Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, February 8, 2011

Fishing License

Lawyers who don't want to produce information or documents that the other side has requested often accuse them of engaging in a "fishing expedition."

Indeed, "fishing expedition" is the cliche of choice under these circumstances. Over the years, countless litigants have invoked the phrase and countless judges have adopted it as a metaphor to describe the problem of discovery run amok.

The phrase should be sent off to enjoy its long overdue retirement .... and perhaps enjoy a little angling.

This is so for at least two reasons.

First, the metaphor is inapt. Fishing does not involve an indiscriminate effort to see if there is anything anywhere in the lake. To the contrary, it requires a studied understanding of what one wants to catch, where one might find it, and how one might get it on the line.

Second, the metaphor reflects a misunderstaning of the law. In fact, the modern discovery rules give litigants substantial latitude to test the waters with less than perfect precision.

But don't take my word for it. The United States Supreme Court said as much in Hickman v. Taylor (1947), where it observed this about discovery under the federal rules of civil procedure: "No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case."

That was more than sixty years ago. The news does not appear to have reached many lawyers and judges.

Perhaps they were off fishing when the word came down.

Monday, February 7, 2011

Roger That

Last Sunday, the Los Angeles Times published an intriguing op-ed by Akhil Reed Amar critiquing federal District Judge Roger Vinson's decision holding "Obamacare" unconstitutional. You can find the article here.

Professor Amar concludes by comparing Judge Vinson's misunderstanding of constitutional first principles with that of "another judge named Roger"--Supreme Court Justice Roger Taney, the author of the infamous Dred Scott decision.

I am not persuaded that the curiously undisciplined and bewilderingly confused opinion of an isolated federal district court judge ranks with Dred Scott in whatever scale we use to measure magnitudes of evil. But the article has considerable rhetorical force and is a fun read.

Thursday, February 3, 2011

The Persistence of Ideas

Kevin Kelly of Wired Magazine believes that no human invention ever goes extinct. National Public Radio has recently had some fun with this, challenging its listeners to identify an invention that the world has stopped producing. It turns out that Kelly may well be right; finding something that absolutely no one makes any more is a daunting task. You can learn more about the debate here.

I suspect that Kelly's point is just part of a broader one: no idea ever goes extinct. Justice Holmes's familiar metaphor maintains that ideas compete for allegiance in the marketplace of free expression. Yes, but it is important to remember that this process does not cast the losers into exile. It just relegates them to the darker corners, where they can continue to serve the customers who still patronize them.

So do not feign astonishment when obnoxious doctrines, long thought extinct, reappear. No idea ever goes out of production. No idea, no matter how pernicious, ever falls entirely from use.