Unused and Probably Unusable

That's two separate topics. Semicolons separate two things which can stand on their own. Colons, in my limited experience, are for when the thing following the colon is an exemplification or similar for what goes before (Wikipedia says "proves, clarifies, explains or simply enumerates elements of."

First, flogging The Green Bag (an entertaining journal of law). No, really, that's the subtitle on the masthead.

I highly recommend an article in the current issue to hit mailboxes, the Second Series * Winter 2007 ish that just came out, Volume 10 Number 2. By one William A. Birdthistle, it's titled "Football Most Foul," and is a rousing read for them what likes their legal studies leavened by a bit of athletic competition, or prefer to read about their football (read: soccer) with a heavy dose of footnotes, references to the text of the law (or in this case, the Laws of the Game), comments about the present state of refereeing and suggestions for altering said arbitrage to improve perceived problems, and similar sexy topics.

I was a soccer referee in a past phase of my life, so there was some personal interest there, but the article is clear and interesting in any case.

For those who don't have any inclination to go subscribe to the Bag outright, I can only recommend what appears on the page facing the back inside cover: "When you need back volumes & issues, Turn to Hein! ...Complete sets to date... [and] we can also furnish single volumes and issues." Try www.wshein.com or mail at that domain name to inquire.

(There's also a really good bit about former Associate Justice Benjamin Curtis, who wrote the best dissenting [and therefore best] opinion in Dred Scott v. Sandford, as well as writing a pamphlet explaining that two of Lincoln's actions had exceeded his authority and thus been unconstitutional [suspending habeas and issuing the Emancipation Proclamation], as well as defending President Andrew Johnson at his impeachment trial. A noteworthy career, that one.)

Secondly, jurisdiction.

In Aaron Streett's latest serial issue of the (just-mentioned) ever-growing, best-selling "SCt Today" e-mail bomb, he brings us up to date on the two new issued decisions, one of which, Rockwell v. United States is the focus of my attention. The other issuance involves Guamanian debt, a topic close to many of our hearts. There are also two grants, one of which involves both potentially salacious material and free speech on the internet, in the form of the 11th Circuit Court of Appeal's ruling that the Protect Act was unconstitutionally vague and overbroad, potentially criminalizing a hypothetical email from a grandfather, innocently (and accurately) titled "Good pic of kids in bed".

Anyway: jurisdiction! (see, colon.)

The bite in Rockwell wasn't that the company hadn't in fact left itself potentially open to 26 counts under the false claims act; the U.S. Government in fact had reason to complain of environmental frauds. There is a procedural twist: the case was brought not by the U.S., but by a fired former employee in a qui tam action. These actions are beyond the scope of this post...(see Wikipedia on Qui Tam for a brief explanation).

In any case, the fired Mr. Jones had a reason to believe that the "pondcrete" made by mixing toxic runoff from the nuclear weapons plant with concrete would in fact disintegrate, causing dangerous contamination. He later amended his complaint to reflect information that became publicly available, including 25 different counts. But he had the actual reason for the pondcrete problem wrong, and he had not in fact had information at the time he left that there was a present problem. He had made a prediction, nothing more. Disintegration began after he was fired, and for a reason he had not predicted.

So, what about his claim? Was he the kind of qui tammer the False Claims Act was intended to benefit? Or was he just a weird kind of lucky? The majority, in an opinion written by Scalia but nevertheless defensible, is that there is no logical connection between his original claim, which he had information to support, and the amended complaint based on public information. This is crucial, because there's only the payoff for original sources of information. You can't win a payday by reading the newspaper and then filing suit with no facts unknown to the public.

The relevant "allegations," then, are those of the most recent version of the amended complaint.

The dissent, per Justice Stevens, would have come out the other way, because allegations most naturally in his view means those in the original complaint (which Stone certainly had direct knowledge of) and Stevens felt that FCA jurisdiction should be based on the original complaint, and then, follow this, then the bit in Aaron's e-mail which bit me:

citing the general rule that jurisdiction is ordinarily determined then, and chastising the majority for forcing courts to reassess their jurisdiction with every amended complaint.

See what happened there?

Plaintiffs often want jurisdictional rules to come out their way. (It's only possible to stay in court, which is often-if-not-always what a plaintiff wants, if the court has jurisdiction to hear the case.) Unlike defendants, I presume. Anyway, a defendant might reasonably argue that amending the complaint until it no longer contains any counts providing the necessary kind of allegations required in the False Claims Act means the plaintiff has lost their jurisdictional "hook," and now should be tossed out of court. It's a logical argument.

A plaintiff might reasonably argue that if a claim has jurisdiction to be heard at the time it is filed, and that changing information requires amendment, then so long as the subject matter of the complaint is congruent, and the parties are the-same-or-similar, or whatever other degree of closeness one might want, then so long as the case isn't brought in bad faith or something there's no reason the court can't proceed to the merits.

Now, Stevens cited a "general rule." And in fact, many cases are decided where jurisdiction absolutely existed at the time suit was commenced, and probably didn't by the end, but the court decides the case to get it over with, presumably because we're talking not ability-to-hear-and-decide-the-case jurisdiction (subject-matter jurisdiction) but prudent jurisdiction, where the court can exercise its judgment about whether or not the case should be heard at all. The first cannot be avoided, the second can. Different rules for the constitutionally required (Article III) kind of jurisdiction, than for the kind created by the court - meaning the Court.

I guess this one comes down to the picture you choose. Was Jones' good-intentioned attempt to blow the whistle and report a false claim close enough, or was he just barking at the right tree without having any reason to know there was in fact a false claim up there? One side seems to be concerned that people who try to report false claims won't be rewarded if the complaint is amended too much; the other side seems to be worried lest the rule become a windfall to "whistle-blowers" who lack actual information, sort of on the theory that if a thousand dogs start hollering under a thousand trees, one of them will wind up under the right tree even if his nose doesn't work worth a damn.

And that's my take on today's baseball.

As always, I am indebted to Aaron for speedily summarizing, snarking, and sending his invaluable Report on the goings-on at 1 First Street.

To quote another legal epistolary writer (Aaron Streett; the extra T at the end is probably for Terrific), "Greetings, sportsfans!" See here, for the first March issue of his periodic chatty Supreme Court opinion, order and grant roundup. I highly recommend it to all SCOTUS groupies. Prawfsblawg reprints them, but you can get them delivered straight to your inbox by mailing him at the link at the end of that post. Streett, an associate in Baker Botts' Houston office, provides all the inside baseball commentary one could want, in a breezy and entertaining tone. Oh look, there's links to all of them at Baker Botts.

Anyway. Hello to those who enjoy watching athletic events. How's your NCAA tournament treating you? Thought so.

I had an intention to write about Gender and Change in Heinlein's writing. So that'll be my next topic, because I think it's got more juice for me right now than the grim-seeming discussion of war crimes that I had planned. I'd planned to unroll that one in mid-August 2006, and then the topic so disheartened me that I went and did things I felt like doing more instead.

So: forthcoming, a discussion of gender-bending, gender roles, stereotypes, cross-dressing, a bit about sexuality (although that's not the focus), and gender as a mutable characteristic in the works of R. A. Heinlein. Because after all, if I can't write what I feel like, what am I doing out here in the blawgoverse, anyway?

Other posts I'm brewing up: a quick perusal of the controversial No Child Left Behind act, which has been heavily criticized as elevating testing, and particularly apparent improvement in testing, over real education, as well as skewing priorities in educating students - like, how much to test-prep vs. other skills, how much to the bottom quintile vs. the next vs. the next. My favorite example of unhappiness was the NY Times article about an excellent school that had been deemed a failure under NCLB. I might do a more searching review of what's being said about it. Wikipedia now notes in the No Child Left Behind Act article that "a new Congress has already started considering major revisions, as one group of 50 Republican senators and representatives introduced legislation in March 2007 that would provide states much greater freedom from NCLB's controls and punishments." - but as always, trust Wikipedia only so far. How do we KNOW that they introduced such proposed legislation unless we go looking through THOMAS ourselves?

Also, a possible HF post on addiction, and another on wealth and power.

Until next time, that's today's unused & unusable inside baseball! (Again, a tip of the imaginary hat to this guy.)

... and convicts when the case made by the prosecution is "overwhelming" despite having personal sympathy for the defendant. See NYT, March 7, 2007, "Libby Guilty of Lying in C.I.A. Leak Case," Neil Lewis.

One of the 11 jurors who spoke publicly after the verdict said that there was great sympathy for Mr. Libby in the jury room, but that the case presented by the prosecution was overwhelming.

Of course, the line "The verdict meant the end of a nearly four-year investigation into the leak of the identity of the Central Intelligence Agency officer" was quite incorrect. The case isn't even over. The jury's duty has been completed, but as the article makes clear, the action continues.

Counsel for the defendant will file post-trial motions to grant a new trial, and will seek appellate relief when that fails (as is likely). Before that, the sentence needs to be handed down, on June 5. The article quotes uninvolved experts as estimating a Guidelines sentence of 20-27 months, but of course in the brave new post-Booker world, the Federal Sentencing Guidelines are advisory, not mandatory. A departure (upwards or downwards) does not have to be justified by extraordinary circumstances. However, most Circuit Courts of Appeal have been far more willing to approve upward departures than downward departures, looking at the latter with great skepticism and reversing such sentences, stating that the sentencing judges did not give adequate reasons for the departure. Upward departures, meanwhile, are routinely approved as being reasonable. Doug Berman of Sentencing Law Prof has done so much good work on the issue that it's unnecessary to marshal up the evidence on one's own. See, for example, this post, in which he notes the Fourt Circuit's reversal of an upward departure:

"This is a noteworthy event in part because it is a rare event," Berman posts.

And for his useful collection of links of interest on those who wish to handicap the Libby sentencing, see here, with "On to Sentencing, Scooter!".

I'm not interested in gloating over Libby's downfall, but I do feel some satisfaction that a felony conviction came out of this investigation into one of the more public and shameful examples of treasonous politics ("So Novak's Talking: Thoughts on the Plame Mess" posted here on 8/1/05) in recent history.