14 July 2009
AIG's Bailout Explained
The nuts and bolts of the AIG bailout deals are very cleanly explained here. The details make the prospects of repayment seem somewhat more plausible than they had before they were explained.
Your Lawyer's Mistakes Are Your Fault
Lawyers live in perpetual mortal fear of missing deadlines and losing a case as a result, no matter how effectively their precautions make this unlikely to happen. This happens, but it happens much less often than one might expect from a plain reading of the rules of civil procedure. Colorado reached a less outcome determinative result in an exceptional but less extreme case where the client was possibly more at fault, in a recent case that I blogged here, for example.
An example of the utterly dismal lawyering which is sufficient to lose a case for a client is set forth in a recent United States Court of Appeals for the 7th Circuit case in which attorney James Hinterlong misses deadline, after deadline, after deadline over more than a year, as he proves utterly unable to follow the court's rules. The fact that Hinterlong is the one who filed the suit in the first place on behalf of his client makes his inattention to the case particularly worrisome. Hinterlong's client hires a new lawyer, but the new lawyer's efforts prove to be too little, too late. As a result, the client loses to the tun of $582,000 in contract case that it filed in the first place, and the client then sues Hinterlong, who has no malpractice insurance, something that is not unusual because malpractice insurance is rarely required by law. One suspects that Hinterlong will see his license to practice law suspended or be disbarred before too long.
The moral of story, from the appellate court's perspective, which opens with the sentence: "This case is an example of how the sins of a lawyer can be visited upon the client," is the general rule that clients are held responsible for their lawyer's actions, even if their lawyer has manifestly screwed up in a way that is not the client's fault, as was the case here. The notion is at the core of an adversary system of justice.
This doctrine has particular force in civil litigation where there is no constitutional or statutory right to publicly financed counsel, and a client chooses his own lawyer. In those cases, a suit for malpractice, rather than relief in the underlying case is the normative remedy, and if a malpractice judgment is unlikely to be collectable, that is just the client's bad luck. A fund financed by lawyers sometimes makes payments to clients if lawyers steal funds, but almost never does so if lawyers simply malpractice.
Where third party or public interests are at stake, for example, in a custody case or a suit to determine a statute's constitutionality, or where a malpractice suit can never adequately substitute for the harm associated with a loss on the merits and there is a right to adequate counsel, for example, in serious criminal cases, there are real reasons to question the appropriateness of this rule. But, in a contract suit between two corporations that is strictly over money, like the one in the 7th Circuit case, the argument for holding clients responsible for their lawyer's conduct is quite strong. After all, corporations can only act through their agents in any case.
Similarly, while there are cases where it seems harsh to uphold the finality of judgments which are not timely appealed after being entered, a factor also involved in this case, this is not one of them.
An example of the utterly dismal lawyering which is sufficient to lose a case for a client is set forth in a recent United States Court of Appeals for the 7th Circuit case in which attorney James Hinterlong misses deadline, after deadline, after deadline over more than a year, as he proves utterly unable to follow the court's rules. The fact that Hinterlong is the one who filed the suit in the first place on behalf of his client makes his inattention to the case particularly worrisome. Hinterlong's client hires a new lawyer, but the new lawyer's efforts prove to be too little, too late. As a result, the client loses to the tun of $582,000 in contract case that it filed in the first place, and the client then sues Hinterlong, who has no malpractice insurance, something that is not unusual because malpractice insurance is rarely required by law. One suspects that Hinterlong will see his license to practice law suspended or be disbarred before too long.
The moral of story, from the appellate court's perspective, which opens with the sentence: "This case is an example of how the sins of a lawyer can be visited upon the client," is the general rule that clients are held responsible for their lawyer's actions, even if their lawyer has manifestly screwed up in a way that is not the client's fault, as was the case here. The notion is at the core of an adversary system of justice.
This doctrine has particular force in civil litigation where there is no constitutional or statutory right to publicly financed counsel, and a client chooses his own lawyer. In those cases, a suit for malpractice, rather than relief in the underlying case is the normative remedy, and if a malpractice judgment is unlikely to be collectable, that is just the client's bad luck. A fund financed by lawyers sometimes makes payments to clients if lawyers steal funds, but almost never does so if lawyers simply malpractice.
Where third party or public interests are at stake, for example, in a custody case or a suit to determine a statute's constitutionality, or where a malpractice suit can never adequately substitute for the harm associated with a loss on the merits and there is a right to adequate counsel, for example, in serious criminal cases, there are real reasons to question the appropriateness of this rule. But, in a contract suit between two corporations that is strictly over money, like the one in the 7th Circuit case, the argument for holding clients responsible for their lawyer's conduct is quite strong. After all, corporations can only act through their agents in any case.
Similarly, while there are cases where it seems harsh to uphold the finality of judgments which are not timely appealed after being entered, a factor also involved in this case, this is not one of them.
Mercantalism Revisited
Mercantalism, which involves active government involvement in trade to promote certain kinds of economic activity, is back in fashion. Having recently reviewed the history of almost every modern financial panic in the world, many pre-Great Depression, I am inclined to believe that there is merit to this position. The historical evidence that mercantalism was a positive force for economic development is quite a bit stronger than free market economic theory would suggest.
"Hot News" Doctrine Dice Not Rolled
A federal judge in the New York lawsuit had ruled in February that AP properly asserted the [hot news] doctrine, first recognized by the Supreme Court in 1918. While facts can not be copyrighted, under the hot news doctrine news outlets can sue a rival for re-reporting “time sensitive, ‘hot news.’”
From here.
The defendant in the case argued that:
the “hot news” doctrine was pre-empted by the 1976 Copyright Act. . . [and] that the lawsuit represented “an attempt by plaintiff Associated Press to accomplish through alternative legal theories what AP is prohibited from accomplishing under the Copyright Act: Preventing another news service from reporting facts about the news after those facts have been published and entered the public domain.”
The defendant wasn't willing to gamble on taking the case to trial or losing on appeal, so the case settled.
The "hot news" doctrine has the potential to do an end run around the fair use defense to copyright law that is critical to the enterprise of blogging. The most recent affirmation of it, in 1997, involving real time sports score transmission has since been somewhat undermined by cases holding that fantasy baseball leagues don't violate IP rights by using publicly available scores and by the special nature of sports events where the underlying rights are owned by the teams, the fans are in privity with them, and the media are granted access as contractual licensees to closed door events.
Perhaps the best solution is to put this doctrine on the list of matters that need to be included in statutory reform of intellectual property laws.
Famous Idiot Op-Eds
Should serious newspapers publish op-eds by people who have no qualifications to write about the issue addressed except fame?
Matthew Yglesias (hat tip to Steam Powered Opinions) argues that they should not:
Then again, Yglesias is partially being intentionally dense.
Why Palin? Because she was a Vice Presidential nominee for the GOP in 2008, is one of the few names being widely discussed right now as a Presidential candidate in 2012, and is one of the more prominent spokespersons for the hydra-headed Republican party at the moment because she was more popular with the Republican base than GOP Presidential nominee John McCain. Her words put her on the record on something that could be an issue in a future Presidential campaign and also articulates the policy of a wing, at least, of the Republican Party.
In short, her statements are important, more because of what they say about who is speaking and those she represents, than they are because they provide a wider understanding of the world.
I am not as offended as Yglesias, as a result, but I see his point. Op-eds like this are pure exercises in spin, are naturally prone to spread misinformation, and create an appearance of authoritative opinion where none had existed before.
Matthew Yglesias (hat tip to Steam Powered Opinions) argues that they should not:
[W]hy does Sarah Palin have an op-ed on climate legislation in the Washington Post? Does she have scientific expertise? Economic expertise? Knowledge of the state of international climate negotiations?
Perhaps during her brief time in the public spotlight she developed a reputation for an unusually solid grasp of complicated policy details? Or is the idea that she’s known for being honest? A good-faith participant in public policy debates?
Well, no. And the fact of the matter is that the Palin op-ed actually fits very comfortably alongside the established norms of Charles Krauthammer, George Will, and Robert Samuelson—words on paper that are neither paid advertisements nor serious efforts to improve people’s understanding of the world.
Then again, Yglesias is partially being intentionally dense.
Why Palin? Because she was a Vice Presidential nominee for the GOP in 2008, is one of the few names being widely discussed right now as a Presidential candidate in 2012, and is one of the more prominent spokespersons for the hydra-headed Republican party at the moment because she was more popular with the Republican base than GOP Presidential nominee John McCain. Her words put her on the record on something that could be an issue in a future Presidential campaign and also articulates the policy of a wing, at least, of the Republican Party.
In short, her statements are important, more because of what they say about who is speaking and those she represents, than they are because they provide a wider understanding of the world.
I am not as offended as Yglesias, as a result, but I see his point. Op-eds like this are pure exercises in spin, are naturally prone to spread misinformation, and create an appearance of authoritative opinion where none had existed before.
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