Case update in the IBM Japan matter (mid October edition)

I have been working and studying all week, because the expected objections that I had told you all about during the summer were filed on Friday.

As you know, I am a non-practicing attorney–I don’t do this for a living. However, I do read a lot of cases, and the internet tends to stream them at you one after another. I didn’t appreciate how redundant paper is becoming, and, in some ways, how missed. It forced people to focus on the writing in front of them. To some extent, it limited how much could be read in one sitting. People had to digest what was there.

I get these things from the big law firm, one for IBM USA and one for IBM Japan. I have to wonder whether some of the objections aren’t cookie cutter. The overall framework for the material has been written long ago, and the attorneys on the case simply plug in the latest dispute. They check Lexis and Westlaw for a slew of what are called “unpublished” cases, where this fact or that fact sounds similar to something they want to say about the current case, and off they go. They don’t seem to appreciate the fact that the unpublished cases aren’t precedent–at least not in the Second Circuit.

This is a tough thing for laymen to appreciate, but most of our “common law” is as off-the-books as Bush v. Gore, a published case by the way, was. The judges say, “this decision for THIS case only”. And then, the lawyers come around and parse through these to make a legal argument in another case. I wonder, if ALL the cases had to be published, not “unpublished”, if the deciding would be any better.

So I get this memorandum of law that’s stacked with a number of unpublished cases. I got served the copies of those cases today, so I don’t have to run down to the local law library. In many cases, it was people who brought Title VII or other kinds of anti-discrimination claims, and they didn’t have a lawyer, or they had one who wasn’t particularly good. The cases were dismissed because there was no follow-through, or because no one developed the “other side” of what the defendant was arguing.

Judges are known to take the brief for one side, and then just make that the opinion. It goes on in Pennsylvania all the time.

If you ever decide to represent yourself, and you didn’t spend three years in law school, at least try to find what a memorandum of law looks like. Find out what the basics of the law is, before you go visit the court’s pro se office–if they even have one. It’s a shame, because there must be hundreds and hundreds of these type cases in the system, and all that their presence does is generate even more of these unpublished cases.

I’d hope that one of the agenda items for the Occupy Wall Street gang, when they get around to balancing the scale better between the 99% and the 1% running everything, is to take a look at our judicial system.

The weight of unpublished cases is inevitably going to affect the quality of the law found in published cases–if it hasn’t already. After all, a common law system means that the law is what the judges have decided it is. If they send certain case opinions into Lexis and Westlaw, and others into the regular reporters–like the Atlantic Digest, Second or the Federal Supplemental Digest, Second, and so forth—pretty soon there will just be two systems of law. Two sets of law.

[Update #1: A request for what the objections were.


12(b)(6), based on two theories. One is that IBM USA is not a “single employer” (which EEOC rejected, by the way.) The other is a general “plausibility” one under the new Iqbal v. Ashcroft regime. That’s one of the boilerplates I mention above.

Also, “forum non conveniens”. Yes! The headquarters is in New York, the filing is in New York. They want to do it in Japan, even though Japan doesn’t have jurisdiction over IBM USA. If anyone can explain that, let me know.

By IBM Japan:

Almost every 12(b) objection except (3) and (7). I count a 12(b)(1), a 12(b)(2), a 12(b)(4), a 12(b)(5) and a 12(b)(6). It really merits its own post, which I might get to after I deal with the objection to the dismissal. If you are a regular reader, you remember that the judge in the case had whittled down IBM’s 11 objections to two that were a concern, and then the FNC issue. The amended complaint was to address the two issues, but now we see the multiple, kitchen sink objections again. So much for economizing through the pre-motion conference system . . . ]

[Update #2 10/19/11: Plus, IBM Japan has a forum non conveniens in there, even though they fly people between New York and Tokyo all the time . . . ]

[Update #3, 10/28/11: There wasn’t any 12(b)(1), just (2), (4), (5), and (6).]

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