Guess What? Talk About Lawyers’ Misconduct Is Back In Vogue.

Once more into the breach, friends! Yesterday’s Los Angeles Times and today’s New York Times have devoted real editorials complaining about federal persecutors lying to juries and thereby railroading innocent criminal defendants into prison. This is a terrible thing, but these editorials concentrate exclusively on criminal cases and stay mum about government lawyer misconduct in civil ones, particularly in eminent domain. We hold to the view that taking one’s property can be traumatic, and deliberately underpaying for it, ostensibly in the name of “just” compensation, is pretty bad too. It deserves condemnation (no pun intended) just as well.

Back in the 1990s it was all the rage for lawyers and judges to go on about “Rambo Litigation” — a nasty way of litigating, whereby unethical lawyers would abuse the system by unethical behavior, ranging from tampering with the evidence to after-hour service of documents by fax. Much was said about it at the time but not much was done to curb it. We contributed to the pertitinent talk by writing about it; see Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 Loyola L.A. L.Rev. 81 (1991). But for all the talk, little was accomplished. We can explain the problem by quoting a part of our blog on this subject, dated June 6, 2014:

“[T]he problems with what is known as “Rambo litigation” recently became a hot topic among lawyers, but truth to tell, nothing was done about it by judges. We have written about it at length, and we recommend that you dig out our article and read it — Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 Loyola L.A. Law Rev. 81 (1991). It will tell you the whole story, and explain why lawyers’ misconduct — like misconduct of people in all walks of life — has little to do with their innate lack of goodness vel non. No, it has to do with what determines the conduct of all people at all times: the actors’ assessment of the balance between incentives and disincentives that face them as they contemplate a course of conduct. And in dealing with human                  [mis]behavior the disincentives play an important role. That is why we have criminal laws and why misconduct in civil matters carries sanctions in the form of damages, fines, or in the case of a regulated profession like law, professional sanctions that can range from public reprimands all the way to disbarment.


“But as all lawyers who have spent some time in courtrooms know, judges are not much interested in enforcing rules of professional conduct, much less standards of behavioral decency and basic civility. Often, they fail to admonish the bad guys, or prattle on about expecting both sides — gotta be impartial you know — to toe the line even when only one has transgressed. In a way, it is easy to refrain from blaming them. Judges are busy folks, and they understand how easy it is to have an admonition directed at a lawyer’s conduct degenerate into a time-consuming foofaraw that takes up scarce judicial time and tends to delay adjudication. So the sumbitch of an opponent of yours who is in the habit of serving motions by fax, after hours, at the last minute, so you can’t prepare properly for an upcoming trial or hearing, feels safe in doing so. Or, like a certain late but unnamed well-known lawyer around here, who had the habit of just not showing up for duly noticed depositions. What should the judge do about such stuff? Oh sure, there is the draconian sanction of striking the offending document. But that can affect or determine the outcome of the litigation, and if His Honor does that, he must face the wrath of the innocent client of the misbehaving lawyer who neither knows nor cares whether his moving papers were served on his opponent’s lawyer by mail,  fax or carrier pigeon?


“Still, difficult as it may be, judges must rise above these difficulties. Nobody forced them to become judges, so they have to take the bitter with the sweet because the problem of endemic lawyer misconduct erodes popular respect for the courts as places where justice is administered, and it gives rise to widespread understanding among lawyers that misconduct is OK when the stakes justify it and where the prospects of meaningful sanctions are slim. Each judge is like a captain of a ship with regard to his or her courtroom, and as such responsible for what goes on in it.

“Bottom line: Any way you slice it, the solution to the lawyer misconduct problem lies in the hands of judges. Either they enforce the rules and standards of conduct, or they don’t. And if they don’t, it doesn’t much matter what language they place in the court rules. A law that is not enforced is no law at all.


“Our 40+ years’ experience as a litigator has taught us that misconduct of counsel can be de facto favored by judges, no matter what platitudes they utter. How? Check out the law governing misconduct of trial counsel and you will see. The way the decisional law is structured, the misbehaving lawyer has all the litigational advantages; he need not do anything to rectify the litigational mess he creates by his misconduct. It is his opponent (who is not guilty of anything), who has to “make a record” by objecting, requesting judicial admonitions to the jury, and pursuing useless  procedural ceremonies. And if he misses a step in this rigmarole, the misconduct is deemed nonprejudicial, and as such OK.


“While this goes on, his “bad guy” opponent just gets to sit there enjoying the fruits of his misconduct. See e.g.,  Horn v. Atchison, Topeka & Santa Fe Rwy. Co., 61 Cal.2d 602 (1964), and  Sabella v. Southern Pac. Co., 70 Cal.2d 311 (1969).


“And if the judge gives the admonition requested by the aggrieved lawyer, the misconduct is deemed cured and non-prejudicial even if the admonition is something less than effective. So experienced lawyers often don’t bother with going through the time-consuming and distracting ceremony, and take their chances before juries, hoping that the merits of their case will be persuasive. The professional behavioral standards are thus lowered and as such institutionalized.”

So with the rhythmic regularity of the tides, here we go again. The few good guys on the US Court of Appeals for the 9th Circuit have just publicly chewed out some federal prosecutors for being — shall we say? — careless with the truth in a pending criminal case. Will that do the trick? We don’t think so. We don’t think for a moment that those prosecutors were naughty because no one told them they shouldn’t lie in court. No sir. They did it because they though they could get away with it.

What we need is for judges to enforce the rules. Consistently. If they do, the problem will either go away or be greatly diminished. But they won’t. Not reliably.

Another Taking Lawsuit vs. Uncle Sam, Arisisng From the Bailout

Gretchen Morgenson is our favorite financial reporter, so we turned with interest to her piece in the NY Times, entitled After Crisis, A Cash Flood And Silence, Feb. 15, 2015, p. 1 of the Business Section, bringing the dispatch that there is another taking lawsuit pending in the U.S. Cort of Federal Claims. In it, shareholders of Fannie Mae and Freddie Mac are suing Uncle Sam to recover large profits made by those entities after the 2008 crash, Uncle Sam’s bailout and Uncle’s expropriation of all their earnings which with time have grown enormous. Click on

The article does not go into the details of the taking, other than informing its readers that as of 2012 the Treasury unilaterally amended its contract with Fannie and Freddie and has been sweeping profits into the Treasury. Some $$225.4 billion so far, with another $153.3 billion anticipated.

The article dwells instead on the details of Uncle Sam’s take-no-prisoners resistance to plaintiffs’ discovery, that seems to be reaching the level of the absurd (including, believe it or not, press releases). Why? The answer to that question is unclear, but the Times article suggests that it may have something to do with the surmise that the documents in question “directly implicate[] some of the president’s most senior advisers in the White House.” If true, this would tend to compromise Fannie and Freddie’s status as independent federal agencies.

But be all that as it may, here is another case — by our count the third one — in which a claim is being litigated on the merits in the Court of Claims, charging that Uncle Sam’s bailout activities following the crash of 2008, were takings of property in violation of the Taking Clause of the Fifth Amendment. So stay tuned, and see how this one turns out.

Are You Feeling Thirsty Yet, Californians?

We offer for your edification a recent City Journal article by Victor Davis Hanson who, apart from being a classics professor and an astute commentator on the California scene, is a farmer himself. Take a look at A good read that, that will tell you more about California’s current and future water problems than you really want to know. Still, you should read it — particularly if you are a Californian and mean to consume all the agricultural goodies produced here.

We have touched on this subject earlier. Take a look –

The 32nd Annual ALI-CLE Program on Eminent Domain

Last week we participated in the 2015 ALI-CLE Eminent Domain program in San Francisco, and a good program it was. It was the 32nd annual ALI-CLE (formerly ALI-ABA) program on the topic of eminent domain and land valuation. The attendance ran to some 150 attendees, which these days is pretty good for a national CLE program. Actually, your faithful servant started doing this program (among others) back in 1970 when it was run by PLI, which for us makes it a total of 44 years.

What we talked about was “100 Years in 60 Minutes,” a summary of our experience — “our” being your faithful servant who spoke about his adventures and misadventures in practicing and helping to shape eminent domain law, and Michael Berger who is widely acknowledged as the foremost inverse condemnation lawyer, who did the same thing, only he spoke on his life in fighting the takings battle, starting with the early days of airport litigation, to the current state of regulatory taking law. Each of us put in some 50 years doing this stuff so together we made the 100 years. As the British would say, it was a jolly good show, and we hope that those of our readers interested in the subject of eminent domain will get their DVDs from ALI-CLE and take it all in.

If you are interested in getting an immediate overview of what transpired there, check out the blog which is run by our fellow blogger Robert Thomas. He was there as planning co-chairman of the whole shebang and one of the speakers. A good read, that. Also if you want that DVD, it’s available from ALI-CLE, 4025 Chestnut St., Philadelphia PA 19104-3099; or you can call (800) CLE-NEWS. If eminent domain is your thing, you should take it in on the tube.


Detroit May Be Out of Bankruptcy, But Is It Out of the Woods?

Detroit may have emerged from bankruptcy, but predictably, it now must face the factors that got it into trouble to begin with, and that haven’t just vanished by judicial decree. The intractable facts are many, but two stand out. First, the population of Detroit has largely left and fewer and fewer people are paying local taxes. Those Detroiters who are still around are largely poor and unable or unwilling to pay taxes, for which it is hard to blame them, being that Detroit provides exceedingly poor public services to its inhabitants. Second, Detroit remains a mess most of whose population has left, leaving few employment opportunities.

For our earlier insight into the problems that post-bankruptcy Detroit is facing, click on

But life must go on, so the Detroit City Mothers have now turned to the desperate strategy of trying to squeeze blood from a turnip, and are stepping up foreclosures of homes with delinquent tax bills. To give you an idea of the vastness of this task, this year alone 62,000 properties located in the city are subject to foreclosure — which means that their owners are at least three years behind on their tax payments. According to the New York Times, only half of these are occupied and nearly 13,000 are probably vacant lots. “Probably?” That’s what it says in the Times. Monica Davey, A Hearing on Housing in Detroit Draws a Reluctant Crowd, N.Y. Times, Jan. 29, 2015, p. A13 (New York edition).

The problem now faced by Detroit is, who is going to buy all these wrecks in foreclosure sales, and what is to be done with them afterwards? No answers to these questions appear to be forthcoming. In the meantime, interest is running on all those delinquent taxes at the current rate of 6% which is a big deal being as it was 18% until the Michigan legislature  enacted legislation reducing the rate of interest for those folks who still live in the houses with delinquent taxes.

Being a pessimist by nature, we don’t see much of anything on the horizon that bids fair to turn things around. Remember, it isn’t just Detroit; it’s a whole bunch of older American cities, some of which (Camden, NJ, for example) are in worse shape than Detroit. But if you have an interest in the depressing subject of the decline of American cities, stay tuned. You may even want to take a look at our article on this subject, Detroit and the Decline of Urban America, 2013 Mich. State L. Rev. 1548. It will give you an idea of how things got to their present sad condition, and why revitalizing American cities is in the nature of “Mission Impossible.” Suffice it to say here that it wasn’t a case of Americans “falling in love with the automobile” — as some planners are fond of putting it — and on a whim moving to the suburbs. No, it wasn’t that. It was the lengthy interaction of government policies that for all practical purposes bribed your Mom and Dad to leave the city and move to the suburbs, to say nothing of the fact that city crime rates soared, city living grew dangerous, particularly in the 1970s, and urban schools became not only ineffective but also hazardous for the kids.

So we wish all those Detroiters luck. They will need it.

Follow-up: For another pessimistic look at Detroit’s future, this one having to do with local xenophobia that views newcomer-investors with disdain, see Aaron M. Renn, Is Detroit Open for Business? City Journal, Winter 2015, go to

Is It Now Atlantic City’s Turn to Go Down the Tubes?

It would so appear. We noted not too long ago that Atlantic City was on its way down, what with casino/hotels closing and things nowhere like the rosy predictions of yore, when we were assured by our betters that its redevelopment — using the tired old condemn-and-bulldoze method — would turn things around and as the glittering casinos went up prosperity would rise with them. But it didn’t. See

Oh sure, for a while it glittered but as the proverb teaches, all that glitters isn’t  gold. It appeared good as long as long as Atlantic city enjoyed Las Vegas style gambling as a municipal monopoly. But it didn’t last. The gambling biz eventually became a government supported oligopoly, and then it had to face reality as other places on the East Coast also went into the gaming business and gambling-minded members of the hoi polloi discovered that it wasn’t necessary for them to travel to a far-off place like Atlantic City for a spot of blackjack, or whatever visions of getting rich quick floated their boat, because casinos started sprouting all over the place — Indian casinos in particular.

So here is the Times dispatch (Patrick McGeehan, Christie Uses Executive Order to Appoint an Emergency Manager in Atlantic City, Jan. 23, 2015, at p. A20); It brings the news that “Moving to take greater control over Atlantic City, which is struggling financially as its casino industry shrinks, Gov. Chris Christie on Thursday appointed a corporate finance lawyer to be the city’s emergency manager.”

And to make things really interesting, “along with the lawyer, Kevin Lavin, Mr. Christie brought in Kevyn Orr — the lawyer who led Detroit through the bankruptcy it emerged from last month — as a consultant.”

That, it seems to us, does not bode well for Atlantic City’s future. When in addition to a municipal finance maven you also retain a municipal bankruptcy maven, things are not looking good, and you won’t catch us rushing out to buy a fistful of Atlantic City municipal bonds, their tax-free interest status notwithstanding.

So stay tuned. We are convinced that we haven’t heard the last of this, and that more misadventures of redevelopment projects are in store for us.

Our own observation is mostly moral: if indeed gambling is considered a vice by the new Jersey Legislature, as evidenced by the state’s enactments of statutes that criminalize it, then how come gambling becomes a municipal virtue when it is sponsored by the state and conducted for private profit on land forcibly taken from faultless individuals who are undercompensated in the process?

Follow up. If the fate of Atlantic City is of interest to you, also read Stephen Eide, Debts No Honest Man Can Pay, City Journal, Feb. 12, 2015; go to for a detailed description of Atlantic City’s financial predicament.

The Horne California Raisin Case Is Back In the Supreme Court

Not much we can add to this headline. You no doubt remember the recent Horne case, in which the Supreme Court vacated the opinion of the 9th Circuit and sent the case back with directions to consider the Hornes’ claim of taking of a chunk of their raisin crop or else pay a fine north of $400,000. The 9th Circuit still couldn’t find a taking in this scenario, and hung tough — it more or less defied the Supreme Court and once again held that this physical seizure of the Hornes’ raisin crop was not a taking within the meaning of the Fifth Amendment.

The Hornes petitioned the Supreme Court for certiorari, which the court just granted. So it’s off to the races again.

Oral arguments should take place sometime later in the year and it is likely that a [second] SCOTUS decision will come down later in the year, probably by the end of June. Last time, the subtext of the court’s [first] opinion revealed — at least to us — that the court was not pleased with the government’s conduct whereby its physical seizure of tons of privately owned raisins and the resale of them in order to keep raisin prices up, without paying their owner a nickel. That weird legislative scheme was concocted in the depths of the Great Depression of the 1930s, as a means of keeping raisin prices up, and thereby keep raisin farmers from going broke. But it makes no sense today, and it was ridiculed during the last oral argument by none other than Justice Kagan, usually reliably lined up with the court’s liberal justices.

So stay tuned, folks. This one should be fun.

Follow up. Actually, this post should be called a “non-follow-up” if there is such a word. We understand that the same-sex marriage cases are of greater interest to more people than takings law, and understandably they take the lion’s share of SCOTUSblog publicity. But, hey, man. When a lower court pretty much defies the Supreme Court and sticks to the result achieved in its earlier, vacated decision, that might be of interest to SCOTUSblog readers. Yes? But evidently that’s not how our betters think. Other than a bare mention of the fact that cert was granted in the Horne case, we have not been able to find any SCOTUSblog reference to Horne, except a statement of the Issues Presented.

About All that Stuff Going on in France . . .

We thought it might be proper to share with our readers David Brooks’ insightful observation in the NY Times about freedom of expression in France as opposed to the good ol’ U.S. of A.:

“The journalists at Charlie Hebdo are now rightly being celebrated as martyrs on behalf of freedom of expression, but let’s face it: If they had tried to publish their satirical newspaper on any American university campus over the last two decades it wouldn’t have lasted 30 seconds. Student and faculty groups would have accused them of hate speech. The administration would have cut financing and shut them down.

*    *    *

“Americans may laud Charlie Hebdo for being brave enough to publish cartoons ridiculing the Prophet Muhammad, but, if Ayaan Hirsi Ali is invited to campus, [and wants to offer a sober critique of Islam]  there are often calls to deny her a podium.”

Guess What? Redevelopment Doesn’t Deliver on Its Promises.


“Florida Gulf Coast University economists Carrie Kerekes and Dean Stansel used data collected from states to quantify the empirical effect of eminent domain on local economies. If taking private property for public use is economically beneficial, tax revenue would correlate positively with increased eminent domain takings.

“Kerekes and Stansel found “virtually no evidence” of eminent domain’s economic benefit.

“The search for empirical evidence regarding government takings and tax revenue did turn up something surprising: There appears to be ‘a negative relationship between eminent domain and revenue growth.’” The author, Jesse Hathaway is a research fellow with The Heartland Institute.

$5 Million Taking Verdict in Connecticut

The Weston Forum reports that a jury in Stamford Connecticut has awarded $5,000,000 to a property owner who was prevented by the town from developing and selling his property, and eventually lost it by foreclosure. See Patricia Gay, Jury Awards $5 Million to Stones Trail Against the Town of Weston. Click on

The jury found that the owner was denied equal protection, due process of law, and that “the Town of Weston imposed an inverse condemnation on Stone Trail’s property.” The facts reported in this article suggest that this jury verdict was amply justified; among other things, it tells us that the town’s First Selectman said in a meeting that the town was going to “shut down” the owner and keep him from developing his property. However, we are puzzled because the article also says that the case isn’t quite over because the judge is yet to rule “on the final inverse condemnation counts.”