They're there at every level. We live in an enormously litigious society and the Congress contributes to that. As a result, there's practically no step that's made by anyone in the Pentagon and in the Department of Defense where they do not take into account the legal implications and consult lawyers about it....
There's a pattern in the department, at the top level, the chairman and the chief and the Joint Chiefs will recommend some rules of engagement for a certain circumstance. It will then be sent down the chain of command and it will get to the next command level, maybe the Combatant Commander, and the Combatant Commander will look at it, and then he will not want to violate it. So he might take a little tuck in it. And then it goes down to the next level. And it's got now it's in a country commander. And he looks at it and he doesn't want to break the rule so he takes a little tuck in it. You end up with four or five layers down there taking tucks and you end up with some rules of engagement that don't look like what the chairman of the Joint Chiefs or the Joint Chiefs of Staff or even the Combatant Commander intended. Now why is that? Well, it's fear. It's because of our litigious society. It's because of Congress overseeing things and having hearings.
Showing posts with label litigiousness. Show all posts
Showing posts with label litigiousness. Show all posts
"When I arrived back in 2001 I found 10,000 lawyers in the Department of Defense."
Says Donald Rumsfeld:
Do we really need to worry, as Jack Balkin does, that the states will bring too many lawsuits challenging federal tax laws?
Lawprof Jack Balkin doesn't like the way Judge Hudson dealt with the Anti-Injunction Act in the opinion that allowed Virginia to go forward in its attack on the Obamacare individual mandate:
There is a built-in check here that is not present for those private litigants, which is that elected representatives of the people of a state have gone through a deliberative process in making that statute, and, in addition, the state executive branch has made the decision to bring the lawsuit. These tiers of public accountability make a difference with respect to the necessity of the Anti-Injunction Act.
That act, as Judge Hudson noted, does not refer to a state as being barred from bringing suits for injunctions, only a "person." There's a question of interpretation about whether a state should be included in the word "person," and there's good reason to think it should not. For one thing, the general rule of statutory interpretation is that "person" does not mean state. And, even more important, as I've just explained, structural checks mean that the state as a litigant doesn't present the same problems posed by an individual litigant.
(Also, Balkin can't mean the state would be "claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment." He must have meant to write that the claim would be "the tax provision was beyond the enumerated powers of Congress and thus reserved to the states the states under the Tenth Amendment.")
In essence, Judge Hudson argues that by passing [the Virginia Health Care Freedom Act] that says that Virginia will interpose itself to protect its citizens from the individual mandate, Virginia has succeeded ... in getting around the federal tax-anti-injunction act.
... The fact that Virginia can get around the tax anti-injunction act simply by passing a statute saying that it thinks the federal law is unconstitutional means that every state in the Union can do so as well. This undermines the purposes of the tax anti-injunction act, which was to keep tax protesters from littering the federal courts with protest litigation; the act requires that challenges to tax laws proceed in an orderly fashion through requesting refunds.Tax protesters? You see the states, acting through their legislatures, as presenting the same problem of frivolous, wasteful litigation posed by private litigants?
There is a built-in check here that is not present for those private litigants, which is that elected representatives of the people of a state have gone through a deliberative process in making that statute, and, in addition, the state executive branch has made the decision to bring the lawsuit. These tiers of public accountability make a difference with respect to the necessity of the Anti-Injunction Act.
That act, as Judge Hudson noted, does not refer to a state as being barred from bringing suits for injunctions, only a "person." There's a question of interpretation about whether a state should be included in the word "person," and there's good reason to think it should not. For one thing, the general rule of statutory interpretation is that "person" does not mean state. And, even more important, as I've just explained, structural checks mean that the state as a litigant doesn't present the same problems posed by an individual litigant.
Indeed, the logic of the opinion seems to suggest that if Virginia had objections to any other part of the federal tax laws, it could pass a Virgina Tax Freedom Act related to that provision, claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment.How big of a threat is that? The federal tax power is extremely broad, so that virtually any lawsuit like this would be easily dismissed on the merits. You don't need a broad interpretation of the Anti-Injunction Act to solve this problem. Nearly all of the cases you ask us to fret about would either never be brought or be dismissed quickly for failure to state a claim. In the Virginia case, by contrast, the question on the merits is very difficult, and the judge held back from resolving it. How often could that happen? And when it does happen, should there be a way to challenge it in court?
(Also, Balkin can't mean the state would be "claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment." He must have meant to write that the claim would be "the tax provision was beyond the enumerated powers of Congress and thus reserved to the states the states under the Tenth Amendment.")
Over at Media Matters, Eric Boehlert is writing about me.
Eric Boehlert. Eric Boehlert? Oh, I know where I read his name recently. He's a character in Iowahawk's brilliant "I'll Take a Cashier's Check, Mr. Breitbart." He's the one handing out the assignments:
Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:
Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:
So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.
On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:
EZRA KLEIN: hey boehlert whats the assignmentHa. But why is he on my case? "Ann Althouse continues to blog about Journolist; appears to have no idea what it was," he says. Well, then, release the archive so I can cure my terrible ignorance. That's all I want.
ERIC BOEHLERT: 3 part essay
ERIC BOEHLERT: 1. Explain why unemployment report shows stimulus is working
ERIC BOEHLERT: 2. link BP oil spill to teabaggers
ERIC BOEHLERT: 3. spin latest Gallups
JOSH MARSHALL: crap crap crap and I have a lab assignment for global warming due
ERIC ALTERMAN: o fack me looks like an all niter...
Althouse continues to post item after item about Journolist, despite the fact that... Althouse has no idea what Journolist was.Stop me before I blog ignorantly again, Eric. Send me the archive. Or send it to Breitbart and collect $100,000 and I'll get to it that way.
Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:
Althouse, a law school prof and very public blogger, was thinking out loud about suing the owner of Journolist to find out if any of the 400 journalists on the listserv ever wrote anything nasty about her in their private emails. (Ego much?)Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says. I cited a specific item of defamation against me that was published on the web and that remains there. If I were to sue based on that remark, I would be able to get discovery into relevant evidence about that claim. Moreover, I know that there are specific, related remarks about me in the Journolist archive, because that remark was tweeted, in Ezra Klein's own words, "after I was alerted to her thread on Journolist."
Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:
I would think a law professor might have a better grasp of this. But on what grounds would you seek the archives? To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you, especially when you have no proof they are saying anything defamatory about you.Clue to Boehlert: Not all law is in the Constitution. The tort of defamation is a matter of state law. The extent of discovery is a matter of procedural law. I don't need a constitutional right. (Conceivably, there is a right that would bar my access to the archive, but I don't need a constitutional right to discovery if I bring a defamation claim.)
So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.
***
On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:
Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.The privilege is about shielding confidential news sources — informants. The Journolist archive contains the statements of journalists talking to each other. I don't see how the privilege could apply.
[Journalists] should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.One reason I have no interest in suing is that I want the broadest First Amendment rights here. I would not want to have to argue that the statement in question — "Ann Althouse sure has a lot of anti-semitic commenters" — is not an opinion but a false statement of fact. But I'm afraid it is, quite plainly, a false statement of fact.
"After years of litigation, endless depositions, the fictionalized portrayal of this lawsuit and its litigants on television, and innumerable histrionics, this Court is left to conclude that with this lawsuit, to quote Gertrude Stein, 'there's no there there.'"
And so the federal district judge would shut the drawer on the 1996 scandal known as Filegate.
While this Court seriously entertained the plaintiffs' allegations that their privacy had been violated — and indeed it was, even if not in the sense contemplated by the Privacy Act — after ample opportunity, they have not produced any evidence of the far-reaching conspiracy that sought to use intimate details from FBI files for political assassinations that they alleged. The only thing that they have demonstrated is that this unfortunate episode — about which they do have cause to complain — was exactly what the defendants claimed: a bureaucratic snafu.By the way the there that wasn't there for Gertrude Stein was Oakland, California, which really does exist. She just didn't think much of it. I'm not sure what that says about Filegate.
Ever since Gertrude Stein wrote that there was “no there there” during a return trip to her childhood home in Oakland, California, her words have been distorted to imply that Oakland was a “nowhere,” a dissing along the lines of Neil Young’s “Everyone Knows This Is Nowhere,” which was funny for Young, a transplanted Canadian singer, to write for an U.S. pop market, because Young had really been a Californian before he transplanted himself to California, as Stein had been really been an American in Paris long before she left the U.S., and returning to her “there is no there there,” she later clarified that the Oakland of her childhood was gone, she was commenting on her great theme, not just hers, of course, a great thread in American literature concerning place and memory, we all lose the place of our childhood, and in adulthood clutch that place, or more accurately, a complex tangled image of that place, close to our bosom, as Cather did with her....Hey, wait a minute. I see what he's doing there. That sentence goes on for 1,316 words more. Essay dismissed.
"ACORN Sues Hidden-Camera Filmmakers, Breitbart.com. It should be fun to do discovery on this one."
Glenn Reynolds is pretty sure ACORN is falling into a trap.
Yes, it's almost as if the real point of the videos was to provoke a lawsuit that would open ACORN to the legal intrusions of discovery. And of course, Giles and O'Keefe will get even more publicity, and it shouldn't be hard for them to attract aggressive legal counsel and a hefty litigation fund.
And here's Barney Frank on O'Reilly today:
Yes, it's almost as if the real point of the videos was to provoke a lawsuit that would open ACORN to the legal intrusions of discovery. And of course, Giles and O'Keefe will get even more publicity, and it shouldn't be hard for them to attract aggressive legal counsel and a hefty litigation fund.
And here's Barney Frank on O'Reilly today:
About that AutoAdmit litigation.
The latest.
... Anthony Ciolli, a University of Pennsylvania Law School graduate and former chief education director at AutoAdmit, can press ahead with his lawsuit against Stanford Law School professor Mark Lemley, who worked as counsel at San Francisco-based Keker & Van Nest, two Yale Law School students and others.A huge reason not to sue someone: He'll sue you back. How awful!
Ciolli's lawsuit claims that he was wrongly included as a defendant in a case brought in June 2007 by the two law students, who alleged that AutoAdmit defamed them on its discussion board. He also claims that Boston-based Edwards Angell Palmer & Dodge rescinded its offer of full-time employment because of the alleged connection between him and the statements about the women.....
Named as defendants in his suit are Heide Iravani and Brittan Heller, the former Yale law students; and ReputationDefender, a public relations firm that represented the students. Also named are Lemley; Keker & Van Nest; the Los Angeles-based law firm Rosen & Associates; and attorney David Rosen. Lemley and Rosen were attorneys for the students.
Ciolli's lawsuit alleges wrongful initiation of civil proceedings, abuse of process, libel, slander, false-light invasion of privacy, tortious interference with contract and unauthorized use of name or likeness.
There isn't too much litigation in Wisconsin.
Says the University of Wisconsin Law School.
"The notion that somehow civil justice is hurting business in the state is just totally unfounded," said UW law professor emeritus Marc Galanter....A Wisconsin Manufacturers and Commerce spokesman responds:
Galanter said one intent of the report was to look at what he called the "consistent drumbeat" put forth by Wisconsin Manufacturers and Commerce... that claimed excessive litigation was hurting the state's business climate.
"It should come as a surprise to no one that the UW Law School is trying to say that we don't have enough litigation in Wisconsin... They have a vested interest in trying to graduate as many future lawyers as they can accommodate. So they have an interest in expressing that point of view."
Subscribe to:
Posts (Atom)
