Where to begin? Judges Gone Wild!

There are so many hot stories today:

The Supreme Court just announced its 5-4 decision on the Affordable Care (Health Care) law... ABC News site
and a PDF of the decision)
The firestorm of criticism over Justice Scalia's bitter dissent and announced diatribe following the Arizona Immigration decision... Toobin in The New Yorker is really mild, actually. What was surprising was when Judge Posner came out swinging on Slate!)

But what I figure there will be plenty of time to chew these over & lots of folks chewing... what really want to focus on is:

Judges Searching on the Internet

The Boston Globe ran an interesting story, both on its online Brainiac blog and eventually in its Sunday Ideas print section. The story, by Josh Rothman, is actually distilled from a scholarly law review article by Alison Orr Larsen, "Confronting Supreme Court Fact Finding," forthcoming in the Virginia Law Review. Apparently, Supreme Court justices, and judges at all levels are finding it nearly irresistible to pop onto the Internet to flesh out the information they are given in the briefs and arguments by the parties.

On the one hand, you can look at some of the online research as "taking judicial notice of publicly known facts." It's also fed by the way all law students and lawyers are taught to write. We feel the NEED to provide a citation to back up ALL our statements. So if a judge wants to say the sky is blue, he or she feels nearly compelled to find some authoritative-sounding statement somewhere to support that comment.

But it goes much farther than that. We all know -- especially librarians! -- how seductive it can be to do a little research.

But! This research is in such a different context. When statements and facts are suddenly being introduced, with no ability for parties to examine the source's:

1. Authority or accuracy -- nobody can cross-examine the "witness" when Judge X or Justice Z googles for some info!

2. Fairness -- no lawyer can stand up and object, "Your honor, that is prejudicial to my client, and filled with innuendo!" Just consider that this fact-finding amounts to evidence, and may be hearsay!

3. Impermanent Nature.... The webpage relied upon by Justice Z or Judge X may not look the same or even exist the next day when other justices or the parties want to go and look at it. Librarians and scholars of the Internet call this link-rot. And it is a very poor way to write an opinion, and especially unfair to the parties and to later courts and researchers who may not be able to locate the page at all or in the form that it was used for the decision.

The American Bar Association has actually provided quite an excellent opinion on the matter: Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case? by David H. Tennant and Laurie M. Seal. The opinion goes into considerably more detail than this brief blog post. It also links the reader to the Ethics Rules, The Code of Conduct for United States Judges and the American Bar Association's Model Code of Judicial Conduct. None of these codes specifically mention searching the Internet, but the authors do pull out of the language and commentary some guidance on the matter that seems very helpful. The ABA Model Code of Judicial Conduct, Canon 3, for instance,

("A judge shall perform the duties of judicial office impartially and diligently") The commentary to that canon states, "A judge must not independently investigate facts in a case and must consider only the evidence presented." This comment suggests that judges who obtain information from the Internet and apply the information in resolving factual disputes may be acting inappropriately

The authors also go on to alert the readers very helpfully that

The ABA Joint Commission to Evaluate the Model Code of Judicial Conduct has recently proposed a revision to the Model Code that more specifically restricts judges from accessing the Internet. The Commission's 2004 draft of the Model Code states within its rule 2.09 that "a judge shall not independently investigate facts in a case." The commentary to that rule provides as follows: "The prohibition against a judge investigating the facts of a case independently or through a member of the judge's staff extends to information available in all mediums including electronic access."

Note that I have removed some footnote references from within the text that I am presenting here, in order to make it easier to post to a blog. If you are interested in this topic, I highly recommend following the link to the full report, which is excellent, and not overwhelming.

The illustration of the line of British judges in their new brilliant red robes and wigs marching in what looks suspiciously like a prisoner line is from a story in the Guardian http://www.guardian.co.uk/uk/the-northerner/2012/jan/10/judgebeatricebolton-alsatian

Who's a Person Now?

One of the pet peeves of the Occupy Wall Street and its myriad offshoots is the person-hood of corporations. The recent Supreme Court decision, Citizens United v. Federal Election Commission truly shoved the idea into the faces of American citizenry that corporations are not only citizens but have rights to lobby politicians freely. The decision actually also covers activities of unions as well, but that is not what is animating protesters right now.

The case involved Citizens United, a conservative non-profit organization which aired a film criticizing Democratic candidate Hillary Clinton. The McCain-Feingold Act (more formally titled The Bipartisan Campaign Reform Act of 2002, Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356) prohibits "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by for-profit and not-for profit corporations as well as such ads paid for by unincorporated organizations using money from union or corporate funds. The Court, by 5-4, found this major provision of the McCain-Feingold Act violated the First Amendment free speech rights of the corporations. Citizens United does leave McCain-Feingold controls on foreign corporations and foreign individuals contributing to political campaigns.

I am quite in sympathy with the OWS protesters – I do not like the idea that large corporations’ lobbyists can purchase my legislators’ favors! But I think that the movement that says we should strip corporations of the status of “person” under the law needs to stop and think about the range of unintended consequences that might flow from that action.

I am not a corporate law specialist. When I practiced law, the only corporate law I really focused on was how to “pierce the corporate veil.” I was a poverty lawyer, and as a law student worked for APPALRED, which did a lot of environmental law, too. Piercing the corporate veil means to show that the corporation was set up as a sham, insufficiently funded, just in order to shelter the individuals from the legal consequences of what they were doing – so they could take unfair advantage of the legal fiction of the legal person that a corporation affords.

That fiction was allowed centuries ago, according to Mark Peters, writing in the Boston Globe Ideas section today, and quoting from William S. Laufer has written in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability, corporations began to be given some aspects of personal property rights in British law as early as the 1300's under King Edward III. Corporations’ march toward personhood continued in British law, and by 1765, Laufer and Peters can quote from the Common Laws of England (not clear, but possibly Blackstone?)to distinguish between natural persons (us!) and artificial persons created by law such as corporations and “bodies politic.” The idea is to shelter the board of directors and shareholders of a corporation from liability for any wrongdoing by the corporation, or from bankruptcy if the corporation fails.

When a corporation such as Enron acts as outrageously as it did, this seems so counterintuitive. But, imagine how few people would be willing to take the risk of forming a really large corporation, when they would be liable for the actions of thousands of employees they would never meet. How few people would be willing to take the risk even of forming a less complex corporation if it failing would mean they would lose all of their personal assets! How many people would serve on boards or buy stock if being a part owner or a director meant they would be personally liable for bankruptcy or torts committed by the company? And if that happened, the economic engines of our world would just grind to a halt. Even small businesses would be fewer and much more cautious.

What other unintended consequences would we have to think about? I suspect the bankruptcy laws would have to be overhauled if we changed the status of corporations. I think we would certainly have to change the tax codes.

So, am I bothered by corporate personhood? Yes. In a lot of ways I am. But the legal fiction is intertwined in a lot of different ways into our laws. We would have to be careful in pulling it out by the roots. I am just saying be careful and take your time. But, there is another part to this...

Maybe the fault, dear Brutus, is not in our stars, but in ourselves... That is, perhaps we need to change, not the laws that allow corporations to hold some of the attributes of persons, but the fundamental problem that we are complaining about – their lobbying of legislators. The fact that legislators require funds for campaigning, and that they are susceptible to lobbyists, whether from corporate interests or any other kind, is what really should be troubling us.

Unintended Consequences, Legal Malpractice, and Serendipity

I am always fascinated by examples of unintended consequences. Here is an instance of how the obvious solution may be the wrong one:

As a trial lawyer, I've probably had 50 adverse possession cases, on one side or the other. I also used to teach real estate finance and every few years one of my students would enhance their property holdings by adversely possessing someone else's property. The adverse possession rules are worth knowing for any serious real estate investor.

This is also a big area for legal malpractice since so many lawyers tend to do the absolute wrong thing when consulted by a client complaining of a neighbor encroaching on their property.

As the name implies, one of the things a trespasser has to show in order to acquire title by means of adverse possession is that his occupancy was adverse to that of the titled owner.

All too often, when a landowner complains to his lawyer that someone is trespassing on his property, the lawyer writes a letter telling the trespasser to get off the property or a suit will be filed. This is the wrong thing to do, as it merely helps the trespasser in establishing the required "adversity."

What the lawyer (or landowner) should do is send the trespasser a letter thanking him for taking care of the property and advising that the license to use the property is henceforth revoked (or demand payment of rent if the trespasser wishes to continue staying where he is). If done properly, such a letter is quite helpful in destroying that required element of "adversity," thereby saving the landowner's property. (UPDATE: Hat tip to Andrew Lavoott Bluestone's New York Attorney Malpractice Blog, to which I inadvertently forgot to link.)

Why serendipity? Because I subscribe to way too many blogs--I have over 400 feeds in my Google Reader subscriptions--but every time I decide I need to cut back, I stumble across something really interesting in a blog that I've only been scanning from time to time. My interests are too broad to use any of the RSS filtering tools. I prefer to use an RSS aggregator like Google Reader that lets me skim through scores of feeds very quickly to find the things that catch my eye.