Revolutionary Change vs. Evolutionary Change

Are these competing forces or can we implement both, resulting in a long
need change in the in-house/outside counsel relationship? We have a 20th
century structure trying to hold up a 21st century market. The seams are
giving way and cracks are in the foundation. We can no longer patch it
along the way with small concessions. ACC is calling for a monumental
change.

Get rid of the skyboxes! Get rid of the fancy recruiting of new attorneys!
And, get rid of those plush offices! This is the first step in reaching a
new structure, according to some leading in-house counsel.

Communicate! Communicate! Communicate better to the outside counsel your
needs, goals, and corporate values! This is the cry from the outside
counsel to reduce the friction between the parties.

In the end, I think it would be best to start with the premise that most
lawyers do not have a business background/education and we need to stop
trying to function as we do...and get some help from sound business minds.
It is sort of like the premise that only a fool for a lawyer represents
him/herself. May we begin the process today.

Learn more about the ACC Value Challenge at www.acc.com/valuechallenge

-Ellen Zavian, Associate General Counsel, ACC

Value Challenge Launched - Streaming Live from www.acc.com

Today, ACC launches it's Value Challenge- a program designed to create a constructive dialog and practical resources that help lawyers better align legal costs with client objectives and the value of the services provided.

About Value Challenge
Listen to the Launch (LIVE today at 1pm EST)
Read Today's Launch Agenda

How Do You Blog When The Financial System Is Apparently Collapsing Around You?

First, I did not know that Henry Paulson and Ben Bernanke were reading my blog—when I advocated a bailout for everybody I was joking. Apparently, they took me seriously or at least they are trying to do it for the entire financial industry.

Is there a lesson in this for lawyers? Remember the days when everyone admired those highly paid Wall Street investment bankers. They were all described as really bright. Their compensation, their offices we assumed had to be a reflection of their intellectual prowess.

What about lawyers—do the location of their office or the hourly rate really reflect intellectual prowess, or it merely a reflection of the same market aberration we are seeing in the investment community? Just a thought.

-Larry Salibra
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Words, Words, Words

In my last few blogs, I have been describing how we lawyers have used words to substitute for or manipulate reality, and how Judge Posner even wrote a book about it.

My last blog described how Hank Greenberg used words to draw an artificial distinction between the financial conditions of Lehman and AIG and suggesting that this excused us from re-examining the correctness of our conduct. Recently John Snow, former Treasury Secretary, and now the proud owner of Chrysler was on CNBC describing why the subsidized loans that Detroit automakers seek are not bailouts like Bear, Fannie, Freddie and AIG; he said they are “unfunded mandates”. This means he would like the same bailouts as the other entities, but he does not want shareholder value impaired or his management role terminated.

What were these mandates—Congress wanted the automakers to make fuel efficient cars. Like these automakers could happily skip along making SUV’s but for this Congressional mandate?



-Larry Salibra
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Plasticity of Legal Rhetoric

That phrase, “Plasticity of Legal Rhetoric” is not mine, but Judge Posner’s which he uses in his book, “Overcoming Law. However, I had recognized the concept long before I read it in Posner’s book, which, in fact, had been brought to my attention by a judge friend of mine who had been subjected to my ravings on the topic.

I decided to discuss this issue just after looking at the non-precedential conduct, because it fits into an underlying theme, we have a legal system that has very serious flaws—one of which is the ability to ignore real facts or create fictitious facts to get a result. If judges feel comfortable doing this, then non-precedential conduct becomes an extremely useful tool in helping, as Judge Arnold noted to hide the conduct.

So how did I describe plasticity of legal rhetoric? It is stating that a fact it true and repeating it two times in place of scientific evidence, or to refute scientific evidence to the contrary. Stated another way it is holding that a brick wall does not exist as matter of law and then making sure you are not in the vicinity of the brick wall as the speeding car approaches it.

It also has other very troubling manifestations.

The Rule of Three I’s

This rule is attributed to Warren Buffett, but I do not know that to be true. When I heard about it, I immediately thought about they way lawyers draft contracts

The rule says first come innovators, second there are imitators and finally come idiots. The commentator who described this rule and attributed it to Buffett was using the rule to describe how rational risk distribution became widespread and finally irrational.

I have litigated very bulky contracts drafted by very distinguished law firms, and was amazed at the level of confusion described in those large, undoubtedly very expensive, bound volumes.

The three I’s have an analogue in contract drafting. Initially a distinct problem is confronted by creative lawyers who draft a provision to address that issue. Then come the imitators, the bulk of our profession, they look at all those provisions in various contracts and copy them into their contract often without a complete understanding as to their relevance to the transaction—it is called boilerplate and tends to grow exponentially.

Then comes the last of the I’s. I actually saw a contract term that was in substance as follows: “In the event of two conflicting decisions by the United States Supreme Court on an issue addressed by this contract, the latter shall govern.”

Notwithstanding the extremely remote possibility that such a situation would exist, being invaded by an army from Pluto is probably more likely, this term does appear to state the obvious.

By the way, I did not make up this provision—someone was actually putting these in contracts.

New to In-House Committee Legal Quickie- online life

Any thoughts about what Ted Claypoole shared with the New to In-house Committee today on Second Life and the issues surrounding it?

Below is the description of the Legal Quickie from today's call:

Business Risks and Rewards in Online Virtual Worlds.

Moderator: Susanna McDonald, General Counsel, Claimant Management Systems
Guest speaker: Ted Claypoole, authority on internet law at Womble Carlyle Sandridge & Rice, PLLC

Topic Description:
Millions of people participate in online virtual worlds, and millions of dollars are spent in them. The three-dimensional immersive computing that characterizes these worlds will probably be the future of interactivity online for nearly all businesses. Companies are beginning to participate in these online communities, but the risks and rewards are not always clear.

This presentation will define and explain the significant online virtual worlds and will discuss who is participating in them. The speaker will discuss the various ways that corporations are playing and profiting from these social networks, and the new economies created by new worlds. Finally, the group will analyze and discuss the legal risks and business risks that your company may face if it chooses to play or profit in the virtual space.

In particular, the presentation will focus on legal risks highlighted bhttp://www.blogger.com/img/gl.link.gify the Second Life Banking Crisis of 2007-2008, and on case studies of corporate commitments to virtual worlds.

For more information on virtual worlds, including Second Life, visit the links below.

http://en.wikipedia.org/wiki/Virtual_world
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9018238&pageNumber=4
http://virtuallyblind.com/2007/05/04/trademark-infringement-vws/

What Are In-house Counsel Thinking—the Demise of Lehman and Merrill

I waited until Tuesday to write this because I wanted the emotion of the moment to fade. Those of you who have been reading my blogs have known that I have not been a fan of government intervention.

Today for those of you not in financial institutions your biggest concern maybe whether you will ever be able to afford to retire. But for our colleagues in financial institutions I am wondering what is going through their minds.

As a trial lawyer, the moment the jury went out or at the close of an appellate argument, I would begin reexamining every decision I made in the conduct of the trial or the argument and if the jury or panel returned with an adverse verdict, that re-examination would go on for weeks.

I am wondering if they are looking at those “complex financial instruments” and wondering like I did what they could have done differently, or whether their legal education even prepared them for this experience.

I was listening to Hank Greenberg this morning on CNBC attempting to distinguish AIG from Lehman. He said Lehman was insolvent, whereas AIG was simply illiquid. To me being illiquid means, there is money in my checking account, but I cannot cash a check today because the banks are closed; however, tomorrow it is virtually certain I will have the cash—I should have not problem pledging that check as collateral.

Insolvency means there is no money in the checking account. If AIG is in fact simply illiquid, why has it not been able to pledge its assets as collateral? I am wondering what AIG’s lawyers are telling their client—is illiquidity simply the asset owner’s euphuism for insolvency? Are we once again trying to make words dominate reality?

-Larry Salibra
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Judicial Imagination-- Making Believe We Are Competent

Recently, I had the opportunity to chat with a friend and former Chief Judge of a State Supreme Court. I was disappointed because, Illinois State Supreme Court that had apparently fought the politically correct position of adopting a mandatory CLE requirement had succumbed a few years ago.

I mentioned to my friend the fact that mandatory CLE was in my view a pointless exercise designed by the State Supreme Courts to avoid criticism for lawyer incompetence. Put another way if they adopted mandatory CLE they could avoid having to seriously address the issue or even think about it.

To my surprise, my friend readily agreed that mandatory CLE was a joke. Anyone hiring a lawyer who relies on the fact that the lawyer is up to date on his mandatory CLE is making serious misjudgment.

One has only to visit those CLE classes held between Christmas and New Year’s and look at the partially awake, well partied lawyers reading the paper, most of whom never had and never will practice estate planning to get a real a picture of the “well, it is got to be done” CLE.

Then there is the let’s make the best of it CLE, where tax planning in definitely a prime focus. You check in at the Royal Hawaiian, looking down the corridor at the blue Pacific and think to yourself, that a little torts and civil procedure is well worth the deductibility just for the view—not to mention that it is snowing back home. What this profession will do to insure they are fulfilling the public trust is remarkable.

Judges—do you really want to insure the public has cost effective competent legal service—competition is the answer—not mandatory CLE. Reduce artificial restrictions on access to practice and competition will solve the problem. In addition you will eliminate the administrative costs of monitoring CLE compliance.

-Larry Salibra
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Ready for a Legal Self-Examination?: Legal Issues and Trends to which Every Nonprofit Should Pay Close Attention

Just as you visit your doctor to get your annual physical, as an in-house attorney, it is prudent at least once a year to diagnose your nonprofit organization's legal health and well-being. Even if not an expert in every area of law, a successful in-house nonprofit counsel needs to be able to spot legal red flags and be able to effectively
manage them.

Later today on the Nonprofit Organizations Committee conference call, we'll be presenting a "legal quickie" on a number of the most significant legal issues faced by the typical nonprofit organization today. Topics will include everything from meeting contracts to tax exemption to lobbying disclosure to copyrights and trademarks and more.


Identified in our ACC Top Ten article on the same topic are ten key current legal issues and trends to which every nonprofit organization should pay close attention. Alongside each issue is a link to one or more articles on the topic, to provide you with additional information necessary to do some legal self-examination.

Why Federal Courts . . .Part 7

WHY FEDERAL COURTS DO NOT APPLY THE RULE OF LAW: Part 7: Epilogue

First, let me point out an error I made on the prior blogs. I stated that Anastasoff (blog 1) was seeking to have a prior unpublished opinion applied so she could obtain a refund. That is not correct; she wanted the prior case unpublished case ignored so she could get the refund. Although this error does not impair the point I was making that the essence of common law requires the similar treatment between similarly situated parties, I am a bit surprised no one pointed out the error.

There has been much written about this topic and you can access a lot of it at this site. Many of the articles have direct hotlinks to a pdf file of the article.

What is most troubling is the recent emergence of this practice in Britain, described by Lee Peoples in his article comparing the practices in the US and Britain. A review of the history of the development of the common law in this article incorporates a reference to the limitations that technology placed on publication. The obvious limitations of the oral decisions of judges and hardbound publication have largely been eliminated by technology. The justification for the emergence of this practice in England, efficiency, by saving lawyers judging time and money, basically the Alito position, Peoples describes as “a sharp break with centuries of tradition”.

Why now? Why with technology dramatically reducing both time and cost in seeking relevant cases are the courts so concerned about efficiency? Why didn’t they adopt a rule prohibiting the introduction of recollections of oral rulings and limit precedent to only the few cases they chose to be considered precedent centuries ago?

Perhaps more now than ever before the technology is doing to judges that which it is doing to the rest of us—making them more accountable for the quality and consistency of their decision making. We no longer have the luxury of arguing that we were not speeding at the time of the collision when the computer chip in our car says we were speeding.

More than any other branch of government, the judiciary is the most opaque—an in certain respects more dangerous. Perhaps it might not be able to reek cataclysmic havoc on us with the same overwhelming scale and intensity as the other branches—but such havoc has an important check—the fact that it impact is highly visible and strikes many at the same time, and therefore is far more likely to face strident opposition.

Judicial malfeasance is less visible, but its impact on those subject to its abuse is no less traumatic and in many cases the victims more defenseless.
In the web site I mentioned you will get many points of view, particularly from academics whose policy arguments often lack a critical perspective—that of looking down the barrel. For the criminal defendant who is denied a fair trial or the defendant unjustly forced to pay a judgment, efficiency may not seem to be a very important goal.

However, there is one major fallacy in the efficiency argument known to anyone who has tried a case and done a Lexis search on the law—the real cost of the litigation is generally not involved in preparation of your jury instructions or memorandum of law. It is in the development of the facts.

I have had the opportunity to find cases of judges with rulings contrary to the position they wanted to take with respect to my client, and watched them squirm when the ruling was brought to their attention—they do not like the feeling and that is why the non-publication—non citation rule exists.


-Larry Salibra
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It is a battle, not the war

No doubt that you all received e-mails from ACC including the personal note from Fred Krebs announcing the victory in changing DOJ policy on the attorney-client privilege. I want to extend my congratulations, particularly to Susan Hackett who has led the ACC effort.

However, in our enthusiasm, let us not forget that this was a joint effort among many organizations, including the National Chamber of Commerce, WLF and others and we need to jointly reaffirm our coalition because the job is not over. Winston S. Churchill said following the victory at El Alameinin in North Africa in WWII: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

In a series of blogs I described the systematic erosion of federal business civil liberties detailed by a paper recently published by the Washington Legal Foundation. Steve Bokat detailed the extensive participation of many organizations that have worked alongside ACC and WLF to confront these issues as a community. The present victory corrects an important part, but just a part of the overall problem. The judicial expansion of the crime fraud exception, for example, has many of the same detrimental impacts on the attorney-client privilege.

Of course we need to recognize the present achievement, but we also need to reaffirm our cooperation with coalition of which ACC is a part and use this opportunity to renew our commitment to win the war.


-Larry Salibra
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Why Federal Courts . . . Part 6

Part 6, Justification #4: A non-precedential opinion can be argued for its persuasiveness, even though it is not precedential.

This position appears to be the present state of affairs in the federal courts—the old rule was that if you cite a non-precedential case you will be sent to the eighth circle of the Inferno; now such a citation simply risks being sent to Purgatorio.

The position was advocated by Justice Samuel Alito and unfortunately reflects a fundamental misunderstanding of the common law and the nature of precedent. It was advocated by him (when he was at the Third Circuit) at the Congressional Hearing on the topic and was justified by the argument that if every opinion was written to be precedential judges would not enough time.

First, the “I am overworked” argument of the federal bench is meritless. The reason we have an opinion is for the bench to explain to the litigants the legally operative facts, how the law applies to those facts and therefore, the result. We do this to insure as, Judge Arnold (blog 1) noted, that the judiciary has a legitimate basis for the decision. If the federal judge is overworked –too bad, get another job. There is a long line out there looking to replace you, including a number of state judges in Ohio, who have far larger caseloads where every case is precedential.

Second, it conflicts with Judge Becker’s(Blog 4) position that even if a case is not precedential, the judiciary should provide the litigants with an explanation for the outcome. It seems that such an explanation should include a description of the operative legal facts and a description of how the law requires that result under those facts. Is that not a description of precedent?

Third, a case is persuasive because it has the same operative legal facts as the case before the court and is not legally disguisable. It is in fact precedent and similarly situated parties require similar treatment. With all due respect to Justice Alito, whom I know, how else can a case be persuasive? The reasoning sounds good because it is written in iambic pentameter?

-Larry Salibra
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Time May Be Money, But No Time To Think May Cost You More Money

In my bio, I said that one of my objectives was to get you to think about things that the preoccupation of your careers and family duties would prevent. Today, I realized that time to think might be more scarce than I might have imagined. It just may be that the frantic pace of our lives to increase productivity might actually start to become counterproductive when the consequence of the pressure to produce begins to preclude our ability to think about what we are doing.

For those of you who do not know—I am a big time tool guy. Not only do I have the full panoply of wood working machinery, commercial quality of course, but I also have a metal lathe, welding equipment etc. During my career I did a lot of work with my tools, designing and building cabinets and furniture among the numerous other repairs and improvements that a house requires.

In the last 10 years or so of my formal working career I did less and less of this work and the jobs requiring attention around the house accumulated. When I retired the jobs needing attention was overwhelming. In addition, I was older, and the ability to use brute force to move things was not the alternative it used to be.

Have you noticed the change in the profession the last 15 years or so—the fact that you appear to have less time to think about what you are doing because of the pressure to get it done or is just me?

Well today I was tackling the repair of my 100+ year old stable (really a shed) converted to a workshop. Rafters had to be replaced—and there I was with 12 ft water-soaked rot resistant 2X6s. Brute force to get these into place under an existing roof was not an option. But do you know what I had—I had time to think about how to do it by myself. And with time to think about a solution, it turned out to be quite a manageable task. I have found that time and again lately—the time to think about a problem made its solution manageable and quite efficient.

It occurred to me that the same might be true if I had to confront a legal problem. Rather than being forced to leap in by time pressure for a solution—if I had time to think that solution might be better and more efficient--any thoughts?

Shortly, I will begin to develop my theories about why lawyers automatically apply legal process to solve problems and do not think about alternative, more efficient solutions at a graduate school of business. Hopefully businessmen will be able to recognize and manage the problem. Law schools are part of the cause of this problem, but not taking or having time to think about solutions might well be another.

-Larry Salibra
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A real win-win day for the privilege

It was a good day for attorney-client privilege junkies like me here at ACC
(and that means if you're corporate counsel, it was a REALLY good day for
you and your clients' rights): the DOJ finally issued its promised
revisions to the McNulty Memo and (are you seated?) actually reversed every
single issue we've protested in the Holder/Thompson/McNulty Memo process.
Every one. No more privilege waiver as a condition of cooperation; no more
assertion that work product claims aren't valid if the work product includes
otherwise non-privileged facts; no more forcing companies to fire employees
or revoke their right to attorneys fees before the facts are in and as a
condition of cooperation credit; no more tactics that suggest that companies
have to throw employees under the bus in order to defend themselves.

The link to the new document that governs US attorney consideration of the
criteria of corporate cooperation is not yet up on the DOJ's site, but we've
got a copy. And we've had the DAG's assurances - he was looking us in the
eye when he said so.

Now here's the really interesting part: DOJ didn't issue a new memo. They
instead inserted this new guidance into the US attorney's manual as a new
section of the manual. In case you're not familiar with it, the manual is
not a policy which can reside at the bottom of the fifth file cabinet down
the hall. It is on every prosecutor's desktop and is the bedrock governing
prosecutorial conduct. US Attorneys take it very seriously and are very
proud of it, too. What this signals is DOJ's attempt to not only amend the
policy with words, but also to convey to prosecutors in the field that their
feet will be held to the fire for non-compliance with this policy. That was
clearly not the message that the previous memos (residing in the fifth
cabinet down the hall) conveyed to prosecutors prior to this announcement.

And so ... I still want legislation that provides finality and comprehensive
coverage across every agency of the US government with a copycat McNulty
policy (since DOJ reversing it's policy does nothing to reign in the SEC,
the DOL, the HUD, the IRS, and so on), but I am proud to announce that we
have won a DOJ policy with teeth (and trust me when I tell you that we've
fought hard for this for over 3 years, so I'm serious when I say we've
"won"). We have a DOJ policy that includes paragraphs on the importance of
the attorney-client privilege to the responsible behavior of well-governed
and well-counseled companies. We have a Department that is committed to
assuring the success of this policy. And we have an agreement that
privilege belongs to the client, and it is not the province of DOJ to
request, demand, or dismiss its waiver at will.

After watching so much political convention coverage in the last few days, I
feel like I should end my post as virtually every speaker for the last 3
days has: "God Bless You, God Bless DAG Filip, and God Bless the Our Legal
System and its Protection of the Fundamental Client Right to Attorney-Client
Confidentiality!"

-Susan Hackett

The Emerald City

I’ve been doing a little research about the location of this year’s Annual Meeting- Seattle, WA. An interesting fact- Seattle was named one of the top ten green cities in the nation by National Geographic. In fact, the Washington State Convention & Trade Center (WSCTC) in downtown Seattle announced the availability of the nation’s first completely compostable water bottles available for convention center clients. The center’s new, .5 liter water bottles are made from corn-based resin (PLA) and the entire bottle, cap, label and contents are 100 percent recyclable, biodegradable and compostable. By contrast, traditional petroleum-based resin water bottles take up to 5,000 years to decompose.

We’re very proud to have our meeting in Seattle, as ACC continues to ‘go green’. Last year, we moved away from our printed course materials (books that were easily hundreds of pages of printed paper for each attendee) and gave everyone electronic versions of the materials. We’ll be doing the same this year.

I can see why Seattle is recognized as a clean, environmentally conscious city- they have wonderful national treasures to preserve. If you’re getting into Seattle before the meeting, take a walk through Pike Place Market, eat in the international district, or take an Orca spotting tour. Why not take in a Mariners/Seahawks game, or a dinner cruise on the Puget sound? Take a ferry ride, check out Discovery Park, the Space Needle or ride the monorail. And don't forget to take public transportation; all of the buses are either electric or run on biodiesel! These of course, are all things I hope to do while in Seattle. Do you have any other suggestions? Send them along!

Still haven’t registered for Annual Meeting? What are you waiting for? Register Now!

-Nichole Opkins

ACC’s Annual Meeting- Who’s Ready?

So we’re 7 ½ weeks out from the big show- The 2008 ACC Annual Meeting. This will be my 4th meeting with ACC, and I have to say, probably my most exciting since I’ve spent the last year working closely with 2 of our 16 committees- IT, Privacy & eCommerce, and New to In-house. These have been great committees to work with- the members are committed and interested in the monthly teleconferences, the creation of their programs for AM, and to the overall success of their fellow committee members. And, I am proud to announce that the New to In-house Committee won the Committee of the Year Award- A great accomplishment which they share with the Employment and Labor Committee. This was on top of a Sponsor of the Year Award given to NTI’s co-sponsor Womble Carlyle.

I look forward to attending the Leadership Dinner on Sunday, October 19th, at the Experience Music Project, where these awards will be presented.

-Nichole Opkins

Here We Go Again- And It's Not Even Father's Day Yet

In honor of the hard work, honesty and moral fortitude of my father and grandfather, I wrote an entry contrasting their behavior with the euphuisms bandied about Wall Street and the media to distract one’s attention from the fundamental causes of the credit crisis. Since then the government (both parties) have engaged in further conduct that disregarded the fact that people made blatantly bad choices and are now forcing the rest of us to bail them out. Bear Stearns was followed by foreclosure bailouts, and then Fannie and Freddie.

I suppose that I should not be surprised that the Detroit automakers are preparing to stick their hands out. For those of you in our profession who are helping them polish the cups that they intended to pass around Washington, you have my sincere condolences. But there is good news. I have found a solution that will solve all the problems that we face.

The solution is a comprehensive bailout for everyone. Rather than the piece meal approach, we simply prepare a bailout application form to be included in all the IRS form packages. The form will permit each US citizen to apply for a billion dollar bailout. They need simply fill out the form and answer a few simple questions to qualify for a check from Uncle Sam for a billion dollars.

Beyond the general identification information, they need to check one of four questions explaining their need for the bailout. The form will state as follows:

Please state your justification for requiring the bailout by checking one or more of the four boxes below:

1. I have run my business with the same skill as the CEO of GM, with similar results, but did not get anything near his salary.

2. I take private investors money, insuring them a great return by taking companies private and running them with my skill and judgment, and if things do not pan out, I will get my friends in DC to cover up my gross misjudgments.

3. Before I went to work on Wall Street I got a MBA from Harvard and no one there ever mentioned “risk” in the entire time I was at the Business School (My colleagues from Wharton, Yale and other business schools were not told about risk either).

4. None of the above applies to me, but they are such silly reasons, I deserve a bailout too.

Once every citizen gets his billion dollar check the housing crisis will disappear. People in foreclosure will be able to make their payments; prices will go up as the inventory is absorbed because everyone will be able to afford a minimum of four houses.

Admittedly, business in the US might suffer a little wage inflation because many will leave the workforce choosing a life of leisure. GM may have to move everything out of the country, but jobs for people in Michigan will be irrelevant.

Wait you say, we don’t have enough money to give out that kind of bailout. I thought about that –we are going to borrow it from China.

But what happens when it becomes clear that we cannot service the debt because we are not producing anything—China may threaten dire action—Got that covered too! We simply point out: “WE ARE TOO BIG TO FAIL.”


-Larry Salibra
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Why Federal Courts . . .Part 5

Part 5, Justification #3: Judges Need to Select The Proper Case As Vehicle to Announce A Principle Of Common Law Which Limits Its Misuse By Lawyers.


This justification is the most peculiar of the lot and to the extent I can determine is advocated largely by Judge Kozinski of the Ninth Circuit. His thesis is that by selecting the proper case to articulate a doctrine of common law one can minimize the improper use of opinion by lawyers to achieve a result unintended by the judges articulating that opinion.

There are a number of problems with this justification. First, research has demonstrated that judges are simply unable to predict which cases are likely to have long term precedential impact. See: Foa, Pamela, “A Snake in the Path of The Law: The Seventh Circuit’s Non-Publication Rule” 39 U Pitt Law Rev. 309 (1977-78). Thus the facts of the case you treat as non-precedential may have the most profound unintended consequences.

Second, there are costs to leaving an area of law unclear waiting for the perfect case. Any idea what the perfect case looks like?

Third, it is hard to believe that a reasonably competent judge can not explain why a result can be distinguished from or is comparable to a prior decision. If he is troubled by the quality of his explanation, perhaps as Judge Arnold (first blog on this topic) noted, this more likely signals a cause for concern about the quality of the decision rather than its potential for misuse.

Finally, who is to say it is a misuse. Would Anastastoff have been misusing a case because she felt that if a prior party was entitled to a refund even though the IRS received the application after the due date which was mailed before the due date that she was entitled to the same result if she mailed her application before the due date?

Seems to me she was simply asking for equal treatment under the rule of law.

-Larry Salibra
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Why Federal Courts . . . Part 4

Part 4, Justification #2- Federal Judges Are Overworked and Can Dispense With Cases Faster If They Are Unpublished and Non-Precedential

Read Justification #1

This argument posed by the late Judge Becker and his academic supporters can be viewed in full in “Controversial Cases Disappear”, CORPORATE LEGAL TIMES, November 1999, Vol 9. No.96. The late Judge Becker felt that as long as the court offered some explanation for the decision to the parties; it was otherwise fine for a case to be non-precedential because it relieved the court’s work load. The notion of speed of adjudication was supported by an Assistant Professor of Law at Auburn University, who cited a study that concluded that unpublished decisions speeded the resolution of cases. He stated in Corporate Legal Times Article: ‘“If justice is delayed justice is denied, then the limited publication rules do reduce the delay and denial of justice”…’

Both arguments demonstrate a profound misunderstanding of the common law. Precedential impact is important because at the very least it is a check on inconsistent judicial behavior. If a case is clear, undisputed then it should be a simple matter to describe the facts, the applicable law and the result, such that similarly situated parties are treated the same.

One could just imagine Vinny Gambini’s (My Cousin Vinny) response to these assertions applied to facts in the Anastasoff case that concerned Judge Arnold (Part 1): “ Are you telling me that plaintiff A, who mailed her tax refund at the same time as plaintiff B, before the deadline date and both refunds were received by the IRS after the deadline date, that A is not entitled to a judicial ruling that the IRS was compelled to honor the refund even though B got such a ruling because B’s ruling was non-precedential? Judge Becker says it’s OK because we explained the ruling to A—‘B’s decision was not precedential’ and the Auburn Professor says it was fast—therefore A got justice!”

I am done with this one!


-Larry Salibra
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