By Carlyn Kolker 

Big thoughts

6/20/12

At a conference on Wednesday put on by the Manhattan Institute for Policy Research, a conservative-leaning think tank, a variety of legal personalities weighed in on whether New York state is a cesspool of overcriminalization.  Among the theories that moderator James Copland of the Manhattan Institute posited during “Overcriminalizing the Empire State? Criminal-law Trends in New York and the Threat to Liberty and Commerce” is one that today’s laws go beyond traditional notions of criminality (think rape, murder, assault) and into new territory, such as regulatory crimes. Many criminal laws suffer from vagueness, says Copland, which gives prosecutors broad discretion in how to apply them. 

Against that backdrop, the panelists -- a collection of judges, practitioners and a professor -- delved into deep questions, such as whether New York state’s Martin Act, which governs financial fraud cases, is overly broad. Has the law, which vests the state’s attorney general with deep powers, been abused? Overly used? There were few hard conclusions.

But perhaps the most interesting discussion at the event, held at the Harvard Club, was the discussion of the prosecution and sentencing of child pornography cases. The topic was brought up by Court of Appeals Judge Robert Smith in his keynote address. Looking at the criminal cases which come before the state’s highest court, Smith observed, “You get the feeling that nothing ever happens in New York except ghastly murders and sexual assaults.” One major question that courts, legislators and prosecutors have had to grapple with is how to hold those who promote child pornography accountable, said Smith. Because the creators of child pornography can be hard to locate (“half are in the Ukraine,” said Smith), the legislature found the best way to “stamp out” child porn was to make promotion or possession of it a major felony. In May, the Court of Appeals, New York’s highest court, ruled that viewing such pornography without printing or saving files does not constitute possession. That ruling prompted a major outcry from the legislature, which almost immediately moved to pass a law that would ban viewing child porn. “There is surely such a question as too much,” said Smith. Of the law, which is expected to pass this week, he added that “maybe it’s a good thing but it makes me nervous when the normal human outrage at an obvious evil becomes so overwhelming that people don’t pause for thought. And that may have something to do with overcriminalization.”

Soon after Smith concluded his remarks, U.S. District Judge Thomas Griesa, who was in the audience, noted that in the federal system the penalties for child pornography possession are “horrendous.” He used the same word to describe public registries of sexual offenders. “For those of us who believe in rehabilitation, and that you pay your debt to society, if there is any possibility of change, maybe someday these will be reconsidered.”

Some of the highest sentences in the federal system come in the area of child pornography, according to the U.S. Sentencing Commission’s annual report in March. An yet in nearly 45 percent of cases, judges issue sentences that are below the federal sentencing guidelines, according to the report.

Bad-case scenario

6/20/12

Is lawlessness coming to the Cincinnati justice system? Hamilton County, Ohio, is likely to face deep budget cuts, and the city’s probation officer, Mike Walton, says that “anarchy” could ensue. If Walton’s department’s budget is cut by about 30 percent, as it’s slated to, some felony offenders could skip prison. Moreover, the local courthouses may have to close some days of the week, and the local prosecutor may also see a 30 percent cut. While similar threats were made last year but not carried out, “this year, it’s a different story. The proposed cuts are deeper, and borrowing from the county’s so-called ‘rainy day’ fund again is not an option,” the Cincinnati Enquirer writes.

If at first you don’t succeed 

6/20/12

How many bites at a class action apple can plaintiffs’ lawyers take? That question has been preoccupying Judge Richard Posner lately.
Writing for a panel of the 7th Circuit Court of Appeals on Tuesday, Posner found that it was alright for a lawyer trying to certify a class action to bring the same lawsuit three times in front of three different judges. It might be judge shopping, but there’s nothing to be done to stop it, the panel concluded.

Plaintiffs’ lawyer Kenneth Flaxman filed the first case in Illinois federal court in 2007, accusing the Cook County Sheriff of failing to provide adequate dental care for jail inmates. When the district court denied class action status, Flaxman filed a virtually identical suit in the same court on behalf of a different-named plaintiff. A second judge denied class certification for that suit, so Flaxman filed again, landing before yet another judge.

The third time was a charm, and the judge certified the class, even though her colleagues had refused to do so.
Forum shopping is, of course, nothing new. In 2005 Congress tried to rein it in when it passed the Class Action Fairness Act, which attempted to restrict where class actions could be heard. But the law wasn’t comprehensive enough to discourage enterprising plaintiffs’ lawyers. 

There’s at least one rub, otherwise known as Smith v. Bayer, a 2011 Supreme Court ruling which concluded that people who were not a party to a suit could not be bound by the outcome. Smith v. Bayer is what prompted Posner just last month to grudgingly allow plaintiffs’ lawyer Clinton Krislov to file a suit against Sears, Roebuck and Co in California. The judge allowed Krislov’s suit, over clothes dryers that were advertised as “all stainless steel,”  even though the lawyer had lost a virtually identical case in Illinois. Posner wrote that Sears would have to prevent other copycat suits by relying on precedent and the respect that courts owe each other. 

But that respect only goes so far, Posner said on Tuesday. Federal judges can grant class certification even if their colleagues refused to do so, allowing the game of Whac-A-Mole litigation to continue.

(Reporting by Terry Baynes) 

Debt man walking 

6/20/12

Taxi drivers in Iceland recognize him. He was born in Rust Belt Pittsburgh but speaks with a lilt. He quotes Spinoza, Churchill and Descartes. He is a dapper dresser. He is a lawyer and he is especially in demand right now. He is Lee Buchheit, a partner at Cleary Gottlieb Steen & Hamilton, and has been involved in the sovereign debt restructurings of Iraq, Argentina, Greece and Mexico. Buchheit describes his practice as "a mixture of politics, finance and law, and theater," according to a Reuters profile last month. He made a similar comment toNew York Magazine, which calls him the "swashbuckling Robin Hood of sovereign debt." Buccheit's secret, according to the weekly: asking creditors to take less than they're owed, and sticking to it. Listen up, struggling European (or other) nations: You might need Buchheit's business card.

Summary Judgments for June 19  

Summary Judgments for June 18  

Summary Judgments for June 15

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