Jay Reding.com

A study has found that smoking bans contribute to an increase in drunk driving as smokers either go to bars where smoking is allowed, or go home earlier than they otherwise would.

The First Law of Public Policy strikes again—every public policy has a set of unintended negative consequences and the magnitude of those consequences are in proportion to the sweep of the policy. The smoking ban is no different—instead of letting bar owners, patrons, and workers decide for themselves based on all the available information, the government decided to make the choice for them.

There’s no question that smoking is incredibly bad for you, and second-hand smoke is dangerous. At the same time, the government makes a large sum of money off the sale of every cigarette. The cigarette companies receive justified criticism for profiting of the sale of a product that kills half of the people who use it—but exactly why is government less culpable when they too are making money off the sale of cigarettes?

Whether or not the benefits of smoking bans outweigh the increase risk and the additional cost is an open question. Even if they do, it’s still worth asking the question of just how much power we should be giving government to regulate our private affairs.

A group of University of Maine legal clinic students are launching an assault on the RIAA’s demands that universities turn over the names of students accused of filesharing. They’ve filed a Rule 11 motion for sanctions against the RIAA in the case of Arista v. Does 1-27.

Rule 11 motions don’t often succeed, but the motion makes a strong case. There’s a federal law called the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g(b)(2)(B) (or “FERPA”) that’s analogous to the HIPPA regulations that prevent medical facilities from violating the privacy of patient records. What is happening is that the RIAA is demanding that colleges and universities turn over student records in violation of FERPA, and some of them have acquiesced. By demanding that colleges turn over confidential student information, the students are alleging that the RIAA is circumventing the rights of students under FERPA.

Rule 11 is designed to prevent litigants from suing for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). The students are alleging that the RIAA’s John Doe lawsuits are designed specifically to harass litigants into settling—and the record of hardball tactics used by the RIAA support that contention.

Also, the motion alleges that the purpose of the RIAA’s suits is to get the names of the students as an end run around FERPA. They site In re Kunstler, 914 F.2d 505, 518 (4th Cir. 1990) for the proposition that a suit may only filed to uphold a legitimate legal right—you can’t sue someone just to get their name or to embarrass them (as was the case in Kunstler). This argument seems a bit weak. Rule 11 allows a suit to go forwards so long as that litigant has a good-faith argument that discovery will produce enough facts to justify the claim. Here, the RIAA can say that their suits were designed to produce legitimate information in discovery. However, there is an equally strong case that in fact, the purpose of the suits really was for the purpose of harassment—and in fact, some of the RIAA’s own statements in various filings seem to make precisely that argument. (One of which is cited in the motion for sanctions.)

Finally, the students argue that the RIAA is engaging in improper joinder of parties under Rule 20. Rule 20(b) concerns having a case in which a plaintiff (like the RIAA) tries to “join” multiple defendants (like the students) into a single lawsuit. In order to do that, the multiple defendants have to have engaged in “the same transaction, occurrence, or series of transactions or occurrences”—just that they all engaged in filesharing isn’t enough. The RIAA has been slapped down several times by other courts for engaging in improper joinder of defendants before. That’s crucial because normally the remedy for improper joinder is just to split up the case—the students are arguing that since the RIAA keeps engaging in the same improper joinder they deserve sanctioning.

This is a very strong move on the part of the students, as Rule 11 sanctions are not something courts take likely. They make a very strong case that the RIAA’s conduct is worthy of sanction, especially if the court finds that the purpose of the RIAA’s suits is to get the names of students and then harass them into settling. In fact, that’s what the RIAA has done several times in the past.

If the purpose of the RIAA’s suits is not to actually sue the “John Doe” defendants but to pressure them into settling, then Rule 11 sanctions are appropriate. The sanctions regime under Rule 11 exists to prevent litigants from harassing others with “nuisance” lawsuits or using the threat of a suit purely for intimidation—and there’s much that suggests that’s precisely what the RIAA is doing. If the judge agrees, this would be a strong case for the imposition of sanctions, and it may be enough to prevent the RIAA from engaging in similar patterns of conduct in the future.

The SCOTUSblog has some interesting discussion of the recent Medellin v. Texas decision by the Supreme Court. The Bush Administration sought review of a Texas inmate’s death sentence after the Mexican government demanded that the government follow a decision by the International Court of Justice in the Hague.

The popular press is spinning the result as a defeat for the Bush Administration, which may be technically correct, but that misses the point. For one, it’s a defeat for Bush trying to put a stop to an execution in Texas, which seems a little out of character, and secondly the more important legal question has to do with how federal courts should interpret international law.

The International Court of Justice held in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 that the US had violated the Vienna Convention on Consular Relations by not informing 51 Mexican nationals in US jails of their rights under the Vienna Convention. The Court, in another case, found the opposite—that the Convention was not violated and that the states could use their own rules. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The Bush Administration issued an executive order that told the states to uphold the ICJ’s Avena decision.

The Court, quite rightly, rejected this approach. Chief Justice Roberts’ decision makes it quite clear that unless Congress has said otherwise, ICJ cases like Avena do not have the force of federal law. In 1985, the United States exercised its rights under the Optional Protocol to the Vienna Convention and did not consent to the jurisdiction of the International Court of Justice.

This may seem a bit confusing, as individuals can’t opt out of laws in the United States, but these sorts of arrangements are common in international law. States can consent or not to the jurisdiction of the International Court of Justice under the Vienna Convention, or they can also pick and choose what categories of cases it will choose to follow based on different treaties. Originally, the U.S. chose to submit to the ICJ on Vienna Convention claims, but in 2005 the U.S. opted out of those claims.

Chief Justice Roberts gets to the meat of the issue here:

No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

The Court held that this was not such a case, and that unless Congress explicitly says that the Avena decision is also federal law, the Bush Administration can’t force the states to follow it.

What’s interesting about this case is how it’s vastly different from how we think of the Court operating. The “conservative” Justices voted against the Bush Administration, along with Justice Stevens. The “liberal” Justices voted to uphold the Bush Administration’s decision. It just goes to show how the whole “liberal/conservative” makeup of the Court really isn’t that accurate. Justice Scalia, the bête noir of liberal interest groups hammered the Bush Administration over detainee rights in Hamdan. In several criminal law cases, you find Justices Scalia and Ginsberg on the same page agreeing on the limitations on police discretion.

The Court is a lot more complex than people seem to think, and even a truly controversial case like Bush v. Gore is not as straightforward as people think. Cases like Medellin exhibit how our usual preconceptions of the Court don’t always match the reality. For as much as we talk about the politicization of the Supreme Court, the “conservative” Justices are hardly lapdogs for Republican Administrations, and the “liberal” justices are not always attack dogs either. The real question is how the individual Members of the Court interpret the law, and Medellin is a case where a strict construction of precedent goes against the Bush Administration and a “liberal” reading of federal law would support it.

David Bernstein points to a case where a simple drafting error may have consequences in the billions:

JPMorgan and Bear were prompted to renegotiate after shareholders began threatening to block the deal and it emerged that several “mistakes” were included in the original, hastily written contract, according to people involved in the talks.

One sentence was “inadvertently included,” according to a person briefed on the talks, which requires JPMorgan to guarantee Bear’s trades even if shareholders voted down the deal. That provision could allow Bear’s shareholders to seek a higher bid while still forcing JPMorgan to honor its guarantee, these people said.

When the error was discovered, James Dimon, JPMorgan’s chief executive, who was described by one participant as “apoplectic,” began calling his lawyers at Wachtell, Lipton, Rosen & Katz to seek a way to have the sentence modified, these people said. Finger pointing over the mistakes in the contracts began as bankers blamed the lawyers and vice versa.

Everyone in law, myself included, have been bitten by the occasional typo—in a profession that produces reams of paper a day, errors are an inevitability. At the same time, it’s shocking how many blatant errors can pop up in critical documents—one would think that a deal this large would have been scrutinized many times over before anything was signed.

It just goes to show that bad documents are frequently symptomatic of bad corporate cultures: they can be the product of a corporate culture that rushes to meet deadlines, or the product of a corporate culture that is so tribal that drafters of documents don’t feel comfortable sharing their work with others to get feedback.

There’s also a lesson for the legal education community here—business schools teach working in groups. Law schools don’t. Even though most law schools push the BigLaw career track, they still tend to teach students the skills needed to be sole practitioners. Fortunately this is changing, and while it’s harder to add group work to core courses like Property or Criminal Law, it makes a difference in courses like Contracts where one attorney probably shouldn’t be drafting a contract without at least one other attorney taking a look at it. That sort of socialization is even more important when something as small as one sentence, one word or even one punctuation mark can make a difference in the billions.

Tomorrow, the Supreme Court will hear oral arguments in District of Columbia v. Heller (07-290), a case which may see the Supreme Court determining whether or not the Second Amendment confers an individual right to own firearms.

The ScotusWiki has all the briefs and amici on the case. Unsurprisingly for a case of this importance, there are plenty of amicus briefs on both sides.

Ultimately, what this case may come down to is the appropriate standard of review. The Department of Justice concurs in the idea that the Second Amendment does give an individual right. However, the amicus brief for the United States argues that the standard of review should be less categorical than the one suggested by the Court of Appeals:

Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions
of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

Reading the tea leaves, I think it’s quite possible that the Supreme Court will follow the argument of the United States in this case. A holding that the Second Amendment does confer an individual right to gun ownership, but that a restriction on that ownership must merely pass something like a rational basis test, seems a very likely outcome to me. This Court is a very conservative court—and I mean that in the dictionary rather than the political sense. Chief Justice Roberts does not seem inclined to upset the apple cart and sweep away a wide variety of state and federal statutes by having the Court issue a broad holding. Rather, it seems more likely that the Court will remand this case back to the Court of Appeals for rehearing based on a new set of criteria.

If that happens, it’s not going to be an outright win for anyone. The NRA and gun-owners groups will not be happy with a standard of review that’s likely to see most restrictions on gun ownership upheld. Anti-gun groups like the Brady Center are not going to be happy with the Court saying that the Constitution protects the rights of gun owners. Yet in terms of the law, it’s the best way for the Court to avoid making sweeping changes in policy one way or the other.

The Second Amendment does give individuals the right to own firearms. The history and intent of the Second Amendment is difficult to rationally interpret in any other way. I don’t see the Court being split on that issue. The real issue may be the standard of review, and if the amicus brief from the United States has as much weight with the Court that I suspect it will, my rough guess is that this decision will result in a remand to the Court of Appeals with an instruction to determine whether the District of Columbia’s gun regulations meets the appropriate standard of review. It could well be that the result of this process is a confirmation that the Second Amendment does protect an individual right, but that the D.C. gun laws don’t violate the standard of review. If so, this controversy isn’t going to be settled by this case, but will continue on for some time.