Today in Supreme Court History: January 8, 1973

1/8/1973: Trial begins for seven men accused of illegal entry into Democratic headquarters at Watergate hotel. The break-in would give rise to U.S. v. Nixon.

The Watergate Complex

 

 

Comments

[Dan Schiavetta]

The Paquete Habana, 175 U.S. 677 (decided January 8, 1900): Fishing vessel was not a “prize of war” (its crew did not even know there was a war going on when it was seized in 1898 off the coast of Cuba) and therefore owner and crew awarded value of it and its contents (lots of fish in tanks); the opinion is a long, long historical survey of admiralty jurisdiction and on prize law. (This is an important case in international human rights litigation, establishing that United States courts will apply customary int’l law unless Congress says otherwise.)

Culbertson v. Berryhill, 586 U.S. 53 (decided January 8, 2019): construing 42 U.S.C. §406, Thomas holds that 25% cap on attorney’s fees for successful pursuit of past due Social Security benefits applies only to proceedings before a court, not to the runup administrative proceedings

Los Angeles County Flood Control District v. Natural Resources Defense Council, 568 U.S. 78 (decided January 8, 2013): stormwater runoff into river is not itself a “pollutant” as defined by the Clean Water Act (even though opinion admits that stormwater is often heavily polluted)

Brotherhood of Locomotive Engineers v. Atchison, Topeka & Santa Fe R.R. Co., 516 U.S. 152 (decided January 8, 1996): I picked this case because of two interesting terms dealing with when a train crew’s maximum 12 hours expire during a trip: “deadhead transportation” (getting the new crew to the train, often requiring a special stop, and the old crew back to the terminal) and “limbo time” (the time spent by the new crew and the old crew during d.t.). Here the Court, noting that the purpose of the Hours of Service Act is to prevent fatigue, holds that limbo time waiting for d.t. to the train counts toward the 12-hour daily limit but limbo time waiting for d.t. from the train (i.e., back to the terminal) does not.

Western Union Telegraph Co. v. Lenroot, 323 U.S. 490 (decided January 8, 1945): by-foot or by-car transmission of telegraph messages by children under age 16 was not specifically prohibited by federal child labor statute (we learn here that 12% of all message runners were under the age of 16)

[apedad]

Re: Culbertson v. Berryhill

42 U.S.C. § 406
(b) Fees for representation before court
(1)(A) Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, c͟e͟r͟t͟i͟f͟y͟ t͟h͟e͟ a͟m͟o͟u͟n͟t͟ o͟f͟ s͟u͟c͟h͟ f͟e͟e͟ f͟o͟r͟ p͟a͟y͟m͟e͟n͟t͟ t͟o͟ s͟u͟c͟h͟ a͟t͟t͟o͟r͟n͟e͟y͟ o͟u͟t͟ o͟f͟,͟ a͟n͟d͟ n͟o͟t͟ i͟n͟ a͟d͟d͟i͟t͟i͟o͟n͟ t͟o͟,͟ t͟h͟e͟ a͟m͟o͟u͟n͟t͟ o͟f͟ s͟u͟c͟h͟ p͟a͟s͟t͟-͟d͟u͟e͟ b͟e͟n͟e͟f͟i͟t͟s͟ In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

So the IRS owes me $1000 of MY money but I only get back $750?

[Drewski]

If the SSA (I don't know where you saw IRS) owes you a thousand bucks and you owe the lawyer seven hundred, they can send the lawyer $250 toward your debt. This is to encourage lawyers to represent indigent claimants who might otherwise be tempted to skip town with their check. Normally, of course, 25% of retroactive benefits is enough to fully compensate the attorneys.

[apedad]

Good catch.

But I still only get 3/4 of what's owed to me.

[John F. Carr]

This is the so-called American system. Win or lose, you pay your attorney. In un-American systems the loser pays the winner's attorney. Each system has its advantages. I remember reading about a dispute over a few thousand dollars of rent that had been going on for years because the real stake was over $100,000 in attorney's fees that had accumulated. Without fee shifting the parties would have given up.

[SMP0328]

In un-American systems the loser pays the winner's attorney.

What about when the government is the loser?

[John F. Carr]

I don't know about foreign law when you sue the government.

The Equal Access to Justice Act requires the U.S. government to pay attorney's fees in any case where its position was not substantially justified. It does not have to pay if it lost a close case.

[A Japanese Student]

Japan largely follows American rule, but there is an exception for tort cases; as part of damages, plaintiffs may seek attorney's fees. Courts usually allocate 10% of the actual damages for this purpose, but I'm pretty sure the attorney can recoup actual costs from plaintiffs. This appears to also apply to tort claims against the Government. (For example, SCOJ 2004-12-17 granted attorney fees when the Government refunded wrongfully imposed tax during suit.)

On the other hand, court costs are apportioned relative to the claimed amount; if the plaintiff demanded 2 million yen and got 1 million, the plaintiff and the defendant each pays half of the costs. (Note that docketing fee is proportional to the amount in controversy here.)

(yes, I am a newcomer - see below for my introduction.)

[John F. Carr]

I like the idea of giving a plaintiff very little reward for asking for the moon and getting a lump of coal.

[Stupid Government Tricks]

I read somewhere that the American system came about because the 1783 treaty which ended the War of Indepedence allowed Loyalists to sue to get compensation for confiscated property, and the Americans resented the Brits piling attorney fees on top of it, so they required each party to pay their own fees.

I lost the link, and subsequent googling only found links saying it happened around then, but not why or even exactly how. It does sound plausible.

[Dr. Ed 2]

My understanding, and my family were Loyalists, is that the Loyalists were never compensated, even by litigation. I'd love to see actual court cases where they were.

Now it may have been A FEAR THAT the American attorneys would do this, but all of the attorneys that would have been inclined to represent Loyalists were themselves Loyalists (or at least afraid of being considered Loyalists). Look at what happened to John Adams for representing the British at the Boston Massacre -- and he was very clear as to why it was necessary to do so to defend the legitimacy of the Patriot cause.

[John F. Carr]

In the old days one couldn't sue the government for damages. The remedy was a private bill granting relief. "The treasurer is authorized and directed to pay John Doe the sum of $1,000 in compensation for the tragic horse nuzzling incident of January 1, 1800."

[David Nieporent]

Look at what happened to John Adams for representing the British at the Boston Massacre

I'll bite: what does Dr. Ed think "happened to" John Adams for representing the British at the Boston Massacre?

[David Nieporent]

But I still only get 3/4 of what's owed to me.

Did you think your lawyer was going to work for free?

[Dr. Ed 2]

In a regulated market, which law is, it is reasonable for fees to be regulated. 1/3 i s excessive for a case so simple that the lawyer knows that he will inherently win it.

Now 1/3 if he was required to take EVERY claim, regardless of the merits, would be something else. Likewise 1/3 if anyone was able to practice law.

But with restricted entry, it is fair for society to say "too much."

[John F. Carr]

If the case is only a few thousand dollars a lawyer could be justified in taking a substantial fraction of a sure thing.

Insurance companies tend not to litigate car accidents with under $2,000 in damage. It's not worth putting even a salaried employee on such a small case.

[jdgalt1]

If I were writing the rules, the loser would have to pay both the full amount to the winning plaintiff and the attorney's fees on top of it.

[SRG2]

Would Nixon have had immunity under Trump? Surely not even Thomalito would hold that what he did was a core executive function.

[Frank Drackman]

Should Barry Osama have immunity under Trump? Surely not even SRG2 would hold that what He did was a core executive function.

[not guilty]

Immunity for what act(s)?

[Frank Drackman]

Be easier to cite the sections he didn't violate, but I'd start with 18 USC 241, Throw in a little War Powers Act Violation (I know it's not in USC, but Ex-POTUS's can be impeached) and good old 18 USC 1510, specifics? that's between the Prosecutors and the Grand Jury.

Frank

[Dan Schiavetta]

Nixon's Watergate misconduct consisted solely of his interactions with Executive Branch officials (Haldeman, Ehrlichmann, et al.). So it would be similar to Trump's conversations with his own Attorney General (threatening to fire him if he didn't order states to investigate supposed voter fraud) which the Court held was subject to "absolute immunity". (Cf. Trump's attempts to get Pence to decertify the Electoral College results, which are only "presumptively immune".)

[SRG2]

Which is sufficient to demonstrate that Trump is a truly despicable decision.

However, talking with his officials to hide a crime they were guilty of doesn't strike me as core given that the crimes themselves were not associated with core executive functions, hence only presumptive immunity would apply.

[not guilty]

The President communicating with his underlings about who should or should not be criminally prosecuted is a core function under Trump. Nixon would have been immune.

Trump is an execrable decision, cut from whole judicial cloth.

[SRG2]

The President communicating with his underlings about who should or should not be criminally prosecuted is a core function under Trump. Nixon would have been immune.

In general, yes. But where the officials themselves are criminals committing acts that are not core, Nixon's discussing with them how to avoid prosecution would not be core either. Else the president could cover up his own non-immune malfeasance under the cover of core function.

Trump is an execrable decision, cut from whole judicial cloth.

100%. If one regard Kelo as the worst liberal decision of the last 30 years, it is as nothing compared to this.

[not guilty]

"In general, yes. But where the officials themselves are criminals committing acts that are not core, Nixon's discussing with them how to avoid prosecution would not be core either. Else the president could cover up his own non-immune malfeasance under the cover of core function."

I don't think that matters to Chief Justice Roberts and his fellow black robed ward heelers. Per Part III.B.1. of the Trump opinion:

Investigation and prosecution of crimes is a quintessentially executive function. . . . And the Executive Branch has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. . . . Under Article II, the Executive Branch possesses authority to decide how to prioritize and how aggressively to pursue legal actions against defendants who violate the law. [Citations and internal quotation marks omitted.]

[JoeFromtheBronx]

The latter-day Dred Scott in the view of our gracious host.

SCOTUS dropped a housekeeping order this morning:

https://www.supremecourt.gov/orders/courtorders/010825zr_bpm1.pdf

Of some note, the solicitor general and Texas were granted argument time in Barnes v. Felix. This Fourth Amendment case will be argued on January 22th, after the beginning of the new presidential term. SCOTUSBlog summarized the issue as:

"Whether courts should apply the "moment of the threat" doctrine when evaluating an excessive force claim under the Fourth Amendment."

https://www.scotusblog.com/case-files/cases/barnes-v-felix/

[TwelveInchPianist]

"Whether courts should apply the "moment of the threat" doctrine when evaluating an excessive force claim under the Fourth Amendment."

Wait. Suppose a cop is forced to use deadly force to defend himself after entering an innocent person's home without a warrant. He's wearing plainclothes, a hockey mask, and carrying a running chainsaw. People think those circumstances should be used in evaluating whether the force was reasonable? Damn liberals!

[JoeFromtheBronx]

That's Barnes v. Jason.

[Dr. Ed 2]

Based on the level of incompetent tradecraft, I've long felt that the CIA intended them to get caught -- to harm Nixon.

Remember that the CIA evolved out of the OSS which Truman had shut down because it had been so thoroughly penetrated by the Soviets during WWII. Remember too that the Eisenhower years were the CIA's glory years, and Nixon was an unpopular VeeP.

[A Japanese Student]

Hello! New commenter (but longtime lurker) here. A Japanese student here. (Not a lawyer... yet.)

Why am I here then? American laws and Japanese laws are obviously very different (to start, we're a civil-law jurisdiction, not common law), yet there's many parts of our jurisprudence based on US law. This is especially true in the Constitution (which may be obvious because it's drafted by the US during post-WWII occupation)

I also enjoy the Supreme Court case summary from Dan Schiavetta. Might attempt a Japanese version - which should be very interesting from comparative law perspective.

[SRG2]

いらっしゃいませ