"The Death of Socrates" by Jacques-Louis
David (1787).

The mind-bending experience of learning to think like a lawyer results, in law school, largely from having to answer professors’ tricky questions — a method we call Socratic after the ancient Greek philosopher Socrates (circa 470-399 B.C.).  Like the Athenian jurors who sentenced him to death for questioning their religious beliefs, more than a few law students recoil at the Socratic method’s invasive impertinence.  And some, like the WSJ today (here), suggest that the method wastes time that law students could better spend learning how to practice.

Blawgletter confesses to some sympathy for the anti-Socratic view and would like to mandate one semester-long class worth of practical experience (in a law office, legal clinic, government agency, or corporate law department, for example) and to allow another as an elective.  But Blawgletter doesn’t share the despair over the current course of study.  It has another notion for improving lawyering from day one without sacrificing the intellectual rigor of old Socrates.

The idea?  That law schools should encourage prospects to work for one to three years before attending.  The job doesn’t much matter as long as it involves paying bills, meeting expectations, and dealing with people.  Business schools already prefer real world experience.  Law students, Blawgletter believes, would also benefit from greater maturity and wider perspective when they start trying to comprehend torts, contracts, and the rule against perpetuities.

A downside:  Law firms may have to give new associates more client and courtroom time and fewer library and document-review hours.  The new lawyers’ tolerance for mind-numbing work presumably will fall and their hunger for doing things that seem to matter will grow. 

Blawgletter certainly hopes so.

Barry Barnett

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NERA Economic Consulting’s annual study, Recent Trends in Shareholder Class Action Litigation:  Filings Plummet, Settlements Soar (Jan. 2007) (available here), includes a chart showing the rates of dismissal for securities class actions in the 11 U.S. circuit courts of appeals during 2006.  To Blawgletter’s surprise, the Tenth Circuit (covering Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) has by far the lowest rate — only five percent in the first two years after filing.  The Third Circuit pulls up in second place with a 10 percent dismissal rate.

Do the data reflect a new plaintiffs’ paradise or poky judges in the Tenth Circuit?  Probably not the latter.  According to the Administrative Office of the United States Courts (chart here), the Tenth Circuit ranks fourth among the 11 circuits in the median time to disposition of civil cases.  Hmm.

Barry Barnett

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Two federal appellate decisions came out today on antitrust issues, both in the realm of monopolization law:

In Hydril Co. LP v. Grant Pride LP, No. 2006-1188 (Fed. Cir. Jan. 25, 2007) (opinion here), a 2-1 panel reinstated Hydril’s claim that Grant Pride monopolized the markets for drill pipe and drill pipe connections by threatening to enforce a patent that it knew it procured by fraud.  The Federal Circuit held that Hydril stated a "Walker Process fraud" claim under Walker Process Equipment Co. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965), and sent the case back to the district court.

A unanimous Eighth Circuit went the other way in HDC Medical, Inc. v. Minntech Corp., No. 06-1638 (8th Cir. Jan. 25, 2007) (opinion here).  HDC alleged that Minntech monopolized the market for "dialyzer reprocessing solutions" by changing Minntech’s "dialyzer reprocessing machine" so that HDC’s solution would no longer work with the machine.  (Dialyzer reprocessing machines use dialyzer reprocessing solution to sanitize multiple-use dialyzers, which filter blood waste products.)  HDC also claimed that Minntech manipulated its warranty and engaged in other anti-competitive conduct. 

The district court granted summary judgment for Minntech, and the Eighth Circuit affirmed, holding that HDC did not provide evidence necessary to show the relevant product market (specifically that multiple-use dialyzers and single-use dialyzers did not compete) and that HDC’s failure to rebut Minntech’s business justifications for its warranty manipulation and other conduct precluded a finding of anticompetitive behavior.

Barry Barnett

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Parsley as garnish in the non-legal sense.

A decision today out of the Ninth Circuit — on garnishment of a foreign sovereign’s U.S. assets — reminded Blawgletter of a comment from law school days, On Third World Debt, 25 Harv. Int’l L.J. 83 (1984).  The piece discusses the ballooning of third world countries’ borrowings during the 1970s and early 1980s, the difficulty of collecting after default, and the futility of U.S.-only solutions.  The IMF Survey described the comment’s proposals for an international approach to third world debt as "very ambitious" and "path-breaking".

So Blawgletter paid attention to the Ninth Circuit’s opinion (here) in Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., Nos. 04-16387, 04-16388 & 04-16788 (9th Cir. Jan. 25, 2007), as it highlights the trouble that creditors of a foreign sovereign may expect in efforts to collect against the sovereign’s American property.  Af-Cap had recovered a judgment (in London) against the Republic of Congo in 1984 for defaulting on a 1984 loan agreement.  Af-Cap registered the judgment in California and Texas federal courts.  The California court held that royalties and other funds that Chevron entities owed to Congo fell within the protections of the Foreign Sovereign Immunities Act and that Af-Cap therefore could not get at the money.  Affirming, the court of appeals concluded that Congo had not used the assets "for a commercial activity in the United States" under section 1610(a) of the FSIA despite Congo’s explicit waiver of immunity.

Got that?  The foreign sovereign must actually have "used" its assets in a domestic "commercial activity" before its waiver of immunity kicks in.  Blawgletter’s advice to private creditors:  don’t lend money to Congo in the first place.

Barry Barnett

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Syringe may infringe.

The Federal Circuit today rejected a district court’s construction of several terms in a patent relating to hypodermic safety syringes and thus reversed a summary judgment of noninfringement.  MBO Laboratories, Inc. v. Becton, Dickinson & Co., No. 2006-1062 (Fed. Cir. Jan. 24, 2007) (opinion here).

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Did Karl Rove set up Scooter
Libby?  Does it matter?

Yesterday, Blawgletter marveled at Scooter Libby’s apparent combination of an "I forgot" defense to a perjury charge with a "Karl Rove framed me" defense.  See here.  The two seemed, um, inconsistent if not at war.

This morning we read in a NYT article that Mr. Libby’s lawyer "did not, however, fully explain the connection between an effort to protect Mr. Rove and the actions that led to Mr. Libby’s indictment."  That strikes Blawgletter as a bit of an understatement. Perhaps he didn’t because he couldn’t?

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And backdating options?

Insiders at chip-maker Broadcom cost the company $2.24 billion more than it previously disclosed as a result of backdating stock options, according to this WSJ story.  Yesterday, Broadcom restated earnings from 1998 through the first quarter of 2006 to reflect charges for the options.

The revelation strikes Blawgletter as a big problem for Broadcom and potentially the beneficiaries of the backdating.  Many of the companies that backdated haven’t lost material amounts as a consequence, but $2.24 billion looks pretty material from Blawgletter’s perch.  We’ll see.

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Blawgletter has noticed that judges have started letting people in their courtrooms to sip from bottles of water.  The practice contrasts with the days of yore, when lawyers and judges — but hardly anyone else — could drink stale government tap water from styrofoam cups or plastic cones that would tip over unless you put them in a flimsy holder.  Trial lawyers with more experience knew to write their names on the cups to avoid drinking from someone else’s.

Judges may start directing their bailiffs to check the contents of water bottles as a result of a mistrial in a Jefferson County, Kentucky, civil case on January 22.  (Story here.)  One of the jurors fooled the judge (and helped pass the time) by swapping pellucid vodka for H2O in her bottle.  She drank so much that she couldn’t participate in deliberations, and her inebriation prompted Circuit Judge Geoffrey Morris to toss out the jury’s verdict and declare a mistrial.

Blawgletter has heard of blind justice but believes, with Circuit Judge Morris, that it oughtn’t result from blind drunkenness.  Cheers!

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