Archive for November, 2009

Lady Justice Is Only Blindfolded, Not Blind

November 30, 2009


The Chief Justice Deciding a Case

We’re at the end, until the Court issues its decision in the Hertz case, of our discussion of where fictitious corporations live and why it matters.

Our discussion presupposes that determining where a case is brought — in a state court or a federal court — can determine the outcome of the case.  That’s not how we think the law ought to work. Chief Justice Roberts, who knows better, was just pretending a few weeks ago when he asked lawyer Paul Clement during an oral argument this question:

“I don’t understand the concept of extraordinary success . . . The results that are obtained [in a case] are presumably the results that are dictated or commanded or required under the law.” The outcome of a particular case “should be what the law requires, and not different results because you have different lawyers.”

Before he became a judge, Roberts was probably the highest paid lawyer in Washington, D.C.  Widely regarded as the best Supreme Court advocate of his time, Roberts commanded gigantic fees which only large corporations could afford.  So, Roberts represented large corporations before the Supreme Court, writing excellent briefs and delivering persuasive oral arguments. He certainly never told his deep-pocketed clients that because the law commanded a certain result in their case, that they could save a lot of money by just picking a lawyer at random from the Yellow Pages.

If the quality of lawyering didn’t matter, O.J. Simpson would be in jail for murder.

Paul Clement

But here is John Roberts, now on the Supreme Court, pretending that the quality of lawyering doesn’t matter one whit.  And asking that question of Paul Clement, former Solicitor General of the United States and probably today’s highest paid Supreme Court advocate.

Clement’s response to Roberts disingenuous and silly question shows why he is so highly regarded: “I defer to you, but I’m not sure that comports with my experience.”

If the outcome of every case hinged only on “the law,” no need would exist for high-priced, skilled lawyers. In fact, no need would exist for the Supreme Court. Or intermediate courts of appeal.

Someone once noted that the existence of all these courts of appeal indicates a lack of confidence.  Imagine the medical profession under similar circumstances.  Doctor Number One takes out your appendix.  But then three higher ranking doctors order him to put it back in, saying he was mistaken when he took it out. Finally, nine more doctors decide — by a majority vote — to make the original doctor take it out again.

In short, Roberts’ question was as off-base as his famous “umpire” analogy.



More on Anthropomorphizing Corporations

November 25, 2009

As we explained last time, the law pretends that corporations are persons.  When the law anthropomorphizes corporations like that, it has to decide where they live.  And, as explained last time, the Supreme Court is about to declare that corporations live in the place where their corporate headquarters are, even if those headquarters are in a place — say, the Cayman Islands — where the corporation does no business.

Corporate Headquarters

We can predict that outcome based on two facts: First the Court is controlled right now by political conservatives and political conservatives tend to favor corporations, especially big ones. Second, at least one of the moderates on the Court, Justice Stevens indicated during oral argument that he was in favor of the rule as well.

Here is what he said:

I think one other very important concern is plaintiffs sometimes in small communities want to sue somebody, and sometimes they would much rather be in Federal court, because sometimes the judges are better than the local judges, and so forth. So there are a lot of reasons why plaintiffs want to get into Federal courts.

That was true when Justice Stevens went on the Court, thirty-five years ago.  But not now.  It hasn’t been true since the mid-1980s when President Reagan’s many federal judicial appointments began controlling the federal courts.  Those judges were followed by more conservative judges appointed by Presidents Carter and the two Bushes.

So, when Justice Stevens went on the Court, it remained true that plaintiffs’ lawyers liked federal courts.  The perception then was that plaintiffs won more often and won more money in federal courts.

Justice Stevens

But a sea change occurred. Now, as evidenced by how hard Hertz’s lawyers are fighting to get the California consumers’ case moved to federal court, plaintiffs and defendants believe that defendants do much better in federal courts than in state courts.

And, to the extent that federal judges were ever perceived to be better judges all those years ago, that too has changed.  Many lawyers now believe the quality of judging on federal courts has declined, if — for no other reason — that most federal court civil cases are now decided “on the paper.”  Federal judges hardly ever see real litigants and their law clerks deal with much of the paper. My local federal courthouse seems more like a mausoleum than a place where people congregate. Federal judges breathe rarified, lonely air in their courthouses and it has affected the quality of their work.

Some astute readers — which means all of you reading this — will say, “Wait a minute.  I thought the law was the law and that judges just applied the law.  It should make no difference at all where the case is filed.” You are in good company.

More on that next time.


Here is the oral argument in the Hertz case.  The question from Justice Stevens comes at page 43.

Where Does a Corporation Live and Who Cares?

November 20, 2009
Ambrose Bierce

Ambrose Bierce

I need to explain what a corporation’s “principle place of business” is and then why you care. That will take awhile, so please bear with me, remembering always Ambrose Bierce’s definition of a corporation: An ingenious device for obtaining individual profit without individual responsibility.

We’ll begin with a quick review. In the United States two court systems coexist.  Each state maintains its own state court system and the federal government maintains the federal courts. Federal courts, established in Article III of the Constitution, are courts of “limited jurisdiction” which means that Congress sets the parameters of what their powers are in a system in which the federal government has only limited powers.

When they are talking about courts’ power — the power to decide cases and order the parties around — lawyers often talk about the “jurisdiction” of a court.  That is just a long, four syllable lawyer-word meaning, “the power to act.”

One of the ways that Congress controls the power or jurisdiction of federal courts is by requiring what is known as “diversity of citizenship.”  Oceans of ink have been spilled explaining “diversity jurisdiction” in federal courts. But for our purposes now, we’ll use a simplified definition.  For us “diversity jurisdiction” means that federal courts have the power to decide cases which arise between citizens of two different states.

We all know what states we live in, so sometimes it’s easy to determine if a federal court has “jurisdiction” to decide a civil case.  (We’re only talking about civil cases today, not criminal cases.)  If I am a resident of New York and I come to Massachusetts for a visit, run a red light and plow into your car causing you, a Massachusetts citizen, damage, the federal courts have jurisdiction to decide your case against me.  Of course, your Massachusetts state courts also have jurisdiction to decide the case so, in my hypothetical both court systems have the power to decide your case.

So that’s easy.  You live in Massachusetts, I live in New York; diversity jurisdiction exists and the federal courts can hear our dispute. But your lawyer, no dummy, will sue me in your state court.


But what about corporations?  Remember, corporations have been endowed by their creators — us — with certain inalienable rights.  In fact, they have all the legal rights of real people. Actually they have more; they get to live forever and we don’t.

Where does this legal fiction, this corporation, live?  Since we’ve decided, against all logic, to treat it as a person, it must live somewhere.  Real people do, so it must too.

All Congress has said is that a corporation lives in the state in which it has its “principal place of business.”

What does that mean?  Does it mean the state in which the corporation was created?  The state where its corporate offices are?  Or the state where it does most of its business?

Nobody knows for sure, but the Supreme Court is getting ready to tell us.

And now we come to the part about why you care.

I won’t keep you in unnecessary suspense: You care because in a lawsuit between you and a corporation, the corporation is more likely to beat you in a federal court than in a state court — especially if it is a big corporation.

Hertz rents more cars in California than anywhere else.  In fact, it makes about 20% of all its money there.  A group of California consumers, people just like you and me, sued Hertz in a class action alleging various sharp dealings on the part of Hertz, but it doesn’t matter whether it was Hertz or Goldman Sachs, or the Bank of America, or your friendly credit card company or some other behemoth corporation, say Microsoft.

What matters is that the citizens of California sued Hertz in California’s state courts. But Hertz’s lawyers know just as well as any other lawyer that Hertz will get better treatment in federal court than in a California state court.  So, Hertz — as any self-respecting corporation in similar circumstances would do — removed the case from the California court and dumped into the federal court.  The California citizens reacted, demanding that the federal court send the case back to the California court where it was originally filed.  Now the case is before the United States Supreme Court  which will decide where Hertz lives.

Guess who is going to win.

Hertz will win because corporations don’t want to get sued in California state courts, even though a great many of them make most of their money in California, love doing business there, and take advantage of California’s laws while making money.

Not that anyone will actually say that is why Hertz and corporate America are going to win the case.  The justices will actually announce a new rule: “Corporations are citizens of the state where they have their corporate offices.”  Some of the justices, including Justice Stevens, will even write that they are adopting this rule as a favor to ordinary citizens who need to sue corporations.  The new rule will be simple and easy to apply so plaintiffs in all other states will know just to go straight to the federal court system. And lose.


Next time we’ll look at why corporations do better in federal court and also why we can safely predict that Hertz is going to win.

In the meantime, you can read the briefs filed in the Supreme Court here and read a transcript of the recent oral argument here.

The History of Sex

November 17, 2009

Adam and Eve Discussing Foucault's Theory

Now that I have your attention, I’m going to briefly tell you about the history of sex.  Not the real thing, but a book written some years ago by Michel Foucault. Actually, three books and he was only half-way through the project when he died.

Not that I’ve read the books.  Combined, they would be thicker than my wrist and I don’t read books thicker than my wrist unless they were written by Shakespeare, Mark Twain, or God.  But I have just read a book report about the first volume — The History of Sexuality — written by my son who is a reliable reporter.

Apparently, Monsieur Foucault achieved the impossible: He wrote  a book about sex that is boring.

In his long, boring book Professor Foucault arrives at the conclusion, apparently startling to him, that the powerful, dominant people and institutions of a society have a vested interest in controlling the sexual behavior of the members of that society.

For this commonplace, obvious conclusion Foucault is generally regarded as a genius.

Another possibility is that Foucault wasn’t getting enough and simply sublimated his unmet sexual desires in his work.  He was in a long-term relationship and we all know what those can do to sexual frequency.

What is more, generations of subsequent scholars, trained by his theory to see sex everywhere they look, now find sex everywhere they look.

All humans, even scholars, tend to find what they are looking for; it is ingrained in our genes.  And that is a problem for scholars who start out with a particular theoretical outlook. They are likely to find evidence to support their theory. Unlike the fictional Joe Leaphorn, they find what they are looking for.  Leaphorn, when asked what he was looking for, replied, “Nothing in particular. You’re not really looking for anything in particular.  If you do that, you don’t see things you’re not looking for.”

Often, like rattlesnakes, gamma rays, and love, it’s the things we don’t see that turn out to be important.

Joe Leaphorn was  Tony Hillerman’s famous fictitious Navajo policeman.  His comment about looking for nothing in particular is found at p-17 of Talking God.

Actually, I shouldn’t make light of Dr. Foucault.  He was a formidable scholar, thinker and historian.  The Wikipedia article is actually a pretty good short introduction to his life and work.  (Real scholars, of course, don’t use Wikipedia so now you know that whatever else I may be, I am not a real scholar.)

For a summary of The History of Sexuality, see  this from the University of Chicago.

Claude Levi-Strauss Dies

November 9, 2009

Depressing French Climate

Claude Levi-Strauss died last week at the tender age of 100, which means he was born during the presidency of Theodore Roosevelt, not that Levi-Strauss would have cared: He was a Frenchman, not an American and Roosevelt had as little impact on his life as Bridget Bardot has had on mine.

Because it rains all the time in France, it is not easy for a Frenchman to be happy.  Living in the dank French climate was probably why Levi-Strauss wrote, “The world began without the human race and will certainly end without it.”

Come to think of it, the climate may well end up being the reason the world might end without humans.

But surely Levi-Strauss would have been happier had he followed Steve Martin’s advice to writers and moved to California.  According to Martin, a good dose of Pacific Standard Time will cheer up any writer. As an example Martin took a passage from the Czech writer Milan Kundera; one almost as depressing as Levi-Strauss’s:

Most people deceive themselves with a pair of faiths: they believe in eternal memory (of people, things, deeds, nations) and in redressibility (of deeds, mistakes, sins, wrongs).  Both are false faiths.  In reality the opposite is true: everything will be forgotten and nothing will be redressed.

Czechoslovakia’s climate is every bit as rainy and cloudy as France’s. Sitting in his sunny, happy southern California (PST) garden Martin rewrote Kundera’s paragraph into:

I feel pretty,
Oh so pretty,
I feel pretty, and witty, and bright.

Still, if Levi-Strauss was right, so too was Kundera and no amount of California sunshine will fix it.

The 1949 photo of Paris in the rain was taken by Benjamen Chinn.  Steve Martin’s philosophy of writing can be found in his essay for The New Yorker entitled “Writing is Easy!” republished in Fierce Pajamas:  An Anthology of Humorous Writing From the New Yorker.

2009 World Series

November 5, 2009

I’m not much of a sports fan now, but I was when I was a child and  I’ve hated the New York Yankees ever since they beat my Milwaukee Braves in the 1958 World Series.  Not that I hold a grudge, you understand.

yankeesI was a baseball player myself as a child.  I played first base in Little League.  They put me there because I was too slow for anything else. Later I would learn that slow is sometimes good, as when lovemaking, drinking fine wine, and watching sunsets, but it is not good in baseball.

I also couldn’t hit worth beans, so I crouched really low in the hopes that the pitcher wouldn’t be able to find a strike zone. Because I was such a lousy hitter, I was at the end of the batting order.  One time I hit a single. After I got on base, our lead-off hitter walked, which sent me down to second base.

So there I was, standing on second base, a place that I had never been before, enjoying the view — you can see all kinds of things from second base that you can’t see anywhere else on a baseball diamond — when our next batter ripped a pitch into deep deep right field. We didn’t have a outfield fence so a well-hit ball just rolled on forever across the pasture, until it hit a cow patty or an outfielder caught up with it.

So I left second base and headed for third, as fast as my slow little legs would carry me.  But what should have been a three-run home run for my team turned out to be a triple play for the other team, because I was so slow that both my teammates behind me on the base path caught up with me at third base and you can’t have three runners on one base —  it’s against the rules — so all three of us were out and that was the end of the inning.  I don’t remember whether I ever got to third base again in my baseball career, but I suspect that was the day when, in my childish mind, it first dawned on me that I’d never play for the Braves or the Yankees and that I would need to find a different career.

Baseball is an elegiac sport.  If you don’t believe me, rent the movie “Field of Dreams.”  And, if there is a heaven and if I get there, I’ll take Jenny DiMaggio, our ball-playing Border collie, to see the Yankees play the Braves. Every game will be an all-time, all-star game.  Derek Jeter and Tony Kubek will turn double plays for the Yankees, throwing to Lou Gehrig at first.  Joe DiMaggio, Mickey Mantle and Babe Ruth will watch as Henry Aaron and Eddie Mathews lift home runs over their heads into the stands.  I’ll be able to hear Yogi Berra’s jokes behind home plate as Whitey Ford and Mariano Rivera throw pitches past lesser Braves’ batters and Joe Torre and Del Crandall will take turns catching for Warren Spahn, Lew Burdette, and Greg Maddux.  Red Barber will call the games and Red Smith will write about them.             .

spahnAnd the games will be played, as baseball games should be, on sunny afternoons.  Night games, caused by the baleful influence of television and all the money it brings, will be a thing of the distant past.

Oh, one more thing: Since it will be heaven, the Yankees will lose, at least some of the time.

For more on the 2009 World Series I recommend this from Thomas Boswell of the Washington Post.

“Stuck” by Raymond Chandler

November 3, 2009

Raymond Chandler never blogged.  The art form of the blog — that wasn’t a snicker I just heard, was it? — hadn’t been invented yet.  But Chandler would never have been at a lost for something to write about, like I am sometimes.  In fact, he had some pretty good advice for writers, all of whom get stuck from time to time:

“When in doubt, have two guys come through the door with guns.”

So, without further ado. . . .



Two guys come through the door with guns.