Judge Bellerophon and his high-flying rhetoric

It is rare that I write "BLOG!" five times in the margins of a single case, but Gonzalez v. Banco Central Corp., 27 F. 3d 751 (1st Cir. 1994)(Opinion by Selya, J.), our reading for Civ Pro for Tuesday, presented such an opportunity. Without further ado, I present to you out of context lines from the case that would make co-blogger Earl Warren blush.

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"Despite strong evidence of skullduggery (fn), the Rodriguez plaintiffs frittered away much of their case through a series of pretrial blunders."

"After silhouetting the Gonzalez plaintiff's suti against the backdrop of the completed Rodriguez litigation, Judge Laffitte..."

"We step back to gain a sense of perspective." (Then proceed to ignore SCOTUS precedent by calling it dictum).

"We appreciate that this is a murky corner of the law and caution the distric courts to tread ginerly..."

"The most familiar mechanism for extending res judicata to nonparties without savaging important constitutional rights is the concept of privity..."

"Although privity can be elusive, this case does not require us to build four walls around it."

"...but after close perscrutation of the record...neither stripe of privity exists here."

"what one might call in the vernacular, the power--whether exercised or not--to call the shots."

"As the proverb suggests, a picture is sometimes worth a thousand words."

"The attempt stalls. Following defendants' itinerary would require us to imbue the theory of virtual representation with a much greater cruising range than either hte law or the facts permit...virtual representation has only recently emerged as a vehicle for general nonparty preclusion."

"These pererrations, and the competing centrifugal and centripetal forces that account for them..." [note how centrifugal force is not really a force].

"The courts that first rode the warhorse of virtual representation into battle on the res judicata front invested their steed with near-magical properites...See, e.g., Aerojet-General Corp v. Askew, 511 F.2d 710, 719 (5th Cir)...Despite such sweeping generalities, courts soon came to realize that, though virtual representation was not the old gray mare, neither should it be confused with Pegasus...For this reason, contemporary caselaw has placed the theory of virtual representation on a short tether, significantly restricting its range."

"The upshot is that..."

"Not surprisingly, then, the cases in which courts have dealt with the doctrine, taken as an array, are resistant to doctrinal rationalization in the form of a single elegant limiting princple of the 'one size fits all' variety.

"In the third place, the lack of a special type of close relationship between the two groups of plaintiffs (who are, for the most part, unrelated lambs purportedly fleeced by the same cadre of unscrupulous sheepherders) also weighs against a finding of virtual representation."

"This whipsawing placed appellants in an untenable position."

"Consequently, we hold that the theory of virtual representation cannot be galvanized to preclude appellants from maintaining their suit."

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Since there was a definite horse/car/war theme in Judge Selya's opinion, I am now open to suggestions about possible theme(s) for my next post. Feel free to suggest some token prize as well in case I select yours.