Thursday, August 28, 2003
Tuesday, August 26, 2003
Coming AttractionsI've just finished reading Jon Krakauer's new book, Under the Banner of Heaven. Krakauer's a great story teller (his Everest account, Into Thin Air and his earlier book, Into the Wild are both must reads), but this latest work is problematic. Because he raises a number of questions in the book that I've always found intriguing (faith vs. reason, church vs. state, and the like), I'm going to try to get a fairly extensive essay worked up. For now, I'll just say Krakauer's undisguised skepticism of religious faith generally causes him to link a pair of brutal murders to the very nature of Mormonism. If the link is indeed there, Krakauer's analysis is far too glib to establish it.
Posted by Jeff Silver at 8/26/2003 04:10:00 PM
Lies, and the Lying Lawyers Who Tell ThemIn denying Fox's request for a preliminary injunction against Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, US District Judge Denny Chin stated: "There are hard cases and there are easy cases. This is an easy case. This case is wholly without merit, both factually and legally."
Rule 11 of the Federal Rules of Civil Procedure provides that by presenting a signed pleading to the court, an attorney is making four separate representations, and the violation of any of them opens the attorney to sanctions. Two of the four representations are that to the best of the attorney's knowledge information and belief (after reasonable investigation, so that wilfull ignorance is no defense):
(1) the pleading is not being presented for any improper purpose, such as to harass . . .;
(2) the claims and other legal contentions are warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law or the establisment of new law.
Fox's complaint, clearly a pleading that comes within the rule, arguably violates both of these representations. But the first one, improper purpose, would be hard to prove. It requires the judge to find a bad intent, and because protecting one's trademark (however invalid the registration might be) is a proper purpose, it is unlikely, absent a "smoking gun" memo ("fuck Franken, sue his ass just to bug him"), no judge will dig deeper than that in evaluating the suit's purpose. But the second representation, that's a bit easier in this case. Judge Chin himself said the case was "wholly without merit, factually and legally." How far a step is it from there to "not warranted by existing law, nor supported by a non-frivolous argument for the extension, modification, reversal of existing law?" If I were Franken's lawyer, I'd be inclined (after a reasonable investigation) to file a motion under Rule 11(c)(1) and ask for a hefty fine.
UPDATE: Sadly, Fox has seen reason and dropped the suit.That dooms the idea of monetary sanctions against Fox's lawyers, as such a motion must allow the lawyer agsinst whom sanctions are sought to withdraw the offending pleading. The dismissal also deprives the court of authority to act on its own to sanction Fox's attorneys. Too bad. L'Affaire Franken was fun while it lasted.
Posted by Jeff Silver at 8/26/2003 01:12:00 PM