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Not to get all ?high school Civics class? on you, but one of the cool things about America?s unique division of government is that when things go wrong, one of the three branches can clean up another one?s mess?and lately that has meant Congress ?checking and balancing? a Supreme Court that has sometimes been a bit activist?especially when deciding to ?reinterpret? Congress? intent and creating precedent which protects corporate wrongdoers.

But what?s interesting is that lower court judges are starting to rebel against this activism(!).  We blogged about one Wisconsin judge who wrote a devastating opinion after having to dismiss a medical device case because of the Riegel v. Medtronic decision. (?I write separately in order to express my concern that the United States Supreme Court's interpretation of the 1976 Medical Device Amendments does not adequately protect the safety of the citizens of Wisconsin.?)

Now, another judge has done the same thing, this time complaining about the Stoneridge case?and more or less inviting Congress to fix it.  Stoneridge, you may recall, had a particularly awful outcome, ultimately slamming the courtroom door on Enron, WorldCom and other corporate fraud victims by effectively immunizing ?secondary actors? (i.e., accomplices) to those schemes from suit.

But in a case last week, Manhattan federal judge Gerard Lynch complained that Stoneridge forced him to toss a case against the law firm Mayor Brown for allegedly helping its client (the now defunct brokerage firm, Refco Inc.) defraud a group of shareholders.  He even made a special point of issuing a revised ruling.  Here?s a sample:

It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of the fraud. . . . This choice may be ripe for legislative re-examination . . . [A] bright line between principals and accomplices may not be appropriate. There are accomplices and there are accomplices: after all, in the criminal context when the Godfather orders a hit, he is only an accomplice to murder ? one who ?counsels, commands, induces or procures? but he is nonetheless liable as a principal for the commission of crime. Likewise, some civil accomplices are deeply and indispensably implicated in the wrongful conduct.

Congress already fixed a bad Supreme Court decision once this year, as we saw following the Ledbetter case and a nudge from the judicial branch certainly didn?t hurt.  We?re hoping the same holds true not only for Stoneridge, but also regarding Riegel v. Medtronic, which has been the subject of increasing judicial scrutiny.

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