Can a former military general serve as attorney general?

Blawgletter can’t find, in our copy of the U.S. Constitution, a requirement that the nation’s attorney general must have a law degree.  Indeed, if our memory of legal history serves, law schools didn’t exist back in the late 18th century.  So we think it could happen.

And we want it to.  Let us pass the moral, ethical, legal, intelligential, linguistic, and other impairments from which the current occupant of the office suffers.  Let us instead celebrate the devotion of Colin Powell to the rule of law, as he expressed it yesterday (per the LA Times) on "Meet the Press" (video here):

"If it was up to me, I would close Guantanamo.  Not tomorrow, but this afternoon.  I’d close it," he said.

"And I would not let any of those people go," he said.  "I would simply move them to the United States and put them into our federal legal system.  The concern was, well then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus.  So what?  Let them.  Isn’t that what our system is all about?"

*  *  *  *

Powell, who was secretary of state under President Bush, said the U.S. should do away with the military commission system in favor of procedures already established in federal law or the manual for courts-martial.

"I would also do it because every morning, I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds," Powell said.  "And so essentially, we have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open and creating things like the military commission.

"We don’t need it, and it’s causing us far more damage than any good we get for it," he said.

Our hero.

Barry Barnett

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Blawgletter has once in awhile mentioned the (cough) less assertive (cough cough) antitrust enforcement (cough cough cough) that we’ve seen since January 2001 (cough cough cough ack). 

The NYT — with its gift for understatement — writes today about the pass that Microsoft has gotten from the current Antitrust Division, a part of Fredo Gonzales’s Department of Justice:

“With the change in administrations there has been a sharp falling away from the concerns about how Microsoft and other large companies use their market power,” said Harry First, a professor at the New York University School of Law and the former top antitrust lawyer for New York State who is writing a book about the Microsoft case.  “The administration has been very conservative and far less concerned about single-firm dominant behavior than previous administrations.”

Thomas O. Barnett oversees the Antitrust Division. 

No relation (cough oop ack).  Cough oop ack, indeed. 

Barry Barnett

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Some people, Blawgletter among them, enjoy looking for new federal court of appeals opinions directly on the courts’ websites.  Now you can do it too! 

Just click below on the link (or links) you want and add it (or them) to your Favorites for quick, easy, obsessive checking:

First Circuit:  http://www.ca1.uscourts.gov/

Second Circuit:  http://www.ca2.uscourts.gov/

Third Circuit:  http://www.ca3.uscourts.gov/recentop/week/recprec.htm

Fourth Circuit:  http://pacer.ca4.uscourts.gov/opinions_today.htm

Fifth Circuit:  http://www.ca5.uscourts.gov/

Sixth Circuit:  http://www.ca6.uscourts.gov/cgi-bin/newopn.pl?puid=0

Seventh Circuit:  http://www.ca7.uscourts.gov/fdocs/docs.fwx

Eighth Circuit:  http://www.ca8.uscourts.gov/opns/opFrame.html

Ninth Circuit:  http://www.ca9.uscourts.gov/ca9/newopinions.nsf/Opinions+by+date?OpenView&Start=1&Count=100&Expand=1.1

Tenth Circuit:  http://www.ca10.uscourts.gov/

Eleventh Circuit:  http://www.ca11.uscourts.gov/opinions/todaysops.php

D.C. Circuit:  http://www.cadc.uscourts.gov/bin/opinions/allopinions.asp

Federal Circuit:  http://www.fedcir.gov/dailylog.html

Barry Barnett:  http://www.susmangodfrey.com/bio/bio-bbarnett.html

In our opinion, you deserve our feed.

Defendants won four out of five cases that the Texas Supreme Court decided yesterday:

Defense Wins

Borg-Warner Corp. v. Flores, No. 05-0189 — tossing jury verdict for asbestosis victim on ground that he failed to prove causal connection between inhaling asbestos at work and disease.

Quigley v. Bennett, No. 05-0870 — reversing award to geologist who performed work for mineral rights owner on ground that one can’t recover share of royalties under quantum meruit when statute of frauds would bar contract claim (no oral argument).

Bay Area Healthcare Group, Ltd. v. McShane, No. 05-1069 — finding no absue of discretion in admitting evidence that plaintiff in medical malpractice case against hospital also originally sued doctors because plaintiff’s counsel "opened the door" (no oral argument).

Texas v. Oakley, No. 06-0172 — concluding that ex-prisoner can’t assign claim for wrongful imprisonment because claim wouldn’t survive his death.

Plaintiff Win

Reliance Nat’l Indemnity Co. v. Advance’d Temporaries, Inc., No. 05-0558 — holding that a temporary employment agency qualifies for mechanic’s lien on apartment complex by furnishing laborers for construction of the complex.

Barry Barnett

Declare victory with our feed.

Blawgletter admires the persuasive force of WSJ editorials.  Just today, the Journal printed hard-hitting lamentations on private enforcement of federal securities and patent laws.  The basic problem, as the editors portray it?  That enforcement hurts the people it aims to protect.

If true, the point would indeed justify reform.  But the editorials don’t use facts to prove the argument, don’t even try to.  They instead use a potent rhetorical device — what Jay Heinrichs, in his excellent Thank You for Arguing, calls "tribal talk", whose power plays on the audience’s "us versus them" world view.

Take the WSJ item on securities law enforcement.  It derides the Securities and Exchange Commission for supporting the investors’ position in a case before the U.S. Supreme Court.  Factual support for the idea that increasing the investors’ recovery will injure them never appears in the editorial.  But lots of tribal talk does.

"The trial bar" (interchangeable with "tort lawyers") represents the villain.  It "never sleeps", pursues "antibusiness litigation" and "frivolous securities lawsuits", uses "intimidation", and wants "to establish a breathtaking new legal standard" for "soaking investors by expanding the field of rich targets" to sue.

The second editorial does much the same.  Its main point concerns the wisdom of banning imports of microchips that infringe U.S. patents.  The International Trade Commission, by a 4-2 vote, ordered Qualcomm to stop importing microchips that the ITC determined infringed patents belonging to Broadcom.  The WSJ calls the decision "one of the dumber rulings ever" by the ITC.  But the editors never show — or try to show — that Qualcomm’s microchips don’t, er, infringe the Broadcom patents.

The main bad guy here comes in the guise of the ITC itself, which the editorial tars for "muscl[ing] in" so it can "expand its own bureaucratic turf in the patent field."  But it goes on to slap "the boys on Capitol Hill" and "lawyers, who no doubt assume that any big reform will require years of litigation and millions of billable hours before anyone is sure what in the name of invention it really means."

Blawgletter doesn’t mean to suggest that the editors have no point.  They do — however much we may (and often do) disagree with them.  No, we wish only to highlight the WSJ’s use of tribal talk to rouse emotional reactions in its readers.  That, we believe, helps explain why so many come away from reading the WSJ editorial page feeling passionately about the simple "truth" it reveals.

Emotional truth — yes.  Factual truth — we doubt it.

Barry Barnett

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MasterCard issued this press release today:

MasterCard Wins Injunction Against Visa

Issuers Free to Terminate Visa Debit Agreements 

Purchase, NY, June 08, 2007 – Federal Judge Barbara Jones ruled yesterday that Visa’s Settlement Service Fee (“SSF”), implemented in the wake of the settlement of the merchant lawsuit in 2003, was unlawful and must be repealed, MasterCard reported today.

“This is a significant win for MasterCard and its customers,” said Noah J. Hanft, MasterCard general counsel. “With this roadblock out of the way, financial institutions will not be deterred by this coercive fee and can make decisions based on their best judgment about quality of service, strength of brand and other competitive factors that benefit their cardholders.” Mr. Hanft continued, “Banks that were prevented from fully evaluating MasterCard’s debit offering because of the SSF will now be permitted to terminate their agreements with Visa in order to issue MasterCard debit cards.”

In addition to requiring that Visa repeal the SSF, Judge Jones also issued an order allowing all of Visa’s top 100 debit issuers, with Visa debit agreements that were signed while the SSF was in place, to terminate such agreements in the event that they enter into a new agreement with MasterCard to issue debit cards on MasterCard’s network. In the coming months, all issuing financial institutions in the United States must be notified of the remedy in Judge Jones’ decision.

Judge Jones found that the SSF effectively prevented Visa’s top 100 debit issuers from issuing on MasterCard’s network. Mr. Hanft said Visa’s intention to put in place a coercive fee to block issuers from making independent brand decisions was unmasked by the Court through extensive evidence, including Visa’s own internal documents.

Barry Barnett

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The New York Court of Appeals today declined to apply the "continuous representation" doctrine to toll the running of limitations on an auditor malpractice claim.  The court noted that the doctrine extends an applicable limitations period if the parties to a professional engagement (and not just a professional relationship) explicitly expect the engagement to continue after injury-causing conduct (malpractice) occurs — as where a patient keeps seeing the doctor after he malpracticed on her.  Because in this case the audit client’s allegations negated an expectation of further work on the bad audits at issue, the court affirmed dismissal of the complaint:

Plaintiff’s allegations make clear that for the years in question, the Funds entered into annual engagements with defendant for the provision of separate and discrete audit services for the Funds’ year-end financial statements, and once defendant performed the services for a particular year, no further work as to that year was undertaken.  Taken together, plaintiff’s allegations establish defendant’s failures within a continuing professional relationship, not a course of representation as to the particular problems (conditions) that gave rise to plaintiff’s malpractice claims.

Williamson v. PricewaterhouseCoopers LLP, No. 64 (N.Y. June 8, 2007).

Barry Barnett

Audit our feed.

A gentle reader, Lawyer, commented yesterday:

With all of your discussion about how Twombly radically changed the pleading standard under the Federal rules, it seems there would have been some discussion of the Supreme Court’s decision in Erickson v. Pardus from Monday, June 4.  Any comments?

Right-o!

Blawgletter admits that we didn’t pay much attention to Erickson v. Pardus, No. 05-7317 (U.S. June 4, 2007) (per curiam), which involved a prison inmate complaining about his removal from treatment for Hepatitis C.  But Lawyer’s comment prompted reconsideration and review of what we did say about Twombly:

Blawgletter suspects that the repudiation of [the pleading standard in] Conley v. Gibson will exert more gravitational force than the conclusion that competitors’ parallel conduct, without more, doth not an unlawful agreement make.  Will Twombly open the way to searching review of pleadings on motions to dismiss?

We will refrain from predictions.  Conley lasted half a century.  Perhaps we’ll have another 50 years to sort out the implications of Twombly.

Our fresh reading of Erickson v. Pardus doesn’t alter our reluctance to predict.  Yes, the Erickson Court cited Twombly as support for reversing dismissal of the prisoner’s complaint, but it did so on the narrow ground that the inmate sufficiently alleged life-threatening "harm". 

We suppose that the reversal itself signals that the Court doesn’t believe Twombly "radically changed the pleading standard", as Lawyer puts it.  But the Court did revise the standard.  We’ll save our assessment of impact until the impact becomes clearer.

Barry Barnett

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