Appellate Law & Practice

The other judicial activism: I’m just saying

As most of you know, “judicial activism” as it is generally used is a piece of empty rhetoric is better suited to use by non-lawyers than lawyers. But, maybe some District Court judges are exhibiting a different type of activism.

Criminal summaries posted

The First Circuit Federal Defender Blog posts its summaries of insurance  criminal law in the Second First Circuit.

The Onion offers a pictoral essay regarding our judicial system.

Here.

CA9: How the government can’t clean up its mess with a perjury charge

US v. Castillo-Basa, No. 05-50768.  This case from the Ninth Appears not to make sense.  Then it makes sense.  Then you realize its sheer elegance.  It involves double jeopardy.  In includes non-lawyerly references to OJ Simpson by a dissent that wants to give the government unlimited bites at the apple.

Next up in CA1: challenge to gay-friendly books

I rarely link to feminist blogs, but “Polymorphous Perversity” points out that a D. Mass has dismissed a challenge to gay-positive books in their children's elementary classrooms, thereby teeing it up for the First.  The outcome is pretty obvious. But, there will be some press.  Also, this is a neat opportunity for a pro bono amicus brief.

CA1: The First bends to use adoptive admissions to put someone under the ACCA

USA v. Miller, 05-2763.  This guy plead guilty, and was sentenced under to 180 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).  The First looks at the title of the act and knocks down his arguments one by one. 

Keep reading, and you can SEE the First bend.

Ted Frank v. Tort Deform

In looking at the incoming hits, I noticed a good ol’ blogfight about tort form on the TortDeform blog.  Ted Frank is in favor of it. I don’t really understand the arguments being made.  Apparently they have something to do with the number of people that read each blog.

Anyway, after following this link, and reading all the comments, you will be smarter – in oppositeland!

CA1: personal service okay in immigration matters

Eze v. Gonzales, No. 04-2091.  8 C.F.R. § 245a.2(u)(2)(I) provides that when DHS wants to terminate permanent resident status notice shall be “sent to the alien by certified mail directed to his or her last known address, and to his or her representative...”  DHS personally delivered it.  The BIA said that was okay because Under 8 C.F.R. § 103.5a(a)(2), “the general regulations concerning immigration, personal service includes both "[d]elivery of a copy personally" and ‘[m]ailing a copy by certified or registered mail.’” The petitioner admits that he received the notice, and can’t show why he was prejudiced.  The First doesn’t see anything wrong with this, though they don’t really explain what sort of deference is being applies to two potentially conflicting regulations.

CA1: dismissal is not the right way to treat deposition lethargy

Malot v. Dorado Beach Cottage, No. 06-1035.  The First reverses the dismissal of the plaintiffs claims for failure to comply with various discovery orders.  Essentially the plaintiffs were really busy people.  (Doctors, unlike most people, are trusted when they say that they are busy.  People working in retail or other "lesser" jobs, despite needing to be at work to get paid are deemed to be not busy, and need to show up at court and depositions.)  Relying on Benítez-García v. González-Vega, 468 F.3d 1, 5 (1st Cir. 2006) (our coverage here), the First sets out the factors for disciplining a party that doesn’t participate in discovery.  "the severity of the violation, the legitimacy of the party's excuse, repetition of violations, the deliberateness vel non of the misconduct, mitigating excuses, prejudice to the other side and to the operations of the court, and the adequacy of lesser sanctions."  The First looks at the record, and figures that the delay was only a couple of months, but “we tend to reserve dismissal with prejudice for delays measured in years.”  It also concludes that the reasons given were legitimate, and both sides are to blame. 

The court also notes that “prior notice” before dismissal isn’t required, but it is an important consideration.

So, it is remanded for a better sanction.

CA1: First sings lovesong to First amendment on the internet

Universal Communications v. Lycos, No. 06-1826.  What do you do when someone says things about your publically-traded company that you don’t like on the internet?  You sue the message board.  But, means that you have to get around 47 U.S.C. § 230 (i.e. the part of the Communications Decency Act that says "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,").  Then, to make the complaint a bit thicker you allege some securities violations against some John Does and one identified person.  Alas, those usually require pleading with particularity under FRCP 9(b).  (The District Court found it lacked subject matter jurisdiction, but the First relies on 9(b)).