Judge Posner – Turtle Talk

A moving party under Fed. R. Civ. P. 60(b)(5) must show a significant change in factual conditions or law that renders continued enforcement of a judgment detrimental to the public interest. The proceeding is not a relitigation of the underlying judgment. Here, the Seventh Circuit shifted the burden to the non-moving party (Wisconsin) to justify an underlying judgment that night hunting of deer was fundamentally unsafe. Does Rule 60(b)(5) permit shifting the burden to the non-moving party to justify the original judgment?

LCO Cert Opp

Seventh Circuit materials here.

Seventh Circuit Reverses and Remands Night Deer Hunting Case

October 9, 2014October 9, 2014Matthew L.M. Fletcher3 Comments

Here is the opinion in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin:

LCO Opinion

Briefs here.

Lower court materials here.

Laches Article Cited in 7th Cir. Tax Case

June 11, 2010Kate Fort

My article, The New Laches: Creating Title Where None Existed, 16 Geo. Mason L. Rev. 357 (2009) was cited in a 7th Circuit tax case this week. 🙂

Judge Posner used it as a see cite after a paragraph about the historical purpose of laches, concluding that “[l]aches fitted nicely with such long-established equitable maxims as ‘he who seeks equity must do equity’ and ‘equity aids the vigilant, not those who sleep on their rights.'”

Interestingly, after spending three paragraphs on laches, the opinion reads “neither party suggests that laches might be an adequate substitution for a fixed deadline . . . ” and the Judge concludes his laches discussion with the point that whether laches applies against the government is “an open question in this court. United States v. Administrative Enterprises, Inc., 46 F.3d 670 (7th Cir. 1995). ” That case was one used in the 2nd Circuit Cayuga case, 413 F.3d 266 (2005), to hold laches applied to both the United States and the Cayuga Nation. I think it’s possible Judge Posner might be as interested in laches and sovereigns as I am–it’s a rare person who voluntarily injects laches into discussion.

In the present case, Lantz v. Commissioner of Internal Revenue, No. 09-3345 (7th Cir. 2010), a woman seeking equitable relief under the “innocent spouse” rule regarding a false joint return filed by her husband, but signed by both of them. Unfortunately, laches was no help to her.