Professor Orin Kerr has a fun post at The Volokh Conspiracy about the use of the phrase “in my humble opinion” in judicial opinions. As with most posts at the Conspiracy, it generates quite a few comments — some serious, some not.
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How Does a Court Write a Trade Secrets Opinion When It Can’t Disclose the Trade Secrets?
That was the difficult question facing the court in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. An excerpt from the opening paragraph of the opinion gives you an idea of the substantive issues facing the court (emphasis added): We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but…
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Judgeships: Brilliant Need Not Apply?
Prawfsblawg has a post about a just-published paper, from J. Mark Ramseyer of Harvard Law School, with an interesting thesis: better to have judges that are not brilliant and creative. Prawfsblawg notes of Ramsmeyer’s paper: Taking [Jordan v.] Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it “shows the risk inherent in appointing judges too creative and independent for the job.” Prawfsblawg quotes from the paper: [J]udging is not a job for unconstrained, innovative minds. Judges are government bureaucrats. Their job is to be honest, to unravel a set of facts, to decide…
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More Internet Commentary about Judges
Legal Pad (a very good blog regarding legal issues in California) brings our attention to CourthouseForum.com, a 2-year old website with a directory of more than 27,000 judges and a discussion forum for commenting on them. Before you visit the site, check out Legal Pad’s post for a preview of some of the comments. Says Legal Pad about the commenters: “And boy are they candid.” You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.
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Ninth Circuit’s Annual Judicial Conference Convenes Under Cloud of More “Split the Circuit” Controversy
This article at Law.com starts: While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit. There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel. My coverage of the L.A. Times piece, with links to coverage by…
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Did You Learn about FDR’s “Court-Packing” Plan in Your Constitutional Law Class?
If so, you might want to dust off your notes, in case Marshall University Political Science Professor Jean Edward Smith shows any prescience in his New York Times Op-Ed piece, “Stacking the Court,” which I ran across via the Wall Street Journal Law Blog. Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes: If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or…
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End Life Tenure for Supreme Court Justices?
This post at Law.com previews a book and corresponding law review article arguing for 18-year fixed terms for U.S. Supreme Court justices. The premise seems to be that the founders could never have contemplated the long durations of most recent justices’ tenures, which arise from increases in life expectancy and retirement age. The post has lots of links and some tidbits of info about the service of Supreme Court justices.
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Judges are People, Too . . .
Adjunct Law Prof Blog posted Monday about a CNN story (with link) regarding how justices on the U.S. Supreme Court take “potshots” at each other in their written opinions. Coincidentally, on the same day came Cuccia v. Superior Court, case no. B197278 (July 16, 2007), in which the Court of Appeal opens with this mild zinger directed at the trial judge: The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.…
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I Hope this Judge Read the Briefs, at Least . . .
Some considerable buzz is being generated by the opinion of Second Circuit Chief Judge Jacobs in Husain v. Springer, case no. 04-5250 (July 13, 2007). The case involves a claim by a student-run college newspaper that its First Amendment rights were violated when, after the paper endorsed a slate of candidates, the college president canceled a student election on the ground that the endorsement was an improper use of student funds. On the merits, check out these posts at Decision of the Day and The Volokh Conspiracy. For commentary on Judge Jacobs’s disdain for the dispute before the court, see Appellate Law & Practice or this other post at The…
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Another Example of Judicial Writing I’d Like to Try
Boy, how I’ve been tempted at times to write something like this. But judges can get away with things in opinions that lawyers dare not put in briefs. From the Seventh Circuit’s Judge Posner: The complaint is a hideous sprawling mess, 40 pages in length with 221 paragraphs of allegations. We have found it difficult and in many instances impossible to ascertain the nature of the charges. . . . [T]he defendants can hardly be blamed for wanting to strangle the monster in its crib. The case is In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, case no. 06-3132 (7th Cir., June 22, 2007). Thanks to Legal Writing Prof…
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French Fry Follow-Up
Thanks to Carolyn Elefant of My Shingle.com for this post at Law.com Legal Blog Watch pointing out this article on the disposition of the OSC against the lawyer who told a judge she was “a few French fries short of a Happy Meal,” an event I first blogged about here. It didn’t turn out nearly as badly for the lawyer as the original OSC suggested it might. Perhaps the judge issued the OSC in a fit of pique and had a chance to calm down before the hearing. Maybe she saw some of the blogger comments, like those here or here. Above the Law had several posts following the progress…
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Disrespect . . . With All Due Respect
“I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.” This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm. Answer: (d). The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked. See Above the Law for the full story. Some commenters there actually take the judge…
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A Quip Too Far? Update
I’ve updated my May 17 “A Quip Too Far?” post with a link to more recent, and quite excellent, commentary on the unorthodox opinion in Funny Cide Ventures, LLC v. Miami Herald, and am providing this separate post for those who already read my previous post and aren’t likely to see the update in it. Matt Conigliaro of Abstract Appeal promised last week to follow up on his original post, and he delivers a winner with his explanation of why it may be impossible to make judicial opinions understandable to non-lawyers and still have them adequately serve their function as precedent.
- Appellate Procedure, California Court of Appeal, California Procedure, Judges, Legal Writing, Record on Appeal
Settled Statements, New Trials, and the Languishing Criminal Defendant
When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(h). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007). On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained. At the…
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Blogging about Judges Can Be Dangerous
Most lawyers like to know a little about any judge they are going to appear before in a case. If a judge is new to them, they ask around. What do other lawyers think? Does the judge normally permit aggressive discovery? Are her settlement conferences productive? Does he ask a lot of questions, or does he generally leave that to the other judges on the panel? So it’s no surprise to me that a blog to discuss judicial performance has arisen in at least one jurisdiction. Kevin O’Keefe at Lexblog links to a Florida blog to which lawyers posted their opinions regarding judicial performance. Now an ethics complaint against a…
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A Quip Too Far?
The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case. To be fair, Judge Farmer lays out why he wrote the supplemental opinion: In my view nothing that…
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Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services
Yesterday’s Ninth Circuit decision in Fair Housing Council v. Roommates.com, LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c). In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment…