The Third Circuit today adopted a rule for assessing the citizenship of a trust under the diversity of citizenship statute, 28 U.S.C. 1332(a).  It held that the citizenships both of the trustee and of all the trust beneficiaries count if the trust sues in its own name.  Emerald Investors Trust v. Gaunt Parsippany Partners, Nos. 05-3706 & 05-4134 (3d Cir. June 14, 2007).

A different test applies if the trustee brings suit in his own name.  Only his citizenship matters in that situation.

The 26-page opinion raises a compositional question, one that rages at Blawgletter’s firm and many others.  Yes, it does concern footnotes. 

The Emerald Investors decision deploys 26 footnotes, an average of one per page.  Footnote 10 alone takes up two pages.  Huh?

Most lawyers, we hope, would never think of sticking so much stuff in footnotes.  Judges don’t read them!  So why would judges commit the same offense?

We can only speculate, but guess we will: 

All law professors overuse footnotes.  All judges learned to write from law professors.  Therefore, Socrates is a man.  No, wait — therefore, all judges overuse footnotes.

We can think of exceptions, among them Seventh Circuit Judge Posner, who abhors footnotes.  Fortissimo, per favore. 

Barry Barnett

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Blawgletter enjoys Anne Reed’s Deliberations, in which she grapples with "law, news, and thoughts on juries and jury trials".  We recommend it.

A post today explains our affection.  It relates the phenomenon of "story gaps" to a recent study in the Journal of Consumer Research.  The study shows that consumers distrust pitches that tell only the good or bad side of a story.  Trial lawyers intuit the same conclusion — and, as Ms. Reed counsels, they should therefore deliver the bad news themselves before the other side does.

Blawgletter also loves Ecclesiastes, especially chapter 1, verse 9.  It says that "there is no new thing under the sun."  Which reminds us that, even before the Bible and the Journal of Consumer Research, we had Aristotle, who taught the principles of rhetoric.  He maintained that the most important aspect of persuasion — the persuader’s ethos or personal character — includes virtue.  And a key aspect of virtue involves demonstration of disinterest.

What better way to establish disinterest than to admit weakness?  One might even catch oneself in the midst of an exaggeration — the defendants "clearly meant to defraud investors" — by saying "wait a minute.  I bet they don’t see it that way.  You’ll have to judge for yourselves."

Aristotle thought that a speaker should establish her ethos with the words she spoke.  One way to get there — confess the obvious.

Barry Barnett

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The Federal Circuit today declined to review an interlocutory order holding a party in contempt for violation of a preliminary injunction.  Entegris, Inc. v. Pall Corp., Nos. 04-1440, 05-1265, 05-1266 & 06-1374 (Fed. Cir. June 13, 2007).

The court also affirmed the district court’s dissolution of the preliminary injunction because Entegris failed to prove that Pall’s invalidity defense "lacks substantial merit".

Requiring a plaintiff to disprove a defense strikes Blawgletter as peculiar.  But it may explain the rarity of preliminary injunctions in patent cases.

Barry Barnett

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If Tony Soprano agrees to take delivery of boxes containing nothing but thousands of bricks so that the "seller" can falsely represent on its financial statements that it sold him hundreds of computers, has Tony joined in the seller’s fraud?

The Bush administration would say no.  Despite a request by the Securities and Exchange Commission, it refused this week to support investors’ claims against facilitators, like Tony, of fraudulent schemes to pump up the price of securities.  The President himself rejected the SEC’s advice.  See today’s Washington Post story here.

The administration’s decision relates to a case pending before the U.S. Supreme Court — StoneRidge Inv. Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43 (Brief for Petitioner available here).  The outcome in StoneRidge will affect other pending cases, including the Fifth Circuit’s decertification in March 2007 of a class of Enron investors.  See post with multiple links here.

Barry Barnett

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The federal government spends more than $140 million a year on the U.S. Department of Justice’s Antitrust Division.  What do we taxpayers get for our money?  Aggressive prosecution of cartels that gouge American consumers?  Opposition to mergers that consolidate national and international economic power?  Inquiry into the billions that private equity firms reap from seducing management of public companies?

Put Blawgletter down as doubtful.  As far as we can tell, the Division under Thomas O. Barnett (no relation) spares little effort in pursuing small-time cases, ones that state antitrust authorities could have brought, while hoping to rein in those same authorities (as when Mr. Barnett asked them to back off from hassling Microsoft for its new Vista operating system). 

One might infer as much from the press release that the Division posted today.  It concerns a bank merger affecting local markets in Champaign, Urbana, and Mahomet in Illinois.

Wow.

Barry Barnett

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The Eighth Circuit held today that a local call remains a local call even after it goes through a long distance network.  Alma Communications Co. v. Missouri Pub. Serv. Comm’n, No. 06-2401 (8th Cir. June 12, 2007).

Alma Communications and other local telephone companies disputed T-Mobile’s entitlement to "reciprocal compensation" for local calls that started on land-line phones but ended on cell phones.  The locals argued that their routing of the calls through a long distance carrier made them long distance calls.  T-Mobile claimed that local calls don’t lose their local character regardless of the routing.  T-Mobile won.

Barry Barnett

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Lionelhutz
Lionel Hutz provided good service to his
shoe customers.

The Senate voted today, 53-38, to end debate on whether the body has "no confidence" in Attorney General Alberto Gonzales.  The tally fell seven votes short of the 60 necessary to achieve "cloture".

According to Wikipedia, Blawgletter’s source for every fact whose accuracy doesn’t matter:

The procedure for "invoking cloture," or ending a filibuster, is as follows:

  • A minimum of sixteen senators must sign a petition for cloture.
  • The petition may be presented by interrupting another Senator’s speech.
  • The clerk reads the petition.
  • The cloture petition is ignored for one full day during which the Senate is sitting (If the petition is filed on a Friday, it is ignored until Tuesday, assuming that the Senate did not sit on Saturday or Sunday.)
  • On the second calendar day during which the Senate sits after the presentation of the petition, after the Senate has been sitting for one hour, a "quorum call" is undertaken to ensure that a majority of the Senators are present.
  • The President of the Senate or President pro tempore presents the petition.
  • The Senate votes on the petition; three-fifths of the whole number of Senators (sixty with no vacancies) is the required majority; however, when cloture is invoked on a question of changing the rules of the Senate, two-thirds of the Senators voting (not necessarily two-thirds of all Senators) is the requisite majority.

After cloture has been invoked, the following restrictions apply:

  • No more than thirty hours of debate may occur.
  • No Senator may speak for more than one hour.
  • No amendments may be moved unless they were filed on the day in between the presentation of the petition and the actual cloture vote.
  • All amendments must be relevant to the debate.
  • Certain debates on procedure are not permissible.
  • The presiding officer gains additional power in controlling debate.
  • No other matters may be considered until the question upon which cloture was invoked is disposed of.

Blawgletter finds these details intereresting.  But we feel even more fascination with the Senate majority’s no confidence in Mr. Gonzales.  And we wonder how many of the procedural objectors feel substantive abhorrence with him. 

Our suspicion? Many.

Barry Barnett

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A 2-1 panel of the Fourth Circuit held today that President Bush acted unlawfully in ordering military seizure and indefinite detention of Ali Saleh Kahlah al-Marri:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since — without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute — enacted years after al-Marri’s seizure — strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.

Al-Marri v. Wright, No. 06-7427 (4th Cir. June 11, 2007).

Barry Barnett

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