Larry Ribstein, Stephen Bainbridge, Gordon Smith, and Christine Hurt have all posted about a $22 million settlement that Harriet Miers's firm -- or rather its insurer -- paid out after one of the firm's corporate clients turned out to be a running a stock swindle. In addition, the firm (or its insurer) paid out another $8 million after a similar incident. All this apparently happened while Miers, a litigator, was the firm's managing partner.
Bainbridge takes the cautious route, saying only that the matter deserves some ventilation at the nomination hearings. Who can oppose that? But the smart money says that the staffers prepping for the hearing will quickly realize what a waste of time this topic is. Ribstein's post is the most off-the-mark, concluding that Miers was a "sleepy gatekeeper" and tossing in some inexplicable, irrelevant comments about her firm's insurer. Smith concludes that the matters impeach Miers's business acumen. Hurt offers this conclusion: "However, given the low probability of any payout absent committing fraud, one must conclude that some evidence existed that the firm knew of fraud in the Ponzi scheme." (Guess what? Here's all the evidence a firm's insurer needs to decide to settle: the client turned out to be a swindler and the law firm was named as a deep pocket defendant by some sympathetic plaintiffs.) Hurt also seems to be confused over who paid the settlement.
Except for Bainbridge's, the posts draw their negative conclusions without spelling out any premises. I will presume that none of them are relying upon some unspoken, novel form of strict liability under which we don't need any facts about what Miers actually did or didn't do. God help us all if that's the new standard for corporate and legal America -- or for academic America for that matter.
What do the facts show? According to the Chicago Tribune article that is the primary source for their postings, the fleeced investors alleged that Miers's law firm should have known of the client's nefarious doings. No proof is offered in the Tribune or in the postings that the corporate lawyers at Miers's firm -- let alone Miers herself -- had any such knowledge. Critically, no facts are given about Miers's role, if any, regarding client intake, client interactions, work on the corporate matters, the firm's internal response to the revelation of the wrongdoing, the firm's review of its procedures, or the insurer's decsion to settle.
Miers might have had absolutely zero responsibility for some of those functions. For all we know her performance in those functions could have exemplary, blameworthy, proactive, tardy, competent, brilliant, clumsy, or whatever. Without information of that type, no reasonable person can draw any conclusions whatsoever about Miers. Certainly, not one of those posts provides any warrant for the conclusions being drawn. I wish I could be kinder about this, but the Ribstein, Smith and Hurt posts ought to be withdrawn. There are plenty of reasons to oppose a nomination as disappointing as this one, but we shouldn't work ourselves into such a lather that we are trashing people based on armchair speculation.