November 6th, 2013

Did CJ Roberts Trash His Role as “Umpire” In Facebook Cy Pres Case?

When Chief Justice John Roberts appeared before the Senate in 2005 for confirmation, he famously stated that his role as Chief Justice would be “to call balls and strikes and not to pitch or bat.”

He seems now to have fully discarded the umpire’s uniform in his pursuit of making policy.

On Monday the Court denied certiorari in Marek v. Lane, which was a cy press settlement matter. Cy pres is where class action settlement proceeds don’t go to the victims due to the difficulties or expense of distribution, but go instead to a charity of some kind as being “as near as” possible to getting the funds to the actual victims. This was, as per Adam Steinman (Civil Procedure and Federal Courts Blog):

a closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

But while the issue of whether it’s appropriate to send the funds to a charity is a hotly debated one, created in a legislative vacuum, neither its rightness or wrongness is the issue I want to address. (See Public Justice Foundation in favor and Ilya Shapiro at Cato for opposing view.)

Instead, I draw your attention to a statement issued by C.J. Roberts (via Overlawyered), accompanying the denial of certiorari, where he discusses his desire not to call the balls and strikes, but rather, to affirmatively make decisions about policy:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’), goes quite a ways away from merely umpiring for the people on different sides of an issue.

Roberts didn’t ask Congress to step up to the plate, he asked instead for a suitable case so that the judiciary can perform a legislative function.

In a blog post back in 2009, the Drug and Device Law Blog — very much a defense oriented blog — raised the same issue in excoriating the concept of cy pres. They wrote:

Under our tripartite system of government, the legislature is supposed to make the laws and the executive to enforce them. Where is the law or regulation allowing, as a consequence of some legal violation, one private person’s money to be taken away and given to some other private person(s) whom the violator didn’t injure? There isn’t any. If there were, there’d be no need to resort to cy pres, because the statute or rule (assuming it were constitutional – which is a stretch) itself would provide the distribution scheme, not some vague notion of “equity.” The government can impose civil or criminal fines for conduct that’s illegal, without regard to causation or damages, but the money in those situations goes to the government as the sovereign enforcer of the laws.

But while they argued there shouldn’t be any such thing as cy pres, C.J. Roberts isn’t suggesting that it be abolished (though he is certainly open to it). What he asks is that the judiciary regulate them, hence his conclusion that the Supreme Court “may need to clarify the limits on the use of such remedies.”

And you will not find any mention in his statement suggesting that Congress resolve the matter.

November 5th, 2013

Book Review: The Marble and the Sculptor

It isn’t until the end of the end of the book, in its summation, that I finally see the words: Carpe diem.

This is the theme, from beginning to end, that Keith Lee uses in his new book The Marble and the Sculptor. Lee, who writes the blog Associate’s Mind, takes readers in short blog-like chapters from law school, its dysfunctional neglect of teaching actual practice, through the struggles of surviving a quickly changing legal environment and places them, hopefully, on the road to succeess.

Given that Lee is himself a young lawyer, you wouldn’t expect such a how-to book. Such things usually come from the graybeards.

But Lee doesn’t just pull it off, he pulls it off well, based on the diversity of his experience before going to law school, and being smart enough to know what he doesn’t know. This is not a book written by some hubris-filled wannabe hot shot, but one written with a sharp observers’ eye to the environment around him.

Lee doesn’t care to hear anyone whine about the difficulties making it in a legal recession. Because all the belly achin’ in the entire world will not bring you to a successful legal practice. He teaches instead to go out and seek your opportunities, and this starts in law school.

See those schoolmates sitting near you in class? You are likely to know them for decades to come and they, in turn are likely to be a source of referral business to you if they believe you are competent. Will wearing a lampshade on your head at the local law school kegger affect how you’ll be viewed by this valuable source of contacts as you go though life?

Lee tackles not only the attorney incubator of law school but, more importantly, the often difficult years of being a young associate — when you know nothing about the practice of law. At that point, you don’t even know how much you don’t know. Or worse yet, you don’t have a job.

Associates, jobs, mentors, dealing with clients, writing, quality, time management, marketing, conducting yourself online and the relentless pursuit of improving your skills, even if you’ve been practicing law for decades, all this and more are covered by Lee.

And Lee tosses in some lessons from martial arts, in the form of Aikido. Just as I occassionaly draw parallels to running, Lee uses his experiences in martial arts to discuss the need to sharpen your skills. Lee, it seems, has spent more than his share of time being introspective, and uses it to full advantage here.

The essence of his book and arguments — although calling this advice on how to navigate the waters of the legal profession an “argument” may be a poor word choice — is that we are the masters of our own destiny, not slaves to the the current economic state of things.

Those who are wondering if they will succeed, or those battling for success, can do something about it. Lee provides some advice and blueprints on how to get there.

I’ve received many books to review that I simply never had the time to read. But I grabbed this one when it came in and I’m glad I did.

Carpe diem.

November 4th, 2013

Blawg Review 325.7 (RIP: Ed.)

The late, anonymous Editor of Blawg Review, kinda, sorta photographed by me in 2009.

If you didn’t know Ed., please bear with me. He made me a better blogger, and a better lawyer. He died of esophageal cancer last week, as announced by his son on Twitter.

Newcomers might not remember Blawg Review, the weekly round-up of law blog posts that he started in 2005 that rotated around and around from blog to blog. The Blawg Review website that he managed and edited held down the anchor with all of the links. The roster of those who hosted Blawg Review looks like a Who’s Who of the legal blogosphere. I was honored that he asked me to host three out of the 324 prior editions before it came to an end last year.

As I noted back in 2009 — a lifetime ago in pixellated years:

Without Ed., there would be no Blawg Review. And if someone else were doing the organizing, you just know it wouldn’t be nearly as good.

Ed. wished to remain anonymous, even as he traveled the country and met with scads of bloggers. To my knowledge, not a single one of us knew his real name. As Scott Greenfield noted, he was always just Ed., the editor of Blawg Review. I had the pleasure of meeting him several times as he passed through New York.

Ed. didn’t want to be known by name. He didn’t want it to be about him. It was about the Blawg Review project. He was the living, breathing embodiment of how to conduct yourself online under cover of anonymity — the exact same way you would if you were face to face.

According to his son:

There was nothing my father enjoyed more than debating the philosophies, merits, and impacts of laws around the world – sharing opinions and celebrating the discourse you helped create here at Blawg Review.

So why did he make me a better blogger and lawyer? It all goes back to The Mummers Veil that he wrote on January 1, 2007. This wasn’t just any old round-up of posts that constituted a Blawg Review that he wrote, but rather, a delightful flight of fancy as he imagined himself traveling the world visiting law bloggers. This was the literary device he used:

Ed. as he appeared to the world in his Twitter profile.

In this Blawg Review #89, your dutiful editor appears as the lone mummer, visiting the sites of legal webloggers far and near in the blogosphere between Boxing Day and New Year’s Day 2007.

Now literary devices and lawyering don’t usually go hand in hand — lawyers are boring and write dryly and stuff their pages with case citations and numbers that correspond to book volumes. Some lawyers seem hell bent on putting judges and law clerks to sleep.

But look what was possible in the blawgosphere! There was Ed., not just enjoying the writing that he found at the end, but enjoying the journey to find it. The possibilities of communication were without limit — even for us boring lawyers — and by organizing this weekly round-up of legal writing that he orchestrated, I could explore not just what others were saying, but how they were saying it.

And with that I engaged in my own flights of fancy when he asked me to host Blawg Review, wrestling with how to enjoy the journey through the blawgosphere while at the same time presenting its stories. It inspired me to run the 2007 NYC Marathon with law bloggers in tow, fantasizing that they were running the streets of New York with me while discussing what was going on in their sector of the legal woods. It was marathon length and it was great fun, and the journey was inspired by Ed.’s mummer traveling about.

The same was true when I went trick or treating in 2008 with the Bogeyman in tow. This time we tricked and treated at the homes of law bloggers, each telling us their particular stories. Again, it was Ed. and his turn as a mummer whispering to me at the keyboard while I typed.

The third and final flight of fancy that I engaged in had Arlo Guthrie and numerous law bloggers visit me for turkey and a Thanksgiving dinner that couldn’t be beat. Ed. was with me all the way.

I received a few accolades for those pieces, but in truth, it was Ed.’s traveling mummer that was the inspiration.

So how did he make me a better blogger and lawyer? By reminding me that it’s all about telling stories and journeys from place to place. Every article we write or client we have has a story in the background. It is not the facts and figures that capture the imagination and compel people to listen — though they are critical to proving a point — it’s the stories.

You can tell them from the start, tell them from the end, or tell it from the middle, just figure out a way to tell it. That is true whether you are blogging or lawyering. As Mark Twain once wrote:

“Narrative is a difficult art; narrative should flow as flows the brook down through the hills and the leafy woodlands, its course changed by every bowlder it comes across and by every grass-clad gravelly spur that projects into its path; its surface broken, but its course not stayed by rocks and gravel on the bottom in the shoal places; a brook that never goes straight for a minute, but goes, and goes briskly, sometimes ungrammatically, and sometimes fetching a horseshoe three-quarters of a mile around, and at the end of the circuit flowing within a yard of the path it traversed an hour before; but always going, and always following at least one law, always loyal to that law, the law of narrative, which has no law. Nothing to do but make the trip; the how of it is not important, so that the trip is made.”

Photo via Robert Ambrogi

How many others did Ed. influence? Hard to say, but as you read the obituaries online from last week and today — starting with an intro at the Blawg Review site by Colin Samuels — you can see that the answer is many.

But not just any many, for those that he influenced may have, in turn influenced others. Because they are bloggers and they have readers. And it works like a giant chain — just as the bees influence the flowers, and the flowers influence the lovers and the lovers have babies and pretty soon we’re all talking in high squeaky voices and saying, coochie, coochie, coo. Because of the bees.

I think Ed. would have liked that; it was like a little story.

My condolences to his family. I don’t know how much they knew or appreciated how he influenced others, but from where I sit at my keyboard here in New York, it was plenty. He left a legacy despite being anonymous. That’s one hell of an achievement.

Some of you are regular readers and started today at this blog, and you may wonder about the title, Blawg Review 325.7. That .7 exists because this is part of a big web ring, and you are currently in the middle.

Some of you arrived here from Popehat (Blawg Review 325.6), a blog based in San Diego. In honor of Ed., please fly back to the west coast and visit with George Wallace in Pasadena, CA, (Blawg Review 325.8) for his thoughts on Ed.s’ passing.

And then, dear reader, please complete the circle visiting other bloggers, as Ed. did with his mummer.

And we can all wonder if our own obituaries will be half as fine.