June 4th, 2018

New York’s New and Improved (?) “Anti-Cyberbullying” Bill

It’s known in the New York Senate as Bill S2318. And it passed the Senate unanimously yesterday, by a vote of 56-0. Must be pretty good, huh? Unanimous!!!

It’s an anti-cyberbullying bill and who would ever want to be against something like that! I mean, bullying is bad, cyber or not, right?

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

Here’s the entire pertinent text:

 S 12-A. CYBERBULLYING. 
1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
A.  MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

2. ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF  CYBERBUL-BULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE  BY  A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE  AND  IMPRISONMENT.

There is, of course, lots of conduct that we can all agree is bullying, right? A kid gets taunted by classmates for his less-than-personal personality, and it’s a no-brainer, right?

Well, almost right. I mean, friends do this kind of stuff to their good buddies after all. It isn’t just for enemies.

But still, let’s say it is an “enemy” of sorts — two kids that actually hate each other. How do they know where the line in the sand is located as to what is legitimate and what isn’t?

So if Kid A wants to say that Kid B’s support of Trump is “idiotic” or “moronic,” or that Kid B seems to be a clueless asshat for believing what s/he believes, would that conduct, if done online, be cyber-bullying? How about if it didn’t involve politics at all, and was purely personal?

Don’t we have a right to call each other schmucks?

The lack of an adequate definition is an obvious problem, and one that is already known to New York because our top court struck down such a bill in 2014 in People v. Marquan M. — and that bill actually attempted a definition:

“any act of communicating … by mechanical or electronic means,”
- “including posting statements on the internet or through a computer or email network,”
- “disseminating embarrassing or sexually explicit photographs;”
- “disseminating private, personal, false or sexual information,”
- “or sending hate mail,”
”with no legitimate private, personal, or public purpose,”
“with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

How, exactly, is a person to know if their conduct/speech is a problem if there’s no definition? We lawyers like to call such statutes vague or overbroad. They either don’t tell you exactly what conduct is criminal (vague) or they word the statute so broadly it sweeps perfectly constitutional conduct into its orbit of criminal conduct.

And now we have version 2.0 of a bill with no definition, and this is supposed to be better than version 1.0?

Since the matter was covered by Eugene Volokh back in 2014 when its first iteration was deep-sixed by the Court of Appeals, I feel no need to re-write what he already tapped out on his keyboard. You can read it here: New York’s highest court strikes down cyber-bullying law

It was likewise covered by Scott Greenfield: NY Court of Appeals Holds Cyberbullying Law Unconstitutional

And there’s a Syracuse Law Review article on the subject. And the NY Civil Liberties Union.

And, for the legislators that might not want to read the works of lawyers, there’s even a Wikipedia entry for the case.

There is no point passing version 2.0 of a law that will one day be ruled unconstitutional.

I know it may look good to constituents to say “We are trying to do something!”, but it would be nicer to see at least a couple of folks say, “I’m not going to waste the taxpayer’s money with a bill that most surely will end out on the trash heap.

Updated 6/12/18: NY Senate and Cyber-Bullying, Part 2

April 12th, 2018

Did CUNY Law Just Commit Suicide?

Was it smart for a CUNY Law student to try to stop Prof. Josh Blackman from speaking by yelling “Fuck the law?” Did this student’s friends and classmates think it wise trying to shut down a speech on, of all things, free speech?

Is this what they learn at CUNY Law? That if you don’t like the arguments or positions of another you scream and yell and have a tantrum?

Does anyone think this is good training for lawyers?

What would a judge think of such lawyers? What would clients think?

Is their training so shoddy that they don’t grasp there are differences of opinion on how a law or the constitution is read? Do they understand that certain things are inherently subject to interpretation, such as “unreasonable” search and seizure or “cruel and unusual” punishments?

Do they really think that the way to “beat” a conservative legal theorist is to holler?

Is their education so deficient that they don’t understand the long-term debate between those that think (loosely) that the Constitution is a living breathing document to be interpreted with the times and those that think it shouldn’t?

Do they understand that reasonable people can disagree on interpretations without name-calling? Do they not know that liberal icon Notorious R.B.G. was great friends with liberal boogeyman Antonin Scalia? Do they not know that sometimes liberals actually fall in love with conservatives and marry?

Why are they afraid of words? Shouldn’t people secure in their ideas welcome the opportunity to openly debate? Are they afraid that in the marketplace of ideas they are unable to sell what they have? Do they understand that when they yell and scream others assume that they can’t win a debate?

How can someone get to law school not knowing that if you disagree with what a laws says, that the law can be changed? Have any of then ever tried?

Do they think that trying to shout down Josh Blackman will somehow change the law?

Are they so foolish that they don’t understand that the First Amendment is not a liberal thing, or a conservative thing, but an American thing?

Are they so clueless they don’t grasp that if one of them was stupidly arrested for holding a stupid sign calling Josh Blackman stupid names, that it would be the same Josh Blackman defending their right to display their stupidity to the world?

Have they never heard the saying, “I disapprove of what you say, but will defend to the death your right to say it?”

Are they so daft that they fail to understand the magnitude of difference between interpreting what an existing law is, and advocating for what one hopes it should be?

More to the point, perhaps, but if these students are unable to tell the difference between interpreting the law and advocating for changes in the law, why are they in law school? What firm would ever hire them if they can’t grasp such a concept? Why would any firm trust a client to them? What client could possibly want them?

How could such lawyers, hell-bent on trying to shout down the opposition, ever argue a point of law in court? Indeed, how could they even handle a residential closing? A contract? A transaction of any kind?

And this is a public interest law school? What public interest group would want lawyers so terrified of their opponents that they feel the need to shout them down?

Have you ever met a client, lawyer or judge who felt such behavior was persuasive to make a point? Have any friends or family ever thought that shouting someone down was persuasive argument?

Which is more likely to occur, that these people will be disappointed as lawyers, or that they will be disappointing to clients?
———-

Elsewhere:

Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech (Volokh @ Reason)

…The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations….

Josh Blackman And The Guy Who Wanted To Hear (Greenfield @ Simple Justice)

…It was a talk about free speech on campus. Josh was invited. Some students, however, didn’t want him to speak and instead wanted him to know he was unwelcome.

The best answer to “why Josh” seems to be that these students were knee-jerk antagonistic to anyone, any idea, that wasn’t theirs. Children do this, which makes it all the more ironic that when they were finally shut down by an administrator, one protester responded, “we’re not children. You can’t talk to us like that.” Children say that, too….

The Disgrace at CUNY Law School (Hawyard @ Powerline):

…Prof. Blackman was greeted with a protest that was off the chart even on the usual scale of infantile campus protests. Go see his own full account and pictures of the event at his website. Among other offenses, Blackman had written that the Trump Administration was legally correct to rescind DACA because it exceeded the President’s authority. But Blackman supports enacting DACA through proper congressional legislation. This was apparently not sufficient for “law” students at CUNY Law….

“F*ck the law” – CUNY Law students attempt shout-down of conservative law prof (Jacobson @ Legal Insurrection)

…Blackman was invited to speak by the Federalist Society Chapter at the City University of New York (CUNY) Law School. That did not sit well with some progressive law school activists, who tried to shut down and shout-down the event…

CUNY students call law prof ‘racist’ for supporting free speech (Sabes @ Campus Reform)

…Blackman told Campus Reform that he was “shocked” by the disruption, saying this was the first time he was protested.

“I had hoped they would protest before my speech, and ask me tough questions afterwards,” he said. “Instead, they decided to heckle and interrupt me. At the time, I had no idea if or when they would stop heckling. Fortunately, it did not last the entire time.”…

“Stop debating”: CUNY Law students disrupt speaker and his critic (Harris @ FIRE)

…As you can see from the video, Blackman abandoned his planned remarks about free speech and instead tried to engage the protesters on their substantive criticisms of him, such as his writings about DACA. He explained that he actually supports the DREAM Act and would have voted for it in Congress, but that he believes the DACA policy — which President Obama adopted after Congress failed to pass the DREAM Act — was “not consistent with the rule of law.” He cited this (over jeers and interruptions) as an example of how one can “support something as a matter of policy, but find that the law does not permit it. And then the answer is to change the law.”

That sounds like the premise of an interesting debate, but the protesters would have none of it. Instead, they shouted out that he was “gaslighting” them and “lying to [him]self” — apparently, they already understood his views better than he did, so there was no need for any intellectual engagement. When an administrator intervened to remind the group that they had to let Blackman speak, they asked her, “Why are you bringing racists into your school” and (before Blackman had spoken more than a few prefatory words) “Why are you not providing support for students affected by this hate speech?”…

July 25th, 2017

Different Kinds of Lawyers (Protecting Free Speech)

Today is a tale of two lawyers. Actually, two different kinds of lawyers.

The first is the ambulance chaser. And no, I don’t mean the kind that literally go running to hospitals where they weren’t called. That may happen, but it’s rare.

No, I’m talking about the rarefied air of Supreme Court litigation — where a select few lawyers race to those whose cases have been accepted to scream that the lawyers that got you this far can’t do this high faultin’ stuff, hire me instead. To get the glory.

The other kind of lawyer is the one that does the grunt work, toiling in a press-free arena.

Those two types are now sharply juxtaposed with a post from intellectual property and free speech lawyer Ron Coleman — see what I did with that link? –in his story on That Great Free First Amendment Thing.

Coleman has been handling a case for years for a rock group called The Slants, by their leader Simon Tam, who were denied a trademark for their band’s name because it was disparaging to Asians. Such was the law, as trademarks would not be issued for “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

Coleman took In re Tam and argued that, if the group wanted to reclaim a weaponized racial slur — which the gay community has done with a variety of insults such as dykes and queers — why should the U.S. government stop them from doing so? The government should not be in the business of stopping disparagement.

This was a First Amendment issue and Coleman picked up the ball and ran with it all the way to the Supreme Court. It’s the same issue that the Washington Redskins faced when their trademark was stripped from them for being disparaging.

And a funny thing happened when the court granted cert. The “Chasers” came out of the woodwork to try to snatch his years of toil (done for free) so that they could claim the glory. According to Coleman, “The vultures were calling. Circling. They smelled fresh kill.”:

Experienced federal appellate lawyers knew very clearly what was happening before their eyes: In re Tam was going to be a winner. And now that, after six years of wretched anonymous work by others from the trademark registration application through the TTAB appeal, the panel appeal in the CAFC and the en banc appeal, the vultures wanted in on it…

I got calls. Simon Tam got calls. And they all went more or less like this:

You guys were simply delightful in the Federal Circuit, coming out of New Jersey and all that. Charming country lawyers. But now it’s you against the Solicitor General, the Justice Department. And, really, the justices themselves. They don’t like strangers, and they don’t like amateurs poking around at the First Amendment. So you need us.

The Redskins lawyers told us it was time to hand over our case to them, because we couldn’t win it the way they could win it. We could keep our names on the brief if we wanted, but it was time to get out of the way. This could only be handled by Supreme Court Elite — the SCOTUS regulars, former SCOTUS clerks who knew how to play the justices the way no Jersey bumpkins ever could.

Coleman was not amused. He told them to pound sand. And with the case now over with a resounding 8-0 victory last month, he gets to write about the vultures. And he does.

Which brings us to the second kind of lawyer, the one who toils in virtual anonymity. For Coleman was also helping fellow blogger Patrick Frey, an assistant district attorney out in California who writes the conservative legal blog Patterico’s Pontifications. He’s played along as part of a couple of my April Fool’s gags in years gone by.

Patterico blogged about the Speedway Bomber, Brett Kimberlin, charitably described by Eugene Volokh as a “colorful past convict and current assiduous litigant who has been suing various conservative bloggers.” And Kimberlin sued him in Maryland.

The problem was that Coleman is a New York and Jersey guy, and he needed a Maryland attorney to assist. He tried hard to find a good-sized law firm, that could afford to do the pro bono work, to help. Crickets. Ken White at Popehat sent up the Popehat Signal to look for help. More crickets from the locals.

So Maryland employment lawyer Bruce Godfrey — see what I did there again? — stepped into the breach. He was not part of the big firm that was really needed because a lot of time would be spent, but big enough. And Godfrey came through in spades.

Because the case was just dismissed. Patterico writes:

I can’t say enough about these guys. They stood by me at all times, working for no pay — all for the righteous cause of defending free speech. Ron Coleman juggled this case with his internationally known pro bono case for the Slants, which resulted in total victory and a landmark opinion for free speech. In addition to his fine legal work with Ron on the briefs, Bruce Godfrey dealt with a prickly and difficult client (that’s me!) on discovery issues, and spent countless hours cataloguing, redacting, and organizing the voluminous discovery — not to mention dealing with the court and Kimberlin, and navigating me and Ron through the Maryland legal world.

I’m not going to sit here and claim that I agree politically with Coleman or Patterico or Godfrey on any particular political issue. Because that is not the point. The First Amendment doesn’t belong to the right or the left, it belongs to all of us. When the rights of one are curtailed then the rights of all of us are.

One only need look at places like Turkey, Russia, the Phillipines that have previously experienced some levels of freedom and democracy to see how easily such rights can be lost.

So a tip of my hat today to the three of them, for standing their ground and persevering. We are all better off for the time and effort they have spent.
———-
Updated with other takes:

Patterico Wins, and You Need to Know (Greenfield @ Simple Justice)

Brett Kimberlin lawsuit against Patrick Frey (Patterico) thrown out of court (Jacobson @ Legal Insurrection)

Patterico Vindicated: Judge Rules Against Brett Kimberlin’s Failed Federal Suit (McCain @ The Other McCain)

May 1st, 2017

The First Amendment Under Attack (From the Left and the Right)

There’s no question that the First Amendment is under attack today people claiming to be from both the right and the left.

Let’s start with the right and Donald Trump (to the extent anyone considers Trump a right-winger): On Sunday came the revelation that Trump may try to alter the First Amendment right to free speech because he can’t handle criticism.

This is not hyperbole on my part — I shy away from such things — but comes from Chief of Staff Reince Priebus explicitly saying so to ABC’s Jonathon Karl on Sunday. Priebus stated that they were “looking at” just such a scenario, to amend/abolish the power to speak freely. This was the first of two exchanges on the subject, that you can view online (emphasis added):

KARL: I want to ask you about two things the President has said on related issues. First of all, there was what he said about opening up the libel laws. Tweeting “the failing New York Times has disgraced the media world. Gotten me wrong for two solid years. Change the libel laws?” That would require, as I understand it, a constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?

PRIEBUS: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these other matters—

And, in the event anyone wants to chalk this up to “maybe he misspoke,” he made it clear by reiterating it:

KARL: So you think the President should be able to sue the New York Times for stories he doesn’t like?

PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired.

KARL: I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.

PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.

Trump, of course, is (in)famously on record as wanting to “open up our libel laws” to allow him to more freely sue people when he gets irked because news isn’t reported the way he likes. He seems to forget that, in order to be President and debate the issues of the day, he needs to put on his big boy pants when people decide to flay him for his words or conduct.

And this is evident from his prior conduct in bringing bullshit defamation claims to silence people or punish them for exercising free speech rights. Trump hates the First Amendment. And that is a danger.

But as I noted at the start, the First Amendment is also under assault from people who claim to be from the left. Over at UC/Berkeley, that bastion of liberalism, demonstrations over the appearance of right-wing hate mongers for profit MiloYiannopoulos led to the University cancelling his appearance instead of protecting him.

Then the same thing happened to that other hate monger for profit, Ann Coulter. The university canceled her appearance due to concern over the reaction to her, amounting to a”hecklers veto.” By rewarding those that threaten to commit crimes, the university merely empowered them to repeat their un-American conduct of trying to silence speech (instead of rebut) that they disagree with.

You’ll note that I described these people as those “who claim to be from the left.” They aren’t. Even if they say they are.

Neither conservatives nor liberals are opposed to free speech. But authoritarians are. And authoritarians can come from either the ostensible left or the right. What they want most is the ability to exercise power without regard to open debate.

The answer to speech with which we disagree is simple: More speech. ‘Tis the nature of our republic.

Journalists that describe the hoodlums as “left” or “right” are not only making a mistake, but doing a disservice to the country. Call them thugs, anarchists, wannabe dictators or any other name, so long as it doesn’t align with traditional American political parties and values that embrace open debate. Because they aren’t part of that. And yes, that includes Trump (who’s overriding political philosophy, to the extent such things exist, is not right or left, but TrumpFirst).

It is that First Amendment, of course, that gives people the right to criticize governments (among many other things). The First Amendment is not a partisan issue, but a principle of how a democracy functions.

Keep your eyes open folks, because this all looks to get a lot uglier for America. Regardless of which side of the political divide you fall on.

Elsewhere:

Berkeley’s 99 Problems (Greenfield @ Simple Justice)

Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is (White @ Popehat)

Donald Trump vs. The First Amendment (Cole @ The Nation)

Gawker’s Demise and the Trump-Era Threat to the First Amendment (Tobin @ The New Yorker)

November 1st, 2016

Trump and the Threat of Legal Sanctions

An old graphic, because Trump is a repeat offender.

Today we once again turn to Donald Trump, the One Man Bar Exam. Specifically, as to how he might be sanctioned in New York should he bring a frivolous defamation suit here.

Quick background: To absolutely no one’s surprise, Trump threatened to sue the New York Times two weeks ago for defamation because it reported the news. Specifically, it reported that women had stepped forward to assert that he’d sexually assaulted them.

He then went on to assert that he would likewise sue the bevy of women who have stepped forward to talk about the assaults they claimed.

Now comes Ted Boutrous of Gibson Dunn and Crutcher to say that he will defend anyone Trump sues. For free. And he likely has 100 lawyers around the country willing to pitch in their services. There is no shortage of lawyers who would gladly take Trump’s testimony and delight in obtaining liberal discovery about him and his manner with women.

In a discussion on how Trump would get destroyed if he were dumb enough to bring such a suit, Boutrous writes at Politico regarding sanctions:

If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.

Now I don’t actually think Trump will sue. I think he did this solely to intimidate others from coming forward, so that they would think, “I don’t need this shit.” It’s a classic case of intimidation.

But if he is irrational enough to ignore the advice not to sue, and he brings the action in state court in New York where he lives, I’m here to tell you the legal mechanics of how such a sanction could come to be.

Since I’ve been sued twice for defamation over blog posts here, in addition to being a personal injury attorney who routinely brings lawsuits, I have a pretty good prospective from both sides of the -v-.

Since I think the case is an absolute slam dunk against Trump if he sues a media outlet I’m going to leap ahead and go straight to the issue of sanctions.

I’ve written about this stuff before. After Trump brought a dumb defamation claim against Univision, and sought $500M in damages, I laid out the case against him. Then I wrote an April Fool’s gag, complete with fake judicial opinion, laying out the case for sanctions.

In supporting the motion for sanctions, the court might consider Trump’s prior acknowledgment that he brings frivolous suits, as he stated to the Washington Post:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

While New York doesn’t have an anti-SLAPP statute, much to my dismay (my NYLJ op-ed is here), and has a judicial culture against sanctions, any lawyer dumb enough into letting his arm be twisted into bringing suit may well look to New York’s state court as the place to sue.

So these are the four places to look for sanctions in a New York action that I can conceive — two of which I have never seen happen — assuming the judge bucks the judicial culture against awarding them:

First: CPLR 8303-a: This provides for an award of mandatory costs and fees up to $10,000 for making a “frivolous” claim. In order to meet this definition of frivolousness under this statute, a court must find either that

(1) the “claim … was commenced, used or continued in bad faith, solely to delay or prolong, the resolution of the litigation or to harass or maliciously injure another”; or

(2) “the claim … was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

Note that this is per claim, so that if Trump brings suit with multiple claims, it is 10K per claim, not per lawsuit. It’s a nice multiplication factor to use against the vexatious litigant.

Second: Then there are the court rules, specifically, 22 NYCRR § 130.1–1, wherein a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. (22 NYCRR § 130.1–1[c][1–3].)

So essentially we have a statute for commencing a frivolous suit and a court rule for conduct. The one for conduct has no limitation.

Third: This is for an angry judge, who wants to buck the judicial culture against sanctions, and try to use the logic used by the federal courts, wherein courts retain an inherent power to sanction, “to manage their own proceedings and to control the conduct of those who appear before them.” Chambers v. Nasco.

New York judges already have the power to dismiss cases and award attorneys fees, but how far beyond that is an open question. (See, New York’s Court of Appeals in 2014 in CDR Creances SAS v. Cohen, in the context of fraud on the court, with discussion of federal court decisions.)

A judge angry with an abuse of the courts with such a frivolous suit by a wealthy individual might easily expand the Chambers v. Nasco rationale to New York, and it could easily be upheld in such a circumstance.

And I would argue that a sanction should be commensurate with Trump’s wealth, to insure that it has the necessary impact. Let’s fact it, a $10,000 sanction for someone that claims to be worth “in excess of $10 billion” is not even a rounding error for the accountants.

Fourth: If Trump brings suit, there is a 110% chance of him placing a ginormous, stupid number claim for damages in the complaint (even though he may well be libel-proof). You are, quite simply, not permitted to do that, as it would explicitly violate CPLR § 3017(c), which prohibits ad damnum clauses (the monetary damage clause) in personal injury cases. It reads, quite simply:

In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

Now there are only two possible reasons for a plaintiff to put such a thing in a pleading, given that this law was passed in 2003. First, that the party deliberately violated the law in the quest for press, in the hopes of embarrassing someone with headlines. Second, that the lawyer is ignorant.

While it has never been done before, to my knowledge, the sanction was urged by New York’s late guru of civil practice, Professor David Siegel as a way of enforcing the law against those that willfully violate it.

Finally, if I were writing the brief, I would make damn sure to point out that Trump is a vexatious litigant, and that if the court refuses to sanction then it should expect more of the same. Again. And again. And again.