Laugh-out-loud truth . . .

Here's a quote from a recent article by Michael C. Dorf that made me laugh out loud, and is absolutely true: "the new kind of legal academic is no more interested in telling judges how to decide cases than the entomologist thinks she should tell ants how to build an anthill."

The article, Thanks to a Joint Statement by Top Law Journals, Law Review Articles Will Get Shorter, But Will They Get Better?, discusses a joint statement by top law reviews to the effect that they will start preferring "shorter" (70-100 page) articles over the monstrosities that have been the fashion in recent years (100 plus pages).

The part of the article that I really like (having spent a couple of years flirting with an academic career) is Dorf's accurate observation that judges and lawyers no longer consult law review articles written by academics because they have generally nothing to say about the practice of law. As I recall, the "serious" academics looked down their nose at "doctrinal" scholarship (i.e., work that might have some application to the practice of law) and were only interested in "big" issues, like developing some new theoretical prism to discern oppression of [name your victims] by the legal system.

Back to the anthill.

Big Week

All sorts of interesting bits this week. Probably the lead story for the purpose of this blog's agenda is the apparently imminent passage of class action reform legislation. There will be a deluge of commentary on this one. You can read a short article about it here. You can also read the bill (the Class Action Fairness Act of 2005, S.5) itself here.

The First Circuit Court of Appeals also issued some interesting decisions this week.

The Court held in In re Slater Health Center, Inc., Docket No. 04-1439 (1st Cir. February 16, 2005) that a reduction of claims for Medicare reimbursement based upon prior overpayments was a valid "recoupment" and did not violate the automatic stay in bankruptcy. A recoupment differs from a set off in that a recoupment is a reduction of a debt based upon an obligation flowing in the other direction that "arises out of the same transaction." A set off is a reduction of a debt based upon an unrelated debt in the other direction. Taking a set off violates the automatic stay.

In Noviello v. City of Boston, Docket No. 04-1719 (Ist Cir. February 16, 2005), the Court resolved two issues of first impression in the First Circuit relating to sexual harassment and retaliation claims. Plaintiff, a City of Boston parking enforcement official, asserted a hostile work environment claim against the City. The first question dealt with the timeliness of plaintiff's claims and whether she could rely upon the "continuing violation" doctrine to salvage her claims. The Court distinguished sexual harassment from retaliatory harassment as separate and distinct harms based upon conduct that derives from a different underlying animus. Sexual harassment is gender based. Retaliatory harassment is based upon "a discrete intention to punish a person who has rocked the boat." As a result, the Court held that plaintiff's state-law claim for sexual harassment was time barred (but that her federal claims and her state-law claim for retaliation survived).

The Court then considered whether "the creation and perpetuation of a hostile work environment itself can constitute a retaliatory adverse employment action" to generate a cognizable retaliation claim under the state and federal statutes. The Court considered the federal and state statutes separately and concluded that the plaintiff had a cognizable claim under both.

The Court analyzed the facts presented and concluded that plaintiffs' retaliatory harassment claims should have survived summary judgment, but that her sexual harassment claims did not.

''Everybody, in one form or another, is trying to bake doughnuts"

Interesting bit in the Boston Globe today: Staffing problem in courts is cited -- Study pinpoints many disparities by Ralph Ranalli, Globe Staff. The National Center for State Courts recently led a study that concluded that Massachusetts state courts are understaffed. No news there. What's interesting is that certain courts are overstaffed, while others really suffer. For example, according to the Globe's accompanying chart, the Cambridge District Court is overstaffed by 44%, while the Worcester Superior Court has only 56% of the staff it needs.

The title of today's post is a quote in the article from retired Dorchester District Court Judge James Dolan. The underlying premise is that if a business, such as Dunkin' Donuts, can figure out how many people it needs to get its work done, the court system should be able to as well.

Massachusetts Evidentiary Privileges

Here's a deal for the Massachusetts litigation community. You can download Paul Nemser's book on Massachusetts Evidentiary Privileges free here.

Nemser is a partner at Goodwin Procter LLP, whom I know a little bit from taking Tai Chi classes together.

Great Job Guys, But We're Going to Vacate the Decision Anyway

Here's a perfectly mystifying decision by the Third Circuit: In re Rite Aid Corp. Sec. Litig., Docket No. 03-2914 (3d Cir. January 26, 2005).

The issue was whether the District Court properly granted class counsel's attorney's fee petition. The Third Circuit spends 33 pages, largely waxing eloquent about what a brilliant job the class counsel did in extracting a $193 million settlement, and how their fee petition hits all the benchmarks for an appropriate fee. Only two members of the class of 300,000 objected to it.

The Court nevertheless vacates and remands because the District Court overestimated the average hourly rate of the class counsel attorneys while performing the "lodestar cross check," i.e., calculating what the fee would have been multiplying the hours worked by the hourly rates. So the Court remands to the District Court to take a second look. Here's betting the District Court arrives at precisely the same conclusion as it did the first time. Whatever happened to harmless error?