Jan 14, 2014

Justice Breyer and Scalia Talk About Learning Property At Harvard Law School

Oral arguments in Marvin M. Brandt Revocable Trust v. United States were something only a property nerd could possibly enjoy. There were discussions of easements, fee simples, divestments, shifting executory interests, and a host of other topics you no doubt have erased from your memory. You and Justice Breyer both.

During arguments, Justice Breyer was quite candid how he did not remember stuff from his first year property class at HLS, which we waxed somewhat  nostalgically about.

If I try to remember my property class, it vaguely was — which was a great class, A. James Casner, real expert.

Here is Casner’s 1990 obituary in the New York Times. He was on the faculty from 1938 till 1976!

And later, Justice Scalia (in criticizing Mr. Lechner again) notes that James Casner never taught him about the “limited fee.”

JUSTICE KENNEDY: Is there any doctrine in property law that if a right of access is granted and its to the exclusion of all other uses, it’s — it looks for all purposes like absolute control, that it ceases to be an easement and becomes a limited fee? I mean is there some magic that takes place in property law so that if there’s a grant that conveys such total control, is it construed not to be an easement?

MR. LECHNER: I don’t know of any.

JUSTICE KENNEDY: I’ve never seen it.

MR. LECHNER: Roads, highways are conveyed -­

JUSTICE SCALIA: Have you even heard of the term “limited fee” until this case? I never heard it.

MR. LECHNER: Well, I read these -­

JUSTICE SCALIA: James Casner didn’t talk to me about limited fee.

Lechner, who went to the University of Colorado Law School, had heard of it.

MR. LECHNER: I read these cases in law school so I was aware of the term. Thank you.

Good thing the Justices didn’t go to Yale. They don’t even require property!

Here, Justice Breyer struggles with distinguishing between shifting interests, divestitures, and condition subsequents:

JUSTICE BREYER: What they are saying, I think the government’s point is — the other side is saying, and I don’t remember the term of my property law. What’s the right term? It’s — you grant to A, black acre to A and his heirs; it’s a fee simple. But it’s subject to a shifting; it’s subject to divestiture, subject to a condition subsequent. What’s the right term?

MR. LECHNER: Well -­

JUSTICE BREYER: It shifts the — it shifts it back.

MR. LECHNER: A defeasible fee? Or implied conditional -­

JUSTICE BREYER: It could be. There was a technical term they used to have. But anyway, that’s what they’re saying.

I swear I’ve had this same conversation with a student trying to identify the relevant present and future interests in a case.

And this (near) Breyer Page stream of consciousness with references to Bracton is priceless (season should be seizin):


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Jan 14, 2014

Justice Scalia Chastises Lawyer For Reading From Notes

What an awkward exchange in the opening of Marvin M. Brandt Revocable Trust v. United States, between Justice Scalia and Steven Lechner, who was making his first appearance before the Nine.

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­

JUSTICE SCALIA: Counsel, you are not reading this, are you?

Oh isn’t that uncomfortable.

A moment later, Justice Breyer kindly intervened:

JUSTICE BREYER: It’s all right.

Lyle reported on the exchange:

(Lechner’s quite apparent nervousness might well have been explained because, after he had spoken only a few sentences, Justice Antonin Scalia brusquely asked: “You’re not reading this?”  Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.  Lawyers at that lectern are, it seems, supposed to extemporize.)

Pardon the French, but this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.

Robert Thomas adds at the Inverse Condemnation Blog:

You know, we’ve all been there in some venue, haven’t we? We’re all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won’t even go down to muni court naked (so to speak). Especially when what’s at stake is the language in an otherwise obscure 1875 federal statute, where it’s important to get the language just so. To the Justices, oral argument is just another day at the office. And maybe that’s also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument — even those not of obvious public interest that may have in years past, gone unnoticed by the larger media — where counsel’s every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale.

These types of comments ensure that only those inside the Supreme Court bar will be qualified to argue at One First Street.

Update (1/17/14): I link to the audio oral argument, and provide follow-up comments here.

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Jan 14, 2014

Too Big to Fail To Meet General Jurisdiction

I forgot to highlight this chestnut in Justice Sotomayor’s opinion.

In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly “too big to fail”; today the Court deems Daimler “too big for general jurisdiction.”

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Jan 14, 2014

Oklahoma District Judge Questions Why Supreme Court Ignored Baker v. Nelson in Windsor

The Oklahoma District Court opinion, in finding that Baker v. Nelson is no longer controlling, comments on the Court’s curious silence on this point in United States v. Windsor.

Based on the Windsor I decision, it seemed likely that the Supreme Court would address Baker’s precedential value. See Windsor I, 699 F.3d at 178-79 (majority concluding that “doctrinal changes constitute another reason why Baker does not foreclose our disposition of this case); id. at 195 n.3 (Straub, J., concurring in part and dissenting in part) (acknowledging that “questions may stop being ‘insubstantial’ when subsequent doctrinal developments so indicate” but concluding that Supreme Court decisions had not “eroded Baker’s foundations such that it no longer holds sway”). However, no Justice mentioned Baker in any part of the Windsor decision. At least one commentator criticized this silence. Jonah Horwitz, When Too Little is Too Much: Why the Supreme Court Should Either Explain its Opinions or Keep Them to Itself, 98 Minn. L. Rev. Headnotes 1, 2 (2013) (explaining that Baker was “examined in detail” in the Supreme Court briefs and criticizing Supreme Court for failing to discuss Baker) (“For a case of such length and significance, it is nothing short of amazing that no one refers, even in passing, to what struck the lower courts and the litigants as a potentially dispositive case.”).

I’ve also queried this point. During oral arguments, Justice Ginsburg in Perry hinted it was not controlling. The SG agreed.

In any event, Minnesota legalized marriage equality, thus mooting Baker v. Nelson. Kind of.

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Jan 14, 2014

Sotomayor on how addiction in her family impacts her sentencing

Interesting comments from an interview on NPR:

I watched my father, who I knew loved me, kill himself with alcohol; I watched a cousin [Nelson] whom I adored … this person who had an enormous talent and a great intelligence … destroy himself and affect his family with a great deal of pain by ultimately killing himself with drug use.

That has always permitted me … as a judge … to understand that the people who came before me as defendants were human beings with good and potentially very bad things within them. It was not unusual for defendants to have families who depended on them, who loved them, who thought the world of them, even though they had done horrific things. …

When I was being nominated to the [U.S.] Court of Appeals, I was asked [by] the Senate to give them a record of how often I had departed from the then-mandatory sentencing guidelines. And judges were permitted under certain circumstances to depart downward, give a lesser sentence, or depart upwards, give a higher sentence than the guidelines called for. I was shocked to find that I gave less downward departures, lesser sentences, and more greater sentences than the national average. …

I think because of my experiences, however, I could treat that person in my courtroom as an individual and not as a nonentity and at the same time hold them responsible for their acts.

I’ve read that Justice Kennedy dealt with drug addiction in his family, and this has impacted his views on drug laws (and perhaps Gonzales v. Raich).

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Jan 14, 2014

The Pro-Business Roberts Court Strikes Again In (Unanimous) Two Cases

And, somehow, that dastardly Chief Justice persuaded Justices Ginsburg, Breyer, Sotomayor, and Kagan to join along. And, the illusionist that is John Roberts cajoled Ginsburg and Sotomayor to write the opinions denying remedies to those harmed by the Argentinian dirty war, and closing the courthouse doors to victims who needed to pursue a consume class action lawsuit. The humanity! Such a court that is, in the words of Sen. Elizabeth Warren, “wholly owned subsidiary of Big Business.”

See also here, here, and here for previous strikeouts of the pro-business Roberts Court.

More from Walter Olson.

Update: Mea Culpa. I misread the holding of Hood. Here the corporation lost. But in any event, we have two 9-0 opinions.

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Jan 14, 2014

California Bill Would Make It A Crime To Make Your Own Firearm (Without A 3D Printer)

Much of the hullabaloo about 3D Printed guns is sufficiently overblown. For the foreseeable future, it is cheaper and easier to make a homemade “zip” gun out of equipment one can buy from Home Depot. Why spend $10,000 on a 3D-Printer and go through all the steps when you can build one yourself. Or buy one for cheap on the black market.

But a new California law, ostensibly aimed at 3D printed gun, would sweep much further. It would criminalize making your own firearm without permission (and a serial number) from the state. From the sponsor’s press release.

Flanked by representatives from law enforcement and the Brady Campaign to Prevent Gun Violence, Senator Kevin de Leόn (D-Los Angeles) today unveiled legislation to ban the sale, manufacture, purchase and trafficking of plastic and self-assembled firearms – often referred to as “ghost guns” — in California.  Senate Bill 808 requires self-made or assembled guns to contain permanent pieces of metal and to be registered with the Department of Justice through a serial number and gun owner background check.

From the bill:

29180. (a) (1) Prior to making or assembling a firearm, a person making or assembling the firearm shall apply to the Department of Justice for a unique serial number or other mark of identification pursuant to Section 29181.

(2) Within one day of making or assembling a firearm in accordance with paragraph (1), the unique serial number or other mark of identification provided by the department shall be engraved or permanently affixed to the firearm in accordance with regulations prescribed by the department pursuant to Section 29181 and in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued pursuant thereto.

(3) After the serial number provided by the department is engraved or otherwise permanently affixed to the firearm, the person shall notify the department of that fact in a manner and within a time period specified by the department, and with sufficient information to identify the owner of the firearm and the unique serial number or mark of identification provided by the department.

This law would seem to sweep very broadly to anyone who assembles a firearm, whether or not it involves 3D printing. The meaning of “assemble” is not defined. Would this include taking a gun apart, and reassembling a gun? I’ll talk more to some of my friends in California about this.

I am working on an article for the Tennessee Law Review on the 1st Amendment, 2nd Amendment and 3D Printing. One of the topics I’ve been looking into is whether there is a 2nd Amendment right to build your own arms.

An excellent article on this topic is 3D Printers, Obsolete Firearm Supply Controls, and the Right To Build Self-Defense Weapons Under Heller, in the Golden Gate Law Review by Peter Jensen-Haxel. Peter argues that the 2nd Amendment right to bear arms includes the right to build arms. Here are some highlights from this fascinating article:

“Without propounding on the reasonable restrictions that may be appropriate or necessary to temper a right to build arms, responsible individuals who are not prohibited from owning firearms should be allowed to construct self-defense weapons, solely for personal use, that are analogous to models lawfully available in the primary market. The strong interests that support this right includes, among other things, the importance of choosing the device that one’s life might depend on and providing the physically disabled with meaningful access to self-defense. …

Heller can be interpreted to support a general right of individuals to manufacture their own firearms. At the most basic level, the Court *475 implied the right to acquire arms. Under the Court’s historical analysis, home-manufacture is not among the “presumptively lawful” exceptions to Second Amendment protection and indeed appears to be supported in our nation’s tradition. Heller also indicates that individual autonomy, which would be greatly furthered by the right to home-manufacture, is important in determining the scope of the right to bear arms. Finally, the Second Amendment contemplates tyranny and anarchy, situations in which industrial production of arms, and thus normal channels of acquisition, would cease. …

Prohibiting acquisition of firearms disables the Second Amendment right no less than Washington D.C.’s invalidated disassembly requirement. Along these lines, scholars have interpreted Heller to protect not just the acquisition of guns,189 but also access to ammunition190 and proper training,191 all three necessary to render guns effective self-defense tools. The Seventh Circuit, reasoning that the right to possess firearms implies the right to acquire them and maintain *476 proficiency in their use, recently enjoined a ban on shooting ranges in Chicago along with other restrictions barring ambulation of weapons to such ranges.192 It appears that the Court tacitly recognizes that some form of acquisition, even if heavily burdened,193 is necessarily implied by the right to bear arms.

Stay tuned. I hope to have my draft online in February.

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Jan 14, 2014

Justice Ginsburg Calls Out Sotomayor for “Selectively Referring to the Trial Court Record”

In a footnote that takes up almost entire page in Daimler v. Bauman, Jusice Ginsburg singles out Justice Sotomayor for “selectively referring to the trial court record” in Perkins v.  Benguet Consol. Mining Co. (1952).

RBG notes that Sotomayor “selectively referr[ed] to the trial record” as “summarized in an opinion of the intermediate appellate court”:

Selectively referring to the trial court record in Perkins (as summa- rized in an opinion of the intermediate appellate court), JUSTICE SOTOMAYOR posits that Benguet may have had extensive operations in places other than Ohio. See post, at 11–12, n. 8 (opinion concurring in judgment) (“By the time the suit [in Perkins] was commenced, the company had resumed its considerable operations in the Philippines,” “rebuilding its properties there” and “purchasing machinery, supplies and equipment.” (internal quotation marks omitted)). See also post, at 7–8, n. 5 (many of the corporation’s “key management decisions” were made by the out-of-state purchasing agent and chief of staff).

But even more striking, RBG writes that Sotomayor “overlooks this Court’s opinion in Perkins and the point on which that opinion turned.” That a serious charge–especially when joined by 8 Justices. I imagine if one Justice was not comfortable with that language, it would’ve been stripped, or at the least toned down.

JUSTICE SOTOMAYOR’s account overlooks this Court’s opinion in Perkins and the point on which that opinion turned: All of Benguet’s activities were directed by the company’s president from within Ohio. See Perkins v. Benguet Consol. Mining Co., 342 U. S. 437, 447–448 (1952) (company’s Philippine mining operations “were completely halted during the occupation . . . by the Japanese”; and the company’s president, from his Ohio office, “supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines and . . . dispatched funds to cover purchases of machinery for such rehabilitation”).

But RBG didn’t stop there. She noted that in a previous unanimous opinion Sotomayor joined, she *agreed* with the recitation of facts in the Court’s majority opinion.

On another day, JUSTICE SOTOMAYOR joined a unanimous Court in recognizing: “To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio . . . .” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___, ___ (2011) (slip op., at 11). Given the wartime circumstances, Ohio could be considered “a surrogate for the place of incorporation or head office.” von Mehren & Trautman 1144. See also ibid. (Perkins “should be regarded as a decision on its exceptional facts, not as a significant reaffirmation of obsolescing notions of general jurisdiction” based on nothing more than a corporation’s “doing busi- ness” in a forum).

That is quite harsh to not only single her out for misstating the record and the Court’s opinion, but by implying that she is contradicting herself. RBG continues to pile it on, and says “no fair reader” of the opinion could read it the way Sotomayor did.

JUSTICE SOTOMAYOR emphasizes Perkins’ statement that Benguet’s Ohio contacts, while “continuous and systematic,” were but a “limited . . . part of its general business.” 342 U. S., at 438. Describing the company’s “wartime activities” as “necessarily limited,” id., at 448, however, this Court had in mind the diminution in operations resulting from the Japanese occupation and the ensuing shutdown of the com- pany’s Philippine mines. No fair reader of the full opinion in Perkins could conclude that the Court meant to convey anything other than that Ohio was the center of the corporation’s wartime activities. But cf. post, at 9 (“If anything, [Perkins] intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere.”).

Again, 8 Justices had to sign off on this. This is not some Scalia or Alito snark.

Here is Justice Sotomayor’s response in footnote 7.

The majority suggests that I misinterpret language in Perkins that I do not even cite. Ante, at 11, n. 8. The majority is quite correct that it has found a sentence in Perkins that does not address whether most of the Philippine corporation’s activities took place outside of Ohio. See ante, at 11, n. 8 (noting that Perkins described the company’s “wartime activities” as “necessarily limited,” 342 U. S., at 448). That is why I did not mention it. I instead rely on a sentence in Perkins’ opening para­ graph: “The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business.” Id., at 438. That sentence obviously does convey that most of the corporation’s activities occurred in “places other than Ohio,” ante, at 11, n. 8. This is not surprising given that the company’s Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Francisco. Perkins, 88 Ohio App., at 123–124, 95 N. E. 2d, at 8; see also n. 8, infra.

In a later footnote, Sotomayor retorts that the majority’s reading of Perkins is “wrong.”

The majority apparently thinks that the Philippine corporate defend­ ant in Perkins did not have meaningful operations in places other than Ohio. See ante, at 10–11, and n. 8. But one cannot get past the second sentence of Perkins before realizing that is wrong. That sentence reads:

“The corporation has been carrying on in Ohio a continuous and sys­ tematic, but limited, part of its general business.” 342 U. S., at 438. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how “limited” the company’s Ohio contacts—which included a single officer keeping files and managing affairs from his Ohio home office—were in comparison with its “general business” operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, “‘re­ building its properties’ ” there and purchasing “ ‘machinery, supplies and equipment.’ ” 88 Ohio App., at 123–124, 95 N. E. 2d, at 8. More­ over, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philip­ pines. Id., at 124, 95 N. E. 2d, at 8. The San Francisco purchasing agent negotiated the purchase of the company’s machinery and supplies “‘on the direction of the Company’s Chief of Staff in Manila,’” ibid., a fact that squarely refutes the majority’s assertion that “[a]ll of Ben­ guet’s activities were directed by the company’s president from within Ohio,” ante, at 11, n. 8. And the vast majority of the company’s board of directors meetings took place outside Ohio, in locations such as Wash­ ington, New York, and San Francisco. 88 Ohio App., at 125, 94 N. E. 2d, at 8.

In light of these facts, it is all but impossible to reconcile the result in Perkins with the proportionality test the majority announces today. Goodyear’s use of the phrase “at home” is thus better understood to require the same general jurisdiction inquiry that Perkins required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have.

I haven’t read Perkins, so I will avoid making any comment on who gets the better point in this tiff.

This isn’t the first time another Justice has singled out Justice Sotomayor for misstating the record. In the Court’s DIG of Boyer v. Louisiana, Justice Alito, joined by Scalia and Thomas, notes that Sotomayor’s dissental gets the record wrong.

*The dissent also claims that “Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense.” Post,at 8; see post, at 5, n. 3. But the dissent’s only citation is to the State’s argument in the alternative that even if the legislature’s failure to appropriate funds for the defense caused the delay, that delay should not count against the prosecution for purposes of Louisiana’s statutory speedy trial requirement. The State in no way conceded that it caused the delay in this case. Indeed, the very next paragraph of the State’s brief argued that “the defendant sought to delay the inception of his trial via his funding motion.” App. 317a.

I suspect these are not accusations that Justices make lightly, so it is significant that this is happened twice (by my count) in the last year against Justice Sotomayor.

Update: In Perry v. New Hampshire, back in 2012, Justice Ginsburg wrote another opinion for 8 members of the Court, with Justice Sotomayor dissenting. And, like today, she calls out Sotomayor for misreading precedents and “inventing” a “longstanding rule.”

The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, at 6, 9, 14–17. Neither Perry nor the dissent, however, points to a singlecase in which we have required pretrial screening absent a policearranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of thepolice arrangement that underlies every one of them, and inventing [sic should be invents] a “longstanding rule,” post, at 6, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 1, 7, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intendedthe arranged procedure to be suggestive.

Update: Later in Bauman RBG zings Sotomayor with this blade:

In other words, she favors a resolution fit for this day and case only.

I would love to learn the background of this case.

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Jan 14, 2014

Video: Mock Law School Class For New Law Student During Orientation

I remember very clearly my first day of law school. I was so, so confused. As I recount in my essay, “From Being One L to Teaching One L” (which will be published in an updated edition of the classic “One L”), I didn’t even know what One L meant during the orientation:

When I applied to law school, I knew next-to-nothing about law school. I really walked into it blind—I would say legally blond, but I am brunette. I had no friends or family members who were attorneys. The only political science class I had ever taken was in high school—and I distinctly remember mistakenly writing on an exam that Thomas Jefferson, and not James Madison, wrote the Constitution. I didn’t know what a tort was. I had no idea what the Socratic Method was. I didn’t know what Law Review was. I didn’t know what “clerking” was. At orientation there were thirteen tables, to represent each Circuit Court of Appeals. I didn’t know what a “Circuit” was.

When I started briefing cases, I would always take note to write down the Judge’s name. Though, I did find one oddity: all of the Judges had a first initial of “J.” “Such a coincidence,” I wondered. And what about “C.J.” I wondered? Curious initials for a Judge. It took me a solid month before I realized the “J” stood for Judge. Even then, when several names were listed, followed by J.J. after the last Judge, I figured that meant “Junior Judge” and they were listed in order of seniority, with the newest Judge last.

I had never read or heard of Scott Turow’s classic, One L. For that matter, I didn’t even know what One L meant. During orientation, someone asked if I was a 1L. I gazed back, and inquired what that was?

It is with this backdrop that I was honored today to give a 75-minute “mock class” to the incoming 1Ls who start class tomorrow. My goal was to explain, from top to bottom, what law school is, what reading a case means, what is expected of them in class, and how to take notes and prepare for exams. In other words, I told them all of the things I wish someone had told me during orientation. And I made sure to explain that “J.” following a judge’s name meant Judge, not their first initial (as I had thought).

Here is the video of that class. The first 30 minutes or so are me talking about what they need to know to succeed as law students. During the last 45 minutes I walk through Pierson v. Post, not to teach them about property law (though I hope they learned some), but instead to highlight how they should read a case. From simple stuff (translating the information from the caption into the procedural posture) to more complicated stuff (parsing out the holding in a single sentence, notwithstanding the many exceptions), to stuff that is hard for students to do (explain why a position they disagree with is right). I hope they learned something from it. Looking at their faces brought me right to GMU orientation.

If you have any friends starting law school, please share this video with them.


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Jan 14, 2014

Litigation Finance Firm Raises $310 Million

Gerchen Keller Capital, a “litigation finance” firm that invests in litigation, expecting a cut of the proceeds, has raised $300 million.

An upstart investment firm that bets on lawsuits has raised hundreds of millions of dollars for its second fund.

The firm, Gerchen Keller Capital, is expected to announce on Monday that it has amassed about $260 million for the fund, bringing its total investor commitments to $310 million. The fresh capital, coming less than a year after Gerchen Keller opened its doors, underscores investors’ confidence in an obscure corner of Wall Street that has gained adherents in recent years.

Litigation finance, as the business is known, often involves bankrolling plaintiffs in exchange for a slice of the lawsuit’s potential winnings. Some firms, including Gerchen Keller, can invest in defendants as well, by advancing legal fees and then collecting a return if the case is successful. If the case fails, the investors walk away with nothing.

Gerchen Keller invests only in litigation between institutions, including contract disputes and intellectual property feuds. The firm and its rivals steer clear of consumer class-action lawsuits or personal injury cases.

Since raising $100 million for its first fund last spring, Gerchen Keller has invested in “more than a dozen” cases, according to the firm, which is bound by confidentiality agreements not to disclose the names of particular cases. (The new fund includes the rollover of some commitments from the first fund.)

And you can be sure they will rely on quantitative legal predictions to, literally,  hedge their bets.

I wonder what influence, if any they exert on the parties. For example, say the parties want to settle for a small amount. Could the firm advance more money to go to trial? Or, say the party wants to go trial, but to minimize litigation costs, the firm could nudge a settlement.

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Jan 14, 2014

Liptak on Utah’s Evolving Arguments in Support of Same-Sex Marriage Ban

In the new Sidebar column, Adam Liptak chronicles how Utah’s arguments in favor of their SSM ban have evolved from before Judge Shelby to the stay before the Court, to the reply brief. In short, Utah has dropped the “responsible procreation” argument, which I noted earlier would not gain any traction.

In the trial court, they started with “reasonable procreation.”

In the trial court, the state had argued that restricting marriage to a man and a woman would make heterosexual couples act more responsibly when they had sex. In the Supreme Court, the state threw that “responsible procreation” argument overboard in favor of one focused on “optimal parenting.” By the time it filed its final brief on Jan. 6, the state had introduced a fresh argument, drawn from the Supreme Court’s decisions on affirmative action.

The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that “the traditional definition of marriage reinforces responsible procreation.” The government benefits that come with marriage, the state said, encourage opposite-sex couples to form stable families “in which their planned, and especially unplanned, biological children may be raised.”

Then they turned to “social science” research showing children are best raised by biological-married parents.

In the Supreme Court, state officials changed tack and pressed a different argument, one built on a contested premise.

“A substantial body of social science research confirms,” the brief said, “that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.”

Next they pivoted to a policy of pursuing “gender diversity” in marriage.

In the Supreme Court, Utah refined its argument.

“The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,” the state said.

But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing “gender diversity” in marriages. “Society has long recognized that diversity in education brings a host of benefits to students,” the brief said. “If that is true in education, why not in parenting?”

Did I read that right? Here is the full excerpt from the brief.

Although they attempt to address the first proposition — i.e., that children generally do better in various ways when raised by a mother and father, at least one of whom (or preferably both) is a biological parent — Respondents attack a straw man: They mischaracterize this point as an argument that “same-sex parents are inferior to opposite-sex parents.” That is not the point: The State does not contend that the individual parents in same-sex couples are somehow “inferior” as parents to the individual parents who are involved in married, mother-father parenting. The point, rather, is that thecombination of male and female parents is likely to draw from the strengths of both genders in ways that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children.

That this would be so is hardly surprising. Society has long recognized that diversity in education brings a host of benefits to students. If that is true in education, why not in parenting? At a minimum, the State and its people could rationally conclude that gender diversity — i.e., complementarity — in parenting is likely to be beneficial to children. And the State and its people could therefore rationally decide to encourage such diversity by limiting the coveted status of “marriage” to man-woman unions.

My concerns about Monte Neil Stewart’s qualifications to appear in this case grow.

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