Sunday, March 1, 2009

Six degrees of Judge Nancy Gertner

Boston is a very small town. 

First we learn that Federal District Judge Nancy Gertner, who is presiding over the case of accused peer-to-peer infringer Joel Tenenbaum, was once represented in a criminal grand jury matter by Tenenbaum's counsel, Harvard Law School Professor Charles Nesson. But it turns out that there are still more connections among Judge Gertner and the attorneys in this increasingly "funky" case.

Gertner is married to John Reinstein, Legal Director for the Massachusetts ACLU. Why is that significant? Because on numerous occasions, the ACLU -- including at least once specifically its Massachusetts affiliate -- has opposed the record labels in cases very similar to Tenenbaum's. For example, the ACLU of Massachusetts fought some of the early efforts by the labels to serve subpoenas on universities, seeking information about alleged copyright infringement by their students. The ACLU joined an amicus brief authored by the EFF in one of the labels' individual cases in Oklahoma -- a brief that attacked the labels in quite strident terms ("the RIAA has wrought havoc on the lives of many innocent Americans"; "Using questionable methods and suspect evidence, the RIAA has targeted thousands of ordinary people around the country"; "the RIAA has knowingly entangled the innocent along with the guilty"; "the RIAA’s vast legal campaign against file sharers acts as a blunt instrument, battering both the innocent and the guilty in broad and indiscriminate strokes"). The ACLU signed on to a Supreme Court amicus brief on the side of the defendants in the Grokster case. And, though it wasn't a copyright case, Reinstein worked with the EFF -- a harsh critic of the label's litigation -- on a matter only last year.

But Gertner also has a connection to the record label Plaintiffs' attorneys. Plaintiffs' local counsel is Daniel Cloherty, a partner at Dwyer & Collora, LLP in Boston. And what was the previous name of Dwyer & Collora? How about "Dwyer, Collora & Gertner"! That's right; Judge Gertner was a partner at the firm from 1990 until 1994, when she was appointed to the bench by the husband of her close law school friend Hillary Rodham. (According to his bio, Cloherty didn't join the firm until 1999, five years after Gertner's departure.)

So does any of this alter my previous conclusion that (based solely on Nesson's former representation of Gertner), disqualification is probably not warranted? I will now take the bold position that...I'm not sure. The judicial disqualification statute does require recusal where the judge's "spouse...has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." Does the fact that Judge Gertner's husband works for an organization that has actively fought the labels in cases very similar to this one mean that he has an "interest that could be substantially affected by the outcome of the proceeding"? I haven't recently looked at the cases in this area, so I can't say, but I don't think the answer is obvious.

I am beginning to feel, however, that there is at least a plausible case to be made for recusal on the grounds that Judge Gertner's "impartiality might reasonably be questioned." 28 U.S.C. § 455(a)The basis would be the cumulative effect of: 1) Nesson's former representation of Gertner herself; 2) Gertner's husband's current employment at an organization that has fought the plaintiffs in very similar cases; 3) Gertner reaching out to assist Tenenbaum by putting him in touch with Nesson; and 4) the very pro-defendant comments she has made in open court in this case. Perhaps no one of these factors would require recusal by itself, but, together, they raise a serious issue. (Whether any of those factors is mitigated by Judge Gertner's former relationship with one of the plaintiffs' law firms is an interesting legal question, to which I don't know the answer.)

Will the labels actually seek Judge Gertner's disqualification? I have no idea. It's a very serious step, and an unsuccessful disqualification motion risks turning the possible appearance of bias into very real anger on the part of the judge (though I should add that I have no reason to doubt that Judge Gertner would treat a potential disqualification motion here dispassionately, by simply applying the appropriate law).

One thing I do know: I don't expect Judge Gertner to comment publicly on this, at least outside her courtroom. The First Circuit once -- over Judge Gertner's objections -- disqualified her from participation in a major case because she wrote a letter to the editor of the Boston Herald and gave an interview to one of its reporters, seeking to correct what she contended was erroneous information provided to the paper by an attorney in the case. In re Boston's Children First244 F.3d 164 (1st Cir. 2001). The First Circuit did emphasize that its "ruling in no way intimates any actual bias or prejudice on the part of Judge Gertner."


  1. First, kudos for the thorough research, Ben!

    Second, I think you're misleading your readers with the Gertner-Reinstein connection. The various ACLU chapters around the country act independently, making their own decisions regarding whether to participate in cases. Accordingly, claiming that ACLU-Mass. is associated with cases joined by ACLU-National or ACLU-No. Cal. is a stretch, at best. Sort of like tarring 20th Century Fox with a legal position taken by The Wall Street Journal (both are News Corp. companies). I don't believe EFF has worked with ACLU-Mass. on any file-sharing cases.

    Third, I think you're telling an incomplete story, even when it comes to the ACLU. Because if you include all the ACLU chapters in your analysis (as you appear to do), then I think the ACLU has weighed in on the side of media companies (including record labels) far more often that it has against them. I'm reminded of the ACLU's opposition to Tipper Gore's campaign against explicit lyrics, for example.

  2. Fred --

    You make legitimate points. But it does seem to me that the most relevant query here is about the ACLU's (both national and Mass. branches') work on the particular issues in *this* case, on which it has taken very strong positions. Reinstein was at the Mass. ACLU when it joined the motion to quash the subpoena to BC -- and the brief took a pretty benign view of p2p networks (Shakespeare! Plato! The Bible!) that is obviously at odds with the Plaintiffs' position in the Tenenbaum case. Reinstein's name isn't on that particular brief, but I think it's safe to assume that, as Legal Director, he would have at least approved the filing.

    I realize that inquiring about the views and work of judges' spouses raises all sorts of difficult and sensitive issues. But Section 455(b) clearly says that spouses' work and finances are relevant in certain circumstances. Figuring out when they actually require recusal under both (b) the fuzzier 455(a) isn't easy, and, as I said, without fully researching the law (and learning some more about the facts) I'm not (yet) willing to say that Judge Gertner is disqualified here.

  3. I should add that the focus in Section 455(a) really is on *appearances*. So, while the technical distinctions between the national and state ACLU branches may be relevant under 455(b) in determining whether Reinstein has an "interest" in this case, the analysis under 455(a) is much less technical; it's about how things appear to the average person. I suspect the average person (rightly or wrongly) does not draw fine distinctions between "The ACLU" and "The ACLU of Massachusetts."


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.