Hi online addicts!

Welcome to your work week, folks.

Well I hope you all had a restful and peaceful Memorial Day weekend, and at least paused for a moment to honor the many who have sacrificed so much in defense of our country.

Somehow I windsurfed myself all the way out to Elliott Key yesterday, so I apologize for not getting a post up to mark the holiday. And thank you US Coast Guard, I owe you one.

I see everyone is buzzing about Obama's Supreme Court pick. Is it just me or is there something slightly anti-climactic about the selection at this point in the game?

I happen to like the jurisprudence out of the 2d Circuit generally, at least on civil matters. They seem to understand antitrust law, business litigation, and damages issues. Lots of good lawyers litigating the nation's key business disputes in a fair-minded, intelligent forum.

Most of the criticism from the right so far has focused on Judge Sotomayor's PCA on a white firefighter discrimination case -- you can read Ed Whelan's gloom and doom report on the judge's transgressions here.

To me that's a big yawn -- we know appellate courts do this all the time to preclude further appeals when the issues are not properly framed or the case not the right vehicle to adjudicate certain open legal questions. If that's the best they have, she seems like a lock.

Speaking of appellate courts, I found this article pretty interesting:

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Judge Roberts had argued 39 cases in the Supreme Court, and he was considered one of the leading appellate advocates of his generation. He sounded both fascinated and a little deflated by the results of his experiment. “The secret to successful advocacy,” he said playfully, “is simply to get the court to ask your opponent more questions.”

This certainly comports with my anecdotal experiences with a "hot" bench. When you walk up to the podium and can barely get your name out before the questions begin, you stand a pretty good chance of losing.

Sarah, btw, is now an associate at SSD in Palm Beach.

Boy, to have your law review article quoted in the Times and by the Chief Justice -- congrats Sarah!

Of course, I thought my hot-button law review article -- analyzing the increasingly flustered and bewildered facial expressions of Harry Morgan's night court judge in Holiday Affair -- would be nearly as influential, but alas time (and Westlaw citations) have not been so kind.

Darn eggheads!

I guess it has been kinda slow around here when I am headlining a case from 1882, but what the hail.

This month's Smithsonian Magazine has a fascinating account of the history of Arlington National Cemetery, which was formerly the estate of General Robert E. Lee and his wife Mary Lee.

Through procedural hijinks (including the imposition of a 1863 war tax that could only be paid in person) the estate was purchased at auction by the federal government, where the mansion was looted and Union soldiers interred, leading Robert E. Lee to wage a legal battle after the end of the Civil War that led all the way to the steps of the Supreme Court:

Asserting ownership of the property, Lee asked the Circuit Court of Alexandria, Virginia, to evict all trespassers occupying it as a result of the 1864 auction. As soon as U.S. Attorney General Charles Devens heard about the suit, he asked that the case be shifted to federal court, where he felt the government would get a fairer hearing. In July 1877, the matter landed in the lap of Judge Robert W. Hughes of the U.S. Circuit Court for the Eastern District of Virginia. Hughes, a lawyer and newspaper editor, had been appointed to the bench by President Grant.

After months of legal maneuvering and arguments, Hughes ordered a jury trial. Custis Lee's team of lawyers was headed by Francis L. Smith, the Alexandrian who had strategized with Lee's father years before. Their argument turned upon the legality of the 1864 tax sale. After a six-day trial, a jury found for Lee on January 30, 1879: by requiring the "insurrectionary tax" to be paid in person, the government had deprived Custis Lee of his property without due process of law. "The impolicy of such a provision of law is as obvious to me as its unconstitutionality," Hughes wrote. "Its evil would be liable to fall not only upon disloyal but upon the most loyal citizens. A severe illness lasting only ninety or a hundred days would subject the owner of land to the irreclaimable loss of its possession."

The government appealed the verdict to the Supreme Court—which ruled for Lee again. On December 4, 1882, Associate Justice Samuel Freeman Miller, a Kentucky native appointed by President Lincoln, wrote for the 5 to 4 majority, holding that the 1864 tax sale had been unconstitutional and was therefore invalid.

Tipsters, I appreciate it but try to send stuff that at least relates to this century.

I don't think Justice Scalia has visited too many Jewish cemeteries:

"The cross doesn't honor non-Christians who fought in the war?" Scalia asks, stunned.

"A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins," replies Eliasberg, whose father and grandfather are both Jewish war veterans.

"It's erected as a war memorial!" replies Scalia. "I assume it is erected in honor of all of the war dead. The cross is the most common symbol of ... of ... of the resting place of the dead."

Eliasberg dares to correct him: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

"I don't think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead," thunders Scalia. "I think that's an outrageous conclusion!"

Far less outrageous is the conclusion that religious symbols are not religious.

Isn't Justice Scalia a devout Catholic? Yet he is outraged that the central symbol of his faith could somehow be construed as religious?

That's faith for you -- btw, these cases are almost always bad news.

So yes, it's the first Monday in October, and this year a feisty woman judge is joining the bench and will no doubt first battle closet gender bias and clash but then fall in love with the crusty, cantankerous old coot played by Walter Matthau.

Oops, there I go again -- I meant Clarence Thomas.

So for us business litigators is there anything interesting on the Supreme Court docket?

Surprisingly, yes:

The new Supreme Court term that begins Monday will be dominated by cases concerning corporations, compensation and the financial markets that could signal the justices’ attitude toward regulatory constraints at a time of extraordinary government intervention in the economy.

The justices’ decisions will be closely watched at a time when, constitutional scholars say, Obama administration initiatives are generating fundamental questions about the structure and limits of government power that will, in short order, reach the court.

“There will be major ways in which these interventions will produce legal and constitutional issues,” said Michael W. McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center.

The term will provide important hints, said Richard H. Pildes, a law professor at New York University, to “how much the worst economic crisis since the Depression is going to shape the court’s general stance toward markets and economic regulation.”

Professor Pildes pointed to two cases in particular, one concerning the constitutionality of a regulatory board created in the wake of the Enron accounting scandal, the other about what role the courts should play in setting the compensation of advisers to mutual funds.

The decisions in those cases, he said, are likely to signal whether the court has become “more receptive to regulatory constraints on the market” in the wake of the financial crisis.

I think the most intriguing case deals with patent law and whether you can protect something that is purely process-oriented:

The case that has most transfixed the business community is Bilski v. Doll, No. 08-964, a patent dispute that addresses the consequential question of whether intangible business methods may be patented. A federal appeals court last year rejected Bernard L. Bilski’s attempt to patent a method of hedging risks in commodities trading, ruling that only processes tied to a particular machine or capable of transforming an object into something different can be patented.

A broad ruling could affect many aspects of the economy, notably computer software.

“Bilski seems to have the makings of a landmark decision in patent law,” said Pamela Harris, executive director of the Supreme Court Institute at Georgetown University.

I love how patent lawyers consider what they do interesting --talk about life in the bubble.

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.)