Contriving a lawsuit for activism

[jma_]

Jurisdiction

US Federal Law

I am operating on the assumptions:

1. Statutory law is often obtusely written
2. Markets can be effected by specific legal interpretations
3. Lack of clear statute or precedent may create market uncertainty that diverse parties by desire to rectify.

An example might be the current case before SCOTUS: Oracle v. Google, where Oracle is suing Google, asserting that Application Programmer Interfaces (APIs) are copyrightable. The result of this case will have industry wide financial implications. Notably both the companies have large back catalogs of products that have well developed API's, many of which aren't currently monetized. If Oracle wins, the software market will completely change, and established players will have a much more dominant position. So there may be some question about the veracity of the two parties dispute.

I have listened to a few SCOTUS oral arguments in the past, and read the respective decisions. I was somewhat disappointed because I was reading the nature of the disputes in ways that I thought had Constitutional significance that were frankly never debated.

This has made me wonder about whether certain precedents have been contrived by parties who were not in fact debating against each other, but instead putting on a kabuki theater for the court.

My question regards the legality of that.

I am aware that it is the case that companies will sometimes sue each other to move assets around. The lawsuit mitigates liabilities related to third party partner agreements. In other words: if you sue me, I can give it to you, even if I promised somebody else I wouldn't do that. (please don't throw me in that briar patch!)

From an activist standpoint my thoughts pertain to certain low percentage legislation. Stuff like campaign finance reform that will never see the light of day on the floor of the U.S. Congress, but might pass in a smaller jurisdiction.

So here is my hypothetical:

A county passes a campaign finance law. A local friend sues, and repeatedly appeals all the way to SCOTUS. Both parties intend for the law to be found Constitutional, but one is debating for, and the other against. Both fully disclose to one another their debate strategies before hand, but don't disclose to the court that they are working together.

Given that SCOTUS will objectively interpret the Constitution then it shouldn't matter whether the parties are in cahoots. The above approach gives the appearance of being underhanded. But if the statutory law in a given jurisdiction is unable to be Constitutionally sound (jim crow laws for example) you aren't obligated to honor them. So perhaps an approach to legislative activism, is to create a precedent in a lower jurisdiction, then use it to sue in a larger more corrupt one?

So my questions are:

1. So is it unlawful to share your strategy and intentions with your opposing counsel?
2. Is it unlawful for both counsels to have the same intent?
3. Is it unlawful to bring a lawsuit solely for the purpose of creating bench law?
4. Is it reasonable to consider that SCOTUS has probably been gamed?
5. Are there / should there be, disclosure requirements to address gaming SCOTUS?

 

[flyingron]

What you are proposing is a crime, actually. It is illegal to bring a civil lawsuit for a purpose other than to recover what is reasonably expectable as the resulting judgement.

 

[Tax Counsel]

Each of the parties to the dispute must have standing, and among the requirements for that is that each party has a real personal stake the outcome; so they need to be truly adverse parties. What you describe would not meet the test for standing and thus would not survive in the courts.

Understand that the Supreme Court hears less than 1% of the cases that seek Supreme Court review. So few litigants can start litigation with a realistic expectation that the Supreme Court will ever hear it.

Your disappointment in what you heard at oral arguments and the outcome of decisions likely is because you are not familiar enough with how appeals go. One of the most important thing to understand is that while oral argument gets much of the attention by the media, they are not the most important part of an appeal. Rather, it is the briefs filed the parties that have the most to do with the outcome. Quite often the justices already have a good idea at the time of oral argument how they will vote on the case. The oral arguments are important and present an opportunity for the parties to sway a justice who may still be on the fence, but the briefs are much more important. Because the justices have read the briefs before oral argument and have had their clerks already do research on the matter, their questions at oral arguments are meant to address those things in the briefs that left lingering questions, probe the strength of the parties commitment to their positions, etc. The point being that oral arguments do not reveal the full scope of the argument on the issues. You need to read the briefs to get that.

Also, litigating all the way to the Supreme Court is very, very expensive to do. You're generally not going to do it without something really significant at stake.

 

[P1776]

I am operating on the assumptions:

1. Statutory law is often obtusely written
2. Markets can be effected by specific legal interpretations
3. Lack of clear statute or precedent may create market uncertainty that diverse parties by desire to rectify.

An example might be the current case before SCOTUS: Oracle v. Google, where Oracle is suing Google, asserting that Application Programmer Interfaces (APIs) are copyrightable. The result of this case will have industry wide financial implications. Notably both the companies have large back catalogs of products that have well developed API's, many of which aren't currently monetized. If Oracle wins, the software market will completely change, and established players will have a much more dominant position. So there may be some question about the veracity of the two parties dispute.

I have listened to a few SCOTUS oral arguments in the past, and read the respective decisions. I was somewhat disappointed because I was reading the nature of the disputes in ways that I thought had Constitutional significance that were frankly never debated.

This has made me wonder about whether certain precedents have been contrived by parties who were not in fact debating against each other, but instead putting on a kabuki theater for the court.

My question regards the legality of that.

I am aware that it is the case that companies will sometimes sue each other to move assets around. The lawsuit mitigates liabilities related to third party partner agreements. In other words: if you sue me, I can give it to you, even if I promised somebody else I wouldn't do that. (please don't throw me in that briar patch!)

From an activist standpoint my thoughts pertain to certain low percentage legislation. Stuff like campaign finance reform that will never see the light of day on the floor of the U.S. Congress, but might pass in a smaller jurisdiction.

So here is my hypothetical:

A county passes a campaign finance law. A local friend sues, and repeatedly appeals all the way to SCOTUS. Both parties intend for the law to be found Constitutional, but one is debating for, and the other against. Both fully disclose to one another their debate strategies before hand, but don't disclose to the court that they are working together.

Given that SCOTUS will objectively interpret the Constitution then it shouldn't matter whether the parties are in cahoots. The above approach gives the appearance of being underhanded. But if the statutory law in a given jurisdiction is unable to be Constitutionally sound (jim crow laws for example) you aren't obligated to honor them. So perhaps an approach to legislative activism, is to create a precedent in a lower jurisdiction, then use it to sue in a larger more corrupt one?

So my questions are:

1. So is it unlawful to share your strategy and intentions with your opposing counsel?
2. Is it unlawful for both counsels to have the same intent?
3. Is it unlawful to bring a lawsuit solely for the purpose of creating bench law?
4. Is it reasonable to consider that SCOTUS has probably been gamed?
5. Are there / should there be, disclosure requirements to address gaming SCOTUS?

The Courts are here to resolve actual disputes between people who can't resolve the issue on their own and to protect the constitutional rights of a party against the government passing a law that interferes with a constitutional right.
Activism as you suggest is important but needs to remain in the realm of politics. You need to lobby elected officials or run for office yourself.

 

[jma_]

What you are proposing is a crime, actually. It is illegal to bring a civil lawsuit for a purpose other than to recover what is reasonably expectable as the resulting judgement.

That may apply to the parties, but not to the litigator right? The lawyers isn't obliged to have skin in the game.

If it is unlawful, who would bring the charges? And on what grounds?

 

[Zigner]

That may apply to the parties, but not to the litigator right? The lawyers isn't obliged to have skin in the game.

If it is unlawful, who would bring the charges? And on what grounds?

It is unlawful and unethical for an attorney to perpetrate a fraud upon the court.

 

[P1776]

That may apply to the parties, but not to the litigator right? The lawyers isn't obliged to have skin in the game.

If it is unlawful, who would bring the charges? And on what grounds?

Attorneys are responsible for filing frivolous lawsuits or those without standing/merit as you suggest. This would be looked down upon by courts and may lead to a civil fine/ and court cost of the case the attorney filed. Lawyers who engage in consistent frivolous litigation may also face fines, possibly held in contempt, receive a court citations, or a suspension/revocation of their state bar license.

 

[jma_]

Each of the parties to the dispute must have standing,

That isn't a very high bar to meet. If a campaign donor was restricted from donating $1001 for example, I imagine that would meet standing. Though secretly the donar might prefer that he/she not be able to lawfully make that donation. And the genuineness of the litigation is inherently disconnected in corporate cases. The executive staff may act on behalf of the stockholder, without personally believing that the stockholders interest should be represented in this way. That kind of compartmentalization is not only common, but demanded for by the SEC.

Your disappointment in what you heard at oral arguments and the outcome of decisions likely is because you are not familiar enough with how appeals go.

I read a few written arguments as well. Not all of the amicus briefings, but scanned a few of them. The impression that I got, was that the litigators focus mostly on appeasing the court; that its existing positions were mostly already in conformance if party A or B won. Discussing grand ideas seemed pretty rare.

Also, litigating all the way to the Supreme Court is very, very expensive to do. You're generally not going to do it without something really significant at stake.

But less expensive than the alternative perhaps.

 

[jma_]

Attorneys are responsible for filing frivolous lawsuits or those without standing/merit as you suggest. This would be looked down upon by courts and may lead to a civil fine/ and court cost of the case the attorney filed. Lawyers who engage in consistent frivolous litigation may also face fines, possibly held in contempt, receive a court citations, or a suspension/revocation of their state bar license.

So in the case of SCOTUS, that would be... the DOJ? Or would it be Congress? Both of those guys have bigger fish to fry. So provided it wasn't completely obvious, the likelyhood of repercussions would be extremely low. Which to me bolsters the idea that it is probably a fairly common event.

 

[jma_]

It is unlawful and unethical for an attorney to perpetrate a fraud upon the court.

Is that a lawyer joke?

 

[PayrollHRGuy]

Discussing grand ideas seemed pretty rare.

Because in general, that isn't what the court is for.

So in the case of SCOTUS, that would be... the DOJ? Or would it be Congress?

No, it would be the Bar or the court in question which has committees set up specifically to fry that type of fish.

You need to understand a frivolous lawsuit isn't going to make it to the SCOTUS.

 

[adjusterjack]

it is probably a fairly common event.

Based on TC's explanation, it's so unlikely to ever happen that there is no purpose in continuing this discussion.

Thread closed.