Crime & Federalism

Hagens Berman has used what can only be considered ham-handed tactics against a lone techie who was unwillingly named as a plaintiff in a class action lawsuit.  Yes, you read correctly: Lawyers from Hagens Berman "drafted" Jason Tomczak to be in a class-action lawsuit, even though, according to Mr. Tomczak, he never gave them the right to represent him.  As you might imagine, being the named plaintiff in a silly lawsuit can draw a lot of negative attention to a person.  The lawyers at Hagens Berman didn't seem to care.  Which is odd, when you consider that lawsuits are supposed to benefit plaintiffs.

Then again, I'm not surprised at Hagens Berman's conduct.  After all, a jury found  "that lawyers from Hagens Berman Sobol Shapiro LLP violated their duty of loyalty to three small water bottlers that in 2003 were close to settling a claim with Nestle Waters North America, the owner of Poland Spring Water Co."  It doesn't seem then, that Hagens Berman lawyers care about their clients.

I could be wrong, but given that they forced someone who did not want to sue into a lawsuit, and given that a jury found that they violated their duty of loyalty to another client, I have to wonder if there isn't something rotten at Hagens Berman.

Ben Franklin famously said, "Threed people can keep a secret, if two of them are dead."  That truism must have been in Stuart Taylor's subconscious, when he wrote his most-recent column on the Duke rape case:

[H]ow likely is it that the more than 40 kids ... could have maintained an airtight cover-up since March 14 of a gang rape in a small, crowded house, with not one heeding pleas by parents and lawyers to protect himself by fingering any guilty parties?

Perhaps because there was no cover-up, because there was no crime to cover-up?  You can read Mr. Taylor's full column here.  (Via Overlawyered)

Orin Kerr asks an interesting question here.

The latest bar exam results are in, and while Kathleen Sullivan passed, 61% of all test-takers failed.  Ouch.  (Incidentally, Ms. Sullivan was especially fortunate, as only 33% of all repeaters passed.)

Is telling the truth a crime?

It could be, according to Attorney General Alberto Gonzalez. He appeared on a weekend television show to report that in his view the law supports criminal prosecution of reporters who publish classified information. The Justice Department is apparently considering prosecution of journalists who write about such things as secret CIA prisons abroad.

The press has no obligation to keep secrets, even state secrets. Secrets are the government's province, and while the law can prohibit an employee from telling inconvenient truths, there ought to be no law restricting the press' right to tell the truth.

Federal law makes it a crime to publish or possess some types of information regarding national defense and communications intelligence activities. Conventional wisdom is that this law applies to government employees who divert information from its intended uses. Apparently, Mr. Gonzalez wants to extend the laws reach to private conduct, too.

It is one thing to punish an employee who has been given fair notice that some secrets must be kept. It is quite another to prosecute journalists who are given material by government sources. The government doesn't license journalists, and journalists ought not to be punished for telling the truth.

Rodney Perkins is a rising third-year law student at Lewis & Clark Law School, and is a contributing editor of the law review.  He wrote a Comment to earn class credit for law review.  Mr. Perkins reads Crime & Federalism, and asked me to discuss some potential paper topics with him.  He found something very interesting to write about: "Separating Municipal Liability from Supervisory Liability in Section 1983 Excessive Force Suits."  Here is what his paper covers:

This Comment will examine a specific area of 42 U.S.C. § 1983 doctrine: supervisory liability. The specific goals are to: 1) differentiate supervisory liability from parent doctrines such as municipal liability, 2) articulate a normative framework for viewing 1983 doctrine and 3) suggest an analysis that better aligns supervisory liability with § 1983's normative goals.

Part I will begin with an introduction to both individual and supervisory liability. Section A will discuss how the Supreme Court's rejection of respondeat superior in municipal liability set the stage for doctrines such as failure to train and deliberate indifference. Section B will discuss Supreme Court and Circuit Court of Appeals approaches to “failure to train” and its “deliberate indifference” element in municipal liability cases, which lower courts later applied to supervisory liability. The bulk of Section B will focus on two Fifth Circuit Court of Appeals cases: Roberts v. Shreveport and Estate of Davis ex. rel McCully v. N. Richland Hills. These cases illustrate how inappropriate it is to mechanically graft “failure to train” and “deliberate indifference” onto supervisory liability. Part II will examine how both federal and state qualified immunity doctrine establish an additional barrier to recovery in § 1983 suits. This section will conclude with a discussion of Roberts v. Shreveport, which illustrates how qualified immunity is applied in state claims for excessive or deadly force. Part III will discuss § 1983’s normative underpinnings. Three broad concepts will be discussed: constitutional, private tort and public tort. These values play out and ultimately conflict in § 1983 doctrine. Part III will end with a discussion of how private tort, through conceptions of compensation, corrective and distributive justice, provides an appropriate background for analyzing § 1983 cases. Part IV will use the concepts outlined in Part III as a background to suggest alternative approaches to supervisory liability. The goal is to provide alternatives that might better align Section 1983 doctrine with goals of compensating injured plaintiffs and deterring official misconduct while balancing greater social interests such as effective policing.

You can download the very interesting paper here.  (Ethics disclosure: While I helped Mr. Perkins choose a topic, I neither read nor commented on early drafts of the paper, as it would have been unethical for him to have outside help with his Comment; besides, Mr. Perkins didn't need the help.)

Kathleen Sullivan passed the California Bar Examination this time around.

Humor has an effective way of making a point...

Milberg Weiss is so uniformly despised that it took a while for someone to finally ask: Is the law firm and its partners guilty, or are they additional victims of the criminalization of civil misconduct?  Peter Henning has an interesting post that explores the legal distinction between fraud and dishonesty.

Tim Lynch has an interesting post about Hudson v. Michigan here.