CDAAIIAFEBAMN v. Nobody

UPDATE 2: Well, that didn't take long. The 9th Circuit affirmed the district court's dismissal of the case in a relatively short decision. Most of the discussion is focused on Yudof's 11th Amendment claim, not the merits. Here's the takeaway: "The bottom line is that Wilson II remains the law of the circuit, and the district court faithfully applied it."

UPDATE: Asking a circuit panel to overturn a prior panel risks an opinion like this.

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A few days ago, the Ninth Circuit heard argument in Coalition to Defend Affirmative Action v. Brown. (The appellant is known as BAMN, although a more correct acronym would be CDAAIIAFEBAMN, even if you drop all the articles.) Like other important cases, the Court recorded the hearing and uploaded it online.

Now, my general legal ignorance is particularly acute in this area, so I can't comment on the strength of either argument. But the video gives some clues, and here are my observations:

1. There is no quicker way to lose an appeal than asking a circuit panel to overturn a prior circuit panel. They can't. So unless you are putting all your eggs in the basket of en banc reconsideration*, you have to put 110% of your energy into distinguishing the precedent. It should be your No. 1 objective. And here, the appellants don't really seem all that into doing this.
   
   * This would be a pretty dumb strategy, by the way.
   
   
2. If you stop getting questions, and the judges are just looking bored while you drone on, then you've already won or lost the panel. In either case, take the hint and sit down.

What I find most interesting is that, like the Prop. 8 case, the California government has refused to defend the constitutionality of the voter proposition. In fact, they argued against it, leaving the proposition's proponents to defend it in court. Now, I personally think the voter initiative system is terrible, and I vote against nearly every voter initiative as a matter of principle. But still, voter initiatives are the product of direct democracy, and they are constitutional amendments to boot. The California DOJ has at least as much of an obligation to defend the legality of the California Constitution as it does the laws passed by the California legislature.

I respect that Governor Brown doesn't agree with Proposition 209 as a matter of policy. But that can't be a good enough reason on its own to refuse to defend it. The Ninth Circuit has already held that Prop. 209 is facially constitutional, so the present litigation appears to be an uphill battle (and one that panel--comprised of two Clinton appointees--doesn't appear to support). Unless the governor has a strong argument for an initiative's constitutionality, I think he has an obligation to do his best to defend it in court.

And what if an initiative's proponents do not have enough resources to adequately defend the initiative (that is, the California Constitution)? Does the Court then enter a default judgment and invalidate the state constitution? So many aspects of this trend seem problematic to me.

Casey Anthony Acquitted... Oakland Doesn't Riot

As most of you (if not all of you) have heard by now, Casey Anthony was acquitted of, well, anything anyone cared about. In a shocking post-trial twist, the citizens of Oakland, who have historically cared so much about ensuring justice is done, were quiet.

But then again, who cares about the death of a two year old girl? She probably deserved it. Moreover, Casey Anthony's conviction on four misdemeanor counts of providing false information to a law enforcement officer is much more satisfying than Johannes Mehserle's conviction of involuntary manslaughter!

In the end, I think we can all agree on one thing: Casey Anthony definitely didn't do it.

Fun With Numbers (9th Circuit Edition)

Who cares about the 9th Circuit, anyway? Well...Boalties, I guess, especially since they refuse to apply for clerkships outside California. So I thought N&Bers might be interested to see how their home team fared in the Supreme Court this past year.

• SCOTUS released 84 opinions this term. 26 of these, or 30%, arose from the 9th Circuit. 18 of these were reversed. (To be fair, that's not so bad. SCOTUS doesn't grant cert. because it wants to affirm. I've heard that the last 17 cases from the Sixth Circuit have been reversed.)
  
  
• What about the circuit's liberal bad boy, Stephen Reinhardt? He was on the panel of 6 cases and wrote the majority opinion on 3. The Supreme Court reversed all 6.
  
  
• Actually, all 3 majority decisions written by Judge Reinhardt were reversed unanimously. Of the 3 others, 1 was reversed unanimously and 2 were reversed by a 5-4 (conservative) split.
  
  
• Judge Bybee--Judge Reinhardt's ideological opposite--was on the panel on 2 of the 3 cases where Reinhardt wrote the court's opinion and dissented in both. The Supreme Court did not grant certiorari on any case in which Judge Reinhardt wrote a dissenting opinion.
  
  
• 7 of the cases where the Supreme Court granted certiorari contained dissenting opinions: 2 by Judge Bybee, 2 by Judge Kozinski, and 1 each by Judges Bea, Ikuta, W. Fletcher, and Cudahy (7th Cir.). (Judges Ikuta and Kozinski both wrote dissents on the same en banc case.) With the exception of Judges Fletcher and Cudahy, those are all "conservative" judges.

I doubt Judge Reinhardt is worried about getting reversed; he's claimed that it's not because he has moved to the left, but rather because the Supreme Court has moved to the right. That may be true, but the argument is weakened when even the so-called liberal judges are voting to reverse.

Is it unseemly to point out Judge Reinhardt's reversals--without name-hiding asterisks, no less? After all, he was on the panel in Plata v. Brown, the controversial California prison decision that the Supreme Court affirmed. But technically, the Supreme Court was reviewing a decision of a 3-judge district court panel, not a 9th Circuit opinion. And besides, Judge Reinhardt has apparently never hired a Boaltie as a clerk only hired about 2 clerks in the last decade, so he deserves some ribbing.

Our Activist 9th Circuit

As pointed out by a reader, the Ninth Circuit has published its decision in Newdow v. Rio Linda Union School District. In an opinion by Judge Bea, the court upheld the use of the words "under God" in the pledge of allegiance. Judge Reinhardt wrote a blistering dissent.

Astute court-watchers will remember that the Judge Reinholdardt was the author of the 9th Circuit's 2002 ruling, which reached the opposite result. That decision was appealed to the Supreme Court, which used standing as an excuse to overturn the decision.

Judge Reinhardt has long been used as the Right's exemplar of an activist judge. But after skimming both the opinion and the dissent, it seems to me that Judge Bea is the one who is straining in order to reach a preordained result. As the dissent correctly points out, the issue in this case isn't the pledge as a whole, but the specific 1954 alteration--whose religious purpose was to insert a theistic profession into what was hitherto a purely secular and patriotic affirmation.

"Activist judge" is one of the terms I really dislike. It reminds me of one definition of an alcoholic: a person you don't like who drinks as much as you do. If the accusation is that judges modify their adjudications in light of political or pragmatic considerations, at least it's fully clear that this goes both ways.

That being said, it's hard to imagine the circus that would have arisen if the 9th Circuit again reached its earlier result. To the extent to which appellate courts are able to pick and choose their battles (which is debatable), I would prefer they do so in areas that have a more meaningful impact on the lives of ordinary people.

Should a Gay Judge Recuse Himself In Deciding the Constitutionality of Proposition 8?

A recent column in the San Fransisco Chronicle begins, "The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay." [Hat Tip: ATL]

As the column indicates, Prop. 8's proponents (smartly) have not objected to Judge Walker on the basis of his orientation. There's been no indication of any bias in this trial, and I don't think that a judge's impartiality can be questioned on the basis of his sexual orientation.

That said, 28 U.S.C. § 455 (b)(5) states that a judge should disqualify himself if anyone within a third degree relationship to him or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." A decision that gay marriage restrictions violate the U.S. Constitution necessarily would have a substantial effect on the interests of gay people and those close to them. These interests would vary from the fundamental (e.g., the right to marry) to the mundane (e.g., taxation and inheritance rights). In fact, the case would affect whether a judge's same-sex partner falls within the designation of "spouse" under these very recusal rules.

I don't know (or have any interest in) anything about Judge Walker's private life, such as whether he has any minor children. But even if he is single and has no children, the legal rights that would accrue from any future relationship would be directly affected by this case.

Again, I don't think impartiality can be reasonably questioned on the basis of orientation. I'm just wondering if Judge Walker may be deciding a case in which he has an interest. (Of course, since Prop. 8 supporters have argued that gay marriage undermines the traditional institution of marriage, one could argue that all heterosexual judges should recuse themselves, too.)

7th Circuit Upholds Prison Ban of D&D

The nerds can't catch a break:

In an opinion issued on Monday, a three-judge panel of the Chicago-based Seventh Circuit Court of Appeals hexed a lawsuit challenging a ban on the game of Dungeons & Dragons by the Waupun Correctional Institution in Wisconsin.

The suit was brought by a prisoner, Kevin T. Singer, who argued that his First Amendment and 14th Amendment rights were violated by the prison’s decision to ban the game and confiscate his books and other materials — including a 96-page handwritten manuscript he had created for the game.

The Court determined that playing D&D could lead to enhanced gang behavior and violent escape attempts. This might be true for any actual gang members who were exposed to D&D nerds, but I doubt D&D would meaningfully contribute to this sort of behavior.

Separate but Equal?

Two Boalties are doing all of us a favor by blogging the initial challenge to Proposition 8. As you probably know the proposition, which was passed last November, made gay marriage illegal in California.

One of the things I find interesting is that the gay marriages before the proposition was passed are currently still legal in CA, while additional marriages have been barred.

Check out the blog here: http://prop8.berkeleylawblogs.org/

Also, check out a very interesting article in the New Yorker about the challenge: http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot

Breaking News: Cal. Supremes Take Prop. 8 Cases

The California Supreme Court has agreed to take cases challenging Proposition 8. The Court also announced it will not stay the proposition pending a decision. (Sorry, Gavin.)

The Court will address three questions: 

1. Is Prop 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? 
   
2. Does Prop 8 violate the separation-of-powers doctrine under the California Constitution? 
   
3. If Prop 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Prop 8? 

Briefs are due in January, and oral argument may be held as early as March. (Here is my source.)

My gut sense is that the answers to the first two questions are, "No." That is because the Court has construed "revision" quite narrowly in the past, and because it has held that the separation of powers provision is more tolerant and flexible than its actual language implies. Question number three is a doozie.

Through the Looking Glass

According to The Recorder and WSJ Law Blog, the Bar/Bri antitrust settlement has now received final approval, but under very strange circumstances. Specifically, the court (C.D. Cal, Real, J.) rejected proposed incentive payments to the representative plaintiffs on the grounds that the representatives had conflicts of interest. The proposed payments were huge ($25,000 to some reps, $75,000 to others) and the court has lots of discretion to reduce or refuse such payments. However, if the reps had conflicts, it seems to me that the proper remedy was to decertify the class. Also, The Recorder quotes one of the plaintiffs as saying that the judge basically instructed class representatives and their lawyers to work out incentive payments among themselves. I don’t think that would be appropriate. In fact, I think it’s a lot like the conduct that Millberg Weiss is under indictment for.

I’ll be fascinated to see what, if anything, happens next. What we presently have, essentially, is a class settlement approval order expressly finding that one of the requirements for class certification (adequacy of representation) is not met. See FRCP 23(a).

PRE-UPDATE: I'm really supposed to be doing a set of intermediate con law questions, so I haven't read the actual order yet. I'll post again if it helps make more sense of this situation.

Rissky Marriage

I still remember from Torts our discussion of Riss v. City of New York, 22 N.Y.2d 579 (1968). You can read about this case and Prof. Mor*n's quote about it in this old N&B post. Turns out someone made a documentary about the case. Synopsis and trailer here. I think Prof. Mor*n and I might be the only two people on the face of the earth who think this must be the greatest movie of all time...although I don't want to attribute that much exuberance to her.

Seattle SupremeSonics

UPDATE: Armen and I updated this several times below, but I want to move this one up top. I have read quite a bit today about the majority's strong refutation of race in schools, as well as Breyer's astute recognition of the "cruel irony" of using Brown to strike down integration programs.

But most commentators have recognized that Kennedy's concurrence is where the real action is. He left open the possibility of some uses of race in school decisions--such as in deciding where to build a new school. I'm a bit puzzled as to how his view that race may be "one component" of such decisions squares with his own dissent in Grutter, but am glad that he left the door open a bit by departing from the dogmatism of the majority opinion. His checks on the majority are small, but not insignificant, cracks in the door, and the onus is now on school boards and lower courts to figure out exactly what enters through that doorway, and what must remain on the outside. Unfortunately, I'm not sure that the constitutional contours of that task are clearer today than they were yesterday.

I exchanged a couple of emails with Prof. Liu (who wrote an amicus in this case) earlier tonight, and he sent along a press release he had written, and was nice enough to let me post it here. I should also mention that Prof. Liu had very high praise for the concluding paragraphs of Breyer's dissent. I definitely agree--it's the type of lofty, slightly self-important language you expect from an opinion like this. It only takes a minute to read--the conclusion starts about p. 175 (here--careful, big file). Here is an excerpt from Prof. Liu's release:

“Today a five-Justice majority of the Court recognized that racial integration of public schools remains a compelling and enduring aspiration for our society. . . . Justice Kennedy’s controlling opinion leaves open several avenues for race-conscious measures to achieve integration, including strategic attendance zoning and school siting decisions as well as magnet schools and special programs. The upshot is that the Court has sent school districts literally back to the drawing board to devise creative assignment plans to integrate our public schools.”

“It is significant that a majority of the Court—Justice Kennedy and the four dissenting Justices—rejected Chief Justice Roberts’s attempt to read Brown v. Board of Education as a categorical rule of colorblindness. . . . It is remarkable that the Chief Justice of the United States would cite Brown to defeat not defend school integration, and five Justices rejected this view as deeply ahistorical.”

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The Supreme Court's term is coming to a close, and the last batch of opinions should be out Thursday and Friday. The two school integration cases are expected Thursday.

I've been following the Seattle case pretty closely for about 2 years now, since it was at the Ninth Circuit, so I'm particularly interested in that case. I can't say I'm real sure what they're going to do with the two cases: a straight-up application of Grutter/Gratz? Split the baby (a la Grutter and Gratz--but who will swing both ways?)? Totally cut back on the use of race in public schools?

Regardless, they will probably be 5-4 decisions. As has already been noted by people much smarter than me, despite Roberts' promises of a more minimalist, conciliatory Court, this term has instead brought the most fractured (both left/right, and within the right as well) Court in recent memory. I can't imagine it will be anything different tomorrow.

At the risk of being irrelevant by 6 AM, I won't say anymore. Feel free to predict/discuss these cases and the rest of the Term, which has been pretty fascinating not only for the cases decided, but for what they may mean for the future (gulp). An update (from me or EW or Armen or whoever) will hopefully come tomorrow, BarBri permitting.

UPDATE 1 (by Armen): I initially created a post not having seen MP's post here. I will just add my own prediction.

Prediction: Seattle will be held unconstitutional. The plan just has too many flaws in it, each of which are fatal in a strict scrutiny analysis. Louisville I'm not so sure about. It hasn't even been 10 years since the courts lifted the consent decree. I have a weird feeling that Alito may either completely uphold Louisville's plan or at least provide a narrow concurrence that will be the controlling opinion. In either case, Kennedy will not be a "swing vote." He is pretty far to the right on AA cases.

Speaking of swing vote, please enjoy this clip from the Daily Show.

UPDATE 2 (by MP): And down goes the use of race in public schools. Both programs are declared unconstitutional, 5-4, in a combined opinion written by Roberts. The combined opinions are 185 pages long! Roberts' opinion apparently references Brown, and claims that this opinion is faithful to that case's legacy. The dissenters, needless to say, disagree with that notion.

Interestingly, Kennedy wrote a concurrence in which he says "that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as 'one component' of the plan to achieve racial diversity" (quoting SCOTUSblog). So does that become the controlling opinion? Aren't there 5 votes for allowing race as at least "one component"?

It will take awhile to sort all this out, and to read all those opinions, but the bottom line is that the use of race in public school assignments has been severely restricted, if not entirely prohibited.

UPDATE 3 (by MP): It just occurred to me that perhaps the most interesting thing up the opinions is that there is NOT a concurrence by either Scalia or Thomas. This means that you can get a pretty good idea of what Roberts' opinion says before you read it, because there would have been a concurrence if the opinion was anything less than a total repudiation of using race. Money quote from Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Update of Update 3: Thomas did write a concurrence. No one seems to be reporting it though. It is only a response to some points in Breyer's dissent. Otherwise, Thomas "wholly concur[s]" in Roberts' opinion.

UPDATE 4 (by Armen): As MP alludes above, the opinion is 4-1-4 with Kennedy controlling. He does not like the reasoning of Breyer or Roberts. In Choper's SCOTUS class this was precisely the outcome, although for slightly different reasons. Justices Kennedy refused to join the sweeping holding of the conservative four.

Crappy Courses of the Fall

This post is dedicated to the gunner 1L who is obsessed with course offerings in the fall. Thank you for posting in every thread.

In the Navy, Come on and Join Your Fellow Man

The SCOTUS denied cert in the Berkeley Sea Scouts case (LA Times coverage here). The Supreme Court of California held that Berkeley and other cities can condition subsidies or use of city services on non-discrimination agreements. The Sea Scouts (and presummably the BSA) disagree. They argued in BSA v. Dale, 530 US 640 (2000) that they should be free to discriminate on account of race and religion while complaining that cities should subsidize activities that further such discrimination.

Actually, the khutzpa is grander than that. They actually demand *cough* equal treatment by the City. Conservative organizations like the Pacific Legal Foundation (which funded the appeal in this case and filed an amicus brief in Phillip Morris challenging high punitive damages) feel that organizations with "traditional values" are being discriminated against. The "traditional values" pursued by Bob Jones University were not entitled to federal subsidy by way of tax breaks. Is this what modern conservatism is about? Cloaking bigotry under a free speech argument and then suing for government funds?

Kiss My Habeass

The duties of the federal judiciary sometimes extend to bizarre realms. Case in point is Washington v. Alaimo, 934 F. Supp. 1395 (S.D.Ga 1996). The opinion of Judge Moore begins:

On April 5, 1996, this Court ordered Plaintiff to show cause why this Court should not impose Rule 11 sanctions upon him for filing a motion for improper purposes. The motion which Plaintiff filed was entitled "Motion to Kiss My Ass" (Doc. 107) in which he moved "all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you."

The entire opinion is worth a read.

(Thanks to the e-mailer who sent me the PDF)

Freudian Suit

The Supreme Court of California has agreed to hear an appeal by psychologist Elizabeth Loftus (currently at UC Irvine, and probably the most famous undergrad alumna of the UCLA Psych Dept). Loftus is being sued for breaching the confidentiality of the subject of another psychiatrist's study. Putting aside the obvious Tarasoff meets Moore jokes, or how the UC Regents should invest in writing a Torts casebook, I'm more drawn to the the story behind the case.

The Plaintiff was profiled in a journal article by a psychiatrist to "prove" the existence of repressed memories. Loftus then used some shady techniques (private investigators, confidential court records, etc.) to get info on this subject. She and a colleague then published an article arguing that the memories were probably false.

Loftus has had a crusade against repressed memory for quite some time now. But she's probably just the loudest spokesperson of research psychologists in general. A significant majority, if not all, reseach psychologists either don't believe in the repressed memory phenomenon or argue there is no evidence of its existence. Clinical psychologists and psychiatrists swear by repressed memory. Fights have been known to break out at talks on the subject. Imagine a therapist with 20 patients who claim to have been molested being told that those memories are not real. I agree with the researchers.

It is difficult to discuss this subject without someone's emotions getting the better, but it needs to be done. To date no study has shown that your brain is capable of accessing a memory that was once forgotten. This is not the same as you remembering something that you couldn't remember 5 minutes earlier. That's just a problem of retrieving...the memory is still there. Repressed memory implies the memory is extinguished but then returns (with the aid of a therapist and maybe hypnosis). Which leads me to the second points, studies by Loftus and others have EASILY created false memories in individuals. The classic case is the video of a car accident followed by a series of questions. One question will ask something like, "How fast was the car traveling as it approached the stop sign?" when it was actually a stop light or a yield sign or something. Later, the person will claim that there was a stop sign at the intersection, rather than what they ACTUALLY saw.

The LA Times had another story in its main section on how brain cells recognize familiar people and places, or more accurately how we store that information in abstractions. This is why I have issues with eye witness identification, and why I am not too eager to embrace repressed memories. Memory can be created and it certainly can be altered. The Catholic Church may have wanted to rid itself of bad press (even God needs a press agent these days), but if the victims' claims were based on repressed memories, I would have defended vigorously. I did say "if" because I think that the vast majority of the cases were not repressed memories just people who had not come forward as children.

In the end, I think the suit will be dismissed because much like anyone in the general public, Loftus owes the subject no duty of care. On the bright side, the UC will now sell repressed memory cell lines on the open market.

A Rosen By Any Other Name

So I can't blog about the nuts and bolts of my externship, but I can say my judge is handling this case. I skipped on most of the defense direct but did make it into court to see the cross, which is set to continue tomorrow.

You Thought Conservatives Go Nuts When You Cite International Law...

... wait until they see Judge Evans' citation of the Right Honorable... Ludacris. USA v. Murphy (as noted by Howard Bashman of course).

Man, if I were Ludacris, I'd be stoked. Between this and my serious Hollywood premiere Friday in Crash, I'm really starting to get recognized by high society!

Another Reason to Love IP

Only in an IP case will a distinguished 2d Circuit judge ever write:

"With respect to the Giggle Bunny evidence...", followed a page later by a weaving section on Tickle-Me-Elmo and Tornado Tazmanian Devil.

Source: Nadel v. Play-by-Play Toys & Novelties, Inc., 208 F.3d 308 (2d. Cir 2000)

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I can put down my reading long enough to conjure up this vision of how the oral argument went:

"With respect to what evidence?"

"That would be the Giggle Bunny evidence, Your Honor."

::snickering:: "Excuse me counsel, what evidence?"

::sigh:: "The, ahem, Giggle Bunny evidence, Your Honor. Giggle Bunny."

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I bet there were exhibits. And I bet the judges took an extra long time to decide the case so that they could play with the exhibits. Ooh, and the judges could meet with their clerks, but then refuse to address the clerks when they said somethign stupid, and instead speak to the toys, "Justice T.M. Elmo, do you think the Yale Clerk meant to leave out the element of privity?" "bzzzzzzzz" "I agree, that did seem wrongheaded and foolish. Oh well, that's Yale for you." "bzzzzzzzzztttttt" "Now, Justice Taz, you don't mean that!"

Well, it amuses me. And with spirits lifted, I can now return to reading.

A Very Special Patent Case

Armen demanded I post on patents, since I'm the nerdy "IP Guy" he keeps hidden in the corner. Well fine, he gives me space on the blog he started, it seems only fair.

However, he wanted me to post on the peanut-butter-and-jelly-sandwich patent that became all the rage of internet and "look how stupid the patent system is" discussions (side note: the patent appears fine and valid to me, and rightly granted, as Smuckers really solved a tough problem with their new sandwich).

Instead, I'd like to discuss a special case, Lariscey v. United States, 20 U.S.P.Q.2d 1845 (Fed. Cir. 1991). The case features intrigue (employer tries to steal patented invention!), an anti-hero of invention (the aptly named Earl Jason Lariscey), and a very special invention that likely saves the lives of numerous men in Iraq on a weekly basis. The case also implicates trade secret law (a favorite of mine), and my favorite aspect of property... takings.

To begin, consider the overview provided by LexisNexis, in all their brilliance. Particularly inane statements appear in bold. Jaw-droppingly awesome statements appear in bolded italics. Things which are simply wrong appear in italics.

Plaintiff, a prisoner, filed suit alleging the appropriation without just compensation of plaintiff's invention of a metal cutting jig saw. Plaintiff invented the saw when, during the course of his employment through a prisoner work program making helmets, he discovered the difficulty in cutting metal. Plaintiff invented the saw on his own initiative, working in his cell during leisure time. Plaintiff appealed an order of the trial court that granted summary judgment to defendant. The court reversed and remanded. The court held that plaintiff had a property interest in the saw. The court found that plaintiff did not forfeit his trade secret or the possibility of payment for his invention through the demonstration of the saw at the prison. The court held that although the saw was made with scraps of defendant's metal, the discovery belonged to plaintiff because it was invented within the scope and purpose of plaintiff's employment.

Ok, what does this overview tell us?

First, in bold: metal is hard to cut! Wow, it heartens me that LexisNexis tells lawyers these things, because I bet they did not know otherwise. So you ask, what magical metal was this? Kevlar. Wait - you say. I'm a law student with an Intricacies of Political Theory Applied to Basket Weaving degree, and I'm pretty sure Kevlar is not a metal. You'd be correct. It's a fiber.

Second, in bolded italics: this man surely served as the model for Macguyver. Who are you Earl Jason Lariscey? What were you in for? I could probably look, but I bet you'd find out and kick my ass. Regardless, I'm sorry that the other inmates called you "Fred Flintstone" (read the case on Lexis or Westlaw, not available on FindLaw). You should have cut them with your Kevlar cutting saw. I know this would have landed you in the clink for even longer, but they deserved for not recognizing your genius. And you made this thing out of scrap metal? Man, if they had given you a rubberband, I bet you could have built a Howitzer. Needless to say, you are awesome. Just awesome.

Third, in italics: this is completely incorrect. If it were correct, the employer would have an implied license or shop right in the invention. But in fact, Judge Newman found that the saw got invented in Mr. Lariscey's own time, and that's why the device belonged to him.

So, what do we know so far? Lexis overviews are full of lies (see Kevlar), tales of heroism (see our federal prisoner Macguyver) and flagrant mistakes about the law that will lead you to malpractice (see shop right) [note: Dear LexisNexis, I will stop saying bad but true things about your fine services in exchange for a large four to six digit number of Lexis points, which I will use on books and a new basketball. Witness how easily I am bought, and the press you coudl get from this website! Amazing!]

Anyway, I need to get back to reading, but basically Mr. Lariscey avoids the cruel taunts of his fellow prisoners, threats from the wardens, a transfer to menial duty when he tries to claim his invention, the filing of a pro se complaint before the Claims Court, numerous denials of counsel, and then wins a 3-0 reversal from the federal circuit, thereby securing a trade secret and hopefully a patent in a marvelous invention that no doubt is saving numerous lives as we speak! Bravo!

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PS: Prior to the saw that Lariscey made from scrap metal, the government was shopping for saws from contractors. Their options: a $30,000 sonic saw that did not work and a $350,000 "laser" saw that the vendor would not guarantee would work. And Lariscey used scrap metal! SCRAP METAL!! In his cell! With no tools!

Coda: Surely, Earl Jason Lariscey, you are one of the twentieth century's great inventors, and I will recognize you as such, even if no else will. When I cash in as an IP lawyer, I hope to endow a scholarship in your name for that punk kid with a knack for hard sciences. America needs more people like that.

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.

***

"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."

***

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.