- Is it "corporate sovereignty" or "government accountability"? I see little difference between enforcing government promises and those made by individuals or corporations.
- That these agreements can make it expensive or difficult to democratically pass legislation or regulations is beside the point. The country, through its leaders, bound the government to a course of action. Why should it not pay for violating those promises?
- We make the U.S. government pay for violating its promises (including most contractual promises) via the Administrative Procedures Act all the time. Or, similarly, what do you consider suing for violations of civil liberties?
- "Expected profits" are the default form of damages in Anglo-American contract law. It is designed to put the party suffering from the breach of contract in the position she would be in absent the breach. This mode of calculations encourages "efficient breach" of contract.
- Per above, if it efficient for the U.S. to "breach" a contract due to policy preferences/new information, it should do so. And can do so. If it pays for breaking its promises.
- If the politicians are corrupt, having legislation or regulations overrode by international arbitration isn't counter-democratic but rather ambivalent to democracy.
- Most attacks on international arbitration methodology apply to all treaties. Compare the power of an international commercial arbitration tribunal with the ICJ. Maybe you like neither.
I've taken part in ICSID disputes. Protecting basic contract rights, and forcing the state (via taxpayers) to pay when breaching those contracts merely inflicts accountability on governments--much as we want in most other areas.
Of course, if you think governments should be able to break contracts (what about the social contract?) with impunity, "corporate sovereignty" is indeed a problem.
I'm not sure why Mike is on the other side of this policy item, although I see why one could hold the position.
PPP as a measure of financial health provides a disincentive for law firms to create new partners and generally prevents the leadership ranks of big firms from being refreshed. All else being equal, more partners means lower PPP.
Firms simply game PPP by restructuring the payment of top individuals. Other financial metrics are available that don't hurt the ability to advance within the profession. There is no reason why AM Law's definition of PPP should determine the structure of law firm compensation or career path.
The above isn't to say Dentons has pure hands in refusing to provide PPP numbers, but there are benefits to using a different number to evaluate law firm health.
I don't think judicial estoppel means what you think it means. To invoke the doctrine, "seemingly conflicting positions must be clearly inconsistent so that the one necessarily excludes the other."
The relationship between IB, the sellers, and the victims are all different, which means they have different duties. They also aren't really conflicting positions.
Why would the court have jurisdiction over this suit? The anger seems misdirected. I don't see anything that would grant a state court jurisdiction over DOJ's actions. Because Supremacy Clause.
A state court wouldn't even have jurisdiction to adjudicate whether an individual was truly deputized as a federal marshall under US law. Once again, because Supremacy Clause. See also McCulloch v Maryland.
The real problem is DOJ--the judge's hands seem tied. DOJ could easily have removed to federal court if the judge granted the ACLU's motion and ACLU probably should have filed its TRO there in the first instance.
There is nothing scandalous or insidious about removing to federal court. Litigants do it frequently.
Either way, it's hard to disagree with the Judge's ruling on purely legal grounds.
Threatening a RICO claim isn't entirely far fetched. If a plaintiffs lawyer can't pick a predicate offense from s 1961(1)(B) or (1)(A), they show a serious lack of imagination.
I'm not saying it would be a very good claim, but RICO is a terrible statute and it doesn't take a rocket scientist to draft a complaint including it.
This is a rather large and public middle finger to Kozinski. A disagreement like this is embarrassing to all of the circuit judges. I assume Judge Smith would have warned Kozinski when he dissented to allow Kozinski the opportunity to prevent a sua sponte motion.
Of course, the ruling itself is even more of an embarrassment for Kozinski....
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Still Perplexed
I'd like to address a few of the points made:
- Is it "corporate sovereignty" or "government accountability"? I see little difference between enforcing government promises and those made by individuals or corporations.
- That these agreements can make it expensive or difficult to democratically pass legislation or regulations is beside the point. The country, through its leaders, bound the government to a course of action. Why should it not pay for violating those promises?
- We make the U.S. government pay for violating its promises (including most contractual promises) via the Administrative Procedures Act all the time. Or, similarly, what do you consider suing for violations of civil liberties?
- "Expected profits" are the default form of damages in Anglo-American contract law. It is designed to put the party suffering from the breach of contract in the position she would be in absent the breach. This mode of calculations encourages "efficient breach" of contract.
- Per above, if it efficient for the U.S. to "breach" a contract due to policy preferences/new information, it should do so. And can do so. If it pays for breaking its promises.
- If the politicians are corrupt, having legislation or regulations overrode by international arbitration isn't counter-democratic but rather ambivalent to democracy.
- Most attacks on international arbitration methodology apply to all treaties. Compare the power of an international commercial arbitration tribunal with the ICJ. Maybe you like neither.
I've taken part in ICSID disputes. Protecting basic contract rights, and forcing the state (via taxpayers) to pay when breaching those contracts merely inflicts accountability on governments--much as we want in most other areas.
Of course, if you think governments should be able to break contracts (what about the social contract?) with impunity, "corporate sovereignty" is indeed a problem.
I'm not sure why Mike is on the other side of this policy item, although I see why one could hold the position.
Missing the Point
PPP as a measure of financial health provides a disincentive for law firms to create new partners and generally prevents the leadership ranks of big firms from being refreshed. All else being equal, more partners means lower PPP.
Firms simply game PPP by restructuring the payment of top individuals. Other financial metrics are available that don't hurt the ability to advance within the profession. There is no reason why AM Law's definition of PPP should determine the structure of law firm compensation or career path.
The above isn't to say Dentons has pure hands in refusing to provide PPP numbers, but there are benefits to using a different number to evaluate law firm health.
Re: Not about CDA , but what they knew.
I don't think judicial estoppel means what you think it means. To invoke the doctrine, "seemingly conflicting positions must be clearly inconsistent so that the one necessarily excludes the other."
The relationship between IB, the sellers, and the victims are all different, which means they have different duties. They also aren't really conflicting positions.
Judicial estoppel probably won't apply.
Supremacy clause, anyone?
Why would the court have jurisdiction over this suit? The anger seems misdirected. I don't see anything that would grant a state court jurisdiction over DOJ's actions. Because Supremacy Clause.
A state court wouldn't even have jurisdiction to adjudicate whether an individual was truly deputized as a federal marshall under US law. Once again, because Supremacy Clause. See also McCulloch v Maryland.
The real problem is DOJ--the judge's hands seem tied. DOJ could easily have removed to federal court if the judge granted the ACLU's motion and ACLU probably should have filed its TRO there in the first instance.
There is nothing scandalous or insidious about removing to federal court. Litigants do it frequently.
Either way, it's hard to disagree with the Judge's ruling on purely legal grounds.
RICO
Threatening a RICO claim isn't entirely far fetched. If a plaintiffs lawyer can't pick a predicate offense from s 1961(1)(B) or (1)(A), they show a serious lack of imagination.
I'm not saying it would be a very good claim, but RICO is a terrible statute and it doesn't take a rocket scientist to draft a complaint including it.
Probably not Judge Smith
This is a rather large and public middle finger to Kozinski. A disagreement like this is embarrassing to all of the circuit judges. I assume Judge Smith would have warned Kozinski when he dissented to allow Kozinski the opportunity to prevent a sua sponte motion.
Of course, the ruling itself is even more of an embarrassment for Kozinski....