Source: http://jurist.org/paperchase/2014/03/un-invalidates-the-crimea-referendum.php
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Monday, March 31, 2014
UN invalidates Crimea referendum
[JURIST] The UN General Assembly [official website] approved a resolution [press release] on Thursday declaring the Crimean referendum to secede from Ukraine invalid. The resolution calls upon all UN states, international organizations and specialty agencies not to recognize any change in status of the Crimean region despite the referendum [JURIST report]. The UN gained broad support for the resolution as 100 states voted in favor, outnumbering the 11 votes against and 58 abstentions. The US Ambassador to the UN Samantha...
If You Dislike Smoking And/Or Smokers, This Story Will Really Get You Steamed.
If you’re thinking this story is about a smoker who did something with a cigarette butt that caused a HUGE amount of damage, you would be right. Per The Star-Ledger (via nj.com):
Middlesex County acting Prosecutor Andrew C. Carey said investigators believe that [school custodian] Jerome C. Higgins, 48, of East Brunswick, tossed an unfinished portion of a cigarette into a trash can inside the school before he left the building sometime Saturday.
Uh-oh.
Carey said the contents of the trash can, located in a custodian’s office, caught fire and the blaze spread throughout the building at about 7:45 p.m.
The result was an inferno that consumed the 50-year-old building that held 450 students in kindergarten through fifth grade.
Poof. Just like that, the building was gone. There must be some serious consequences for that, right? Well …
Higgins is charged with a petty disorderly persons offense for smoking inside the school.
Well, it’s not like anyone will be inconvenienced or anything …
[Edison Board of Education President Gene] Maeroff said the school’s students and staff will not return to school until Wednesday when they will be placed in temporary quarters at Middlesex County College in Edison until more permanent facilities can be found.
All of the children will have to be bused to the college, which is several miles away from the school.
“We’re doing this so they will all stay together,” the board president said. “After a few weeks, they will go to more permanent facility once we find one.”
Um. Sorry? Click here for the source, some photos, a video, and some additional information on this unfortunate event.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/suJryqm5NBo/qwre-2.html
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More on Pricing Practices for Attorneys
Toby Brown, a good friend and previous speaker here at LawBiz® Podcast, is a former director of the Utah State Bar and currently the Director of Strategic Pricing & Analytics for Akin Gump, a top 50 AmLaw law firm.
Toby is at the forefront of developing alternative fees -- helping his firm set prices -- so that the client and law firm are mutually benefited and act as "partners." Toby has a great combination of executive level skills in the areas of technology, law and economics.
If you have not listened to it already, make sure you listen to our first interview with Toby Brown on "Pricing Practices for Attorneys" from 9/24/13 about pricing and costing required by lawyers in today's competitive environment..
Also, check out Toby's new book, "Law Firm Pricing: Strategies, Roles, and Responsibilities. The publisher will provide all listeners of our podcasts a $50 discount by mentioning the following code: LFP-TBPC1. Also check out the pricing discussion in my new book, Attorney & Law Firm Guide to The Business of Law, 3rd ed., released by the American Bar Association in March 2014 on www.lawbizstore.com.
25 minutes, 18 seconds
7.2MB
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/CtlF73fvOe8/
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Novartis Loses Home-State Advantage on Drugs Claim
A federal appeals court has dealt a blow to Novartis? attempt to apply the sharp limits on punitive damages claims of its home state New Jersey to litigation over its cancer drugs Aredia and Zometa.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637622472&rss=rss_nlj
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Eric Turkewitz on Legal Blogging
Eric Turkewitz, of The Turkewitz Law Firm and author of the New York Personal Injury Law Blog, offers dos and don'ts for first-time legal bloggers.
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Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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Dubious in the First Degree
While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don't always bear out this sensibility. It's done it again by publishing Lawrence Downes' homage to ignorance in its editorial notebook.
Payback is a bitch, and to the extent Downes' screed offers anything, it's the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR's advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it's well deserved.
This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.
For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.
Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.
Hundreds? Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing "daily golf" using the New York Times version of math?
The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.
Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It's just money.
So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board's disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.
Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI's as well. Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don't conform to the narrative of payback.
It's not that this doesn't give rise to issues. A railroad disability isn't like a disability that applies to desk jockeys. It's an occupation disability, where it's given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.
Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people? The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits.
Even putting aside these and myriad other "details" wholly ignored by the media, there remains a flagrant flaw:
The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.
Meet the new criteria for terminating rights by the federal government, dubiousness. Forget "beyond a reasonable doubt," "preponderance of the evidence" or "probable cause." Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of "dubiousness" for deprivation?
Disenchanted riders are counting on the feds and the L.I.R.R. to get the money back, and send the belated message that the schemers will be punished.
It's not about proof of wrongdoing. There is no proof of wrongdoing. The only "proof" is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let's not muddle up anger with facts). As long as people are angry, we don't need no stinkin' evidence.
Lest someone get the misimpression that it's just the Times feeding into the anger and ignorance that pervades the media attention, Newsday offered an editorial as well:
Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits -- a hassle, probably, but a crucial step to whittle out those who committed fraud.
Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process? The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government's job easier.
As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn't obscure the facts, my rage doesn't make me desire payback from innocent targets.
For those of you who rail about constitutional violations when it comes to the police, what's being done here isn't materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness.
But then, you aren't getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it's just too hard to muster any sympathy. Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let's just burn them all at the stake and call it a day.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/08/dubious-in-the-first-degree.aspx?ref=rss
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Sunday, March 30, 2014
The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
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Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
LawBiz® Legal Pad: Disaster Preparedness and Recovery Planning
No one can predict when a disaster will strike your law firm. Ed stresses the importance of having a solid plan for such situations, because "failing to plan is planning to fail."
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/qoo3xb4baww/
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Martin Lipton Names Some Activists He Respects
Veteran deal lawyer Martin Lipton said Friday that some shareholder activism should be "encouraged" even while he maintained his long-standing arguments that activists harm the economy.
Source: http://blogs.wsj.com/law/2014/03/28/martin-lipton-names-some-activists-he-respects/?mod=WSJBlog
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LawBiz® Legal Pad: The Second Season
Listen up, boomers! If you're a lawyer preparing for retirement, this week's vignette is for you.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/p6ljzpyc6SY/
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Delaware Chancery Court Declines to Apply Offer-of-Judgment Rule in Appraisal Proceedings
In Huff Fund Investment Partnership v. CKx, Inc., Civil Action No. 6844-VCG, 2014 WL 545958 (Del. Ch. Feb. 12, 2014) (Glasscock, V.C.), the Delaware Court of Chancery denied a request by respondent CKx, Inc. (“CKx”) to compel the petitioning stockholder to accept the tender of an undisputed portion of the fair value of the petitioner’s shares in order to stop further accrual of prejudgment interest on that undisputed amount. The court’s ruling gives petitioners in appraisal actions little incentive to prosecute appraisal actions expeditiously, as the prejudgment interest rate far exceeds prevailing fixed investment interest rates.
Petitioner Huff Fund Investment Partnership (“Huff Fund”), a holder of approximately 13,717,009 shares of CKx common stock, brought a statutory appraisal action under Section 262 of the Delaware General Corporation Law (“DGCL”), 8 Del. C. § 262, following of the sale of CKx to an acquirer at $5.50 per share. After trial and following the parties’ expert valuations of the company, the Court issued a post-trial memorandum opinion holding that the best indicator of fair value of Huff Fund’s shares was the merger price “generated by an arm’s length sales process.” The court permitted the parties to supplement the record with additional argument regarding certain circumstances which would have affected the merger price.
Subsequently, CKx filed a “Motion to Stop the Accrual of Interest.” In this motion, CKx offered to pay the unconditional tender of $3.63 per share, which was CKx’s expert’s base case scenario for valuing the company’s shares (plus accrued interest), in order to stop the further accrual of prejudgment interest on the undisputed portion of the value of Huff Fund’s shares. Given that the statutory prejudgment interest rate was “five percent above the Federal Discount rate,” CKx argued that where market rates of return are low, the opportunity for a “near risk-free return of five percent above the Federal Discount rate may penalize a respondent corporation, and may create perverse litigation and investment incentives, including encouragement of litigation of cases without significant potential for an award above the merger consideration, and even arbitrage of appraisal claims.” Huff Fund argued that actual market returns on equity are significantly higher than the legal interest rate, and because it is an unsecured creditor of the now highly leveraged acquired company, “[t]he notion that Petitioners are somehow benefiting from the accrual of prejudgment interest is — in a word — preposterous.”
The court denied CKx’s motion. The court focused upon the Delaware General Assembly’s views on the accrual interest, revised in 2007 and codified in Section 262(h) of the DGCL. The Section provides, in part:
Unless the Court in its discretion determines otherwise for good cause shown, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment.
Noting that Section 262(h) does not “expressly” prevent the Court from entering a partial judgment in favor of petitioner, thereby stopping the accrual of prejudgment interest on that amount, the court nevertheless held that such an order would be “incompatible with the General Assembly’s intent in revising Section 262(h).” Specifically, the court observed that the legislature’s intent in revising the statute in 2007 was clear: the limited discretion afforded to the court, upon a finding of good cause, permits the court to deviate from the statutory formula where a consideration of circumstances at the end of the process indicates that an award at the statutory rate would be unjust. Thus, the court declined to hold that CKx may avoid the running of interest by prepayment as a matter of right.
Ultimately, the court seemed to agree with CKx that compared with fault-based litigation, the opportunities for “rent-seeking” in appraisal actions are “comparatively high” and factors that tend to create “perverse litigation incentives in these actions deserve close consideration by policy makers.” Nevertheless, the court declined to address those concerns, instead relying upon the General Assembly’s specific standard governing interest awards, which the court reasoned must “trump” any such concerns. Ultimately, while sympathetic to CKx’s concerns, the court held the relief sought incompatible with the statute. It will likely be up to the legislature, and not courts, to deter such strategic behavior by petitioners in appraisal actions.
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Retirement postponed
The recent Depression (2008, not 1932) has dashed the hopes and expectations of many lawyers. A recent survey reported by USA Today in its March 7, 2014 edition says that 58% of those between the ages of 54 and 64 years of age will retire later than the originally planned.
Postponement generally comes from a reduction in the value of the assets that were to be used to fund the retirement and the fear that the current value of the asset pool (stocks, bonds, 401K, real estate, etc.) no longer will be sufficient to sustain the lifestyle of the retiree, given the extended life expectancy of our population.
There is another reason. As noted in the recently published book, Life After Law: What Will You Do With the Next 6,000 Days?, most lawyers don't know what to do with themselves after they leave their practice. While the law practice has value, the price for the practice is seldom the issue ... it's what will I do with myself? Until you can answer the question of "what will I do" and "where will I go," one is likely to stay put. Only coincidentally, this postpones the time when savings accounts must be used.
The pressure is increasingly being felt by our Baby Boomers ... sell the practice or "die in your boots." The latter option is not attractive and deprives one's family of the money that could have been paid for the value of the practice before it (the practice) dissipates and/or the lawyer dies.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/oSKezfIZOoQ/
Md. Lawmakers Raise Threat of Eminent Domain Against ‘House of Cards’
Maryland lawmakers are proposing to use the power of eminent domain to seize the property of the production company behind the Netflix streaming drama "House of Cards" unless the series keeps filming in the state.
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Saturday, March 29, 2014
Pakistan court to charge Musharraf with high treason
[JURIST] A court order from a special court in Pakistan on Thursday stated that the court will frame formal high treason charges against former president Pervez Musharraf [JURIST news archive] on March 31. The order also reiterated that Musharraf would be arrested [Xinhua report] if he failed to appear at his trial, and a non-bailable arrest warrant has been issued by the court for the former president. Petitions against the warrant were dismissed. While reports have stated that Justice Faisal...
Source: http://jurist.org/paperchase/2014/03/pakastani-court-to-frame-high-treason-charge-for-musharraf.php
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Licensing of tax preparers
The IRS lost its appeal to institute competency exams for as many as 700,000 paid tax preparers. The federal court said the IRS lacked the authority to impose the new rules without congressional authorization. While this argument would not likely hold water as concerns additional licensing requirements for lawyers, the arguments used rang a bell.
For example, i) the proposed regulations were onerous; ii) the proposed regulations would have put thousands of mom-and-pop tax preparers out of business. On the other side of the coin, the IRS needed to weed out ill-trained and incompetent tax preparers.
Paid tax preparers fill out 60% of all U.S. tax returns and the government has found significant problems over the years by the work done by this group.
The arguments are all to familiar and can be super-imposed on the legal profession where more than 60% of the practitioners are solo.
The question always is "how good does good have to be?" What would these people do if they couldn't find a tax preparer (substitute attorney) at a price they could afford to pay for work that was substantially correct,even if not perfect?
I would like perfection ... but even the best lawyers from major law schools (in my experience) are not perfect ... are always at a price that most of us can't afford to pay. As one of my mentors has said, don't shoot for perfection; when you're 80% good, go!
Related to this, though by a stretch, I listened to an NPR program in the last couple of days that talked about teenage suicide, a growing epidemic. The psychologists maintain that the stress caused by our current generation seeking perfection, and then realizing they can't reach that goal, is the catalyst for many suicide attempts.
To the IRS and to the Bar: Define "competence" so our professionals can attain the standard and the average American citizen can afford to engage professional assistance.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/USLZmpCXU_8/
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Holder Says Federal Government Will Recognize Michigan Gay Marriages
Attorney General Eric Holder on Friday said the federal government will recognize the more than 300 same-sex marriages performed in Michigan this past weekend during a brief window when such unions were legal there.
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Experts Debate Impact of Northwestern Ruling
Here's what experts are saying about the ruling by the National Labor Relations Board that Northwestern University scholarship football players are eligible to form the nation's first college athletes' union.
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Twitter and Yahoo Silenced—For Now—in Subpoena Spat
Twitter and Yahoo won't get a chance to respond to efforts by the U.S. Department of Justice to bar the companies from sharing information about grand jury subpoenas, at least for now.
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California AG appeals decision striking down sentencing laws
[JURIST] The California Attorney General's Office [official website] on Thursday appealed a federal judge's decision striking down two sentencing laws. Judge Lawrence Karlton held that the laws were unconstitutional [JURIST report] because they affected the punishment for crimes committed before the laws were enacted. Marsy's Law [text], otherwise known as the "Victims' Bill of Rights," was passed in 2008, mandating that inmates serve longer periods of time between parole hearings. Meanwhile, Proposition 89 [text], entitled the "Governor's Parole Review," was...
Plaintiff on Hook for Patent Office's Attorney Fees
An "odd" federal law requires plaintiffs who bring lawsuits challenging the U.S. Patent and Trademark Office's trademark rulings to pay all of the agency's expenses including attorney fees, no matter which side wins, a Virginia federal judge has ruled.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636754148&rss=rss_nlj
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Friday, March 28, 2014
Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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Senate Committee Advances Four Judicial Nominations
The Senate Judiciary Committee approved four nominations today, including a unanimous voice vote on Boies, Schiller & Flexner partner Tanya Chutkan to serve on the U.S. District Court for the District of Columbia.
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Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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The Limited License Legal Technician: Washington State’s Paralegal Law Practice
In reaction to rising legal costs and decreased access to legal services, Washington State has authorized paralegals to practice law on a limited basis through its new Limited License Legal Technician (LLLT) program. Soon paralegals will be able to practice in specific areas of law. To learn more about this developing field, tune into this episode of the Paralegal Voice, where host Vicki Voisin interviews NALA President Ann Atkinson, ACP, as well as attorneys Steve Crossland and Thea Jennings of the Washington State Bar Association. Together, they review the licensing, permissible scope of practice, and continuing education requirements for these new LLLT Paralegals.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
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NLRB: Northwestern football players are university employees
[JURIST] The Chicago office for the National Labor Relations Board (NLRB) [official website] on Wednesday ruled [report, pdf] that football players at Northwestern University qualify as employees, and therefore have the right to unionize. In its finding, the NLRB used the "right to control" test, which considers a variety of factors in determining the level of control an employer has over an alleged employee. First, the board found that "grant-in-aid scholarship football players perform services for the benefit of the...
Federal appeals court upholds insider trading conviction
[JURIST] The US Court of Appeals for the Second Circuit [official website] on Tuesday affirmed [opinion, PDF] the insider trading conviction of former Goldman Sachs [corporate website] director Rajat Gupta. Judge Amalya Kearse rejected Gupta's claim that wiretap evidence should not have been admitted against him. Gupta was convicted of three counts of securities fraud and one count of conspiracy to commit securities fraud in June 2012, primarily upon the basis of statements he made by phone to Raj Rajaratnam...
Source: http://jurist.org/paperchase/2014/03/federal-appeals-court-upholds-insider-trading-conviction.php
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LawBiz® Legal Pad On the Road!: Cellphones
Do you ever talk on the phone while you drive? In today's clip, Ed warns law firms that they could be exposed to legal liability if one of their attorneys causes an accident while using his or her phone behind the wheel.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/9IFUqbRw9Wc/
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A Record For Back-To-Back Arrests?
There are lots of times in a person’s life when the best course of action is to just keep quiet. This would seem to be among the most obvious example of just such a case, but not to this gent. As reported by The Star-Ledger (via nj.com):
Thomas Arahill, 55, was arrested and charged first with threatening a man with a crowbar during a dispute Monday afternoon, said Capt. Thomas Dellane.
Officers responded to Gaff Road in reference to a fight call at 2 p.m., where they made contact with a man who said Arahill had attempted to use a metal bar as a weapon, the police said.
Arahill was arrested, charged with possession of a weapon for an unlawful purpose and taken to police headquarters for processing, authorities said.
All you have to do is just keep quiet and you’ll be out of there in no time…
However, after he was released, Arahill saw two of the officers who had arrested him in the town hall lobby, and began threatening them, Dellane said. Arahill refused to leave the area, the captain added.
Doh!
Arahill was taken back into custody and charged with a disorderly persons offense for the loud and threatening behavior, Dellane said.
No release this time.
Arahill was taken to the Ocean County Jail, where he was held on $1,500 bail, authorities added.
Click here for the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/yiwRZaDCQhM/asdf-12.html
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Thursday, March 27, 2014
Defense counsel protest Congressional cut in funds
Can you imagine criminal defense lawyers going on strike because Congress decreased the money available for Legal Aid? Justice delayed is justice denied!
Our brethren in England have done just that! And just before the 800th anniversary of the signing of the Magna Carta, the basis of our entire legal system!
England leads the way once again.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/-ypkNUfU2RI/
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OPINION: A Calculation of Fido's Value Must Include Warm, Fuzzy Factor
Awarding traditional property damages in cases of injured or killed pets falls short.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180028&rss=rss_nlj
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How to Manage Your Paralegal Career in Today’s Economy
Today's economy can be challenging for paralegals. Make sure you're taking the right steps to advance your career. On this episode of the Paralegal Voice, host Vicki Voisin interviews future President of NALS Karen McElroy. Together they discuss what you should be doing as a paralegal to get ahead and stay ahead in this job market.
Karen McElroy will become the President of NALS at the end of February 2014. She has been working in law since 1981 in a multitude of capacities including legal secretary, legal assistant, and paralegal. Karen is a veteran of the U.S. Air Force and Ohio Air National Guard. Special thanks to our sponsor, NALA.
Karen McElroy will become the President of NALS at the end of February 2014. She has been working in law since 1981 in a multitude of capacities including legal secretary, legal assistant, and paralegal. Karen is a veteran of the U.S. Air Force and Ohio Air National Guard. Special thanks to our sponsor, NALA.
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2014/02/manage-paralegal-career-todays-economy
United States Supreme Court Resolves Circuit Split and Narrows Scope of SLUSA
In Chadbourne & Parke LLP v. Troice, Nos. 12-79, 12-86 and 12-88, 2014 U.S. LEXIS 1644 (U.S. Feb. 26, 2014), the Supreme Court of the United States resolved a split in the circuits regarding whether alleged misrepresentations were made “in connection with the purchase or sale of a covered security” for purposes of the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f)(1)(A). The Court held that a “misrepresentation or omission of a material fact” is made “in connection with the purchase or sale of a covered security” only if the misrepresentation is “material” to the plaintiff’s decision to buy or sell that covered security. This decision narrows the scope of removal and preclusion of state law securities fraud class actions by the federal courts under SLUSA.
Plaintiffs were private investors who brought state law class claims against defendant firms and individuals in Louisiana and Texas state courts, alleging that defendants had assisted Stanford International Bank (the “Bank”) and Alan Stanford (“Stanford”) in perpetrating a fraud on the plaintiffs. Stanford had run a multibillion dollar Ponzi scheme through which he and his affiliates sold to plaintiffs Bank certificates of deposit (“CDs”). The CDs were debt assets that promised a fixed rate of return. Plaintiffs expected Stanford to use the money it received to buy assets and invest in publicly traded securities. Instead, Stanford used the money to repay old debts, live a lavish lifestyle and finance speculative real estate ventures.
Defendants removed the state law class actions to federal court and sought dismissal under SLUSA. SLUSA generally authorizes the removal to federal court and dismissal of state law class actions that allege misrepresentations or misleading omissions in connection with the purchase or sale of “covered securities.” SLUSA adopts the definition of “covered security” in the Section 18 of the Securities Act of 1933, 15 U.S.C. § 77r, as one that is “listed, or authorized for listing, on [various national stock exchanges]” or one that is “issued by an investment company that is registered . . . under the Investment Company Act of 1940.”
The United States District Court for the Northern District of Texas granted defendants’ motion to dismiss, concluding that plaintiffs’ claims were precluded under SLUSA. The district court acknowledged that the CDs were not “covered securities” under SLUSA because the CDs were not “traded nationally [or] listed on a regulated national exchange.” However, the district court noted that each complaint alleged that the fraud included misrepresentations that the Bank held significant holdings in covered securities, which made the CDs more secure. The district court thus held that this provided the necessary “connection” between plaintiffs’ state law fraud claims and “transactions in covered securities,” and that the claims were therefore precluded by SLUSA.
As previously reported here, the United States Court of Appeals for the Fifth Circuit reversed. The Fifth Circuit agreed with the district court’s determination that the complaints described misrepresentations about covered securities. The Fifth Circuit held, however, that the “heart” of the allegedly fraudulent scheme centered on representations that the uncovered CDs were safe and secure. The Fifth Circuit held the falsehoods concerning the covered securities were too “tangentially related” to the “crux” of the fraud to be sufficiently “in connection with” the purchase or sale of a covered security for purposes of SLUSA.
The Supreme Court affirmed. The Court first noted that SLUSA focuses on transactions in covered securities, not uncovered securities. The Court also observed that the pertinent phrase of SLUSA, “material fact in connection with the purchase or sale,” suggests a connection between the misrepresentation or omission and a purchase or sale that “matters.” The Court determined that a connection “matters” where the misrepresentation makes a “significant difference to a person’s decision to purchase or sell a covered security,” but not an uncovered security. Plaintiffs’ complaints alleged misrepresentations regarding the Bank’s ownership of covered securities, but did not allege misrepresentations in connection with the “purchase or sale of a covered security” by plaintiffs. Thus, the complaints did not provide the necessary “connection” between the materiality of the misstatements and the “purchase or sale of a covered security.”
The Court also noted that its interpretation of the “in connection with” language in SLUSA should not significantly impair the SEC’s enforcement powers for violations of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), because the definition of “security” under the Exchange Act is broader than that of “covered security” under SLUSA.
The Court’s decision in Chadbourne would appear to limit SLUSA to cases where plaintiffs allegedly purchased, sold or held (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006); see blog article here) “covered securities.” Class actions where plaintiffs allegedly purchased, sold or held uncovered securities, even if covered securities are lurking in the background, may proceed in state court.
DePuy Hip Implant Deal Excludes Thousands
Just weeks after DePuy Orthopaedics Inc. announced a $2.5 billion settlement to resolve the bulk of the litigation over its recalled hip implants, some lawyers have raised concerns about the thousands of patients excluded from the deal and the process that determines how the plaintiffs will be compensated.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631268495&rss=rss_nlj
The Benefits of Tech Automation: Why Attorneys Should Opt In
On any given day, we do a large number of repetitive tasks on our computers, tablets and smartphones. We also type the same email messages over and over, insert the same language into legal documents and open the same web pages on a regular basis. By automating some of these repetitive actions, we can become more productive and obtain peace of mind. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss simple ways to benefit from automating repetitive actions, available tools to use, and how to get started in simplifying your life in small and helpful ways.
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How Bad Ideas Grow Legs
Last January, Instapundit lawprof Glenn Reynolds wrote a short essay that became the darling of many folks who take an interest in criminal justice issues entitled Ham Sandwich Nation: Due Process When Everything is a Crime. To be kind, it was a simplistic rehash of long-time, discredited silver-bullet solutions to complex problems. The only virtue was that it came from Reynolds, who was a law professor and thus credible by definition even though he was dabbling at the edges of an area of law about which he knew nothing.
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
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