Mass Law Blog

Interview With Founder of SCOTUSBlog

If I could take only one legal blog with me to a desert island, it would be SCOTUSBlog.  (OK, don’t make fun of me).

Seriously, this blog — devoted entirely to the Supreme Court of the United States (“SCOTUS”) — is a fantastic legal resource.  Everything of interest relating to cases before the Supreme Court is collected here: cert. petitions, briefs, decisions and commentary.  There’s a lot going on at the Supreme Court, and this blog collects and organizes all of it.  It has become an indispensable resource for court-followers. In fact, as Mr. Goldstein notes, people within the Supreme Court (presumably law clerks) access the site hundreds of times a day.

The morning the Supreme Court released its decision on the Affordable Care Act this site was the go-to resource for people all over the world.  It even got the ruling right the first time.

Here’s a link to a GoverningWorks interview with Tom Goldstein (video and text but, irritatingly, in five parts, with more to come), founder of SCOTUSBlog, discussing why the blog was created, how it has evolved, the challenges it presents for Mr. Goldstein’s law firm, and more. Interesting reading on the evolution of a blog that has become indispensable.

How to (or Not to) Write for the Supreme Court

How to (or Not to) Write for the Supreme Court

“I’m sorry this letter is so long, I didn’t have time to make it shorter.”
George Bernard Shaw

Non-lawyers see lawyers arguing before judges on television and in the movies, and they get the mistaken impression that oral argument is the heart and soul of lawyering.  In fact, it’s not.  Most judges based their decision on a careful reading of the legal briefs submitted to them.  That’s particularly true of the Supreme Court, where each side to a case may spend hundreds or thousands of hours preparing their written briefs, and get all of 30 minutes per side for oral argument.  This wasn’t always the case – until the mid-1800’s the time for argument was unrestricted, and could go for days.  In 1849 the time per side was limited to two hours.  This was reduced to one hour in 1925, and 30 minutes in 1970.  And, as Justice Alito recently noted, half of the words spoken during those 30 minutes are spoken by the Justices themselves, while questioning the lawyers.

Judge Young, Bulger/Flemmi and "The Government – Our Government"

U.S. Federal District Court Judge William Young has issued a lengthy decision, awarding $2.7 million in damages to the estates of three people murdered by James J. Bulger, Stephen J.

Flemmi, and their associates.  Judge Young describes the story as “harrowing,” which may be an understatement.

The key defendant in this case is the U.S. Government, which will foot the bill if the decision survives appeal.

Here are some quotes, pulled from the opinion, which is linked in all of its gory detail at the bottom of this post.  Judge Young:inst

Despite years of legal wrangling and an extensive factual
record, at its core this is a very simple case. Federal Bureau
of Investigation (“FBI”) agents actively protected a group of
murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. . . .

The FBI’s relationship with Flemmi dates back to 1964, when FBI agent H. Paul Rico opened Flemmi as an informant. Bulger was opened as an informant in 1971. Their recruitment as informants was not an accident. The FBI had made the prosecution of organized crime and La Cosa Nostra its top priority.  To that end, J. Edgar Hoover himself inaugurated the Top Echelon Criminal Informant Program on June 21, 1961. Top echelon informants were defined as those “that would be able to provide high-level information on a major scale.”  Both Flemmi and Bulger were designated as top echelon informants.

[The first victim, Louis Litif, murdered by Bulger, April 1980].

As to the manner of Litif’s murder, the statement to the FBI of the deceased Brian Halloran, establishes that Litif was lured to the Triple O bar where Bulger and an associate ambushed him. The autopsy report as well as expert testimony show that Litif was stabbed dozens of times with an ice-pick-like implement before he was shot in the back of the neck.  Certain of the puncture wounds perforated Litif’s liver, a wound thought to cause exquisite agony.

[The second victim, Debra Davis, Flemmi’s girlfriend of 10 years, September 1981]. (more…)

Spoilation = Destruction of Evidence = Dismissal + Sanctions

Here is a link to Judge Judith Fabricant’s recent decision in Stein v. Clinical Data (reported on the front page of the November 30, 2009 Mass Lawyer’s Weekly), where she found that the plaintiff had destroyed evidence.  Judge Fabricant sanctioned the plaintiff in this case by dismissing his case and ordering him to pay almost a quarter of a million dollars in attorney’s fees and costs to the defendant.  These cases are relatively rare (since the party who destroys evidence rarely is caught), but the consequences to the party who engages in this kind of conduct can be devastating.

Stein v. Clinical Data (SpoilatIon)

Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009.  A few notable quotes from his speech:

On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings.  Predictably, Judge Michel doesn’t like the idea.  He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.”

The median time to adjudicate a patent case before the CAFC?  One year “from filing, to the opinion going up on the Internet.”  Interlocutory appeals would double this to two years.

And, interlocutory appeals are unnecessary as a practical matter, he argues.  Some interesting statistics from Judge Michel:  “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously. Of the remaining 300, about 200 are resolved on summary judgment, almost always based on claim construction. . . . The remaining 100 go to trial. . . . there almost are never second trials. There usually aren’t even first trials.”

On Upcoming Retirements from the CAFC: The CAFC has 11 active judges and five senior judges. . . .  [t]he . . .  little secret here is there are five other judges of our active 11 who could retire tomorrow, or take senior status. . . . [p]otentially five other seats at any time could become vacant.  A year hence . . . two more will be eligible for that conversion of status. So there could be seven more vacancies within a year of tonight.”

On Diversity: “We don’t have and have never had an African-American judge on our Court. Nor do we have an Asian-American heritage judge on our Court. We do have three women out of 16, but three women out of 16 is less than a quarter — it’s half the population.”

As I’ve noted before, Massachusetts U.S. District Judge Patti Saris has been mentioned as a strong candidate for a CAFC seat.

And of course:

Earlier today, I sent a letter to the President informing him of my intention to retire from active judicial service, effective May 31, 2010. . . . I had always imagined I would stay a senior judge until I was carried out of the courthouse in a pine box. But I’ve come to a different conclusion, because I see a huge need for someone to be able to speak out on behalf of the court system generally — of the judges, the lawyers, and the litigants.
"No, You May Not Buy a Judge," Supreme Court Rules, and the Dissent’s "40 Questions"

"No, You May Not Buy a Judge," Supreme Court Rules, and the Dissent’s "40 Questions"

“Turn it over, and turn it over, for all is therein.”

The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935), quoted in Justice Scalia’s dissent in Caperton v. A.T. Massey Coal Co.


In mid-March I wrote a post about the decision facing the Supreme Court in Caperton v. A.T. Massey Coal Co.

The issue was whether a state court judge’s failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process rights of the other party.

The Supreme Court issued a 5-4 decision today, holding that the judge’s failure to recuse in this case did violate the due process clause.

The majority decision was written by Justice Kennedy, who was joined by Justices Stevens, Souter, Ginsburg and Breyer.

Chief Justice Roberts dissented, joined by Justices Scalia, Thomas and Alito. Justice Scalia wrote a separate short dissent.

I am a great fan of unanswerable, hypothetical questions (computers can provide answers, but only people can ask questions), so I quote in full the following “40 questions” from CJ Robert’s dissent. The dissenters intend these questions to show the extent to which the majority opinion has opened the field to collateral litigation over judicial disqualification:

1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?

2. How do we determine whether a given expenditure is“disproportionate”? Disproportionate to what?

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? What about contributions to independent side groups supporting a candidate?

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?

5. Does the amount at issue in the case matter? What if this case were an employment dispute with only $10,000 at stake? What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?

7. How long does the probability of bias last? Does the probability of bias diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection?

8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar? Must the judge recuse in all cases that affect the association’s interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?

9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?

10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?

11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision? Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s?

12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rule making or a suit seeking to limit an agency’s jurisdiction)?

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?

14. Does the due process analysis consider the underlying merits of the suit? Does it matter whether the decision is clearly right (or wrong) as a matter of state law?

15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no“debt of gratitude” to the supporter? Does that “moot” the due process claim?

16. What if the judge voted against the supporter in many other cases?

17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person?

18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies? Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him?

19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim?

20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias? How would we measure whether such support is disproportionate?

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?

22. Does it matter whether the campaign expenditures come from a party or the party’s attorney? If from a lawyer, must the judge recuse in every case involving that attorney?

23. Does what is unconstitutional vary from State to State? What if particular States have a history of expensive judicial elections?

24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?

25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.” . . . But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” . . . and whether the litigant has been able to “choose the judge in his own cause,” ante, at 16. If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election? What if the judge won in a landslide? What if the judge won primarily because of his opponent’s missteps?

26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers?

27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability?

28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election? Reasonably likely to be brought? What about an important but unanticipated case filed shortly after the election?

29. When do we impute a probability of bias from one party to another? Does a contribution from a corporation get imputed to its executives, and vice-versa? Does a contribution or expenditure by one family member get imputed to other family members?

30. What if the election is nonpartisan? What if the election is just a yes-or-no vote about whether to retain an incumbent?

31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements?

32. Are contributions or expenditures in connection with a primary aggregated with those in the general election? What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude?

33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review? Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages? If §1983claims are available, who are the proper defendants?The judge? The whole court? The clerk of court?

34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983? What statutes of limitation should be applied to such suits?

35. What is the proper remedy? After a successful Caper-ton motion, must the parties start from scratch before the lower courts? Is any part of the lower court judgment retained?

36. Does a litigant waive his due process claim if he waits until after decision to raise it? Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias?

37. Are the parties entitled to discovery with respect to the judge’s recusal decision?

38. If a judge erroneously fails to recuse, do we apply harmless-error review?

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?

40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?

Oh, and how does the Babylonian Talmud play into this, you ask?

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious

Who Watches the Watchmen?

Who Watches the Watchmen?

“How does the court have confidence that the public integrity section has public integrity?”
Judge Emmett Sullivan, during the trial of former Senator Ted Stevens


Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why?
FBI Agent: You don’t wanna know the answer to that.
Forensic Investigator: Why doesn’t she wanna know?
Prosecutor: As the prosecutor in this case, I’m obliged to share everything I know with the defense.
Forensic Investigator: [starts to explain…]
Prosecutor: Whoa! Goodnight!

From TV Show “Bones”


Prosecutors have a legal duty to provide criminal defendants with exculpatory evidence. Every criminal prosecutor knows this – it’s probably Rule No.1 for prosecutors: “YOU MUST GIVE DEFENDANT EXCULPATORY EVIDENCE.” This has been a constitutional right since the 1963 Supreme Court decision in Brady v. Maryland.

Rules 2 and 3 are, don’t forget Rule No. 1.

Today’s decision by the Obama Justice Department to dismiss criminal charges against former Senator Ted Stevens means that prosecutors at the highest levels of the DOJ forgot this rule (or disregarded it). This is an enormous embarrassment for DOJ, and a probably a career killer for the attorneys involved, who are likely to be sacked, at the very least. (Keep in mind that former U.S. Attorney General Roberto Gonzales has been unable to find a private law firm job 18 months after his resignation, apparently due to the stigma associated with the assistant AG firings and other controversies associated with his tenure. It’s a tight job market for lawyers these days, but not that tight.)

Vindication is probably small consolation for Senator Stevens, whose loss in the last senatorial election was almost certainly due to his conviction just before the election. At age 85 he may recover his reputation, but he’s not likely to recover his Senate seat.

If a Picture’s Worth a Thousand Words ….

If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier.

And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:

Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

There are lies, damn lies and statistics. Mark Twain


Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search).

Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size.

Here are a few statistics that jumped out at me, based on a quick review:

  • Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and the same number is pending.
    • Nation-wide, about 1,000 were antitrust suits and 9,000 are IP (3,000 patent, copyright, trademark each).
    • About 4400 civil cases went through trial nation-wide in 2008, median time through trial was about 32 months. In D. Mass. the numbers were 81 trials and 27 months.
    • Of the roughly 3,000 cases pending in D. Mass. only about 200, or a little over 6%, have been pending over 3 years.
    • In 2008, nation-wide, about 5,000 civil cases were completed through trial, and of that number about 60% were non-jury trials. In D. Mass the numbers were 126 civil trials, in roughly the same percentages. Of the 126 civil trials in D. Mass only 12 exceeded 10 days in length.
    • The longest civil trials in the nation were 39 days (non-jury trademark trial, D. N.J.) and airplane PI (jury trial, also D. N.J.).
    • 2% of cases pending in 2008 reached trial. However, around 5% of personal injury and employment cases reached trial. Most other categories were well under 2%.

Connecticut Supreme Court Briefs Online

Here’s a link to Connecticut Supreme Court Briefs Onlne, a WordPress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available).

It would be great if every state did this, and if there were a centralized site that provided access to each state (

I’d Like to Hire You Counselor, But First Tell Me What You Contributed to the Judge in the Last Election?

“We will sell to no man … Justice” Magna Carta (1297)

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” Supreme Court Justice Antonin Scalia

“In civilized life, law floats in a sea of ethics” Former Supreme Court Justice Earl Warren

…. “nor shall any State deprive any person of life, liberty, or property, without due process of law” … Fourteenth Amendment to the United States Constitution


Should the Supreme Court extend the Due Process Clause of the Fourteenth Amendment to create a constitutional right to a fair tribunal in the state courts? That’s the issue facing the Court in Caperton v. A.T. Massey Coal Co., which was argued before the Court last week.

The facts are straightforward – in fact, John Grisham adapted them for his novel The Appeal.

Justice Brent D. Benjamin, Supreme Court West Virginia

Caperton won a $50 million judgment against the A.T. Massey Coal Co. in state court in West Virginia in 2002. Unhappy with this outcome, the Massey CEO, Don Blankenship, authorized an appeal to the West Virginia Supreme Court of Appeals (the highest state court in West Virginia). But Blankenship believed that one of the judges on that court was anti-business, and he realized that there would be a judicial election in time to unseat that judge before the appeal was heard. Blankenship helped raise several million dollars in support of the candidate he endorsed, Brent Benjamin. That’s a lot of money for a judicial election in West Virginia, and no surprise, Benjamin won. And, now-“Justice” Benjamin was the “swing vote” in a 3-2 decision that ruled in favor of Massey Coal, overturning the $50 million judgment. During the proceedings Caperton repeatedly asked Justice Benjamin to withdraw from the case based on conflict of interest (or, as lawyers prefer to say, “recuse himself”), but Benjamin, who had sole say on this issue, refused.

Caperton appealed to the federal courts, claiming that he had been denied due process under the 14th Amendment to the U.S. Constitution when Justice Benjamin refused to withdraw from the panel deciding the case. In response, Massey argued (as it had below) that campaign contributions alone were not enough where the contributions had gone to Benjamin’s campaign fund (not to Benjamin personally), and there was no evidence that Justice Benjamin had any “actual” bias.

This is a difficult case for the Court, because the facts are so one-sided in favor of Capterton. Would you like a judge sitting on your case, knowing that his election was probably due to the other side’s overwhelming financial support? This is a classic example of a situation where “hard cases make bad law.” Yet, if the Court accepts Capterton’s argument it may open the floodgates to challenges to judges in state courts throughout the country. As in so many constitutional cases decided by the Court, the question is where to draw the line for the guidance of the lower courts, and how to avoid opening a Pandora’s box of litigation the issue.

It’s easy to think of situations that might face the courts if the Supreme Court rules in favor of Caperton, and several of the Supreme Court judges (Roberts and Scalia), did just this during oral argument. What if the contribution had been made by members of a trade group that had an interest in ongoing litigation? How few members would the trade group have to have before constitutional problems arose? How much contribution money is too much?

More fundamentally, what basis is there to conclude that the Constitution authorizes the federal courts to sit in judgment on judicial disqualification proceedings in the state courts? Does the Constitution empower the federal courts to guard against abuses of this nature by state court judges? What judicial “standard” (or test) should the court create to be applied in future cases? Isn’t this something the states are better left to regulate themselves? Won’t the political process itself eliminate judges who can be bought? After all, the case involving Judge Benjamin has received massive amounts of adverse publicity, and by now, Justice Benjamin may regret his decision not to have recused himself from this case.

The transcript of oral argument (linked below), is quite entertaining. This a “hot bench,” and Ted Olsen, arguing for Capterton, barely got one sentence into his argument before being challenged by Justice Scalia who (with some help from Chief Justice Roberts) had him under attack throughout his argument. It’s not surprising that these two “conservative” justices were hostile to the new due process rights which Mr. Olsen was advocating. The outcome of this case will be of great interest, regardless of the ruling.

Link to the transcript of oral argument in Caperton v. A.T. Massey Coal Co., March 3, 2009