest ABA rating a judicial nominee can receive. Both have been waiting to fill vacancies that have been designated judicial emergencies by the Judicial Conference of the United States. Much more than enough time has passed for the Senate to consider these nominations. The Senate should give these extraordinarily qualified nominees the up-or-down votes they deserve without further delay.

WSJ.com - 'Nuclear' Isn't the Only Option

Link: WSJ.com - 'Nuclear' Isn't the Only Option.

the third solution that I suggest, and one that I hope Congress will implement, is to pass a statute that could be designated as "The Judicial Confirmation Improvements Act." Such an act should provide that within a certain period of time after a judicial nomination is received a hearing will be held, within a specified time a nominee will be voted out of committee, with or without a favorable recommendation, and within a certain period of time the full Senate will debate and confirm or reject a nominee by majority vote. This will be fair to presidents from either party. Nominees will know that within a reasonable period of time they will be confirmed or not confirmed, and they can get on with life.

Chopping Off the Weakest Branch

From  Chopping Off the Weakest Branch - New York Times, the ever insightful Ron Chernow writes:

But as for denying money to or dismantling courts, historians can speak with far greater authority. This is because we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president.

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So, before they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.

Judicial Selection/Election

The ABA is tryingto get back into the game.  orogonally is evaluation system was competence driven, but took on some ideological tics in the eighties. From law.com .

The American Bar Association has revised its guidelines for evaluating judges in a move to defuse ideological litmus tests that fuel attacks on judges and could potentially threaten judicial independence. The ABA's old guidelines were meant mainly for self-improvement. They are now also aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact.

Lay Off Our Judiciary

From Ted Olson, WSJ.com - Lay Off Our Judiciary.

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world. Every day, thousands and thousands of judges -- jurists whose names we never hear, from our highest court to our most local tribunal -- resolve controversies, render justice, and help keep the peace by providing a safe, reliable, efficient and honest dispute resolution process.

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No discussion of the judiciary should close without reference to the shambles that the Senate confirmation process has become. It does no good to speculate about how or when the disintegration began, which political interest has been the most culpable, or the point at which the appointment of judges became completely dysfunctional. That sort of debate is both endless and futile. The only hope for an end to the downward spiral is for the combatants to lay down their arms; stop using judicial appointments to excite special-interest constituencies and political fund-raising; move forward with votes on qualified, responsible and respected nominees so that those who have the support of a majority of the Senate can be confirmed, as contemplated by the Constitution; and remove the rancor and gamesmanship from the judicial selection process.

Tort Reform

The WSJ reports today what most within the legal system have known for a long time. Most runaway verdicts end up reined in by appeals or by settlment. Link: WSJ.com - In Malpractice Trials, Juries Rarely Have the Last Word.

Behind the big dollar numbers, the reality is more complex. Many plaintiffs settle for less than a jury's verdict, to eliminate delays and the uncertainty of appeal. Sometimes, even before a jury rules, a plaintiff has signed an agreement that limits how much money actually changes hands.

The question becomes if the super sized verdicts are in a sense fictitious, why does the plaintiff's bar fight caps that would merely institutionalize the reality.  Defendant side tort reformers use the big verdicts as evidence of a system out of kilter and the plaintiffs do not get to keep the money in most cases. Is it that the plainitffs bar does not want to give up that illusive chance for the ultimate lottery ticket, or is something else at play?