This little Blawg is fortunate to have a number of readers who are not lawyers, and even a few who are not US citizens. The Bad Lawyer is grateful to anyone, even the critics who read and comment.
As I said many times I am not interested in covering or particularly remarking on the "Big Story" whatever that is--and, yet aspects of the "Big Story" du jour, remind me of experiences from my career. So yesterday a U.S. District Court Judge, Susan Bolton, issued an order granting a preliminary injunction barring the essential elements of an anti-immigration law, Arizona SB 1070 the“Support Our Law Enforcement and Safe Neighborhoods Act,” from taking effect.
I believe that it is real easy to misunderstand this story from the perspective of a non-lawyer or someone living outside of the United States so I thought I would offer a bit of insight. On a very superficial level this story is about xenophobia, and racism versus tough immigration law enforcement and the exasperation of a border state with overburdened social and law enforcement resources. It is naive to believe that Arizona, New Mexico, Texas and California are not bearing the brunt of a terrible drug war along their southern borders. Nonetheless, Arizona's SB 1070 was predictably prevented from going into effect.
The primary reason SB 1070 was prevented from going into effect was because Judge Bolton made a determination that on the merits, the federal government would prevail in its case challenging the law based on the doctrine of "federal preemption." What is federal preemption? In its simplest terms, it is the constitutional provision that says in certain areas federal jurisdiction to make and enforce law trumps state jurisdiction to make and enforce laws. There are specific areas of international relations, constitutional protections of individual liberties, and a requirement for uniform enforcement of police powers across borders by the national government that supersede the interest of any given state. State laws in conflict with federal law are invalid.
While the Arizona anti-immigration enactment obviously impacts international relations and federal immigration law--the federal preemption doctrine bumps into many mundane areas of practice: medical malpractice, health insurance, "diverse corporate citizenship", and discrimination claims. In my sordid career I filed half a dozen state court actions that were "removed" to federal court under claimed "preemption." For a lawyer comfortable in state court, being "removed" to federal court can signal a disaster, because the rules of federal court and the sanctions for the unaccustomed practitioner are a minefield. Defense attorneys count on "preemption" as a procedural defense for the unwary plaintiff's counsel. This tactic is particularly effective for the young solo lawyer lacking a network of colleagues and strategic alliances to enable him or her to cope with this maneuver.
U.S. District Court is a frightening and unyielding place to pursue a civil lawsuit unless you the young lawyer are fully on top of your federal practice skill set, and are sufficiently disciplined to meet all deadlines and filing requirements of both the FRCP (federal rules of civil procedure) and the local rules. Most of the lawyers I know in OurTown have colorful stories of dealing with the now late-Judge John EgoManiac, who vaguely resembled a cross between Aristotle Onasis and Mr. Clean. The unwary young attorney who filed a federal lawsuit and or was "removed" to federal court and ended up in his Honor's vast chambers could justifiably feel like a meal in the lion's den.
Years ago, the Blond Super Lawyer wanted to adopt a child and we visited an adoption attorney's office to discuss a "targeted adoption." When we sat down in this wonderful young attorney's office we noticed that she had beverage coasters that had Judge EgoManiac's picture in the area where your wet beverage glass was placed. It was her creative response to being having had the experience of being held hostage in his chambers with orders "to bring [her] toothbrush," until she dismissed a lawsuit she filed that was pending in his courtroom. Nearly every lawyer of a certain age in OurTown has similar stories of this strange old monomaniacal Judge.
From the outsider's perspective American law can seem a crazy patchwork, that's because . . . it is.