You Win Some, You Lose Some

The winner: public safety and NFL players themselves, if somewhat paternalistically. Maurice Clarett lost his antitrust challenge to the NFL's refusal to allow him to enter the draft.

Clarett argues that the NFL clubs are horizontal competitors for the labor of professional football players and thus may not agree that a player will be hired only after three full football seasons have elapsed following that player's high school graduation. That characterization, however, neglects that the labor market for NFL players is organized around a collective bargaining relationship that is provided for and promoted by federal labor law, and that the NFL clubs, as a multi-employer bargaining unit, can act jointly in setting the terms and conditions of players' employment and the rules of the sport without risking antitrust liability. For those reasons, the NFL argues that federal labor law favoring and governing the collective bargaining process precludes the application of the antitrust laws to its eligibility rules. We agree.

Clarett v. National Football League, No. 04-0943 (2d Cir. May 24, 2004), slip op. at 11 (PDF). The bargaining agreement functions to prohibit persons under 21, with a few exceptions (and those probably only a matter of months), from signing NFL contracts. There are good physiological reasons for waiting beyond 18 in such a high-contact sport—particularly since it is only a sport. Now, if they'll just admit that college football is really minor-league professional football and stop the pretense at "amateurism"…

Some losers: The officer corps. The Geneva Convention. Civilization. Phil Carter comments as follows on the revelation that a company commander and a high-ranking NCO at Abu Gh'raib are set to testify that the prisoner abuse was consistent with orders from higher headquarters:

[T]hese leaders' testimony will corroborate the "we were just following orders" defense of the soldiers, by showing the level of command involvement at Abu Ghraib. If there was enough pressure from the top to make the CO and 1SG go along, then surely you can't expect some privates and sergeants to resist orders like these, right? (At least, that's the theory the defense will offer.) My prediction is that this testimony will be key to the defense, and that it may ultimately exculpate the defendants or result in a reduced sentence.

"Did top officers know about Abu Ghraib?" (23 May 04). Without excusing anyone for issuing such orders—assuming arguendo that they were in fact issued and known to the accused soldiers, which although not yet established by evidence looks increasingly likely—the "Nurmeburg Defense" should not do more than mitigate the sentence, even for private soldiers. Nobody can reasonably argue that this was a battlefield situation requiring a snap judgment. As Lt Calley—another individual brought into daylight by Seymour Hersh—found to his detriment, the law requires one to disobey a patently unlawful order. The only question relevant to the court is (or should be) just how clear those orders were. If the orders were unlawful and the soldiers went beyond the scope of the orders, then the orders should provide exactly no benefit at all.

What I find most frightening about this whole controversy is that it was far from difficult to anticipate. In the early 1990s, I was a "guest Assistant Professor of Aerospace Science" for the seniors at the University of Illinois. I used a "problem method" for studying ethics and military law problems in class. One problem that I developed—a problem that resulted in a lot of class discussion spilling outside the hour and onto the exam—was an Air Force-context My Lai incident in Iraq. What really frightens me is that one of the hypotheticals that I had ready—in 1993, mind you—was a prisoner-abuse situation. The spirited discussion never allowed me to get to that particular scenario. But there are (depending on how long they stayed in) forty or so USAF officers who have at least had to think through this situation before.

We have met the enemy. And he is us.

Dept. of Unintended Irony

At the local library, I recently came across several ironic entries in the publishing hall of fame. Or shame. Or infamy. But, in any event, I suspect that the irony is unintentional.

• The title of this one says it all: The Complete Idiot's Guide to Past Life Regression.
• A book that shall remain nameless on the process of becoming a professional magazine-article writer. So far, so good; but the author's name is not well-known, even in his purported area of specialization. That warning sign, though, is far less than the imprint. You guessed it: this book was published by a vanity press.
• The execreble Ollie North's book on current affairs is entitled War Stories. He's execreble not because of his politics—or at least not because of his politics alone—but because he damned well should have been court-martialled for violations of Article 107 (False Official Statement) and Article 133 (Conduct Unbecoming an Officer), among others, for his role in lying to Congress during Iran-Contra. Whether one approves of the underlying policies or not, commissioned officers don't lie to Congress. They may evade the question; they may refuse to answer the question; they don't lie. And wrapping everything up in "war stories" today…

Marketing Over Substance. Again.

It appears that Amazon has not learned a damned thing from objections to Search Inside the Book last fall. Its "new" (well, it's a couple of months old, but it's at a new address) SITB publisher sign-up form has more problems than I can shake a stick at. But not more problems than I could name in a complaint complying with Fed. R. Civ. P. 8—particularly since Amazon is on legal notice of the scope of the problems inherent in SITB.

The "disclaimer"—and, in reality, that is all this is—at the top of the form is particularly obnoxious.

To get started in the Search Inside the Book program, you must be the exclusive rights holder (including copyright and marketing/promotion rights) of the titles you wish to submit to our Search Inside the Book program.

Aside from being insufficient on its face, note that it still makes the Tasini assumption: that the entire book is the only meaningful rights/copyright unit. This invalid assumption was specifically pointed out to Amazon, in writing, several times last fall. This is not even an arguable position, particularly in Washington (which falls inside the Ninth Circuit, and therefore squarely inside of Napster).

Second, and perhaps more interestingly, note that there is no provision for a signature on the form. Under the Copyright Act, transferring any right resting on the Act may be done only with a signed writing. Well, OK, it is an electronic form, so perhaps an electronic signature might be good enough. Might be. But this form doesn't even do that—not under New York, California, or Illinois law; not under UCITA; and not under Washington State law. I promise that I won't mention the words "legal" and either "malpractice" or "ethics" immediately next to each other: I'll put conjunctions between them.

The real problem here is that the program still reflects the "neato marketing strategy" focus inherent in the whole program. SITB is one of those "we'll do this because we can, and to hell with the rights of anyone else connected to it" marketing strategies to popular in the entertainment industry. One might draw comparisons between SITB and the "justifications" offered for Napster and KaZaa (and all of the other systems that might—wink wink nudge nudge know what I mean—enable copyright piracy), with the exception that Amazon's system at least bears some arguable relationship to an actual sales effort. Arguable only, though; that is only the general context.

Third, and perhaps most interestingly, the actual "participation agreement" requires agreeing that Amazon may "reproduce the entirety of each Book". In other words, this implicitly denies participation in the program to any multi-rights-holder book; but this is not noted on the enrollment form, nor are various terms necessary to understand what this clause really means defined anywhere in the "participation agreement." Compare this language to the language at the top of the enrollment form (quoted above) and you'll see exactly what I'm talking about.

That's enough. Let's just say that this program could not be put to death under the Supreme Court's guidelines for execution of the intellectually incapable. And, sadly, that it reflects more thought and originality than most publishing/entertainment industry marketing efforts.

Professor Ribstein, in response to my recent Frankenstein moment, notes that

So the African-American owners of this SBA-certified minority-owned contractor shouldn't lose their civil rights because they chose to do business in the corporate form. They might be required to sue as a corporation, as in this case, because that's a convenient way to handle litigation, but that doesn't determine their individual rights.

The first sentence finds no disagreement here. As Professor Ribstein notes, the business form that will appear on the contract if a business arrangement is agreed to is not relevant to the civil rights of the individuals who might assert discrimination claims. So far, so good. I cannot agree with the second sentence, though; corporations, at least economically, are not supposed to be "a convenient way to handle litigation." That makes the corporations into persons for purposes of discrimination claims. The corporate context is merely that as to individual claims: the factual circumstances that describe the alleged discrimination. If the group of plaintiffs in question is large, then a class action is an equally "convenient" method of "handling litigation" that does not result in granting rights to an unnatural person that begin to awaken the monster.

This may sound very much like a resort to hypertechnical rules of procedure. In a sense, it is; but it is a hypertechnical attempt to limit the effect of other hypertechnical rules. Consider, for example, the limited parnership, which has "less" personhood than does a corporation. (This is beginning to get truly surreal…) At the extreme, consider the unincorporated association of independent business entities that act as a group. Would, perhaps, the Corleone "crime family" have a proper discrimination claim (not necessarily one it could win, mind you, but merely one over which there would be procedural jurisdiction) on the basis of national origin and ethnicity? Again, I think that the class action provides a vastly superior means of dealing with the situation, particularly since the reality is that many of the natural-person victims are best treated as class members, unless each of them had significant and individual participation in the subject transaction. But, in that instance, they also each have an appropriate individual cause of action—which would make the corporate actor a particularly inconvenient focus for litigation management.

So, in the end, I remain troubled by the anthropomorphism of treating a corporation as if it has human aspects not related to its economic purpose. It is one thing entirely to allow an economic entity to obtain redress—or be the source of redress—for economic harms. It is another thing to bootstrap that economic existence into noneconomic contexts—and, as I noted earlier, one that has been explored much more thoroughly in speculative fiction than in legal theory.

Abridged Edition

In the US, many of us—even many of us who should know better—often fondly think of the UK as another bastion of democracy and free speech. In publishing industry terms, the free speech Over There is an abridged edition. That the media marketplace is creating the same danger over here, in the name of profit protection, is nearly as serious.

Mr. Unger said he was not angry at his erstwhile British publisher, but rather unnerved by his crash course in British libel law. "It makes you love the First Amendment all the more," he said. "It's rather shocking what we take for granted as journalists in the United States, and what you cannot say in England."

If nothing else, this illustrates the point that the burden of proof is strongly outcome-directing. In publishing-oriented cases (copyright, trademark related to publishing products, publishing contracts, and defamation by media) in the last decade of so, for those cases that have actually been filed it appears that the party with the burden of proof loses over 70% of the time. At least, for those jurisdictions that I have been able to study; and, although that doesn't include some significant jurisdictions, such as the Tennessee state courts, the difference between the other state jurisdictions is not statistically significant. The sampling technique is not rigorous enough to quantify the effect for purposes of making predictions; it is, however, enough to draw a general conclusion: that the burden of proof gives a better than two-to-one advantage to the party in the defensive posture.

In today's Guardian, Philip James has some fascinating and disturbing (not to mention entirely expected for those of us who were inside the Beltway during the reign of George II) observations on George III's courtiers' imperious and condescending attitude:

Russert got the chance to ask his last question of Powell, on how he felt now about all the bogus intelligence he was given to present as fact to the UN in the month before the war. But a much larger point had already been made: with the possible exception of Colin Powell, this administration believes itself to be beyond criticism. The Soviet-style manner in which Republican operative Miller, who used to work for the majority leader, Tom "the Hammer" DeLay, tried to muzzle an interviewer once the questioning no longer pleased her betrayed an arrogance that goes to the core of this White House….

Four years on, the seeds of this administration's hubris are springing up all over. A month after the world pulled back the veil on the seamy details of the Abu Ghraib prisoner abuse scandal, the Bush spin machine would like people to believe that the outrageous actions of the prison guards were isolated incidents by a few bad apples. But documents that this White House hoped would never see the light of day clearly show that it created the atmosphere where such abuses could take place. The legal opinion of White House counsel Alberto Gonzales — that the US should ignore the Geneva Convention in its global "war on terror" — is evidence that something close to an Übermensch complex has travelled down from the top. Despite protestations that this memo was meant to apply only to Taliban and al–Qaida suspects at Guantánamo — itself a questionable position — it is clear that US commanders in the Iraqi theatre used it to justify applying torture there as an interrogation technique.

"The Ugly Face of Power" (fake paragraphing removed for clarity).

These observations are interesting and valid, as far as they go. I do not think they delve deeply enough into the mindset of totalitarians—and make no mistake, that crack about "Soviet-style manner" is far more accurate than the public actually sees—who dominate the Republican leadership and activists (and form a too-large, if in my experience slightly lower, proportion of the Democratic leadership and activists). The problem is not with policy, or even with ideology; it is with the pursuit, consolidation, and exercise of raw power. I realize that sounds rather strange coming from someone with my background, particularly my pre-law background; but this is precisely why I "lost confidence in the senior uniformed and civilian leadership of the military" and tendered my resignation. I signed on to protect the Constitution against all enemies, foreign and domestic—not just against the foreign ones.

We have substituted an even greater degree of intellectually and ethical dishonesty for the naked financial dishonesty and "dirty tricks" visible during the Watergate scandal. This is perhaps the best argument one can make against the "two-party system"; I am still having trouble coming up with an alternative that does not in the end have the same flaws, though, so maybe this kind of nonmonetary corruption is part of the price we pay for our form of government. One thing is for sure: This nonsense makes me a lot more cynical about those who bitch, whine, and moan about the "arrogant, imperial use of naked power by judicial activists." At least judicial activists have to give one a written opinion to demonstrate their arrogance… presuming, that is, that "judicial activism" means anything other than "judges who don't get the right result in cases in which I have a personal interest."

The Slammer

Sometimes white-collar criminals get what they deserve. Such as, for example, Zachary Hill, a notorious phisherman. Without having seen the sentencing report or indictment, I am only inferring this: But it appears that Judge Gilmore may have given him within a couple of months of the maximum sentence under the evil United States Sentencing Guidelines. The most likely guideline range would be 42-47 months, and she gave Hill 46 months.

Of course, this is just one phisherman; and, like catching gillnetters, a couple of successes aren't going to be much of a deterrent to such a low-cost, low-risk activity.

It's Aliiiiiiiiive!

The Ninth Circuit gave us a true Frankenstein moment on Monday. In Thinket Ink (PDF), a panel held that

if a corporation either suffers discrimination harm cognizable under § 1981, or has acquired an imputed racial identity, it is sufficiently within the statutory zone of interest to have prudential standing to bring an action under § 1981.

Id., slip op. at 6343 (emphasis added).

Why is this a Frankenstein moment? Because by implication it means that the corporation, an unnatural person, has taken on yet more aspects from natural (real) persons: race, religion, ethnicity, and gender. This leads to some very, very interesting (and difficult) questions of constitutional and statutory interpretation; and of the relationship among law, policy, and reality; and of speculative fiction.

To begin with, I'm going to object that stare decisis—obedience to precedent—is not always a good thing, particularly when the precedent doesn't say what it has been assumed to say. Corporations in this country are treated as "persons" for Fourteenth Amendment purposes on the basis of remarks made by the Reporter of Decisions in the syllabus of a couple of related nineteenth-century Supreme Court cases. Santa Clara County Rwy. is not, in any event, a model of clear prose or good logic; the key, though, is that almost without question since then corporations have been treated as "persons" that have due process and equal protection rights. In logical terms, then, if the corporation can be said to have a characteristic that is protected by civil rights statutes based upon the Fourteenth Amendment—such as § 1981—it is not unreasonable to extend those civil rights statutes to corporations in both directions. That is, the corporations have both the obligation to respect those civil rights in natural persons, and have the right to have those civil rights respected as to themselves.

I'm sure that the Perfesser, in particular, will have something much more profound to say about this than do I. I am troubled, though, by the obvious disjuncture between the theory that a corporation acts/has function/has existence only through the actions of its officers—one of the shared tenets of virtually all competing theories of corporate law—and the reification of the corporation as an alter ego of its officers in the sense of sharing its officers' "protected" or "suspect" classifications. It seems to me that one cannot have it both ways: Pierce the veil for purposes of granting rights, and deny it for purposes of enforcing them. At least, one cannot have it both ways absent statutory or constitutional authorization for the distinction.

The difficulty with this, of course, is that such authorization seems wanting. One can, I suppose, "broadly read" the Constitutional language to include unnatural persons; that's the whole point of Santa Clara's dictum. Whether that meaning was a plausible interpretation at the time of the Fourteenth Amendment is open to some dispute; however, it is not open to dispute for the Constitutional Convention. I may have missed something, but I've found nothing in the records of the convention indicating that corporate "personhood" was even contemplated; and there are plenty of linguistic clues in the Constitution as adopted indicating otherwise. Similarly, § 1981 could broadly be read to allow a corporation to assume the classifications of its owners; but it would be much better if the statute explicitly did so.

All of which comes back to the question of "prudential standing." I think the conclusion—that, if corporations do indeed have the characteristics of a suspect/protected class, they should be allowed to assert antidiscrimination causes of action related to those characteristics—is pretty sound policy and logic. What I question is the premise: that (to use the specifics of this case) an African-American-owned close-hold corporation can also be itself an "African-American unnatural person." It seems to me that this requires an osmosis of personal characteristics that is not consistent with the concept of limited liability and the distinction between corporate and personal assets. Perhaps the "right" approach is to on the one hand, allow a corporation to choose such recognition, but conversely weaken its corporate veil as a price for asserting that recognition.

What this really points out, perhaps more than anything else—and of particular relevance in the publishing and entertainment industries—is that the formalism distinguishing shareholders from officers is perhaps thinner and less defensible than "standard" corporate theory might indicate. For example, Judge Thomas rightly notes that corporations have long been held capable of forming criminal intent. Thinket Ink, slip op. at 6350 n.2. This is all well and good; but it implies, too, that there is an inherent conspiracy among corporate officers, corporate shareholders (if only by willful blindness) and the corporation "itself" in such circumstances. It is extraordinarily rare for a corporation to be held criminally liable without any action (even in another proceeding) being taken against the natural persons who directed/authorized the criminal activity. IMNSHO, it is too common whenever it does happen; but that is beside the point.

In a theoretical sense, it seems to me that Thinket Ink has some interesting implications for the debate between the "director primacy" and "shareholder primacy" theories of corporate governance, but also leaves a number of questions unanswered. Consider, for example, a conglomerate controlled by African-Americans, but with a mostly non-African-American workforce (I'm thinking of Beatrice); and consider, too, the converse. Consider a corporation in which ownership and directorship are of different § 1981 classes. How should such a corporation be treated? Or is this a fact-specific inquiry? And, if so, what is the standard for evaluating those facts? Are we stuck with considering only whether a given corporation qualifies for the "minority contractor" rules of the relevant governmental context (and they do vary from state to state), or is there a "reality inquiry" to be completed, too?

Damn. This all sounds like good material for a business organizations final exam. And just wait until we bring in hybrid business organizations, like LLCs and LLPs, and partnerships! Then there's the whole "dominant personality" theory; for example, is Nightfall, Inc. (the late Isaac Asimov's holding company for his literary assets and estate) a "Jewish" company? And, if so, what does that imply for treatment of its royalty statements? Of course, this probably sounds like material from a Philip K. Dick or William Gibson novel; and it should. I don't even want to think about what this implies about artificial intelligences, and whether a mass of integrated circuits with electrons running around inside it might be Hispanic.

A Funny Thing Happened on the Way to the [Federal] Forum

Ernie the Attorney posted some interesting thoughts from a friend of his on choosing where to file suit. I agree with his friend's conclusion: a plaintiff is often, and perhaps even most of the time, better off in federal rather than state court. Ernie reports that his friend points to (1) the illusory nature of the "big verdict," (2) the probable need to defend that "big verdict" on appeal, and (3) the "quicker" result in federal courts. Ernie's friend was pointing to Jones Act (death/injury of seamen) cases; but I think he's right in more cases and for broader reasons.

Admittedly, most of my actual litigation experience is in federal courts. I am more comfortable there with the rules themselves. It is not just a question of speed, although that is certainly an issue. The discovery and evidence rules in federal court are far more flexible and better-understood than those of just about any state court system, particularly when one is "out of town counsel." To begin with, the defendant in most matters in which I am involved is not in the plaintiff's home forum. That means going to the defendant's forum to get jurisdiction, or getting jurisdiction elsewhere the hard way and then having trouble enforcing discovery requests — especially once a third party is involved. Consider, for example, a suit alleging that Publisher X made certain derivative rights sales, but did not inform the author of or pay the author his/her share for those sales. The purchaser of those rights is a relevant party; what if the purchaser is in a different place?

Perhaps the most important general advantage of the Federal Rules of Civil Procedure, though, is that they go a great deal farther toward levelling the playing field between small firm/solo practitioners and big firms and insurance companies. A local example might be helpful here. In Illinois, each side may move once to change the judge, so long as it's early enough in the matter. Typically, an insurance/defense firm will make such a motion the day before motions to dismiss or answers are due, thereby delaying the matter by at least sixty days. That does not necessarily change the due date for motions; but it does change the way those motions will be considered, almost always to the plaintiff's detriment. In the rare instance in which Goliath is suing David, Goliath will do so with the same timing just to disrupt the defendant's ability to answer/file motions. Further, this creates some rather disturbing "judge-shopping" situations, particularly outside of the Chicago area.

Virtually every state has some nature of similarly arcane, "home-team-favoring" procedural rules. Perhaps the most egregious of these are the "local counsel" requirements. Although the text of the rules may be similar in state and federal courts, the federal courts tend to be much more open to pro hac vice (for one matter only) admissions, especially at the appellate stage. I have voiced my opposition before to states erecting what amounts to a duty upon the interstate movement of legal services with their moronic "home practice" provisions; and I'm being polite for the sake of civil conversation. In less-polite terms, I might use exceptionally foul language and point to particular instances I have observed in which maintenance of a local monopoly based only on historical accident, and not on either competence of counsel or protection of the parties' right to select counsel, formed the foundation for such barriers. I might even name names. I might even question whether those attorneys who engage in such protectionism are violating the Rules or Code of Professional Conduct, and possibly the Sixth Amendment. But, as a solo practitioner, my voice means nothing to the bar regulatory authorities or voluntary bar associations, so I won't bother. Too much.

In any event, there is a final, and to me compelling, reason for choosing federal court over state court: the quality of the decisionmaking. There are some very fine state-court judges and law clerks in this country; there are some very poor federal-court judges and law clerks in this country. On the average, though, the federal-court judges and their clerks are more sophisticated and better educated than their state-court counterparts. This is almost always to the advantage of David, and not Goliath, because the judges and clerks are that much more likely to question large-firm/insurance defense "conclusions" that appear based more on the (literal) weight of the evidence than upon good reasoning. Further, the reversal rate is somewhat lower; and, even when David loses, that provides some closure for poor David.

Of course, some of this is also influenced by the fact that most of my work has, or at least implicates, federal law, sometimes with exclusive federal jurisdiction (see 28 U.S.C. § 1338). Since federal courts are not bound by state-court interpretations of federal law, but the state courts are bound by federal interpretations of federal law, this is just another layer of uncertainty that I would prefer to evade.

Follow the Money

…into someone else's pocket. That's what recording artists get to do. USAToday's story is almost inexcusably glib, but at least it demonstrates some of the ridiculous accounting practices in the recording industry. For example:

• How many professional athletes get "charged back" for a pro-rate share of the team's marketing expenses? Or, if we're concerned about that team aspect, individuals (like golfers and tennis players)?
• How many professional athletes, artists, etc. get charged by the distributor for practice facilities, or stadium and gallery construction, or above-market rental on completely sunk-cost locker rooms and open-air studios?
• How many recording-industry executives get a portion of their salaries (and expense accounts) docked for their "costumes," their transportation and equipment expenses, or their recreational substances? Or, worse yet, for so-called genius Simon's hairdo?
• How many businesspeople voluntarily reduce their income 15% from their best market, just because their costs used to be higher in that market?

Don't smirk too much, authors. Authors' royalties are just as bad, if not worse—because the charges to you don't get unbundled. Perhaps I'll go over this at some time in the near future… as I'm expecting a confidentiality order to be lifted by the end of the month. I won't name the publisher, because it wouldn't make any difference. Neither will I name the authors.

The Big Picture

Too many pundits—and people who should know better; too damned many pundits know little at all, regardless of their political bigotry (and, with only a handful of exceptions, that's what it takes to be a "pundit" these days: less willingness to take prisoners, or treat them fairly, than the Khmer Rouge)—are concentrating on the "flipper attack" on Kerry, and to a lesser extent Bush. I, for one, would rather have someone in office whose mind can be changed by facts than a doctrinaire anything. I realize that sounds rather strange for someone who rejects both the Republican and Democratic Parties as too conservative; but that's beside the point. Many of the most significant actions and policies established by the presidential party in this century have resulted from a change of mind/heart on a given issue. Lyndon Johnson's move from his 1958 comments to his support of the Civil Rights Act is an obvious example, but there are many others.

One thing that we should all have learned from the WMD controversy is that sound policy does not get made when "advisors" withhold "inconvenient" information from decisionmakers. This is why the Karl Roves of this world—who have that power, but do not have to face Senate confirmation—are so dangerous. Contemporary electoral coverage is myopically restricted to the candidates themselves, with very little examination of the people with whom they surround themselves—and upon whom the burden of 95% of government will fall. In his autobiography My American Journey, Colin Powell tells the story of the "dog-shooting research" that was torpedoed instanteously by an appointed official. Not only is this the kind of matter that would take attention away from the Chief Executive, but the specific response demonstrates the kind of power based upon appearances that these subordinate officials have. The Secretary in question rejected the program because of its context: a nation of pet-owners would not stand for shooting dogs for research upon battlefield wounds, even if the dogs would otherwise be euthanized. The value of the research was not at all the issue.

Unfortunately, there is a major impediment in this country to such evaluations: It is technically a violation of election law to name a "shadow cabinet" as the Opposition has in many parliamentary countries, most obviously in England and Germany. This is a function of our "advice and consent of the Senate" process. For that reason, one can really get an accurate assessment only of an incumbent President seeking reelection. It is certainly possible that the group Kerry would assemble could be less competent and honest than the group assembled by George III; but I think he'd have to try pretty hard. Perhaps this argues for establishing limited terms for certain kinds of offices, such as United States Attorneys, that are in one sense policymaking and in another administrative. I, for one, would love to see USAs given a seven-year term with a possible single reappointment, staggered across the country so that no two adjacent positions would ordinarily be due for reappointment at the same time; and similarly with the US Marshall in each district. That's just one example.

The mid-level party operatives with whom I dealt most of the time when I was in Washington are now becoming the senior people and advisors to the visible officeholders. Perhaps my belief in the Officer's Code made me ill-equipped to evaluate their worth in a political context; perhaps it does still; but it didn't harm my ability to judge their integrity—or, too often, the absence of it. Acton was too optimistic in his assessment. It is not power itself that corrupts; it is the process of obtaining and consolidating it that does.

Class Actions (Again)

Professor Ribstein makes the provocative assertion that the "original" class-action lawyer should be compensated if his/her position as class counsel is later gazumped by another lawyer designated to act as class counsel, at least if the "original" lawyer provided ideas or factual foundation necessary to getting a successful result. This is an interesting proposal, and it has some attraction. There are a couple of potential objections that I think need to be met; as I have not yet had a chance to read the article, it's entirely possible that Professor Ribstein has already answered them.

The first potential problem is that this places an even greater premium on "first to file" than the current system. I have seen too many ill-thought-out class complaints in my time, particularly in non-mass-tort contexts, that were slapped together to get to the courthouse first. Perhaps this can be controlled by having the court set the proportion of compensation to the "original" counsel based on "how close" that initial complaint is to the eventual winning theory of the case. <SARCASM> We really, really need another opportunity for satellite litigation over fees! </SARCASM>

The corollary is where things begin to get really messy. Why should this concept be limited to single class actions, aside from administrative convenience? For example, at this time Ellison v. Robertson remains a live matter. (The statute of limitations has expired for a new action on the operative facts, so this really is a purely hypothetical example.) Shouldn't I get compensation if BigClassActionLawFirm files a "piggyback" class action relying upon the four years of work I've put into this case? Then there's the can of worms opened by "competing" class actions. In my former life as a class action lawyer on consumer finance issues we had to deal with intricate issues of interlocking, overlapping, and contradictory class actions filed both across the country and within the same district. (In Gibson, the Court of Appeals even expressed concern that the actions had not been consolidated by the trial court.)

What this perhaps points out more than anything else is that the means used to pay lawyers in the US seriously distorts litigation. But that is for another time. I don't like to be the critic who bitches that something is broken without offering a workable alternative that does not have similar, or even more significant, flaws.