Sometimes I stumble across a case having nothing to do with the subject of this blog, yet I feel compelled to share. “The principal issue in this case is whether a statement made by a ‘slightly unhinged’ character in a motion picture, American Hustle (Columbia Pictures 2013), was made ‘in connection with a public issue or an issue of public interest’ within the meaning of the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ.Proc., § 425.16, subd. (e)(4).)1 We hold that it was . . . “ The case arises out of a statement made in the movie American Hustle by the character Rosalyn, who said she had read an article by Paul Brodeur claiming that microwave ovens take the nutrition out of food. Mr. Brodeur was not amused, and sued for defamation. Spoiler alert: “ditzy” may be the dispositive word in the opinion. Brodeur v. Atlas Entertainment, Inc., (2/8 June 6, 2016) (unpublished).1 Enjoy.
The reason I post on this case is I thought it a curiosity, for those of use who do not practice in the area of union negotiations, that the California Labor Code, sections 1164 et seq., enables a process of “mandatory mediation and conciliation” (MMC) between a union, such as the United Farm Workers (UFW), and an agricultural employer, that is a binding process, in which the “mediator” takes evidence, hears arguments from the parties, and submits a “report” to the Agricultural Labor Relations Board. This is a rather specialized application of the term “mediator”!
Above: Interview with Cesar Chavez. April 20, 1979. Library of Congress.
Held: Section 1164.9 is unconstitutional, because it divests the Superior Court of its original jurisdiction, even though there is no “other constitutional provision that would expressly or impliedly grant to the Legislature the power to divest the superior court of its original jurisdiction in such matters.”
Removing the obstacle of section 1164.9 is not the end of the matter. Instead, the Court remands to the trial court so the Board will have an opportunity to assert procedural and other defenses, and to more fully develop the record. Having corrected legal error committed in the trial court, the Court of Appeal’s work is done – for now.
In a March 29, 2016 post, Debra Cassens Weiss, writing for the ABA Journal, quotes the esteemed appellate judge Richard Posner: “The first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.” We assume that Judge Posner does not generally favor book bonfires, which have a bad name, but this pinpoint attack is likely to resonate with many of us who labor at brief writing, and not-so-brief writing.
Ms. Cassens also notes that Judge Posner “has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.” Can I get a copy?
Among other legal reforms proposed by Judge Posner are creating a uniform system of lawyer pay (a “single payer” system) to even up disparities in the quality of representation, appointing neutral experts in cases involving difficult technical issues, providing jurors with transcripts that can be read along with testimony, and allowing judges to do Internet research (provided lawyers can contest the results).
From Queen Padmé Amidala To Ruth Bader Ginsburg . . .
Every now and then we get the irresistible urge to blog about something that has nothing whatsoever to do with mediation and arbitration. Today, the “off topic” item comes from Amy Howe’s Monday round up on SCOTUSblog, reporting Natalie Portman is about to take on the role of another powerful woman:
“Perhaps the biggest Court-related news at the end of last week was that actress Natalie Portman will play Justice Ruth Bader Ginsburg in a movie about Ginsburg’s career as an advocate for women’s rights. Coverage comes from Lily Karlin and Sam Levine in The Huffington Post, from Andrea Towers for Entertainment Weekly, and from Deadline Hollywood.”
Jill Lepore, Professor of American History at Harvard, has written a fascinating article in the January 26, 2015 edition of the The New Yorker. Her subject, which interests and plagues every blogger, is archiving the Internet before the information vanishes into cyberspace.
If you have been reading this blog, or the other blog to which I contribute with my colleague Mike Hensley, California Attorney’s Fees, or any other blog, you are familiar with the problem. All the hyperlinks degrade over time and become useless. You click on a hyperlink, and you get an annoying message: “Page Not Found” (“link rot”). Or the page has been overwritten. Or the page has moved, and something else appears in its place (“content shift”). These are examples of “reference rot.”
This problem should be of particular concern to attorneys, because an astounding number of legal footnotes relying on web addresses now rely on invalid addresses, a problem that includes footnote references in SCOTUS opinions.
The sheer petabyte volume of Internet information makes the archiving problem a Sisyphean task. There are, however, some constructive efforts to ameliorate the problem.
There is, of course, the famous internet archive “Wayback Machine,” a valuable Internet resource for people searching for old information on the Internet. “Wayback Machine” alludes to Mr. Peabody and Sherman’s fictional “WABAC Machine”, allowing time travel through Peabody’s Improbable History, a feature of the Rocky and Bullwinkle show.
There is also a nifty patch, currently in Beta development phase, for the legal footnote problem. Perma.cc has been developed by the Harvard Library Innovation Lab as a way to create a permanent link (“permalink”) for legal footnotes. Perma.cc is powered by various libraries, and now used by the Michigan Supreme Court, as well as the Harvard Law Review. A Perma.cc account allows you to “create links to archived versions of web pages cited in your work.” Cool!
Even Perma.cc won’t guarantee that the permalink it creates to reference a source will last as long as a diamond. However, Perma.cc does claim that a permalink will last for two years, with the possibility of renewal, and that it may last longer for a person, such as a legal librarian, who is given “vesting rights.”
I note that most of the links on my blog are to newly filed California appellate opinions. Those links become stale after a few months. However, if the case is of lasting interest, you should be able to find it on LexisNexis, on Westlaw, or on Google Scholar with the case information provided in my post.
HAT TIP to Deborah Tint, librarian, artist, and Wonder Woman fan, who pointed me to Jill Lepore’s article. Professor Lepore is also the author of the wonderful new book, The Secret History of Wonder Woman.
The Article Is About Two Extraordinary Cases In Which Judges Exercised The Summary Contempt Power.
Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, “Summary Contempt and Due Process: England, 1631, California, 1888” is now available on my website by clicking here.
An abbreviated version of this article appeared earlier as an August 6, 2014 post on California Attorney’s Fees, a blawg to which I co-contribute.