Wednesday, October 14, 2009

Has The Eleventh Circuit "Channeled" Classic Styx?

I wonder what tomorrow has in mind for me
Or am I even in it's mind at all
Perhaps I'll get a chance to look ahead and see
Soon as I find myself a crystal ball
Soon as I find myself a crystal ball

Tell me, tell me where I'm going
I don't know where I've been
Tell me, tell me, won't you tell me
And then tell me again
My heart is breaking, my body's aching
And I don't know where to go
Tell me, tell me, won't you tell me
I've just got to know

Crystal ball
There's so many things I need to know
Crystal ball
There's so many things I've got to know
Crystal ball
John Pacenti does a nice write up of the 11th Circuit's latest ILSA opinion.

The court's opening paragraph is somewhat discursive, and sets the tone:
In a market-based economy the price of housing, like other goods, is subject to swings. There was a sharp upward swing in housing prices between late 2000 and the end of 2005, and the resulting bubble was bigger in Florida than it was in most other states. Home prices there rose eighty-two percent in absolute terms during that short period, outstripping the fifty-one percent national increase. See Gabriel Montes Rojas et al., The Florida Housing Boom, 3 Fla. Focus 1, 2 (2007). All bubbles eventually burst, as this one did. The bigger the bubble, the bigger the pop. The bigger the pop, the bigger the losses. And the bigger the losses, the more likely litigation will ensue. Hence this case.
Maybe I'm reading too much into this, but I detect a slight whiff of condemnation, and it seems to run only to those buyers who sought to make out in the land boom, and not the developers. Or am I wrong?

Is the court saying this case is purely and solely a product of the bubble bursting, and not because of any alleged wrongdoing by the developer?

Let's read on:
After the housing bubble burst, the Steins had second thoughts about their decision to purchase the condominium unit. Wanting out of their contract, they seized on to the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq, a federal statute that has become an increasingly popular means of channeling buyer’s remorse into a legal defense to a breach of contract claim.
Where is this coming from?

How does the court know the exact causal relationship -- that the housing bubble burst, and that therefore the Steins had "second thoughts"?

If true, is this even relevant?

Also note the dismissive language regarding the motives of the Steins or their counsel in "seizing" upon ILSA, an "increasingly popular means of channeling buyer's remorse into a legal defense to a breach of contract claim."

Actually, I heard this once at a Federalist Society meeting, so it's probably true.

But does ILSA have an "intent" exception?

Personally, I feel the same way about § 1983 actions, which civil rights lawyers "seized upon" as an "increasingly popular means of channeling anger against LA cops when they choke-hold and beat up black people for no reason."

John gets a nice quote from the lawyer who dreamed up using ILSA as some sort of therapy to relieve his clients' buyers' remorse:
Stein attorney Joseph Stern at Saraga & Lipshy of Delray Beach said the appellate court was clearly biased against the buyers.

“They talk about our clients having buyer’s remorse. Statements like that have no place in the opinion. Those statements weren’t part of the record,” he said.

Stern said he will ask the full 11th Circuit to hear the case en banc.

“This is a case of great public importance,” Stern said. “There has been an enormous amount of cases on this issue.”
Not anymore, Joe.

Do some yoga, windsurf, whatever -- you need to find another outlet to channel your client's feelings.

Music is good -- how 'bout some old Styx?


Anonymous said...

Depressing song.

styx-ranters-for-the-princess said...

YES!! I knew Judge Carnes was a Styx fan.

Anonymous said...

Good song, depressing opinion.

judge-carnes-for-the-princess said...

@11:28-- I do karaoke.

Anonymous said...

So is it intellectually honest for someone to point out a perceived bias through a lens that demonstrates another, thinly-veiled, bias? I'm just sayin...

Anonymous said...

12:17, don't make Jared Beck angry.

Anonymous said...

calling the shumie @ 1:00. kama sutra tantric sex

Anonymous said...

Achieving the big "O"

Anonymous said...

Stern has a reason for his bias.

eyeonshumietime said...

Shumie DENIED!!!

Way too early for a Wednesday Shumie. Try again after 3:30

Anonymous said...

carnes for the supremes! we need more metafurs in opinions. so what if he is biased against plaintiffs. right?

Anonymous said...

With all due respect to the 11th Circuit, ILSA is a consumer protection statute that is to be construed in favor of the buyer, NOT THE SELLER.

The opinion clearly construed ILSA in favor of the Seller.

If the condo was not finished in the 2 year timeframe the builder would have pointed to the contract terms and alleged no ILSA violation.

South Florida Lawyers said...

Speaking of Jared, he does a typically thoughtful analysis of the Stein opinion on his blog at

Bottom line? See you in state court!

Anonymous said...

Good song. Still depressing.

South Florida Lawyers said...

I like the hazy, dreamy quality of the video -- it feels almost like a "found" relic recalled from distant memory or unearthed in an archeological dig; evidence of a lost civilization where Tommy Shaw and feathered haircuts inexplicably ruled.

Anonymous said...

SFL, stop weeping. You need to get a grip, man.