A quick note on an article I saw in the Boston Globe yesterday. Apparently, airport security personnel are now watching for behaviors that suggest a person may be a threat. Now get this: the ACLU is concerned about this screening because people's civil rights may be at risk. A civil right to act strangely in an airport? If you can't screen based on behavior, what can you screen for? Do we want a rule that requires that everyone be scrutinized exactly the same as everyone else? Sometimes you can only shake your head in disbelief.

Okay, Thanksgiving and all. Hosted today, so I was pretty busy. But I scanned the paper quickly. I see that there is already been a proposal to amend the U.S. Constitution to block gay marriage. How heartwarming. Now, I'm a pretty conservative guy in a lot of areas. But I'm just not getting this one, and I'm not on board for it. I don't see any rational reason why gay couples should not be able to marry. It seems like all upside all around to me.

I can actually see where an effort to amend the Constitution could in the long run be a positive thing. My guess is the attempt is doomed to fail. I can't believe that the forces of repression will be able to muster enough nationwide support to amend the Constitution. So a failed effort is a positive thing, because it suggests that the rational majority supports, or at least does not vigorously oppose, gay marriage. Sometimes it seems like there is more support for a position, or opposition to a position, because the zealots make so much noise that it seems like everyone thinks that way. But most people are wrapped up in their day to day problems, going quietly about their lives, and leaving it to the rest of the world to wrestle with these problems. My guess is that in the long run, society is going to come around to the idea of being okay with gay marriages.

Another remarkable day in legal news today. Michael Jackson's issues aside -- I thought his lawyer did a remarkable job on the news last night, what a great sound bite -- here are a few of the best bits from today's Wall Street Journal:

The jury was treated to a videotape of Dennis Kozlowski's opulent digs, and as it turns out the infamous $6,000 shower curtain was actually in the maid's bathroom. Wonder what he paid for the curtains on his own showers. I know I'm only seeing what hits the papers, but it sure feels like Dennis is going to get tarred and feathered when this is all over. I guess we'll find out soon enough.

On a more substantive note, The Fair and Accurate Credit Transactions Act of 2003 is expected to be signed into law by President Bush in a week or so. It is intended to help protect consumers from the burgeoning problem of identity theft. For those of you who have not been paying attention, the Internet is a scary place. You should have a firewall, and anti-virus software. You should also have some anti-spyware software. I have personally been pretty happy with a couple of free programs I downloaded at download.com -- Zone Alarm and Spybot Search and Destroy. I can't claim to be savvy enough to promise anyone anything about their performance, but they seem to be keeping me out of trouble. As a side note, beware e-mails purporting to ask you to verify personal information and/or passwords. I recently received one that was purportedly from e-bay asking me to verify all sorts of stuff, and it was a spoof. Fortunately, I thought it was fishy and forwarded it to e-bay instead of responding. Be sure to do the same if you get anything like that.

The other story that I thought was really interesting is a piece on page B1 about the Support Anti-Terrorism by Fostering Effective Technologies Act or "Safety Act." This legislation lets manufacturers who make anti terrorism gear seek certification from the Department of Homeland Security. If the Department certifies the product, then the manufacturer is protected from liability if the gear fails in a terrorist attack. The idea is to keep these products available and reasonably affordable by taking fear of liability out of the equation. I have to mull this one over. I suppose if the Department does a good job testing these products, it's a good idea. I wouldn't want the default position to be to certify though. Who wants a product that doesn't need to work?

Buried on page B2 is another interesting bit -- the "Class Action Fairness Act" has risen from the grave, and may go to a new vote early next year in a revised form. The US Chamber of Commerce supports the legislation. Consumer groups oppose it. I'm sure we'll hear lots more about it in the months to come.

Oh, my. A temptation to do a 180 today. I bumped into a friend at a seminar on class actions and went out for a drink after the seminar. He's been in a committed gay relationship for years and is raising two kids with his partner. He was so excited about the Massachusetts Supreme Court decision, it was really touching. He also made an interesting point -- all the big time Supreme Court constitutional decisions have involved a radical departure from the existing world view, and one that in restrospect we all know was right, take for example, Brown v. Topeka Board of Education.

In my world view, the Mass. SJC decision is just plain right from a moral, public policy, human viewpoint. Seeing my friend last night brought that home in a way that made me wonder if holding fast to jurisprudential principles in the face of what's right is really the right thing. In the abstract, the principle remains really important. I suppose there is a tidal wave of people out there who thing the decision is fundamentally wrong (an attitude, I admit, I find hard to understand). So do we apply the principle only when we want to in order to get to the decisions that we think are "right." That's the heart of the problem. When you're dealing with a court, you end up with a very small group's view of what's right. I suppose the system provides for a political solution -- a response from the legislature -- if a court really goes off the deep end. So there are corrective protections built into the system. If a court's decision is right enough that it can't be undone through the legislative process, maybe that's all we need.

Bottom line. I can't feel good about criticizing the SJC on this one.

Another round of musing, and a dipping of the toe into some controversial waters.

Here's the Massachusetts Supreme Court decision holding that gay couples have a constitutional right to marry under the Massachusetts state constitution. This one really is a bombshell.

Should gay couples have the right to marry? I think so. It seems only fair, and promotes social stability. I think that good public policy includes letting committed gay couples marry. At least four of the seven members of the Massachusetts Supreme Court agree, to the point where I would say they have gone way out of their way to find a constitutional right for gay couples. The other three members who dissented may well believe the same thing, but their dissents are more intellectually honest than the majority opinion.

As a matter of democratic government theory, a court can't let its ideas of proper public policy run away with it. Even if a court deeply believes that gay couples should be entitled to marry, if the right isn't in the law somewhere, the court is not supposed to create one. That's the legislature's job, which is a point the Cordy and Spina dissents emphasize. In performing a constitutional analysis, there is a pretty well established framework to prevent courts from creating rights too readily. The Sosman dissent hits this point pretty hard.

I was also struck by how the majority opinion gave the back of its hand to the contention that by recognizing a right of this magnitude on its own, Massachusetts will create some deep conflicts with other states. Maybe that's not the court's problem, but the issues raised are hair raising. Just a few off the top of my head -- Will the IRS take joint tax returns from gay couples? Will it allow property to pass from one gay spouse to the other free from federal estate tax? What if the couple buys property in another state? Will the other state treat them as married? If the marriage doesn't work out, can a gay person achieve a de facto "divorce" by moving to a state that does not recognize gay marriage? If the person then moves back to Massachusetts, does the marriage spring back into existence? The list is endless.

So I feel pretty ambivalent about this decision. Part of me wants to applaud it, since I think it's the right outcome, and it's probably one the legislature just can't achieve on its own due to political pressures. That's actually a common argument for this type of judicial activism -- legislatures are paralyzed by special interest groups, and so sometimes only a judge can do the right thing. The problem with that kind of reasoning, however, is that it is only seductive when the judicial activism is running your way. What about when the judge declares a constitutional "right" that you believe is morally repugnant. Then it suddenly doesn't seem like that great an idea. I guess at the end of the day, I think the dissenters got it right. Just because you want something to be so doesn't mean it is.

An idle musing today: I've seen a fair number of laments in various publications that the practice of law has become a "business," where it used to be a "profession." Setting aside the questions whether there's any truth to the idea that things have really changed all that much and whether applying a different label to something makes any real difference, it seems to me that being a business is a good thing. Isn't that what Adam Smith told us way back when? The old invisible hand will promote the common good where individuals are happily striving to improve their own lot.

Don't businesses emphasize customer service, and improved performance? It seems to me that competition and the desire to attract and retain good clients only leads law firms to work harder to do their job better. A "profession" can be an arrogant, elitist notion, that has connotations of "the client is darn lucky to have someone as brilliant as me to tell it how to run its business/life/whatever."

Professionalism, of course, is crucial to providing good legal services. The fanatical attention to detail in one's work or in investigating a case is the sine qua non of good legal work. Taking professional pride in your work and striving for the best possible performance in every aspect of every case is critical. But lording around because you're a "professional" instead of a "businessperson" is just plain silly. Particularly when so many of your target clients are businesspeople themselves.

Big day in Massachusetts legal news. The Massachusetts SJC has held that same-sex couples have a right to marry under the Massachusetts Constitution. The Court stayed its the effect of its ruling for 180 days, however, to give the State Legislature time to react. This is, in fact, such big news that the court's web site doesn't seem to be acting right (bombarded with hits maybe?) and I can't seem to get the link to the opinion to work. Anyway, here's a link to the site at least. I'll try to get a link to the opinion up in a day or so when things settle down a bit.

Really interesting tidbit for the litigators: New Jersey federal court local rule on electronic discovery. New Jersey's federal court has implemented a local rule effective October 6, 2003 that requires lawyers to take steps to understand their client's electronic capabilities upfront. Best practice becomes the rule.

For the Massachusetts corporate litigation afficionados, Judge Van Gestel of the Massachusetts Superior Court Business Session issued a pretty important opinion at the end of June, Seidman v. Central Bancorp., 16 Mass. L. Rep. 383; 2003 Mass. Super. LEXIS 188 (June 30, 2003). Van Gestel held that the heightened scrutiny that Delaware courts purport to impose on the decisions corporate directors make when faced with a hostile takeover do not apply in Massachusetts. As long as the Board is made up of a majority of independent directors, their defensive maneuvers are subject only to the business judgment rule (which presumes that they acted in good faith and in the best interests of the corporation, and so are not liable for their actions). Van Gestel pretty much
is the state court business session, so his views are important. I'd say he got it right based on the Massachusetts statutory structure (which is notoriously protective of Massachusetts corporations) and a fairly recent decision by the Massachusetts Supreme Court (Harhen v. Brown, 431 Mass. 838 (2000)) dealing with the business judgment rule in the context of a shareholder demand before bringing a derivative action. Still, this is an interesting enough decision that I'm planning to try to write a little article about it and get it published somewhere. If I get it published to a place that I can link to, I'll post the link here.

I've posted a lot of new content to my main web site in the last few days. Check out seancarnathan.com. In particular, I have uploaded pdf files of most of my published articles, added pdf files of a couple of franchise litigation decisions from a case I worked on, and am getting ready to file a consumer class action on Monday, after which I expect to post the Complaint. There is also a link to my latest publication in Business Law Today, which deals with the impact of the Sarbanes-Oxley legislation on advancement of legal expenses to offices and directors during litigation.

Are we in the midst of a witch hunt, or are they all crooked? The Globe today has a special section on market timing, which includes a chart of all the investigations under way. Looks like it was a sleazy epidemic.

Wow. I don't know if this is exactly legal news, but it's at least law related. In the WSJ today, page B1, there's an article called "Big Employer is Watching." It talks about employers monitoring their employees more closely. One anecdote is about a NY law firm, Akin & Smith, LLC that makes its receptionists, paralegals and clerks "clock in by placing a finger on a sensor kept at a secretary's desk." The managing partner, Derek Smith, has this cheery explanation: "It keeps everyone honest. . . . I like to see how long they take for lunch." He claims the system has been "very successful" in boosting productivity. Yikes. I'd rather work in the Gulag.

On more typical topics, prosecutors are struggling over how to approach a retrial of Quattrone. (See WSJ at C1) The Putnam scandal is gathering steam (all over the Boston Globe today). And it looks like the testimony at the Tyco trial is taking a turn for the worse for DK (WSJ). Richard Scrushy, the ex chairman of Healthsouth is also squarely in the crosshairs of the Justice Department. (WSJ A3).