Baseball Sues Biogenesis for Tortious Interference with Contract

Hello baseball fans and contract law fans! (That would be an interesting Venn diagram.) Anyway, this morning Major League Baseball sued Biogenesis (among others) for allegedly tortiously interfering with the “Joint Drug Agreement” between MLB and the MLB Players Association. The basic theory is (1) that MLB and the MLBPA have a contract pursuant to which the players agree not to use drugs and (2) that Biogenesis interfered with that contract by giving drugs to certain players.

Craig Calcaterra is one of my favorite baseball writers–and he also happens to be a former lawyer. He’s got a post up at NBC’s Hardball Talk in which he helpfully provides a copy of MLB’s Complaint; he concludes that the “lawsuit is crazy on its face” and “should be thrown out of court.” Indeed, Calcaterra is “shocked Major League Baseball found someone who would file it.”

Well, I’m not so sure…

Lawyers Dress for Success!

I’ve spent a lot of time analyzing cases and commenting on legal issues here on this blog. However, my most popular post ever may well be this post about a lawyer fashion shoot over at the WSJ.

In keeping with that theme, I was happy to find a chapter on lawyer fashion while reading through The Curmudgeon’s Guide to Practicing Law by Mark Herrmann.

And because I know you love lawyer fashion, and because my goal is to give readers what they want, I’ve taken the liberty of posting, in its entirety, Chapter 8 of Herrmann’s book entitled “Dress for Success.” Full chapter after the jump:

“Goodbye to Law Reviews” by Fred Rodell

There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.

– Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936).

Law reviews have been taking a beating recently. Or, more specifically, the enterprise of law professors writing long and heavily footnoted scholarship that is then selected and edited by students has been taking a beating. I’ve been meaning to write a post in defense of the law reviews (and the enterprise) for some time. But this is not that post. 

No, this post is a shout-out to the essay that provides this post’s title: Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936). I found Rodell’s essay as I was poking through my copy of American Legal Realism (William W. Fisher III et al. eds., 1993), while pulling together my Spring Quarter syllabus. Since the essay is hilarious, and since nearly 80 years later people are still saying “goodbye” to the law reviews, I figured you might enjoy reading some highlights.

DOMA Case Headed to the Supreme Court

As you’ve probably already heard, the Supreme Court has granted cert. in a Defense of Marriage Act case and the California Prop 8 case. What you might not know is that the DOMA case headed to the Court is United States v. Windsor, the case I’ve written about previously here and here, and which hails from my old stomping grounds—the Second Circuit Court of Appeals and the Southern District of New York. So if you’d like some background on United States v. Windsor and its path to the Supreme Court, check out my old posts.

Judge Kozinski Is Disagreeable

Two weeks ago, my legal analysis, research, and writing class learned about different kinds of judicial opinions: majority opinions, dissenting opinions, concurring opinions, plurality opinions, per curiam opinions, &c. When reading the decision(s) of a multi-judge court, the importance of these various sorts of opinions is not always readily understandable. Why would a judge concur? What’s the point of a dissent?

Well, Judge Kozinski just gave me something new to add to next year’s class. But before we get to that, here’s the opinion lineup from last week’s Garfias-Rodriguez v. Holder from the en banc Ninth Circuit:

 

Yikes. Six separate opinions. A “partial concurrence and partial dissent.” The Court describes Judge Kozinski’s opinion as a concurrence, but that’s not what he calls it:

Ah yes, the traditional “disagreeing with everyone” and yet still “concurring” opinion. It’s colorful language, but also a good example of how a concurrence doesn’t necessarily mean that the judge agrees with everything (or anything) the majority had to say in reaching the agreed-upon result.

 

Second Circuit Strikes Down DOMA — Initial Thoughts

It’s now already old news** on the interwebs, but the Second Circuit Court of Appeals (in a 2-1 decision) struck down the Defense of Marriage Act. (Actually, in fairness, I should say that the Second Circuit upheld the District Court’s (Judge Jones) decision striking down DOMA, as previously covered here.)

This is an important decision for a number of reasons. First, this case involved an actual plaintiff, in an actual marriage, who had suffered actual financial harm because of DOMA following the death of her wife. Under state law, the plaintiff was married. But DOMA rejected federal recognition of that marriage, and so the plaintiff was required to pay more than $300,000 in federal estate taxes she would not have paid had she been married to a man. So this is obviously a win for her. Congratulations to her and her lawyers.

Second, the Court of Appeals applied a heightened level of scrutiny in striking down DOMA.

Statutory Interpretation and the Infield Fly Rule

If you’re a baseball fan, you’ve heard about the controversial call in last week’s NL Wild Card single-game playoff. The Cardinals beat the Braves 6-3 in a game that featured an infield fly call that went against the Braves.

Everyone seems to think it was an awful call. I don’t. In fact, it seemed totally fine to me. Here’s why:

“I’m Back”

Okay, welcome back. I have nothing particular to write about, other than to say “I’m back.” And yes, it is a big deal.

 

Also, I should add that despite all my contrarianism, it looks like Chief Justice Roberts really did switch his vote. Oh well. I guess sometimes the cloak-and-dagger explanation is actually the right explanation.

 

Sundry Thoughts on NFIB v. Sebelius, the Day After…

Okay. So by this point, you’ve all read the ACA/Obamacare opinion, which will from here on out be known as NFIB v. Sebelius. And if you’re reading this blog post, you’ve probably been reading other analyses around the interwebs. My favorite thus far (and my recommendations) are: Mike Dorf here (and I’m sure he’ll have more to say), the Slate discussion series, which includes Judge Richard Posner, Walter Dellinger, and Dahlia Lithwick (among others), and all of the SCOTUSblog coverage, including this helpful “Plain English” explanation of the decision. (The nice thing about SCOTUSblog, is that even when they write non-technically, they don’t get sloppy with the facts.)

I am not going to make any effort to mold my thoughts into any sort of cohesive narrative. I read the opinions. I read a lot of the coverage. I am going to make this post a clearinghouse for all of my initial thoughts and observations on the off chance that you might be interested. And because I don’t want to waste you’re time, I’ll try to focus on thoughts/observations that have not already flooded the twitters and interwebs. Also, I’ve numbered them and sorted them by subject, so you can just skip the boring stuff. (Please, no jokes about how it’s all boring stuff.)

The Roberts Switch: Revisited! Updated!

After my last post about the potential Roberts switch, I received some comments from readers via, well, the blog comments (imagine that!) and email. A few additional observations based on those comments (and see update below! (6/29 at 10:00am):

• The joint dissent totally ignores the Chief’s opinion. It’s really quite amazing More than anything else, that is the best evidence I’ve heard that the Chief’s opinion was new/late. Perhaps the joint dissent did not have time to respond?
• The joint dissent is written, generally, in the style of a “majority” opinion. It is more constructive (it builds up its own affirmative argument/decision) and less destructive (it attacks Justice Ginsburg’s “dissent” as a sort of counter-punch, rather than its main thrust).
• The severability analysis at the end of the joint dissent reads more like something that was necessary to the outcome of the case, not just an academic exercise that the joint dissenters went through in the service of some sort of desire for completeness. How many dissents go through a severability analysis like that? Perhaps it was written as a majority, but once the majority was lost, there was no need to cut it.

Those are some good observations. (Thanks comments!) And based on those observations, my needle has definitely moved a bit more toward “it was the majority before a switch!”

But there are still some problems. Let’s assume that things started out after conference with Roberts in a 5-4 majority with Kennedy, Scalia, Alito, and Thomas, as posited by the switch hypothetical. In that scenario, Ginsburg is assigned to pen the dissent. But who got assigned the majority decision? How does that explain the “joint dissent” strangeness? In any event, under this theory, at the last minute, Roberts changes his mind! And his opinion is so late that there’s no time for the joint dissent to change the opinion.

Well, if that happened, then how did Justice Ginsburg have time to adjust her dissent to respond to the Chief Justice’s opinion? If she had time, surely the joint dissenters should have had time as well — at least enough time to make the cosmetic changes that would have been required, or to respond to the Chief’s tax argument. And why would the joint dissenters not join some/all of the Chief’s commerce ruling? Why did the Chief feel the need to draft his own Commerce Clause “essay” instead of just joining the joint dissenters’ opinion on that issue, when the holdings were remarkably similar?

The joint dissent does read like a majority. And the failure to address the Chief’s opinion is indeed extremely strange. But there are other explanations besides a last-minute defection. What about a scenario where the Chief was unwilling to commit to the joint dissenters at the conference, leaving the conference as sort of a free agent or a loner from the outset. The joint dissenters then authored a “draft majority” and circulated it in the hopes of gaining the Chief’s vote. It failed to do so. But from the conference, the Chief knew that he could get the liberals’ vote on the tax issue. So he informed the rest of his colleagues (at some point, perhaps immediately after the conference) that he was going to draft his own opinion for the Court, telling them a general outline of his theory. Justice Ginsburg, who knew that she would not have 5 votes for a Commerce Clause ruling, could go ahead and draft (or keep) much of her “dissent” on the commerce point. And she and the others were free to join the Chief on the tax issue without adding their own discussion. 

Meanwhile, the joint dissenters already had a full opinion on the commerce issue, so there was no need join the Chief in that portion of the opinion. And perhaps they thought the tax issue was not worth spilling too much ink.

But anyway, if Justice Ginsburg had time to digest and respond to the Chief’s opinion, I just can’t believe that the joint dissenters didn’t have the time. I have no doubt there is a great back-story here, but I don’t necessarily think that the story needs to be a “last minute” defection, or some sort of spite-fueled dissent from the conservative wing. I am, however, really looking forward to that law clerk’s tell-all book!

Update (6/29 at 10:00am):

David Frum published an email from a reader that is more along the lines of what I’m thinking:

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

I like that. As far as I’m concerned, any theory of a Roberts changed vote (and the timing of such a change) needs to explain the following:

1. How did Roberts have time to write such a long opinion? (Not a last-minute change!)
2. Why would Ginsburg have time (and reason) to respond to Roberts’s opinion, but the joint dissenters would not?
3. Why would the joint dissent be a joint dissent, instead of a single-authored dissent?
4. Why would the joint dissenters not have joined Roberts’s discussion of the Commerce Clause holding? (Or why would he not join theirs?)

The “last minute switch!” or “they had him and lost him!” theories don’t really have answers to all of those questions.