The Law Of Unintended Consequences

Let's assume for the moment that there is in fact, nothing malign about the suspicious circumstances by which the Congress passed the Interstate Recognition of Notarizations Act. The effects of the legislation would be, in my view, to further erode the due process afforded homeowners in foreclosure proceedings. The use of the ambiguous term "recognize" could, and in my opinion, will, be used to further deprive homeowners of due process - perhaps leading to the blanket acceptance of notarized documents without the opportunity to rebut or impeach them. Let me give you an example of unintended consequences. In Bell Atlantic v. Twombly (PDF), which heightened pleading requirements in the antitrust context, writing for the Court, Justice Souter stated:

In reaching this conclusion, we do not apply any “heightened” pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished by the process of amending the Federal Rules, and not by judicial interpretation.Swierkiewicz v. Sorema N. A., 534 U. S. 506, 515 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b);(c). Here, our concern is not that the allegations in the complaint were insufficiently particular[ized], ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs; entitlement to relief plausible.

(Emphasis supplied.) Now here is Justice Souter in dissent in Ashcroft v Iqbal, which cites Souter's Twombly opinion as the basis of its holding:

Ashcroft and Mueller argue that these allegations fail to satisfy the “plausibility standard” of Twombly. They contend that Iqbal’s claims are implausible because such high-ranking officials “tend not to be personally involved in the specific actions of lower-level officers down the bureaucratic chain of command.” Brief for Petitioners 28. But this response bespeaks a fundamental misunderstanding of the enquiry that Twombly demands. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. See Twombly, 550 U. S., at 555 (a court must proceed “on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”); id., at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable”); see also Neitzke v. Williams, 490 U. S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”). The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here.

Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. That is, in Twombly’s words, a plaintiff must “allege facts” that, taken as true, are “suggestive of illegal conduct.” 550U. S., at 564, n. 8.

Justice Souter was the author of the Twombly opinion, but his view of what his words meant were rejected by the Court. Souter learned the Law of Unintended Consequences and that The Road To Hell Is Paved By Good Intentions.

President Obama must veto this bill.

FULL DISCOSURE: This legislation affects cases I am involved in. Speaking for me only

< What does "Recognize" Mean? | Thursday Morning Open Thread >
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    I find this interesting (5.00 / 3) (#2)
    by waldenpond on Thu Oct 07, 2010 at 09:27:31 AM EST
    I am not at all surprised by this legislation.  These people are a bunch of corporatists and this just gives more power to the system and weakens the rights of the individual.  I can't imagine why Obama wouldn't sign it.  

    You are getting what you voted for.

    i think you're being way too charitable: (5.00 / 2) (#4)
    by cpinva on Thu Oct 07, 2010 at 09:36:30 AM EST
    Let's assume for the moment that there is in fact, nothing malign about the suspicious circumstances by which the Congress passed the Interstate Recognition of Notarizations Act.

    the method of its passage pretty well screams out "please god, don't let anyone, ever, know that i voted for this piece of crap!"

    any legislation passed anonymously is, by definition, malign. the question now: does obama have it in him to veto it? at this juncture, the odds are 50-50 in vegas, and not in a good way.

    Well, this would also allow (none / 0) (#1)
    by scribe on Thu Oct 07, 2010 at 09:19:37 AM EST
    a notary to start notarizing liens against the properties of senators, congressmen, pols of all stripes and so on, and the courts would be compelled to recognize them, no?

    That's what the Montana Freemen used to do to make money - slap a lien on the property of some pol who'd displeased them and make them pay to remove it.  This empowers (and legalizes) that kind of scheme....

    I was just thinking about (5.00 / 1) (#3)
    by Militarytracy on Thu Oct 07, 2010 at 09:35:42 AM EST
    how much money there might be now in being a notary since a notary can now be of such over reaching importance.  It just gets better and better doesn't it?  And a computer generated stamping notary is okay too.  There is so much room to set the world on fire in now, and white collar crime too wooohoooo!  Let's get our fraud on.

    You said it.... (none / 0) (#6)
    by kdog on Thu Oct 07, 2010 at 10:24:16 AM EST
    why oh why did I let me official notary powers lapse?  I could be getting paid big bucks as a member of a home stealing crew this time next year.

    Oh yeah, my conscience...never mind:)

    I'm wondering...Can notary publics use these proposed new powers for good instead of evil?  Like stamping sh&t in favor of the foreclosed, say a phony deed on a kitchen napkin?  Maybe we can make some good unintended consequence lemonade outta this lemon...flip the script on the corportacracy.


    OT, but speaking of stealing (none / 0) (#12)
    by Dadler on Thu Oct 07, 2010 at 11:11:44 AM EST
    my freeroll $7.50 is now $3500. finished 2nd in a 1200 player tourney last week.  cashed out for another $1500, $2600 total. with $800 still left to play with

    it's just ridiculous. i ain't that good, i swear.


    Better to be lucky... (none / 0) (#15)
    by kdog on Thu Oct 07, 2010 at 11:17:58 AM EST
    than good Dadler...better to be lucky than good.

    And back on topic, in the case of big banks...better yet to have a mechanic on your payroll to do the dealing...that trumps skill & luck put together.


    rimshot please (none / 0) (#17)
    by Dadler on Thu Oct 07, 2010 at 11:56:43 AM EST
    Justice Stevens's opinion in (none / 0) (#5)
    by andgarden on Thu Oct 07, 2010 at 09:53:22 AM EST
    Bell Atlantic v. Twombly is an example of a really good dissent:


    The same year we decided Conley, Judge Clark wrote, presciently,

    "I fear that every age must learn its lesson that special pleading cannot be made to do the service of trial and that live issues between active litigants are not to be disposed of or evaded on the paper pleadings, i.e., the formalistic claims of the parties. Experience has found no quick and easy short cut for trials in cases generally and antitrust cases in particular." Special Pleading in the "Big Case"? in Procedure--The Handmaid of Justice 147, 148 (C. Wright & H. Reasoner eds. 1965) (hereinafter Clark, Special Pleading in the Big Case) (emphasis added).

    In this "Big Case," the Court succumbs to the temptation that previous Courts have steadfastly resisted.

    On the broader point (none / 0) (#9)
    by Big Tent Democrat on Thu Oct 07, 2010 at 10:59:42 AM EST
    from the same Stevens opinion:

    "Just a few weeks ago some of my colleagues explained that a strict interpretation of the literal text of statutory language is essential to avoid judicial decisions that are not faithful to the intent of Congress. Zuni Public School Dist. No. 89 v. Department of Education, 550 U. S. _, _ (2007) (Scalia, J., dissenting). I happen to believe that there are cases in which other tools of construction are more reliable than text, but I agree of course that congressional intent should guide us in matters of statutory interpretation. Id., at _ (Stevens, J., concurring). This is a case in which the intentions of the drafters of three important sources of law--the Sherman Act, the Telecommunications Act of 1996, and the Federal Rules of Civil Procedure--all point unmistakably in the same direction, yet the Court marches resolutely the other way. Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer. But that the Court has announced a significant new rule that does not even purport to respond to any congressional command is glaringly obvious.

    The transparent policy concern that drives the decision is the interest in protecting antitrust defendants--who in this case are some of the wealthiest corporations in our economy--from the burdens of pretrial discovery. Ante, at 11-13. Even if it were not apparent that the legal fees petitioners have incurred in arguing the merits of their Rule 12(b) motion have far exceeded the cost of limited discovery, or that those discovery costs would burden respondents as well as petitioners,15 that concern would not provide an adequate justification for this law-changing decision. For in the final analysis it is only a lack of confidence in the ability of trial judges to control discovery, buttressed by appellate judges' independent appraisal of the plausibility of profoundly serious factual allegations, that could account for this stark break from precedent.

    If the allegation of conspiracy happens to be true, today's decision obstructs the congressional policy favoring competition that undergirds both the Telecommunications Act of 1996 and the Sherman Act itself. More importantly, even if there is abundant evidence that the allegation is untrue, directing that the case be dismissed without even looking at any of that evidence marks a fundamental--and unjustified--change in the character of pretrial practice."

    The Supreme Court is judicially trying to outlaw private antitrust litigation.


    Indeed, what does "recognize" mean? (none / 0) (#7)
    by robotalk on Thu Oct 07, 2010 at 10:50:55 AM EST
    That's not a word of common evidentiary parlance.  Sounds like they are going to make such documents self-proving and put the burden on the disputant to show they aren't--difficult, particularly where the notary is out of state.

    If fraud is discovered (none / 0) (#8)
    by Militarytracy on Thu Oct 07, 2010 at 10:54:05 AM EST
    after a foreclosure has already taken place, what then?

    Republicans would (none / 0) (#10)
    by Edger on Thu Oct 07, 2010 at 11:05:45 AM EST
    do this on the sly. In the dark. After hours. When nobody was looking. And they'd have a front page story in the media about how evil the other party is to distract people from what they did on the sly. In the dark. After hours. When nobody was looking.

    Nah... (5.00 / 2) (#13)
    by kdog on Thu Oct 07, 2010 at 11:13:58 AM EST
    If this were a Brand R majority, they'd do it at high noon while stating emphatically that not recognizing a stupid out of state f*ckin' notary stamp is akin to socialism...and the sheep would smile, singing God Bless America as their public servant sherriff leaves 'em on the curb with their television set, Lazyboy, and "lawful" eviction paperwork.

    Well... probably (none / 0) (#14)
    by Edger on Thu Oct 07, 2010 at 11:17:14 AM EST
    But I bet they wouldn't try to bill as incrementally progressive.

    That's true... (none / 0) (#16)
    by kdog on Thu Oct 07, 2010 at 11:21:24 AM EST
    Brand R has a much more honest brand of full of sh*t, I almost feel sorry for Brand D and their need to be more discreet in their shady...Brand R has it easy.

    And they would hope (none / 0) (#11)
    by Edger on Thu Oct 07, 2010 at 11:10:21 AM EST
    people might think it unintended?

    Contact the WH on this ! I did! (none / 0) (#18)
    by Doc Rock on Thu Oct 07, 2010 at 01:48:12 PM EST