Time to End the Federal Drinking Age?

Yes it is.

No Apology Needed - I'll Sue Anyway

The Eighth Circuit Court of Appeals reversed a grant of summary judgment for a store owner in a case where a customer was offended by a clerk's racial slur. Another clerk and a sales manager immediately apologized, the offending clerk was fired, and the store repeatedly made other gestures of consolation as well. Yet the Eighth Circuit reversed because it thought a jury might be able to find the store negligent anyway.

PS, the suit is for $5 million.

Will the RIAA Sue You, Too?

Now you can find out!

Convictions in Biloxi Bribery Scandal

A prominent lawyer and two state judges are going up the river. I'd like to know a bit more about the bribery, though. (Via Overlawyered.)

Crazy Jurors!

There's no way this award can withstand appeal. (Let's hope not, anyway.)

"Yeah, I Played Ugly Defendant Number Three"

A new study concludes (confirms?) that jurors are more likely to acquit a defendant who is good-looking than one who is homely. But wait, there's more:

The study showed that while the jurors were swayed by attractiveness, they did not let race cloud their judgment. Black and white suspects were treated equally. When black suspects were convicted, however, they were given longer sentences.

Hmm, that's surprising, and encouraging. Less surprising:

Women jurors treat female suspects more harshly, especially when they think they might have used their looks to their advantage.

Men, on the other hand, tend to give attractive women the benefit of the doubt.

Islamic Law and Legal Change

This is from F. Vogel's Islamic Law and Legal System, explaining why criminal penalties specifically stated in the Quran and Sunnah should be enforced to the letter, even though they may seem harsh:

[A] penalty is a "requital for what they have wrought"; the penalty has a retributive character, a righting of the wrong as ordained by God. But in conjunction with this is a reference to forgiveness of the penitent, possibly because infliction of the penalty is atonement for the crime. As one hadith states, "The hand of the repentant thief precedes him to heaven."

Amputation of the hand is the proscribed punishment for theft in Islamic law. More importantly, it can never change.

As I've been studying Islamic law this term, I've been on the lookout for signs of flexibility - of ways to adapt the law to changing societal norms. There is, in theory, an abundance of tools for adaptation, and Islamic law in its first few centuries developed a rich tradition of jurisprudence adapting Islamic law to different times and to places far beyond the Arabian peninsula. Yet that tradition has itself achieved an unassailable position, and Islamic jurists today - who seem to demonstrate both a monastic's reticence and an academic's turf-jealousy - would be at pains to update the law, if they had any inclination to do so. Complicating the issue is the jurists' skepticism of the sources of positive law, be they kings or democratic assemblies. Islamic jurists are ambiguous as to whether statutes and decrees are recognizable under sharia; at best, they are inferior companions to the jurist-deduced law, usul al-fiqh.

I feel justified in concluding from what I've read this semester that a legal tradition built squarely on religious precepts simply cannot function as a modern, comprehensive legal system. With Jewish law, canon law, etc., this is not much of a problem, since the "laws" here merely "bind" religious officials, offices, or adherents. In contrast, sharia purports to be an omnibus legal system with a divinely ordained answer for every legal question. I wouldn't want to have canon law govern my rights in a democratic society; indeed, canon law is uniquely inappropriate for this purpose. I find it increasingly difficult to see how any other conclusion can be reached with respect to Islamic law.

More on Sanctions Reform

David Nieporent responds to my comments, and I respond to his.

Emmett, he was sanctioned, yes. On what was at least his fourth "offense." In an amount inadequate to make even these defendants whole (let alone the three prior sets of defendants). Assuming, as Judge Crotty does, that this amount is sufficient to deter Aretakis from filing future suits of a similar nature, that doesn't help all those he already sued.

Note that I am not criticizing the judge in this case so much as I am the legal regime under which he's operating, which, as David W explains, is extremely loath to restrict the use of the courts, just in case someone comes up with a brilliant idea down the road.

To the other people who commented, it isn't so much that lawyers are corruptly protecting their professional prospects -- in particular, federal judges are unlikely to be practicing law down the road -- as that for the last few decades, the courts have been seen by many as instruments of "social justice" rather than plain old justice. And they're deathly afraid of making Type II errors (rejecting legitimate cases), so they err on the side of Type I (allowing illegitimate ones).

Posted by: David Nieporent | March 6, 2007 08:11 PM

But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well. To my knowledge, this is the first time this sanction has been imposed on him; it may have taken four "offenses," but only one Rule 11 motion that I know of. I doubt his practice is thriving - I suspect he'll feel the stick of that fine.

I see your point about reluctance to restrict access to courts, and I share it. But legislatures are free to restrict access prescriptively, and if they think certain claims should not be heard, they should say so forthrightly in statute. I think that's a better way to deal with such problems than tinkering with the Rule 11 regime, which may have many untoward consequences.

Posted by: Emmett Hogan | March 6, 2007 11:35 PM

"Fails in Every Possible Way"

Here's an interesting story from David Nieporent, posting on Overlawyered, about a lawyer with too much time and not enough skill. Here's the judge's decision imposing Rule 11 sanctions on the lawyer for bringing frivolous claims (the good stuff begins on page 17). Some key quotes:

• "No reasonable attorney would have believed these claims were 'warranted under existing law' given the wholly deficient facts of the case."
  
  
• "In support of his motion to recuse the Court, Mr. Aretakis cited a particular case as controlling, without disclosing he was quoting from the dissenting opinion."
  
  
• "Mr. Aretakis seems to have simply ignored the overwhelming precedent on point."
  
  
• "At oral argument, he maintained that his client had not been terminated as alleged numerous times in the amended complaint, but rather that his job had been stolen from him. The make-believe answer is unworthy of someone claiming to be a professional."
  
  
• "[T]he amended complaint ... is littered with wholly irrelevant, inflammatory, and embarrassing facts concerning defendants and non-defendants alike that have no bearing on the actions brought."
  
  
• "The Title VII claim fails in every possible way."

Ouch! Should have gone to med school, buddy. More entertaining stuff:

As with the action before Judge Chin, this complaint is sloppy and filled with mistakes. For example, it names a dead man as a defendant. (Am. Compl. ¶ 9.) It also repeatedly refers to the “Ratzinger defendant” who is not, in fact, a named defendant (Am. Compl. ¶¶ 82, 83 & 85); This is an apparent reference to the Pope, although one cannot be sure because the complaint refers to him as “the Pop.” (Am. Compl. ¶ 82.)

And we can't forget this:

He alleges a cause of action for “tortuous” interference with Plaintiff’s employment, a mistake made not just once, but twice. (Am. Compl. ¶ 116.)

In fairness, that could just be the Spellchecker talking.... Still, as much as I am in favor of tort reform, I quibble with Nieporent's contention that this case illustrates a need to reform the rules for sanctioning lawyers who bring frivolous claims. Nieporent opens with this:

As I've previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of "frivolous" – the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards – and those who practice know how rare it is for judges to actually issue sanctions.

But this case does not illustrate the first point. Nieporent does not show how the definition of "frivolous" applied here was in any way inadequate; indeed, the judge found that the claims were frivolous, so it's adequate enough at least to catch this instance. I'm sure there are "absurd" claims that should be prevented but that are not, strictly speaking, "frivolous" – but this isn't one of them.

Nor does the story illustrate Nieporent's second point, that "those who practice know how rare it is for judges to actually issue sanctions." The lawyer was sanctioned here. Nieporent argues that the sanction was inadequate – okay, even assuming that's true, what does he suggest? Removing judicial discretion? That would be a very bad idea indeed, as the sanctions regime of Rule 11 is designed to be context-specific, and should not be applied by rote. How about broadening the meaning of "frivolous"? Okay, but in what way – and how then do you safeguard a lawyer's necessary ability to mount a vigorous, if inauspicious, argument? Will lawyers refrain from presenting all reasonable arguments on behalf of their clients for fear of Rule 11 sanctions?

But then again, the sanction was adequate. Nieporent argues that the lawyer here "was fined just $8,000 – far less than the defendants asked for – and told not to do it again." (The defendants were seeking reimbursement of all the lawyers' fees associated with their motions to dismiss.) He views this as inadequate.

But the purpose of sanctions under Rule 11 is to ensure that the offending lawyer does not behave badly again; it is not to compensate the other side for litigation expenses. The lawyer here has learned the hard way that doing a shoddy job could cost him quite a bit; in light of this, the sanction seems perfectly adequate. If Nieporent would change the law to make recovery of certain litigation costs possible, then we'll see lawyers urge Rule 11 sanctions a lot more often than they currently do. And Rule 11 is kind of like a scarlet letter: the mere filing of a motion for sanctions can harm a lawyer's reputation, regardless of whether the issue is fully aired. Do we really want to encourage this kind of gutter lawyering?

---

I've always viewed tort reform as a damages issue, mainly: the biggest problem is that juries (and sometimes judges) give outrageous rewards. For this reason, my preferred tort reform package would focus on restricting claims for duplicative damage types and setting caps on all damages. I also see tort reform as requiring serious overhaul of standing and jurisdiction rules in state courts that have become notorious for listening to any plaintiff that happens to wander by.

I should add, too, that tort reform is most pressingly needed not at the federal level, but at the state level. And that, of course, will require many different approaches, depending on the specific weaknesses in each state.

Despite all this, however, I have never been too concerned about the filing of silly claims. Many silly claims get much farther than they ever should, but most do not. (Indeed, in this case, the judge's ruling on sanctions came in the same opinion granting the defendant's motion to dismiss for failure to state a claim on which relief may be granted. It may have taken fourteen months from filing to dismissal, but that's not too bad in trial time.) And if the lawyer does this repeatedly (as was true here), the judge always has the tool of sanctions (as was also true here).

This story is certainly amusing; most "how not to be a lawyer" stories are. But I just don't see it as a poster child for sanctions reform.