Dumb footnote, cont’d

So I received a few interesting responses from readers to my post on Justice Scalia’s silly footnote in City of Arlington v. FCC.  First, Jacob Gershman over on wsj.com writes:

To be fair, though, it’s not exactly obvious what CTIA stands for. Yes, the group was originally called the Cellular Telecommunications Industry Association. But before changing its name to CTIA-The Wireless Association in 2004, it was called the Cellular Telecommunications & Internet Association.  So it’s a bit unclear whether the “I” stands for “Industry” or “Internet.”

Fair enough – though inasmuch as this is neither here nor there — last I looked, they can call themselves pretty much whatever they want to and it will surely have no bearing on the case — I hardly think this calls for Scalia’s response.
And here’s an interesting take on this matter from Seth Tillman:

Isn’t it unethical for a judge or his staff to engage in research (beyond the record) about parties (as opposed to the law)? And would not that extend to their names (where the record does not clarify their names)?

I responded:
Hmm … I hadn’t thought of that angle, to be honest; but this is hardly a case that raises any real ethical concerns, I wouldn’t think.  I would not think that it would be inappropriate for a Justice to consult a dictionary, or a book on English grammar, before submitting an opinon; nor is it inappropriate to take “judicial notice” of everyday events.  I would think a judge could write, in a case in which, say, Time-Warner Inc. was a party, something about the large office building T-W owns at Columbus Circle in New York, even if that fact were not in the official record of the case.  If the party’s name bore the SLIGHTEST significance for the case, I might agree that there’s a line to be drawn – but this was entirely gratuitous on Scalia’s part; HE raised the “issue,” and I think it’s incumbent upon him to check his facts so that he doesn’t end up looking like a bit of a dope.
Tillman responded:
Facts about language, the law, and the world (untethered to the specific facts giving rise to the litigation) — all these a judge might (and should) research beyond the record. But here — in this Supreme Court case — the fact is about a party to the litigation. It is the party’s name. I do not think a judge can look beyond the record because the parties already have an obligation to list their names on the docket (and in the pleadings) and if the parties are not forthcoming in regard to their own name, then the filing can be contested by their adversaries.Indeed, I have seen judges throw cases out sua sponte where a party tried to bring litigation under an assumed name or anonymously (absent putting forward facts supporting good cause). Scalia has a right to expect that by the time litigation reaches him, the record will already clearly reflect the names of the parties. If it does not, then something is really wrong with the system.

Imagine if a civil action goes to final judgment, and then after a monetary award is granted to the prevailing party, the non-prevailing party states that an affiliate or subsidiary with a similar name was the (judgment proof) defendant and the parent refuses to pay up. Then you need a whole collateral case to determine who was the non-prevailing party in the first action. That’s just not on; the system cannot work that way. Litigation must end. We have to know who the parties are before the court during the actual litigation and not discover that important fact afterwards in follow up litigation.

Your characterizing a party’s name as not connected to the facts giving rise to the case may be true. But who you sue or fail to sue is a strategic decision (and it may be a strategic failure). A party might not clarify its name or its status (corp, llp, llc, etc) for strategic reasons — and Scalia cannot on his own figure out who the party is before him based on … what his clerks find on the internet. I practiced in Delaware for a few years and I cannot remember any case where a court of record clarified the status of a party by requesting official documents from Delaware records or archives or maintained by the Secretary of State’s office (which maintains info on whether a business entity is in good standing). All that must be put forward by the parties.

It was the lawyers and the lower courts which seriously failed here.
In my view, Scalia’s comments were far too kind.

Interesting – but I don’t buy it.  Here’s why.  Nobody is trying to “clarify the status of a party” in the City of Arlington case.  It’s an entirely gratuitous, nasty little tweak by Scalia regarding something not in the official record because it was of no significance whatsoever for the case.  Nobody cared where CTIA’s name came from, and nobody cared how it is pronounced – except, apparently, Justice Scalia.  If I’m clerking for Justice Scalia, I think it is appropriate — indeed, I would think it is incumbent upon me — to make sure my boss is not going to look like a fool when raising this irrelevant issue in footnote 1; and a few minutes of work would uncover the fact that he is indeed going to, because (a) CTIA is hardly unpronounceable (“See-Tee-Eye-A”), and because it’s not some sort of conspiratorial mystery where the name comes from.
This is not about “going outside the record” to uncover some fact the parties didn’t bring to the Court’s attention; this is about Scalia introducing something for absolutely no purpose other than to be snarky. It seems undignified and embarrassing, to me, and hardly unethical for someone in Scalia’s chambers to have pointed that out to him.

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