Blawgletter®

No More Circuit Judge Confirmations, Bloomberg Reports

The Senate Judiciary Committee chair wants "a whole lot" of new laws before taking up more judicial appointments.

Under the fetching headline "Senate Stall to Let Next President Tip Court Balance", James Rowley at Bloomberg reports today that the world's Most Exclusive Club will confirm no more nominees for judgeships on the 13 U.S. courts of appeals before a new President takes the oath of office in January 2009.

Mr. Rowley notes that "[s]ix of the 13 U.S. appeals courts are closely divided between Republican and Democratic appointees" and that therefore the next nominator-in-chief will get the chance to shift the overall orientation of almost half the circuits.

Imagine our feed's surprise.

Quote of the Day: Henry V

King Henry V walloped the French in 1415 at Agincourt.

Blawgletter had the distinct honor this morning of talking with a group of state trial judges about ways to expedite and streamline civil litgation.  Our presentation included a visual (above) depicting the array of English and French forces in the Battle of Agincourt.  But time ran out before we could recite the last part of the bard's recreation of how Henry V rallied his weary warriors on the eve of the decisive engagement. 

We reproduce it here:

This story shall the good man teach his son
And Crispin Crispian's shall ne'er go by
From this day to the ending of the world
But we in it shall be remembered.
We few, we happy few, we band of brothers.
For he today that sheds his blood with me
Shall be my brother; be he ne'er so vile.
This day shall gentle his condition.
And gentlemen in England now a-bed
Shall think themselves accursed they were not here
And hold their manhoods cheap whiles any speaks
That fought with us upon St. Crispin's day.

Our feed asks what light on yon window breaks.

Quote of the Day: Monica Goodling

Monica, Monica, Monica!

Tell us about your political philosophy.  There are different groups of conservatives, by way of example:  Social Conservative, Fiscal Conservative, Law & Order Republican.

[W]hat is it about George W. Bush that makes you want to serve him?

Aside from the president, give us an example of someone currently or recently in public service who you admire.

An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General at 18 (July 28, 2008) (quoting questions that Ms. Goodling asked of candidates for non-political positions in the Department of Justice).

Subscribe to our apolitical feed.

Deliberations on Mock Trials

Anne Reed over at Deliberations links to her excellent TRIAL Magazine article, "What Can a Mock Trial Tell You?" 

She dispels misconceptions.  She demystifies the process.  And she highlights the many benefits of mock trying your case. 

Blawgletter says check it out.

Our feed wonders where Joe Bob Briggs has gone.

Quote of the Day: Groucho Marx (Finale)

Chico and Groucho Marx in A Night in Casablanca.

As visions of Sea Smoke start dancing in Blawgletter's head -- for tonight Oxford promises to uncork some -- the time seems right to close out Groucho Marx's epistolary feud with Warner Brothers over the then-impending release of A Night in Casablanca (1946). 

We've seen Mr. Marx's first two letters, in which he responds to missives from the Warner legal department.  His opening salvo questions whether the studio owned the name "Casablanca" and from there ponders intellectual property rights in other monikers, including "Brothers", "Burbank", and "Jack".  The next, which answers a second Warner letter asking for a summary of A Night in Casablanca's plot, has Mr. Marx as a doctor of divinity who hawks can openers and pea coats.

The final instalment follows:

Dear Brothers:

Since I last wrote you, I regret to say there have been some changes in the plot of our new picture, "A Night in Casablanca."  In the new version I play Bordello, the sweetheart of Humphrey Bogart.  Harpo and Chico are itinerant rug peddlers who are weary of laying rugs and enter a monastery just for a lark.  This is a good joke on them, as there hasn't been a lark in the place for fifteen years.

Across from this monastery, hard by a jetty, is a waterfront hotel, chockfull of apple-cheeked damsels, most of whom have been barred by the Hays Office for soliciting.  In the fifth reel, Gladstone makes a speech that sets the House of Commons in an uproar and the King promptly asks for his resignation.  Harpo marries a hotel detective; Chico operates an ostrich farm.  Humphrey Bogart's girl, Bordello, spends her last years in a Bacall house.

This, as you can see, is a very skimpy outline.  The only thing that can save us from extinction is a continuation of the film shortage.

Fondly,

Groucho Marx

And so it ended.  Warner Brothers never responded, and the world today can watch A Night in Casablanca to our heart's content.

Umm, Sea Smoke.

Quote of the Day: Groucho Marx (Second)

Groucho Marx (1890-1977) as Rufus T. Firefly.

Yesterday, Blawgletter quoted at full length a combative letter from Groucho Marx to Warner Brothers.  The dispute centered on the studio's belief that an impending Marx Brothers movie, A Night in Casablanca (1946), would impinge on the intellectual property that Warner Brothers embodied four years earlier in Casablanca (1942).

Mr. Marx's letter, we learned, produced a sequel.  It responded to a letter in which the Warner organization asked for a thumbnail of the plot.  The reply went like this:

Dear Warners:

There isn't much I can tell you about the story.  In it I play a Doctor of Divinity who ministers to the natives and, as a sideline, hawks can openers and pea jackets to the savages along the Gold Coast of Africa.

When I first meet Chico, he is working in a saloon, selling sponges to the barflies who are unable to carry their liquor.  Harpo is an Arabian caddie who lives in a small Grecian urn on the outskirts of the city.

As the picture opens, Porridge, a mealy-mouthed native girl, is sharpening some arrows for the hunt.  Paul Hangover, our hero, is constantly lighting two cigarettes simultaneously.  He apparently is unaware of the cigarette shortage.

There are many scenes of splendor and fierce antagonisms, and Color, an Abyssinian messenger boy, runs Riot.  Riot, in case you have never been there, is a small night club on the edge of town.

There's a lot more I could tell you, but I don't want to spoil it for you.  All this has been okayed by the Hays Office, Good Housekeeping and the survivors of the Haymarket Riots; and if the times are ripe, this picture can be the opening in a new worldwide disaster.

Cordially,

Groucho Marx

To be continued.

Quote of the Day: Groucho Marx

Groucho Marx (1890-1977).

In 1942, Groucho Marx sent this letter after a studio threatened legal action over the impending release of A Night in Casablanca (1946):

Dear Warner Brothers,

Apparently there is more than one way of conquering a city and holding it as your own. For example, up to the time that we contemplated making this picture, I had no idea that the city of Casablanca belonged exclusively to Warner Brothers. However, it was only a few days after our announcement appeared that we received your long, ominous legal document warning us not to use the name Casablanca.

It seems that in 1471, Ferdinand Balboa Warner, your great-great-grandfather, while looking for a shortcut to the city of Burbank, had stumbled on the shores of Africa and, raising his alpenstock (which he later turned in for a hundred shares of common), named it Casablanca.

I just don’t understand your attitude. Even if you plan on releasing your picture, I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.

You claim that you own Casablanca and that no one else can use that name without permission. What about “Warner Brothers”? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you were. We were touring the sticks as the Marx Brothers when Vitaphone was still a gleam in the inventor’s eye, and even before there had been other brothers—the Smith Brothers; the Brothers Karamazov; Dan Brothers, an outfielder with Detroit; and “Brother, Can You Spare a Dime?” (This was originally “Brothers, Can You Spare a Dime?” but this was spreading a dime pretty thin, so they threw out one brother, gave all the money to the other one, and whittled it down to “Brother, Can You Spare a Dime?”)

Now Jack, how about you? Do you maintain that yours is an original name? Well it’s not. It was used long before you were born. Offhand, I can think of two Jacks—Jack of “Jack and the Beanstalk,” and Jack the Ripper, who cut quite a figure in his day.

As for you, Harry, you probably sign your checks sure in the belief that you are the first Harry of all time and that all other Harrys are impostors. I can think of two Harrys that preceded you. There was Lighthouse Harry of Revolutionary fame and a Harry Appelbaum who lived on the corner of 93rd Street and Lexington Avenue. Unfortunately, Appelbaum wasn’t too well-known. The last I heard of him, he was selling neckties at Weber and Heilbroner.

Now about the Burbank studio. I believe this is what you brothers call your place. Old man Burbank is gone. Perhaps you remember him. He was a great man in a garden. His wife often said Luther had ten green thumbs. What a witty woman she must have been! Burbank was the wizard who crossed all those fruits and vegetables until he had the poor plants in such confused and jittery condition that they could never decide whether to enter the dining room on the meat platter or the dessert dish.

This is pure conjecture, of course, but who knows—perhaps Burbank’s survivors aren’t too happy with the fact that a plant that grinds out pictures on a quota settled in their town, appropriated Burbank’s name and uses it as a front for their films. It is even possible that the Burbank family is prouder of the potato produced by the old man than they are of the fact that your studio emerged “Casablanca” or even “Gold Diggers of 1931.”

This all seems to add up to a pretty bitter tirade, but I assure you it’s not meant to. I love Warners. Some of my best friends are Warner Brothers. It is even possible that I am doing you an injustice and that you, yourselves, know nothing about this dog-in-the-Wanger attitude. It wouldn’t surprise me at all to discover that the heads of your legal department are unaware of this absurd dispute, for I am acquainted with many of them and they are fine fellows with curly black hair, double-breasted suits and a love of their fellow man that out-Saroyans Saroyan.

I have a hunch that his attempt to prevent us from using the title is the brainchild of some ferret-faced shyster, serving a brief apprenticeship in your legal department. I know the type well—hot out of law school, hungry for success, and too ambitious to follow the natural laws of promotion. This bar sinister probably needled your attorneys, most of whom are fine fellows with curly black hair, double-breasted suits, etc., into attempting to enjoin us. Well, he won’t get away with it! We’ll fight him to the highest court! No pasty-faced legal adventurer is going to cause bad blood between the Warners and the Marxes. We are all brothers under the skin, and we’ll remain friends till the last reel of “A Night in Casablanca” goes tumbling over the spool.

Sincerely,

Groucho Marx

One day I shot an elephant in my pajamas.  How he got in my pajamas, I don't know.   Monkey Business (1931).

Antitrust Division Grows Testy Over Criticism

The AAI favors vigorous public and private enforcement.

Blawgletter just read a troubling item in Corporate Crime Reporter.  The title -- "Connor Says Antitrust Division Becoming Increasingly Irrelevant In Fight Against Cartels" -- refers to an interview with an Economics professor, John Connor, of Purdue University.  Dr. Connor last month finished a 93-page report for the pro-enforcement American Antitrust Institute.  Among his findings:

• Since 1990, the Antitrust Division has collected only 20 percent of the fines and settlements that government agencies and private plaintiffs have garnered from antitrust law violators.
• The number of criminal cartel cases that the Division brought dropped 49 percent from 1995-99 to 2004-06.
• The Division devotes just 29 percent of its staff and budget to detecting and prosecuting cartels.

The Division's dismal performance has provoked us to comment, too.  Posts have included:

• Antitrust Division:  Going Straight for the Capillary.
• Antitrust Division Disbands, Declares Competition Safe.
• Joy!  A New Price-Fixing Investigation.
• Edentulous Antitrust Law?
• Antitrust Crime Watch.
• Annals of Antitrust Enforcement:  Where Have All the Price-Fixers Gone?

The Corporate Crime Reporter item also quotes Antitrust Division representative Scott Hammond, who responded thus to suggestions that the private antitrust bar does more than the Division for effective enforcement:

I have been with the Division for 20 years.  I am familiar with every single international cartel investigation that we have opened.  I can tell you that there is not a single example, not one, where we have learned about an international cartel that was detected by the private bar before we began an investigation.  There is not a single case where the private bar has detected the cartel activity before we did where we subsequently brought a criminal prosecution.

Hmmm.  The statement means either that the Division always beats the private bar to the punch or that it never brings a case if the private bar uncovers cartel activity first.  Mr. Hammond also said:

Furthermore there is not a single case brought by the plaintiff bar where as the result of their discovery they have advanced one of our international cartel prosecutions or investigations.

Those pesky private lawyers are useless!

Last week we heard Mr. Hammond address the Dallas Bar Association's antitrust section and asked him what policy the Division has for following up on investigations that it hears about from antitrust enforcers in Europe.  He said that the Division works quite a lot with the European Commission, but he offered no explanation for why the EC brings so many more cases than the Division does.  He nonetheless touted the marine hose prosecution, which principally benefits multinational oil companies.  (They use the big tubes to transfer petroleum from tankers to storage facilities.)

Mr. Hammond also praised the Division's work in foiling bid-rigging plots and kickback schemes, particularly in connection with government contracts and the federal e-rate program.  That doesn't strike us as the core mission of the Antitrust Division, and yet it absorbs 71 percent of the Division's resources.  No wonder, as Professor Connor said, "fewer than 20 percent of the world's cartels are being investigated and prosecuted."

Yikes!

Freddie, Fannie, and Moral Hazard

A main enabler of mortgage lending excesses now needs you to front it some cash.

Blawgletter just read a NYT article about the feds' plan for avoiding a bailout of mortgage lending giants Freddie Mac and Fannie Mae.  The plan?  To bail them out.

The government seems to think that obtaining authority to rescue these private institutions will stave off the necessity of actually tossing them a life preserver full of taxpayer billions.  Right.

We enjoy irony every bit as much as the next whiner, but the spectacle of financial wizards taking on super powers to save lenders from their horrifically dumb decisions strikes us as sublimely delicious.  Don't these same people hector us about the moral hazard of guaranteeing outcomes -- at least when the beneficiaries chiefly include the working poor?  And don't they also denounce govment regulation as the evil distorter of free market forces?

Too big to fail doesn't move us.  Let 'em crash and burn, we say.  Take 'em over and run 'em as actual government agencies instead of pretend ones.  The pain will come sudden and sharp.  But at least it'll force the wizards to deal honestly with problems they helped create and hasten effective oversight of our feckless, reckless, and amoral financial markets. 

What Would Glass-Steagall Do?

Senator Carter Glass (1858-1946) disliked the New Deal but the banking excesses that preceded the Great Depression even more.

Blawgletter learned in law school about a pillar of the New Deal -- the Glass-Steagall Act of 1933.  Little did we know that, 66 years after Franklin D. Roosevelt signed it into law, Glass-Steagall would met its end with William J. Clinton's inking of Gramm-Leach-Bliley.

Who cares, right?  You do, we think.  Because Glass-Steagall likely would've prevented the credit crisis from which we all now suffer.

The 1933 legislation barred commercial banks, which take deposits and make business and other loans, from mating with investment banks, which float securities and invest for their own accounts.  In the less than a decade since Gramm-Leach-Bliley repealed the separation of financial church and state, the conjugal bliss between commercial and investment banking has produced horrific excesses.

Take mortgage lending.  Under the same profit-seeking roof, the commercial banking arm of one financial conglomerate lent billions to your Countrywides and Ameriquests so they could fund risky -- gently to put the matter -- real estate loans while the investment bankers down the hall packaged the loans into securitizations and sold them to pension funds and other investors.  The banks also sliced and diced the underlying loan instruments into ever-finer pieces, producing tranches of collateralized debt obligations, interest rate swaps, and even auction rate securities.  At every step, the bankers collected rich fees for moving the merchandise.

Would that have happened under Glass-Steagall?  Nary a chance, we say.  The event that produced Glass-Steagall -- the Great Depression -- resulted from reckless lending and nutty speculation, to both of which the combination of commercial and investment banking in one enterprises mightily contributed.  History repeats itself, you know.

Let's hope that, this time, the excesses resulting from the 1999 repeal of the Act cause nothing more than depressing than a recession.