One of the most unfortunate convergences in legal theory has been that private civil litigation is merely a "racket for lawyers" with no redeeming social value. I find myself guilty of that thinking myself. And yet it was not always so. Many, if not most, legislation which intended to reform and regulate commerce, included private litigation as part of the regulatory process. The phrase private attorneys general used to have resonance. Today, "tort reform" is the "cheap slogan" that has trumped the concept.

On the FinReg debate, one of the ideas being bandied about is making it easier to sue the rating agencies. Paul Krugman writes about it today:

The NYTimes writes a news analysis story arguing so:

In accusing Goldman Sachs of defrauding investors, regulators are not only taking aim at a company with deep pockets and a will to fight — they are also pursuing an unusual claim that could be difficult to prove in court, legal experts said.

I have not delved enough into the facts of the case to know if this is true, but some statements in the article seem clearly wrong on the law. This statement for instance:

To win its case, the S.E.C. must prove that Goldman was not merely silent about Mr. Paulson’s role but actually gave investors the wrong impression, experts in securities law said. Then it must prove that the missing information was material, a legal term meaning that investors armed with that knowledge might have decided not to buy the product from Goldman, or to do so at a lower price.

(Emphasis supplied.) That is not a good description of the standard in my view. We went through this issue before. The standard the reporter is trying to articulate is this:

Commenting on the now widely covered SEC civil charge against Goldman (here is the complaint (PDF), Matt Yglesias writes:

The general form of this complaint, that it was wrong for Goldman to make money by betting on the failure of debt-vehicles that in another context Goldman was marketing, has been around for a while. But it’s never been clear to me if there was evidence of actual deliberate fraud, as opposed to something vaguer like an undisclosed conflict of interest.

(Emphasis supplied.) To non-lawyers, non-disclosure of a material fact may not seem like fraud, but under securities laws, it is fraud:

Scott Lemieux writes:

I’m somewhat puzzled by Matt [Yglesias]’s argument that a concern with Elana Kagan’s civil liberties record is “a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition.” Brennan, Marshall and Douglas were much more civil libertarian than any of the Court’s current liberals, and there’s a real danger Kagan that Kagan would be more statist than any of them with the possible exception of Breyer.

(Emphasis supplied.) I think Lemieux has made Yglesias' point here. Indeed, the concerns of libertarians are indeed quite different from those of the traditional liberal - who views the state is a solution, not a threat. Of course, those holding these views often overlap, as they did in Justices such as Brennan and Marshall. But the concerns are, as Yglesias argues, distinct. I can assure you that you will see more libertarian concerns from Jeralyn than you will from me. And I suspect, you will see more statist concerns from me than from Jeralyn. But I imagine we both probably agree on most of these issues. I think Yglesias' point is that libertarian concerns are not equivalent to liberal concerns. I think that's right.

Speaking for me only

Bill Clinton has an op-ed in Thursday's Washington Post on how to help Haiti.

MSNBC's David Shuster is hosting a show at midnight ET on Haiti, with reports from a few hours ago from those on the scene, including Brian Williams, Kerry Sanders, Al Roker and Ann Curry. (If you saw Olberman, you've probably already seen them.) Kerry Sanders is predicting anarchy will set in. Air traffic control is being set up. The flights are starting to come in. The Canadian military has arrived.

Secretary of State Hillary Clinton has canceled her trip to Australia and is heading back to Washington from Honolulu due to the Haiti crisis.

Some experts are saying the death toll could reach 500,000 and rival the 2004 tsunami which killed 230,000 people. That seems to include people who will die from lack of treatment and after-effects, in addition to those killed in the actual earthquake, although all numbers seem to be guestimates right now. . From ABC News Australia: [More...]

It is a time honored tactic in a business negotiation (whether it be a corporate takeover or a contract dispute.) We see it now in a somewhat different context - the negotiations of the potential mega fight between Manny Pacquiao and Floyd Mayweather, Jr. Mayweather appeared to be attempting to leverage his demand for Olympic style drug testing for the proposed fight in order to gain some concessions in the negotiations. Or so it appeared to me. The gist of the tactic was rather remarkable - accuse the Pac Man of being a doper and demand the Olympic drug testing standards be imposed for the one fight between Mayweather and Pac-Man. Strangely enough, the Mayweather camp, which includes Oscar de la Hoya's Golden Boy Productions - represents the fighter Shane Mosely - who has admitted to using steroids. Something about glass houses comes to mind.

Via Sentencing Law and Policy, the Department of Justice has issued three separate memos to prosecutors on criminal disovery. They are:

• Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
• Requirement for Office Discovery Policies in Criminal Matters
• Guidance for Prosecutors Regarding Criminal Discovery

The DOJ announcement of the policies is here.

The United States today agreed to pay $1.4 billion to settle a class action lawsuit over the Interior Department's mismanagement of Indian trust accounts.

The potential settlement, which must still be approved by Congress and the courts, would bring a close to the long-running Cobell Indian trust case, and would result in payments to roughly 300,000 individual Indian trust accounts. It would also create a $2 billion program to consolidate ownership of Indian trust lands.

Urging acceptance of the deal: Attorney General Eric Holder and Interior Secretary Ken Salazar.

The Second Circuit Court of Appeals today affirmed the convictions of defense lawyer Lynne Stewart, whose phone calls with her client Sheikh Omar Ahmad Ali Abdel Rahman were taped at the MCC, and her codefendants on all charges, including providing material support to terrorists.

The opinion is here. The Court did not uphold the sentence, and remanded for resentencing:

We therefore remand the cause to the district court for further consideration of her sentence, in light of, among other things, the charges of perjury against her and of any other matter it deems necessary or advisable, and direct the court to revoke Stewart's and Yousry's bail pending appeal and to order them to surrender to the United States Marshal to begin serving their sentences forthwith.

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Good for Michael Vick (PDF):

In August 2007, Michael Vick, then quarterback for the Atlanta Falcons, pled guilty to federal dog fighting charges. The NFL Commissioner thereafter suspended Vick indefinitely without pay, and the League initiated a grievance procedure seeking a declaration that the Falcons could recover certain bonus money that had been paid to Vick with the expectation that he would play football through 2014. Class counsel and the National Football League Players Association (Association) challenged the recovery as violative of anti-forfeiture provisions contained in the settlement agreement and CBA.

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Ben Kuehne, as I've written before, is a leading criminal defense lawyer in Miami. The Government charged him with money laundering and related crimes. He moved to dismiss arguing the exception in 18 USC Section 1957 prevents the government from indicting a criminal defense lawyer for taking payment from a client. The district court agreed and dismissed the count. The Government appealed. The trial court's order is here(pdf).

Oral arguments were this morning and David Markus at the SDFla blog has an excellent recap. While one can never predict how an appellate court will rule from oral arguments, it appears the panel was all over the Government and favorable to Ben's position. David thinks the court will uphold the dismissal.

The New York Times has an article today about how lawyers are facing disciplinary actions over their blog postings and updates on Facebook and social networking sites, particularly when it comes to criticism of judges.

Lawyers are held to a different standard, because they are officers of the court.

I wonder if the standard also applies to comments written by others on blogs belonging to lawyers. Do we have a duty to read and delete comments that are offensive to judges or other lawyers?

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