Can Cases West Won be Reopened?

by Peter Adomeit

These revelations create a dilemma

Might not it appear, at least to those who litigated against West Publishing and lost, that these extracurricular activities you have courageously outlined Sunday and Monday may in some small measure had some tiny impact on the outcome of the litigation? And perhaps if those losing litigants possessed some measure of suspicion, might they not reasonably wonder whether they lost on the merits of their respective cases? If that is true -- if the losing litigants begin to wonder exactly why it was that they lost against West -- then is that not itself enough to condemn the practices outlined in your article? Or are we to consider the concerns of the losers as irrelevant to our system of justice, and that the appearance of justice is a luxury left over from the days when public morality was higher? The interesting legal question is whether those cases West Publishing has already won can be reopened. Usually the answer is no. But these revelations in your article create a dilemma. Allow the losers to retry their cases, and you imply wrongdoing. Not allow the losers to retry their cases, and you imply that the appearance of justice is not a value. If it is a value, how is it to be enforced? Another worry is whether these judges will lean over backward to show their independence from West. If West starts to lose cases, might not West have a reasonable concern about the appearance of justice? So if in the future West wins, could the losers reasonably wonder why? If West loses, could West reasonably wonder why? Whoever wrote that it was not enough that justice be done, justice must also appear to have been done, just may have been on to something. How will West respond? Will it apologize? Or will it fight to the bitter end? This is a situation in which the more it defends its practices, the more indefensible those practices will appear. Remember the Pentium chip -- the chip that couldn't compute straight? This is West's Pentium.

Peter Adomeit, Springfield, Mass. Professor, Western New England College Law School; graduate, University of Minnesota Law School.