Blawgletter went to a seminar today.  It concerned legal writing.  Our old friend Bryan Garner presented it. 

Mr. Garner underlined some points by playing video clips.  The excerpts came from interviews, mostly of judges.  Mr. Garner asked the questions in them.

Except the one of 96-year-old Lord Denning.  We liked it a lot anyway.  As Mr. Garner warned us, the old judge sounded less like a noble than a pirate.

One thing struck us.  Lord Denning said that he favored short sentences.  And his obituary confirms his ability "of speaking directly and compellingly to ordinary people in well-constructed and lucid prose." 

That sounds to us more than a bit like Mr. Garner.  Thank you, Bryan.

Barry Barnett

Feedicon14x14 I’ve got a hankerin’ for some spankerin’, Jambo. 

Simpsons
Why wouldn’t a ball peen hammer do?  See the movie!

Blawgletter doesn’t like to brag.  We don’t have a prideful bone in our body.  Plus we’d never think of making anyone feel inadequate by mentioning our achievements. 

But we did see The Simpsons Movie — on the opening day!  How many people you know can put that on their resumes?  Without exaggerating?  We didn’t think so.

Blawgletter felt much anxiety about this latest addition to the Matt Groening oeuvre.  Will Homer at last kill Lord Voldemort?  Which side will Bart choose — Autobots or Decepticons?  And does copying material that copyright laws protect constitute copyright infringement?

We won’t spoil anything for you.  Won’t even mention how much we enjoyed the scene, near the end, that involved Santa’s Little Helper and his survival techniques.  J. K. Rowling, we fancy, would never forgive us!

Barry Barnett

Feedicon14x14 We love little baby ducks.  Also subscribers.

In United States ex rel. Fowler v. Caremark Rx, L.L.C., No. 06-4419 (7th Cir. July 27, 2007), the court declined to join the large majority of circuits that apply a restrictive rule to determine subject matter jurisdiction in qui tam cases.

The qui tam statute authorizes private citizens to bring cases on behalf of the U.S. government to recover losses and penalties for, among other things, fraudulent billing.  But the statute withholds jurisdiction in cases "based on" information that someone else disclosed to the public.

The majority rule reads "based on" as barring jurisdiction even if the relator bringing the case got the information from a non-public source.  The minority rule requires that the relator actually derive her information from a public source.

The relator lost anyway.

Barry Barnett

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Jacknicholson
Col. Jessep questioned his questioner’s ability to handle truth.  No truth-handler, he!

Colonel Nathan Jessep testified, in A Few Good Men:

You can’t handle the truth!

I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it!  I’d rather you just said thank you and went on your way.

Some may hear in Jessep’s testimony echoes of an ends-justify-means world view.  That Machiavelli thing.

We recoil at leaders like Jessep, who calmly do sickening things to fulfill their conception of service to country.  Why?  Blawgletter surmises for the same reason many can’t abide the smug evasions of U.S. Attorney General Alberto Gonzales.  We think:  What a knucklehead!  Who put him in charge of doing sickening things?  Yikes!

Barry Barnett

Feedicon_2 Happy Friday, y’all!

Speaking during March 1970 in favor of a U.S. Supreme Court nominee, Senator Roman L. Hruska of Nebraska said:

So what if he is mediocre?  There are a lot of mediocre judges and people and lawyers.  They are entitled to a little representation, aren’t they?  We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there.

Shockingly, the speech failed to persuade Senator Hruska’s colleagues, and the nominee withdrew.

Barry Barnett

Feedicon Our feed wouldn’t know mediocrity if it bit us.

The Second Circuit today rejected a clever but strange application of the American Pipe tolling doctrine. 

American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and its progeny stop statutes of limitations from running — ties their legs, so to speak — on claims of each member of an on-file class action.  The tolling lasts only so long as the class member remains in the class.  It ends if and when the class member exits the class — either because the court denies class treatment of his claim, because he opts out of the class, or because of a change in the class definition.

The district court held that a class member cannot take advantage of American Pipe tolling if he sues before the court rules on class treatment (or not) of his claim.  The court accordingly dismissed individuals’ claims that couldn’t survive a limitations defense without tolling.

The Second Circuit reversed.  The district court’s main concern — that too many individuals would take advantage of American Pipe tolling regardless of what happened in the class action — didn’t bother the appellate judges:

The district court may be correct that its conception of the American Pipe rule would reduce the number of individual suits filed by class members.  But this is beside the point.  While reduction in the number of suits may be an incidental benefit of the American Pipe doctrine, it was not the purpose of American Pipe either to reduce the number of suits filed, or to force individual plaintiffs to make an early decision whether to proceed by individual suit or rely on a class representative.  Nor was the purpose of American Pipe to protect the desire of a defendant “not to defend against multiple actions in multiple forums.”  Crown, 462 U.S. at 353.  The American Pipe tolling doctrine was created to protect class members from being forced to file individual suits in order to preserve their claims.  It was not meant to induce class members to forgo their right to sue individually.

In re WorldCom Sec. Litig., No. 05-6979, slip op. at 19-20 (2d Cir. July 26, 2007).

Shew!  Thank goodness for the Second Circuit! 

Blawgletter imagines that the district court’s rule would have had weird effects.  Such as?  Such as giving extraordinary control to class counsel; forcing class members to monitor class proceedings; and producing even more litigation of limitations issues.

Barry Barnett