- By being in federal court, we won't have constitutional questions concerning the legitimacy of nationwide class action judgments being decided by state courts ill-equipped to deal with the constitutional questions. It's not that state-court judges are inherently "dumb" or anything like that; it's that the default rule in state courts on conflict-of-laws is "find a way to apply our law." Then, too, there's the whole legitimacy issue and clearer standards for class certification.
- Certain plaintiffs' class counsel whom I hold in minimal high regard will find it more difficult to get named lead counsel in federal actions, primarily because their antics have pissed off too many federal judges. You know who you are. And yes, I did write that brief that implicitly accused you of bad faith and selling your clients down the river. Pffft!
- By consolidating proceedings nationally, and under the far clearer standards of federal discovery and evidence, it's going to be more difficult for certain kinds of marginally ethical defense tactics to paperwork the plaintiffs to death.
- On a total-cost-of-obtaining-judgments basis, it's actually cheaper to be in federal court. Typically, there's only one level of appeal; the opinions one gets from the trial court are clearer and cleaner; and these things ordinarily should be done by
specialistsattorneys who concentrate in class litigation (on both sides) anyway, reducing the ability of "local counsel" to hijack matters for their own egos, gratification, fees, and state-bar monopolistic xenophobia.
I'm returning to my days as a serious chess player: "Are you sure you want to make that move?"
Speaking of bad moves, it looks like David Boies has again had his head handed to him, this time in the SCO v. IBM trial over Linux. Judge Kimball denied IBM's motions for partial summary judgment. His denial, however, was made in the process of bending over backwards to ensure that his final ruling will be unassailable on appeal.
Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities. Further, SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights.
Slip op. at 9 (footnote omitted). I don't know about you, but I'd feel awfully uneasy if this kind of language appeared in a decision denying summary judgment against my client. Perhaps, though, this merely reflects Mr Boies's overinflated reputation and inability to hold onto what he does get on appeal (e.g., Microsoft). I suspect that this has more to do with the kind of factual contexts he gets involved in than in any actual shortcomings; there's little question, though, that his reputation appears to be overstated.
Being thrown into court is bad enough, eh? How about being thrown into the Senate? Bruce Ackerman has penned a thoughtful piece in the London Review of Books on the Supreme Court nomination fight(s) to come. I don't agree with everything in the article, particularly the rhetorical decision to so seriously underplay Souter's history as a "stealth candidate." Nonetheless, I think it does a good job of laying forth the implications of the ideological struggle for the next Justice(s)—even if one doesn't agree with Ackerman's prescription of the "correct" result.