Blog of law articles

Ok, I'm going to try hard this morning to provide nothing but real serious legal news, so everyone can bill 1.8 hours for reviewing this crap.

Let's start with Chinese Drywall.

Everyone knows it's no fun to sue Chinese defendants.

Still, I was a bit surprised to see plaintiffs' lawyers talking about seizing ships that transported the drywall:

Herman said plaintiffs' lawyers were up to the challenge. "I think we can bust the dam in this case," he said.

He said making that happen could involve attempts to obtain damage payments by seizing vessels that brought the drywall to the United States if they return to U.S. ports and even going after Wall Street investment banks with a share of ownership in the Chinese companies.

"We've got financial institutions in the United States that have substantial investments in these companies that caused these problems," Herman said. He couldn't say which U.S. financial institutions could be sued for damages.

Miller said lawyers are considering asking courts to seize vessels that delivered the drywall.

"It's an interesting concept and if it can work to get the attention of these other Chinese companies, that's what needs to be done," he said. "Getting the missing parties to the table" was paramount, he said.

But seizing vessels — known as an "in rem" action, which often involves filing a lien against a vessel — and going after shareholders would hardly be easy, said Mark Ross, a Lafayette, La., lawyer who specializes in maritime law and civil litigation.

"My gut reaction is that that could be a bit of a stretch. In rem could be seen as a severe action, seizing a vessel, tying it up for a day," Ross said.

"How do you go about identifying what vessels to seize?" Ross said. "How do you seize a vessel for merely transporting cargo, which they might have been required to take by law."

A ship owner could sue if the seizure were deemed too aggressive, Ross said.

As for going after investors, Ross said that too was far-fetched. "Smart money says that's not going to work. A shareholder? Probably not. I don't know if that exposes them to liability."

It'd be one thing if the ships were owned by one of the Chinese defendants.

But seizure because in the past a ship owned by another company transported bad drywall? That'd be like seizing a UPS truck because it once transported a defective product.

Moving on, did you know that the Supreme Court has severely cut back the number of cases it accepts?

As usual, the law clerks are to blame:

Another factor contributing to the shrinking docket may be the “cert. pool,” the arrangement in which many of the justices share their law clerks to assess the thousands of petitions from which the court culls the cases it will hear. A single clerk writes a “pool memo” evaluating the case, and the memo is distributed to the participating justices.

The number of justices in the pool grew to eight from six from 1989 to 1991, and that may have driven down the number of petitions granted, according to Kenneth W. Starr, a former appeals court judge, solicitor general and independent counsel in the Whitewater investigation. (Seven justices are in the pool now. The exceptions are Justices John Paul Stevens and Samuel A. Alito Jr.)

“The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” Mr. Starr wrote in The Minnesota Law Review in 2006.

I don't know, given some of the recent opinions, this might be a good thing.

In 11th Circuit news, Judge Middlebrooks gets reversed by the 11th because he dismissed a complaint by a plaintiff proceeding in forma pauperis after the US Marshall failed to timely serve the defendant:

We agree with the well-reasoned decisions of our sister circuits. Relying on Fowler, we hold that the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes “good cause” for the plaintiff’s failure to effect timely service within the meaning of Rule 4(m). Here, the district court allowed Rance to proceed in forma pauperis and, in accordance with § 1915, it specifically instructed the United States Marshal to make service. Our precedent allowed Rance to rely on the Marshal to make service. See id. For reasons unknown to us, the United States Marshal did not do so. Nothing in the record indicates that Rance shares in the Marshal’s fault for failure to effectuate service.

Therefore, the district court abused its discretion by dismissing Rance’s complaint without prejudice under Federal Rule of Civil Procedure 4(m) because the district court had directed the United States Marshal to serve the complaint, and the United States Marshal failed to do so through no fault of Rance.

Finally, somebody show this to George L. Metcalfe:

Gay or straight, the sexual orientation of adoptive parents does not have an impact on the emotional development of their children, according to a new study.

But researchers said that if parents were satisfied with the adoption process, had a stable income and functioned well as a family the risk of emotional problems in children were reduced.

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement.

"We did find, however, that age and pre-adoptive sexual abuse were," she added.

Averett, Blace Nalavany, also of East Carolina University, and Scott Ryan, dean of the University of Texas School of Social Work, questioned nearly 1,400 couples in the United States, including 155 gay and lesbian parents.

They used information from Florida's public child welfare system and data from gay and lesbian couples throughout the U.S. for the study.

Good lord!

Empirical data and even worse -- science? According to possibly David Broder and definitely Kirk Cameron, wasn't science first invented by the Nazis?

Sigh.

As I've already explained, there are only two legitimate sources of authority -- my gut, and what God tells me.

(On occasion, like my friend George, I might consider a truly horrific anecdote as well.)