Yesterday, as it usually does on Fridays, the Texas Supreme Court issued its Weekly Orders — a whopping 12 opinions.  The justices, by Blawgletter’s count:

• Ruled for the plaintiff in two of the 12 and for the defense in the other 10.
• Decided half without allowing oral argument.
• Wrote six opinions with no specific author.

Blawgletter doesn’t feel 100 percent comfortable with numbers, but even we can tell that these suggest a court confident of its inerrancy yet unaware of its isolation.

Barry Barnett

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U.S. Attorney General Alberto Gonzales at last faced the Senate Judiciary Committee yesterday.  Blawgletter saw only snippets, but even the best bits looked bad.  Media reports appear to agree with that assessment.  See stories here (WSJ), here (NYT), here (LA Times), and here (Fox News).

Blawgletter draws a couple of lessons from Fredo’s testimonial performance:

• Remember the important stuff.  Nobody will believe a memory lapse about key events — such as a meeting with the President and an hour-long session with top staff — especially ones that happened a few months ago.
• If you don’t recall details before you testify, work your buns off to refresh your recollection.  Read the hot documents!  Make a timeline!  You have no excuse for not using these readily available tools.
• Don’t jab your finger at the questioner.  It looks petulant and and defensive and irritates people.

Blawgletter doesn’t expect that following our advice would save Fredo’s job.  Not even telling the whole, ugly truth would do that.  But, as we suggested before, at least it might have preserved a scrap of self-respect.  Alas, Fredo chose a different path.

Barry Barnett

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Ground Zero on September 23, 2001.

The Second Circuit yesterday affirmed dismissal of claims that the federal government deliberately misrepresented the safety of working at Ground Zero without respiratory equipment.  The five plaintiffs performed search and rescue operations after the 911 attacks.  They alleged that exposure to asbestos and other hazardous substances injured them or put them in reasonable fear of harm.  The government’s false statements exhibited deliberate indifference to their health and safety, they asserted, and constituted violation of their substantive due process rights under the Constitution.  Lombardi v. Whitman, No. 06-1077 (2d Cir. Apr. 19, 2007) (available at http://www.ca2.uscourts.gov/).

The court of appeals applied a "shock the conscience" standard to the complaint.  The government’s conduct didn’t shock the "contemporary conscience" because, the court ruled, the Environmental Protection Agency director and other officials sought to "avoid panic, keep order, restore services, repair infrastructure, and preserve the economy" during a time of profound uncertainty and upheaval.  That the officials could have protected these selfless people by providing them with respiratory equipment (or even telling them they needed it) didn’t alter the court’s conclusion.

Does the government’s behavior shock you?  It does Blawgletter.  Instead of knowingly and falsely assuring brave men and women that the air at Ground Zero wouldn’t harm them, the EPA director could easily have told them the truth.  Blawgletter cannot imagine that knowledge of the truth would have diminished one whit the responders’ devotion to their patriotic duty.  The needless heaping of tragedy upon tragedy goes beyond stupidity.  It indeed shocks the conscience.

Let us hope the government finds another way to take care of these intrepid souls.

Barry Barnett

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Earlier today, Blawgletter mentioned a Seventh Circuit decision that upheld summary enforcement of an oral settlement agreement.  Later in the day, we learned of a First Circuit decision in which the court reversed a summary judgment that enforced a pre-litigation settlement agreement between a contractor and subcontractor.  TLT Construction Corp. v. RI, Inc., No. 06-2214 (1st Cir. Apr. 19, 2007). 

The difference?  Blawgletter has three hypotheses.  First, in the Seventh Circuit case, the party seeking enforcement alleged that formation of an oral contract happened before the parties tried to reduce it to writing; the First Circuit case, by contrast, involved a claim that one of the writings the parties exchanged reflected agreement on all material terms.  Second, Illinois law differs a lot from Massachusetts law on contract formation.  And, third, the Seventh Circuit applied an abuse of discretion standard of review, but the First Circuit examined the summary judgment de novo.

Blawgletter votes for door number three.

Barry Barnett

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The idea of an oral settlement agreement may seem strange to bidness trial lawyers. It does to Blawgletter, who lives in a state whose court rules ban enforcement of settlements unless the parties write out the terms or recite them on the record in court. Imagine finding that you resolved a billion dollar business case on a phone call. Shades of Pennzoil v. Texaco, which forced Texaco into bankruptcy for mucking up an oral agreement to buy Getty Oil.

Well, friends, it can happen, at least in the Seventh Circuit. That court yesterday affirmed a summary judgment enforcing an oral agreement to settle a race discrimination lawsuit. The court, applying an abuse of discretion standard of review, blew past the parties’ fruitless efforts — immediately after the fateful phone conversation between counsel — hardly pausing to note that lawyers and clients typically expect to finalize the pact in writing before saying calf rope (Texan for we’ve finished). Dillard v. Transcon Int’l Inc., 05-4790 (7th Cir. Apr. 18, 2007) (applying Illinois law).

So watch out, friends and neighbors. Make sure to tell the other side that you don’t have a deal until the parties ink the papers. Barry Barnett

The U.S. Supreme Court today upheld the federal Partial-Birth Abortion Ban Act of 2003 against a "facial" constitutional challenge.  Gonzales v. Carhart, No. 05-380 (U.S. Apr. 18, 2007).  The 5-4 majority opinion includes shocking details about the "dilation and extraction" procedure at issue.

As Blawgletter reads it, the decision comes down to the majority’s conclusion that the state’s interest in preserving the health of a pre-viability fetus outweighs the woman’s interest in preserving her own health.

The brutality of the procedure appears to have so affected Justice Kennedy that he could not bring himself to side with the four justices who voted against further erosion of Roe v. Wade.  He’d dissented from an earlier decision, Stenberg v. Carhart, 530 U.S. 914 (2000), that struck down a Nebraska ban on the same procedure because it didn’t allow exceptions to protect the mother’s health.  Justice Alito, who replaced Justice O’Connor, supplied the deciding vote.  Justice O’Connor joined the majority in Stenberg.

Barry Barnett

The Supreme Court of Delaware today reversed dismissal of claims that a party in "control" of a corporation expropriated from majority shareholders the value of their majority rights.  The shareholders alleged that a large minority shareholder used his de facto control to engineer transactions that, in two simultaneous steps, transferred majority voting control to him and then sold the voting control to a third party.  The court held that the transactions, in substance, allowed the minority shareholder to expropriate for himself the "control premium" that rightfully belonged to the majority shareholders.  The majority shareholders thus stated "direct" claims rather than "derivative" ones that they could bring only on behalf of corporation itself.  Gatz v. Ponsoldt, No. 298, 2006 (Del. Apr. 16, 2007).

Barry Barnett

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The Eleventh Circuit today ordered remand of a case that originated in state court because Florida law didn’t clearly bar claims against a non-diverse defendant.  The plaintiffs alleged that exposure to contamination on adjoining property caused them personal injury or death and that a Florida statute extended liability to subsequent owners like the defendants.  The court held that "Florida law is unclear" on the liability of landowners for harm occurring before their acquisition of the property.  The district court thus erred in concluding that the plaintiffs couldn’t possibly state a claim against a non-diverse defendant for purposes of the statute creating federal court jurisdiction in cases between citizens of different states.  Florence v. Crescent Resources, LLC, No. 06-13587 (11th Cir. Apr. 18, 2007).

Barry Barnett

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