Bench Memos

This Day in Liberal Judicial Activism—December 27

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis.  The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement.  (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.”  He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.”  “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.”  But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier.  In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career:  “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.”  Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”

Most Popular

Culture

Our Cultural Crisis: A Kirkian Response

Editors’ note: The following article is adapted from a speech the author delivered at the Heritage Foundation on March 14, 2018. Few would dispute that we are in the middle of a grave cultural crisis. A despairing conservative critic wrote: “We are on the road to cultural disaster.” He placed the ... Read More
U.S.

Confirm Pompeo

What on earth are the Democrats doing? President Trump has nominated CIA director Mike Pompeo, eminently qualified by any reasonable standard, to be America’s 70th secretary of state. And yet the Senate Democrats, led by Chuck Schumer, have perverted the advice and consent clause of the Constitution into a ... Read More
Culture

The Mournful, Magnificent Sally Mann

‘Does the earth remember?" The infinitely gifted photographer Sally Mann asks this question in the catalogue of her great retrospective at the National Gallery in Washington. On view there is her series of Civil War battlefield landscapes, among the most ravishing works of art from the early 2000s. Once sites ... Read More
PC Culture

The Dark Side of the Starbucks Stand-Down

By now the story is all over America. Earlier this month, two black men entered a Starbucks store in Philadelphia. They were apparently waiting for a friend before ordering — the kind of thing people do every day — and one of the men asked to use the restroom. A Starbucks employee refused, saying the restroom ... Read More
World

Save the Eighth

There are many things to admire in Ireland’s written constitution. Most especially, the text includes, since a popular referendum in 1983, the Eighth Amendment: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to ... Read More
White House

The Comey & Mueller Show

It has been a good week for President Trump. Justice Department inspector general Michael Horowitz provided indisputable evidence that former FBI deputy director Andrew McCabe lied at least four key times and was fired by the attorney general for cause -- and that Mr. Trump had nothing to do with it. McCabe and ... Read More