Thursday, February 28, 2013
Transvaginal Mesh Complications and Litigation
Ultrabook Benefits for Attorneys
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Senate Committee Approves Three District Court Nominees
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Legal Talk Network Live at LegalTechNY 2012-Law.com’s Jill Windwer on LegalTech Turnout
Recommendations for a Social, Mobile and Global Legal Profession
Legal Talk Network Live at LegalTechNY 2012-Law.com’s Jill Windwer on LegalTech Turnout
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Essential iPad Apps for Lawyers
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/06/essential-ipad-apps-for-lawyers/
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Wednesday, February 27, 2013
There's No Standing in a Coffin
Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it's enough to send chills down one's spine. That happened in the Supreme Court's 5-4 reversal in Clapper v. Amnesty International, challenging the constitutionality of §1881a surveillance under the Foreign Intelligence Surveillance Act of 1978, as amended in 2008.
This is the nice way of saying that an ex parte determination by a secret court is good enough to overcome constitutional objections. The respondents, having prevailed before the Second Circuit after the district court held they lacked standing, argued that they were engaged in international communications with the sort of folks they believed the government likely to target under FISA, and in order to avoid being wiretapped and surveiled, were constrained to engage in more extreme measures to protect their privacy.Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA),50 U. S. C. §1881a, added by the FISA Amendments Act of 2008,permits the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.
And so they sued.
Justice Alito was not impressed, as were the other four justices siding with him.
Yeah, well, that's usually a pretty good thing. The problem here is that between the secrecy of targets under FISA and various privileges that would keep it concealed, nobody can ever say that their privacy was violated. In other words, nobody will ever have standing and therefore no one will ever be able to challenge the constitutionality of §1881a surveillance.To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. "[T]hreatened injury must be ‘"certainly impending" ’ to constitute injury in fact," and "[a]llegations of possible future injury" are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158.
In the New York Times, Adam Liptak points out that this hurdle of Standing has graver ramifications:
While many folks think that groups like Amnesty International and the American Civil Liberties Union have some sort of magic authority to challenge anything, they are subject to the same rules of Standing as anyone else. Though they may exist for the purpose of challenging the actions of the government, they suffer neither greater, nor lesser, harm than does any person subject to the law. And whether one can argue that an unconstitutional law confers standing on every American or none, absent a particularized injury suffered, has now been answered. By Justice Alito.More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.
“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo,” said Stephen I. Vladeck, a law professor at American University.
While the fact that no one may ever be capable of asserting standing might concern some, it doesn't bother Justice Alito at all.
Does it bring anyone comfort that the courts, although operating in secret, have us covered? Me neither. But the Court noted that it's not entirely hopeless:Justice Alito wrote that the prospect that no court may ever review the surveillance program was irrelevant to analyzing whether the plaintiffs had standing. But he added that the secret court does supervise the surveillance program.
While Judy Tenuta might say, "it could happen," ACLU lawyer Jameel Jaffer is not as optimistic.It is also at least theoretically possible, he added, that the government will try to use information gathered from the program in an ordinary criminal prosecution and thus perhaps allow an argument “for a claim of standing on the part of the attorney” for the defendant.
Though Standing may well be a good thing in general, it's now pretty much an insurmountable hurdle to challenging the government's more creative and covert conduct. That the government can enact laws beyond challenge presents an intolerable condition.Mr. Jaffer said the situations were far-fetched.
“Justice Alito’s opinion for the court seems to be based on the theory that the secret court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Mr. Jaffer said. In many national security cases, he added, the government has prevailed at the outset by citing lack of standing, the state secrets doctrine or officials’ immunity from suit.
While Justice Breyer, in dissent, argues that the harm is "not speculative," as "it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen,” that's a bit too chaos theory. The larger point is that the government should never be capable of giving itself power that cannot be legally questioned. Indeed, it seems that such extreme authority, which inherently defies due process, is by definition unconstitutional.
But after the 5-4 refusal to hear Clapper v. Amnesty International, we will never know. Hear that sound? It's the slam of the coffin shutting, and we're inside.
© 2012 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/2013/02/27/theres-no-standing-in-a-coffin.aspx?ref=rss
UN rights expert calls for investigation into death of Palestine prisoner
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Solos, Structured Settlements, & Medicare Set Asides
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States Eye Cursive Mandate, AKA ‘Jacob Lew’s Law’
Source: http://blogs.wsj.com/law/2013/02/25/states-eyes-cursive-mandate-aka-jacob-lews-law/?mod=WSJBlog
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Harvesting Intellectual Property: Inspired Beginnings and "Work-Makes-Work," Two Stages in the Creative Process of Artists and Innovators
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/01/harvesting-intellectual-property/
OPINION: A license to steal?
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202589186245&rss=rss_nlj
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Gone Clio with Attorney Andrew Kawel
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/02/gone-clio-with-attorney-andrew-kawel/
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Tuesday, February 26, 2013
Massachusetts' 3 Strikes Law
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/08/massachusetts-3-strikes-law/
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Is The Voting Rights Act Relevant In 2013?
The Supreme Court will begin hearing arguments on Wednesday on the relevance and constitutionality of the 1965 Voting Rights Act. The court is tasked with determining whether states with a history of discrimination still need to get federal approval before changing election procedures.
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Source: http://www.npr.org/2013/02/25/172892264/is-the-voting-rights-act-relevant-in-2013?ft=1&f=1070
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Revisiting Voter ID Laws
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/revisiting-voter-id-laws/
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The Return of Black Lung and the Law
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/the-return-of-black-lung-and-the-law/
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Revisiting Voter ID Laws
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/revisiting-voter-id-laws/
Attending Law School After Serving in Marine Counterintelligence
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Alabama Divided As Court Prepares To Hear Voting Rights Challenge
The Supreme Court hears arguments Wednesday in a case challenging a Voting Rights Act provision that requires some states to receive federal approval for elections rule changes. Shelby County says the system is outdated, but some black officials argue it's still necessary to ensure diverse voices in government.
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NLRB: Firing for Facebook posting was legal
Let the NLRB's press release tell the story:
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.
The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.
In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.
The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.
The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.
As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.
However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.
Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.
The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.
Source: http://www.lawmemo.com/blog/2012/10/nlrb_firing_for.html
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Monday, February 25, 2013
Key changes to Patent Law
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/09/key-changes-to-patent-law/
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Gone Clio with Paul "Woody" Scott
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/04/gone-clio-with-paul-woody-scott/
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Hiring Your First Employee
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/03/hiring-your-first-employee/
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Law Change Makes It Harder To Unlock Cellphones
A copyright ruling from the Library of Congress covers whether people may buy a phone from one carrier and then use it with another. A recent change makes it illegal to unlock a phone, or untie it from the original carrier, without permission. But some people are petitioning the White House to undo that change.
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2011 Intellectual Property Year in Review and Outlook for 2012 – Part I: Patents
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LawBiz® Legal Pad On the Road!: Client Expectations
Above all else, managing client expectations requires a commitment to communication. Tune in this week as Ed shares tips to make this easier for you.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/AdM5soy4R3U/
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Wait, So You Didn't Want The Deluxe Exorcism Package?
The gent says he just wanted to talk with the preacher. Well sir, it is alleged that a little more than that happened one day back in February 2012, as reported by knoxnews.com:
Andrew Byrd filed a lawsuit Feb. 15 in Sevier County against the Rev. Joel Arwood, his wife Theresa Arwood and deacon Charles Shields, all of Sevierville, as well as the Family Chapel Church of God and the Church of God International.So what happened?
According to the lawsuit, Shields and the Arwoods asked Byrd on Feb. 21, 2012, to attend a meeting at Family Chapel Church of God, 1038 Charlotte’s Court in Pigeon Forge. During the meeting, Theresa Arwood said Byrd had a “demon or spirit that needed to be cast out,” according to the lawsuit.
“Thereafter, Joel Arwood and Charles Shields physically assaulted (Byrd) , while being encouraged by the shouts of Theresa Arwood,” Byrd states in the lawsuit.
According to a Sevier County Sheriff’s Office report, Byrd suffered a broken tooth, bruising and lacerations to the face, and pain and lasting injury to his back and leg.Yikes.
Byrd alleges the pastor later bragged to the congregation that he had “punched the devil and knocked the devil’s tooth out.”
Byrd alleges in the lawsuit that Joel Arwood then “published” allegations accusing Byrd of murdering three people in Sevier County, including a 16-year-old girl, and having a contract to kill two more people, knowing that the statements were false.Should be one helluva trial. Here's the source.
The Juice is a personal injury lawyer practicing in Washington, DC, Maryland, and Northern Virginia. He handles a lot of bicycle and car accidents (no exorcisms yet).
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/wonKpY0hIcE/post_604.html
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Sunday, February 24, 2013
The Firm Leader – Mastering Difficult Conversations
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Judges Urged to Think Before ‘Liking’ Someone
Source: http://blogs.wsj.com/law/2013/02/22/judges-urged-to-think-before-liking/?mod=WSJBlog
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Advanced Searching and Technology Assisted Review
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Revisiting Voter ID Laws
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/revisiting-voter-id-laws/
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Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance
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Seventh Circuit Won’t Revisit Ruling on Loaded Guns in Public
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Saturday, February 23, 2013
The Fiscal Cliff Impact
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/the-fiscal-cliff-impact/
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Massachusetts' 3 Strikes Law
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/08/massachusetts-3-strikes-law/
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Judge James Francis on Proportionality
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Technology-Enhanced Television
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/08/technology-enhanced-television/
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Gone Clio with Attorney Michael J. P. Schewe
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/08/gone-clio-with-attorney-michael-j-p-schewe/
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Lawyer2Lawyer: A Retrospective
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/lawyer2lawyer-a-retrospective/
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Friday, February 22, 2013
In-Vitro Fertilization, Custody Rights and Family Law
Because One Secret Court Isn't Enough
No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.
A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones.A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.
The FISA court, a model for the future because it has worked out so very well.
The surveillance court is often considered a rubber stamp; out of 32,000 wiretap applications presented by the government from 1979 to 2011, it rejected only 11. But its presence has helped ensure that the administration’s requests are serious. In 2002, it ruled that the Department of Justice had overstepped its bounds, giving prosecutors too much authority. (That decision was later overturned by an appeals court.)
The position of the Neo-Warriors, while anathema to those of us disinclined to adopt the view that calling something a "war" makes it so, at least has the benefit of being a principled position. They believe in an imperial presidency, and that the authority to safeguard the public entitled the president to kill at will. As strongly as I may disagree with the view, at least I can respect the consistency of the position.
The Times, sadly, tries to split the baby. Of the many blights on the legal system, the FISA courts is one of the worst. It is reminiscent of the star chamber, where one side (lemme guess, the prosecution?) gets to go in, on its own, present its evidence and, without anyone to dispute its claims, gets its order. This is the appearance of process without any substance. Can you imagine how utterly awful and baseless the 11 wiretap applications must have been to get rejected?
When word got out that Congress had set up secret FISA courts back in the late 70's, there was outrage among a select group of lawyers (lemme guess, criminal defense lawyers?) that such a thing could exist in the United States. Secret courts? Totally one-sided, throwing the constitutional rights of Americans under the bus without anyone to question, or even know, what was happening?
Time heals all wounds, and this one scabbed over nicely. The FISA courts have become an accepted part of the wiretapping landscape, and their existence doesn't raise a peep anymore. What was once unthinkably outrageous is now just another piece of the least dangerous branch.
So if the FISA courts, the rubber stamp of the prosecution's arsenal, has become so widely accepted, why not create more secret courts? Why not create a secret court to provide judicial authorization for the executive to execute our enemies? For crying out loud, these are the enemies of America! The president says so, and he wouldn't lie.
Maybe not, though he could be wrong. But the secret court being asked to rubber stamp the kill order would never know because there would be no one there to offer a contrasting view, to question the assumptions, to challenge the evidence. And there would be no one even aware that Sam Smith was just rubber stamped until the proud announcement that he was no longer with us, terminated with extreme prejudice.
If it's acceptable that the executive branch maintains a kill list of those it perceives to be enemies of our nation, then why create another secret court to put on a dog and pony show that creates the appearance of legitimacy without the substance of due process? Are Americans so vapid as to be satisfied with theater in lieu of actual adversarial scrutiny? Will this be Real Housewives of the Judiciary?
Worse still, one secret court was bad. Very bad. And yet it's become a part of our judicial fabric. For whatever reason, our acceptance of this singular blight hasn't given rise to some scholar screaming that we should have secret courts handling all of our sensitive issues since the FISA court has done so spectacularly well in stamping wiretap orders. But now the New York Times does what others have been too ashamed to do, promote the idea of secret courts as a solution.
No more secret courts, and if it were up to me, the FISA court would go too. But no more. If the President has the authority to kill Americans he deems enemies, as the Neo-Warriors would have it, then no judicial intervention is needed, and the judiciary should refuse to become an actor in the president's show.
And if the Chief Executive cannot kill Americans at will because the Constitution of the United States of America does not permit him (or her, when the time comes) to redefine war to mean whatever the Neo-Warriors want it to mean, then no secret ex-parte court order can make it constitutional.
Just as no one can be half dead, no compromise can make the kill lists more palatable. It's one of those things that is either right or wrong, and the New York Times' attempt to split the (alleged) terrorist is completely misguided.
© 2012 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/2013/02/14/20130213.aspx?ref=rss
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SU Discoverlaw.org PLUS
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/03/suplus/
Gone Clio with Attorney Anthony Reeves
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/10/gone-clio-with-attorney-anthony-reeves/
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Language is Everything
At the TTT truck stop. One of the Country's finest. In Tucson.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/ay7qKuQiFOI/
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The Path to Becoming a Solo Practitioner
Source: http://legaltalknetwork.com/podcasts/new-solo/2012/06/the-path-to-becoming-a-solo-practitioner/
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Execute a Long-Term Technology Strategy
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/09/execute-a-long-term-technology-strategy/
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Thursday, February 21, 2013
Secure Your Legal Data in the Cloud
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/07/secure-your-legal-data-in-the-cloud/
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Helpful Tips for Women Solo Practitioners
Source: http://legaltalknetwork.com/podcasts/new-solo/2012/02/helpful-tips-for-women-solo-practitioners/
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The Best Resources for Staying Current in E-Discovery
American Bar Association Updates Technology Ethics Rules
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Gone Clio with Attorney Beate Weiss-Krull
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/01/gone-clio-with-beate-weiss-krull/
Wednesday, February 20, 2013
Liability in the Costa Concordia Cruise Ship Tragedy
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The AM Roundup: China’s Unlucky Number 61398, More
Source: http://blogs.wsj.com/law/2013/02/19/the-am-roundup-chinas-unlucky-number-61398-more/?mod=WSJBlog
How Medical Apology Programs Harm Patients
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/06/how-medical-apology-programs-harm-patients/
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U.S.-Russia Relations Continue To Falter With Prosecution Of Dead Man
Russia is prosecuting a dead man, corruption whistle-blower Sergei Magnitsky, in a case that has severely complicated U.S.-Russia relations. Congress passed a bill that will punish anyone involved in the Magnitsky case and other major human rights violators in Russia. The Russian parliament responded by banning adoptions by American families of Russian children. It is against this backdrop that the new Secretary of State John Kerry finds himself searching for ways to reset relations once again.
Child Sexual Abuse Litigation in the Los Angeles United School District
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Ultrabook Benefits for Attorneys
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Defense Attorneys Turning to Social Media
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Tuesday, February 19, 2013
Dewey Docket: Laid-Off Staff to Have Their Day in Court
- Ramin Talaie for The Wall Street Journal
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Don't Ignore Governmental Mechanisms for Protecting Intellectual Property Rights
The U.S. Supreme Court’s Golan v. Holder Decision
Sunday, February 17, 2013
Back to School Spotlight on Law Students
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Naked Lawprof Mudwrestling: Doctrine, Practice and Skills
Eek. While Miller's bottom-up approach strikes a chord, the rest emits an unpleasant odor. So challenging the interdisciplinary approach of elite academics shows a "profound ignorance" of legal practice in lower courts? That's a bit of a strong statement.The False Dichotomy Between Practice (Doctrine) and Academics
I've made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts. But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*. That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty. The idea appears to be that there is a dichotomy between what lawyers need to know and what "academics" teach, and that often rides on the back of an argument that what "academics" teach is fit only for those folks at the top law schools who want to become academics themselves. I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum.
Miller was taken to task in the comments for the examples he offered to dispute in coming posts, none of which came anywhere near the sound arguments previously made, and all of which bore the distinct scent of facile strawmen to a few practicing lawyers.
Into the breach stepped Michael Mannheimer, seeking to interpret Miller's point:
Based on some of the more vehement reactions to Eric Miller’s recent post, it seems to me that a lot of us are talking past one another when we use words like “practical” and “skills.” “Skills” are like free speech: everyone agrees it’s a good thing but no one can agree what it is.
Skills? Miller conflated doctrine with practice, but the word "skills" never came up. In fact, the word isn't mentioned at all in Miller's post. And practice and skills aren't necessarily the same thing either, though the separation isn't anywhere as obvious as doctrine and practice.
For the sake of making it just a little bit clearer, I offer my definitions of the language involved. These may not comport with the way the legal academy defines the words, but judging from Mannheimer's post, and the comments to it, they are all over the place anyway.
Doctrine: The rules of law applied to factual scenarios.
Practice: The way things actually happen in court.
Skills: The things lawyers actually do to represent clients.
I know, simple and clear. No doubt the intellectuals are laughing their butts off at my simplistic definitions, but still, without definitions (as is clear from the posts by people far smarter than me), nothing useful gets accomplished.
After acknowledging that the skills of reading, writing and thinking are always necessary for the practice of law, Mannheimer, in a moment of weakness, writes:
But by the same token, one cannot be an effective attorney if one cannot, say, negotiate a plea offer or a business deal. So it comes down to what can realistically be taught in three years and what must be picked up in practice. And, yes, some skills must await practice to be developed. The notion of a lawyer being “practice ready” upon graduation is simply, for lack of a better term, horseshit.
It's nice to see a lawprof speak like a regular guy, right? That's why I added the emphasis. But then, not everyone agrees with this, as reflected in a bold comment by "anon":
After all, aren't posts written for the enjoyment of anonymous prisses? But I digress. The comments to the post provide a number of approaches by various professors at various law schools showing their efforts to integrate skills into otherwise traditional doctrinal courses. For example, Orin Kerr writes:A comment from a regular reader, which you are free to ignore or even delete: It may seem prudish and trivial, but I enjoy posts less and am less likely to be persuaded when the author includes words like "horseshit."
In contrast, Jeffrey Harrison writes:When I was in law school, I took a class on Trial Advocacy that included how to give an opening statement, direct and cross examinations, and a closing statement. I think that's one example of skills training. Similarly, in a class in crim pro, skills training might include drafting or responding to a motion to suppress.
While there always remains the question of whether a lawprof is qualified to incorporate skills and/or practice into her teaching, doctrine being the easy part since it's dearer to her heart, what is becoming increasingly clear is that some get it and some don't.At my school, "skills" evidently includes training in meditation and mindfulness. So, I guess the range is from "Where is the courthouse" to Eastern religion. Of course, teaching skills will not stimulate the demand side of the market. BTW, on the Texas Bar exam when I took it was this: Draft an Indictment.
While Mannheimer is right that no law school can turn out a truly practice ready lawyer, the inclusion of skills and practice into doctrinal courses can at least prepare a student to have a clue what a motion looks like before he's required to prepare one for a client. Think about that request on your listserv from the n00b who asks if anybody has an omnibus motion they can give him? Think about the ensuing argument about whether anybody ought to represent a client when they lack the skill to prepare a basic motion?
The fact that posts like Miller's and Mannheimer's are being written, and generating the sort of commentary they are, is a sign that we may be moving past the days of "Law and Nietzsche," no matter how fascinating some scholars think such a course might be. To get there, however, Mannheimer ridicules the old "70's" final exam question, “The courthouse for [the local] county is located on the corner of ______ and _____ Streets.”
While that wasn't on my final exam, here's a thought: There are likely more than a few students, and more than a few lawprofs, who can't find their way to the courthouse. Is it worth a question on the final? Nah. But it wouldn't kill you to take the kids over the courthouse and see what really happens there. That's practice, and you could point out the street corner at the same time. And with mapquest, you won't have too much trouble finding it.
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