Recent Featured Articles from LexMonitor

Google Flu Trends - early warning system for foodborne illness outbreaks?

dpowell@ksu.edu (Doug Powell) — Tue, 11 Nov 2008 23:19:14 GMT

Google Flu Trends is a new Web tool that Google.org, the company’s philanthropic unit, unveiled on Tuesday, just as flu season was getting under way in the United States.

The N.Y. Times reports that Google Flu Trends is based on the simple idea that people who are feeling sick will probably turn to the Web for information, typing things like “flu symptoms” or “muscle aches” into Google. The service tracks such queries and charts their ebb and flow, broken down by regions and states.

Early tests suggest that the service may be able to detect regional outbreaks of the flu a week to 10 days before they are reported by the Centers for Disease Control and Prevention.

We’ve thought of doing something like this with surveillance of foodborne illnesss, or even restaurant inspection and complaints. But we don’t have the resources of Google.

Google Flu Trends (www.google.org/flutrends) is the latest indication that the words typed into search engines like Google can be used to track the collective interests and concerns of millions of people, and even to forecast the future.

Scheduled Execution

Thu, 20 Nov 2008 17:55:59 GMT

Texas is scheduled to carry out its 18th execution of 2008 tonight in Huntsville. It would be the 423rd in the state since 1982. It is the last scheduled execution for the state this year.AP has this report on the...

Texas is scheduled to carry out its 18th execution of 2008 tonight in Huntsville. It would be the 423rd in the state since 1982. It is the last scheduled execution for the state this year.

AP has this report on the scheduled execution of Robert Hudson, via the Dallas Morning News.

Hudson would be the 18th Texas inmate executed this year in the nation's most active death penalty state. Two other executions scheduled for this week in Texas were stopped by the courts.

"Something came over me and I lost control which caused this," Hudson, who declined to speak with reporters as his scheduled execution in Huntsville neared, told police after his arrest. "I loved Edith. ... I am sorry for what has happened and have told the truth about the incident."

Hudson's lawyers, in an appeal asking the U.S. Supreme Court to stop the punishment, contended he was remorseful, that the slaying was a crime of passion and not deliberate. They also argued his trial attorneys failed him by not presenting evidence on his behalf, particularly during his trial's punishment phase where they said jurors never learned about Hudson's unstable childhood, a father with drug and alcohol problems, a mother with psychiatric problems and his own psychiatric treatment and medication to control his behavior and anger.

"While Ms. Kendrick's murder was brutal, it was a crime of passion," Maurie Levin, a University of Texas law professor, wrote. "Mr. Hudson did not attempt to flee, did not resist arrest, immediately confessed to the crime, and expressed his remorse and sorrow in that statement and during the months that followed."

KPFT-FM, Houston's Pacifica Radio station, will have Execution Watch on its HD broadcast and in streaming audio at its website, tonight beginning at 6:00 p.m.

Yesterday, Ohio executed Gregory Bryant-Bey. As noted in this earlier post, Marco Chapman is scheduled to be executed tomorrow in Kentucky.

Texas has by far the most active death chamber in the United States accounting for more than 37% of all the executions in America. Texas has carried out half of the executions in the America during 2008. If tonight's scheduled execution occurs it would the 35th in the nation this year; the 1,134th since 1977.

Capital Defense Weekly lists five scheduled executions in other states in the month of December.

Though Texas does not have any scheduled executions in December, nine executions are already scheduled in the state for 2009. TDCJ maintains this list of scheduled executions.

iiNet sued for copyright infringement

pete.black@gmail.com (Peter Black) — Thu, 20 Nov 2008 07:36:17 GMT

This news report was drawn to my attention during a break today at the Media, Communications and Public Speech Conference:The Australian film and television industry has launched a major legal action against one of Australia's largest internet service providers for allegedly allowing its users to download pirated movies and TV...

This news report was drawn to my attention during a break today at the Media, Communications and Public Speech Conference:

The Australian film and television industry has launched a major legal action against one of Australia's largest internet service providers for allegedly allowing its users to download pirated movies and TV shows.

The action against iiNet was filed in the Federal Court today by Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network.

Mark White, iiNet's chief operating officer, said the company did not support piracy in any form but it could not disconnect customers just because the movie industry claimed they engaged in illegal downloading.

Adrianne Pecotic, executive director of the Australian Federation Against Copyright Theft (AFACT), said the action followed a five-month investigation by the industry.

...

The action follows months of wrangling between the movie and music industries and ISPs over the lengths to which internet providers need to go to prevent illegal file sharing on their networks. The industry wants ISPs to agree to cut off services for those who repeatedly infringe copyright.

However, internet providers have argued that the courts already provide adequate remedies for copyright holders and they should not be forced to police their users.

"This is a very important test case for the internet industry in Australia," said Peter Coroneos, chief executive of the Internet Industry Association.

"It will test the effect of the safe harbour provisions that were introduced with the US free trade agreement, which provides immunity for ISPs in certain circumstances such as transmission, hosting, caching and referencing activities."

Coroneos said the IIA board will shortly convene to develop a response on the legal action against iiNet.

But while the movie industry has now stepped up its aggression, the music industry has yet to take legal action against any internet providers over the issue.

Read more here (from the Sydney Morning Herald).

What a Holder Appointment Means for Civil Justice

Thu, 20 Nov 2008 11:57:30 GMT

On TortDeform we've talked extensively about a Pro-Civil Justice Presidential Platform, but access to justice for every American requires leadership and hard work from more than just the President. "America's lawyer" and "top cop", the Attorney General, has perhaps the most important role in advancing policies that preserve Americans' cherished legal rights and strengthen their access to effective, fair civil courts.

He still has to undergo the formal vetting process, but Eric Holder looks to be Obama's AG pick. So, how will Holder hold up when it comes to civil justice? Here are three quick things worth considering:

First, Holder is an influential Board Member for the American Constitution Society. ACS, while not a political organization, represents many of the progressive values that guide the access to justice movement. In fact, ACS’s Access to Justice Group “addresses barriers to access to our civil justice system, including… efforts to strip courts of jurisdiction, raise procedural hurdles, remove classes of cases from federal court, insulate wrongdoers from suit, limit remedies and deprive legal aid services of resources. It focuses attention on ways to ensure that our justice system is truly available to all.” (emph. added)

Second, something I pulled up from a cursory Google Search indicates that as Deputy AG, Holder was part of an initiative to bring more diversity into the legal profession and ensure that “the profession provides full service to communities of color so that those communities can enjoy equal access to our system of justice.” This may indicate a willingness on his part to engage the civil justice community on access to justice issues like Civil Gideon and binding mandatory arbitration, among others.

Third, probably the most helpful analysis I’ve found so far comes from Glenn Greenwald at Salon, who gives a cautious, preliminary nod of approval to the Holder pick. Greenwald weighs the known blemishes on Holder’s record (the Marc Rich pardon issue being the most frequently cited) against the shining points (independence from Obama, willingness to take strong positions in favor of constitutional rights, even if in stark contrast to the President). Greenwald concludes based on this and other information that Holder will likely be an effective protector of the American people’s constitutional rights.

We must pay close attention here. As former AGs John Ashcroft and Albert Gonzales taught us so well, the AG has a critical role in protecting--or subverting--our cherished constitutional rights and protections. In the coming weeks as we learn more about his positions on various issues I’ll do my best to keep you updated.

In the mean time for your reflection, here are some Senators talking about the importance of the Attorney General, with my emphasis added (Hat tip to TalkLeft for this information):

Vice President-elect Joe Biden:

This Cabinet position is the single most unique position of any Cabinet office. For it's the only one where the nominee or the Cabinet officer has an equally strong and stronger, quite frankly, responsibility to the American people as he does to the person who nominates him... [T]he attorney general of the United States is both the president's lawyer and the people's lawyer… [T]he question is whether the attorney general is willing to vigorously enforce all the laws in the Constitution, even though he might have philosophical disagreements; and then second, whether he possessed the standing and temperament that will permit the vast majority of the American people to believe that you can and will protect and enforce their individual rights.

Sen. Patrick Leahy:

Remember, the attorney general is not the president's counsel; he has a counsel for that. The attorney general is there for every one of us, Democrats, Republicans, rich, poor, white, black, no matter who you are....[T]his is somebody who represents all of us, not there just to represent administration policy. You should have evenhanded law enforcement, protection of our basic constitutional rights, including the freedom of speech, the right to privacy, a woman's right to choose, freedom from government oppression, and equal protection of the laws.

...Can you think of any position in our government that can affect us in more ways -- everybody in this room, everybody outside, all 280 million Americans -- anything that affects us more than that of attorney general? No position in the Cabinet is more vulnerable to politicization by one who puts ideology and politics above the law.

Go to the original post to read remarks by Senators Maria Cantwell, Diane Feinstein, Herbert Kohl, Chuck Schumer and others. And as I said before, more information will definitely emerge in the coming weeks and I’ll try to flag it as I come across it.

What’s being said on other Blogs?
ACS blog notes Holder’s ties to the American Constitution Society.
This Open Left blogger seems pretty excited about Holder, and the comments section has a lively debate.
At Firedoglake, they aren't exactly dancing in the streets about Holder, particularly due to the Rich scandal and Holder's stance on criminal justice issues.

Is the breathalyzer racist?

threegenerations@gmail.com (Gideon (A Public Defender)) — Thu, 20 Nov 2008 12:52:35 GMT

So claims one Connecticut lawyer, James O. Ruane, son of the famous DUI attorney James J. Ruane. In this most recent DUI case, the younger Ruane filed a motion to suppress the results of the breathalyzer, arguing inter alia: the lung capacity of a black man is 3 percent smaller than a white man and, therefore, [...]

the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men’s test results vary from the sobriety standard set by the device.

He said Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and, based on his studies, has determined the Intoxilyzer 5000 does not effectively test the blood-alcohol content of black men.

“He looked at all the research and came up with the bigger picture and found the common thread,” he said.

Ruane said he intends to have Hlastala testify on Brown’s behalf.

Never one to shy away from a soundbite, he then said this:

“They are KKK in a box,” said lawyer James O. Ruane of Shelton. “We really have some racist machines here.”

The Ruane’s have a fantastic reputation for being zealous advocates for their clients and are the go-to resources for DUI law in CT, so I figured there must be something more to this than just a lawyer clutching at straws. Sure enough, in the comments to the news article, Attorney Ruane the younger explains (after the jump):

This motion was one of a series of motions we filed in regards to the potential evidence in the case. The medical research is clear, the Intoxilyzer will overstate the breath alcohol level in certain persons (African Americans and women). I did not conduct the research, I only learned of it last year in another case.

When you combine the biases of the machine for the racial factor, the lung capacity, the conversion from a breath sample to a blood reading, and take into account a person’s natural partition ratio, you can see a possible breath test reading of a person at 0.08 that may actually be as low as .03.

That is a significant overstatement in the results. As you get further away from the standard, the overstatement grows larger in number. The machine treats every person the same, and that may cause it to discriminate against certain segments of the population. In this case, the purported results as mentioned in the article do not match the physical evidence. This was why we started looking for other explanations.

I haven’t read the studies and I don’t intend to, so I’ll take him at his word for now. I’ll follow this case with some interest, though.

From someone who knows nothing about DUI law, but a little about the internet, allow me to give you this piece of advice:

Stay away from the comments on these news sites.

Former SG Paul Clement to Return to King & Spalding

lawblog@wsj.com. (Dan Slater) — Thu, 20 Nov 2008 13:07:00 GMT

Breaking news from Jess Bravin, the Journal’s Scotus ace in Washington:

Former Solicitor General Paul Clement’s long job search is finally over; his old firm, King & Spalding, has agreed to take him back.

Okay, perhaps it wasn’t so hard for Clement to find employment. Service in the Bush Justice Department did not always result in career enhancement — remember “Justice Alberto Gonzales”? — but Clement left the Robert F. Kennedy Building in June as one of Washington’s most respected advocates. Not only that, Clement made history as perhaps the first SG to frequent D.C.’s 9:30 Club, an outpost of alternative rock that apparently never managed to lure such esteemed previous S.G.’s as Erwin Griswold, Archibald Cox or Robert Bork.

After hanging up his morning coat, Clement spent the summer teaching at Georgetown law school, but told friends he intended to join a top-drawer, top-paying law firm in the fall. The anticlimax officially was announced today, when King & Spalding said he would “rejoin the firm?s Washington, D.C., office to establish an expanded national appellate practice and a strategic counseling practice.”

Clement, who argued 49 cases before the Supreme Court, clerked for Judge Laurence Silberman and Justice Antonin Scalia, and graduated magna cum laude from Harvard Law School, where he was Supreme Court editor of the Harvard Law Review. Still, compared to at least one classmate, Clement is something of an underachiever. The Harvard Law Review’s president that year was Barack Obama, who also starts a new job soon.

NY-Sen: So, what happens if there's a vacancy?

Wed, 19 Nov 2008 03:39:19 GMT

No doubt you've all heard the hottest rumor coming out of Washington over the last week; that the top choice for Secretary of State in the Obama Administration is none other than Senator Hillary Rodham Clinton of New York.

As of right now, that's still a rumor. No evidence that Obama is going to offer it, none that she'd take it. We'll wait and see. But that doesn't mean we don't get to speculate...

Leaving aside the merits of the selection (personally, I think she'd be an outstanding choice, but then, I've always liked her), the next question would be: if Clinton is offered the position and accepts it, who would be appointed as her successor?

What's interesting about such speculation now, as opposed to during Clinton's presidential campaign, is that the leading choice for a replacement during much of her campaign is now out of the running. That would be Governor David Paterson, who seemed a likely pick when he was Lieutenant Governor, but ascended to the governorship upon the resignation of Governor Eliot Spitzer.

So now that Paterson is out of the running, who might the new governor select to fill Clinton's shoes? A couple things to keep in mind:

• Paterson has never been elected governor, and though he is currently fairly popular in New York, he could face a spirited Republican challenge. Rudy Giuliani is kicking the tires as we speak, and trails Paterson in polling by six points as of now. Michael Bloomberg is out, but theoretically another wealthy liberal Republican could step up. As such, Paterson will probably ultimately do what's best for his own reelection, and pick someone to shore up support among a particular constituency.

• Hillary Rodham Clinton is the first female Senator in New York history. Paterson will be under some pressure to appoint a woman to fill her seat.

• New York has never had a black or Latino Senator.

• There will be some pressure to appoint a Senator from upstate. Both Paterson and senior Senator Chuck Schumer hail from New York City, and Clinton lives in Westchester County just north of the city.

• Schumer could be a major player in the negotiations, as Dick Durbin has been in Illinois. Schumer is arguably the most powerful politician in New York State, and as two-term DSCC chair, is the captain of Democratic Senate recruitment around the country. He will no doubt seek to be somewhat involved in the process within his own state. While Schumer and former Governor Spitzer had a frosty relationship, he will likely have more influence with the less combative Paterson.

So here are some of the names being kicked around:

Rep. Nydia Velazquez of Brooklyn. She's a Brooklyn native, like Schumer. However, she's a woman and a Latina, which would cater to two critical Paterson constituencies. Velazquez kills two birds with one stone like no other candidate.

In addition to being the second woman and the first Hispanic to represent New York in the Senate, she'd be the first Latina Senator from any state.

The New York Daily News reports that Velazquez is the current frontrunner. She's a perfectly solid vote, so she'd be a fine appointment from that perspective, and she'd help Paterson. The major drawback to Velazquez is that she might have some trouble holding the seat. It's not clear how well she'd run upstate.

Rep. Jerrold Nadler of Manhattan. Nadler wants the appointment badly - if anything, he may want it too badly. He'd be a great Senator if he got it, but a Nadler appointment doesn't do much politically. If anything, it might be dangerous to Paterson to appoint another white man from NYC to the Senate.

Rep. Brian Higgins of Buffalo. Higgins fits the bill as an upstater, and he's a generally solid vote. That said, he probably wouldn't set the world on fire as a Senator, and though he'd be better positioned than Velazquez for reelection, his appointment would lack the historic significance that appointing Velazquez would have. Higgins would be fine, but unexciting, and a backbencher.

Attorney General Andrew Cuomo. Cuomo has Washington experience from his term as HUD secretary during the Clinton administration, and a Cuomo appointment would eliminate a potential primary rival for Paterson in 2010 (although a Cuomo run against Paterson for Governor would be folly).

Rep. Steve Israel of Long Island. Israel wouldn't exactly solve the upstate problem, and he isn't a minority. That said, he's a pretty decent vote, his Blue Dog membership aside. He'd be about as generic an appointment as one could ask for.

Buffalo Mayor Byron Brown. He's the dark-horse pick here, but he's an exciting prospect for two reasons; he's African-American, and he's an upstater. Beyond those, he's a rising star in the state party, and would be a good vote in the Senate.

Rep. Kirsten Gillibrand of Columbia County. She's considered a major rising star in the party; she's young, intelligent, attractive, won an upset victory in 2006 and a convincing reelection this year.

She's a woman and an upstater, so she's a solid pick for those reasons. Only problem is her Blue Doggery, as well as the fact that she holds a seat which could go Republican in 2010. She'd be a sure thing for reelection, though.

Rep. Michael Arcuri of Oneida County. Arcuri was considered a rising star in the party until nearly blowing his 2008 reelection against no-name opponent Richard Hanna. This has taken some of the luster off of the Congressman.

If Hillary Clinton is appointed to ~~the Senate~~ Secretary of State, as the Guardian believes she will be, it should be an exciting time for New Yorkers.

NJ - 10-Year-Old's Crime Tests Limits of Megan's Law

Wed, 19 Nov 2008 08:05:04 GMT

View the article here Old article I know, but I do not have this here, so I am adding it. 06/16/2001 By LAURA MANSNERUS J. G., as he is identified by New Jersey's courts, is 16, trying to finish high school and hoping to clear his record of something he did when he was 10. But that may be impossible, because J. G. committed a sex offense, and for sex offenders the rules are different. In fact, the rules collectively known as Megan's Law, establishing a register of sex offenders and publicly identifying those considered most dangerous, are meant to keep the past in view. And as New Jersey legislators respond to a voter referendum allowing the posting of offenders' names and photographs on the Internet, J. G. has presented the State Supreme Court with the question: Can this law be applied to a 10-year-old? The issue, being raised around the country at a time that all 50 states have passed some form of sex-offender-notification law, shows a tension between two deeply held goals. While sex-offender laws seek to give the widest possible publicity to sex crimes, the juvenile justice system seeks to give the widest possible protection to young offenders. And while New Jersey's juvenile system ensures that no one enters adulthood with a criminal record, the state's sex-offender-registry law, depending on the offense, stigmatizes offenders for many years or for life. ''Too few people understand how broad these laws are in their reach,'' said Hunter Hurst Sr., the director of the National Center for Juvenile Justice. ''We've got all these ugly laws we passed when we were in a bad mood, and this is one of them.'' Of the 7,447 people registered under the sex-offender law in New Jersey, it is not clear how many were juvenile offenders, since the state does not systematically keep track of their ages. Prosecutors and public defenders estimate that 10 percent to 25 percent of the offenders are under 18, with many fewer under 14 and only a handful as young as 10. Offenders are ranked, regardless of age, according to the likelihood of committing another crime. Fewer than 200 of the 7,447 are deemed high-risk offenders, whose names are given to local residents, and the rest are identified to police agencies and sometimes to schools and child-care providers. The case, called In the Matter of J. G., began with an incident that no one wants to talk about in detail and it continued in closed proceedings because he is a juvenile. The Supreme Court has even impounded the briefs filed in the case, which is to be decided soon. But limited information from the boy's lawyers and other sources yields this account: At 10, J. G., diagnosed as educable mentally retarded, was found rubbing himself against a girl, 8, in his mother's care at his home in Mercer County. Both children were wearing only underwear. The boy, whose primary language was Spanish, had some trouble with investigators' questions; his lawyers say he equated the term sex with kissing, although prosecutors say that he understood what investigators were asking. In juvenile court, J. G. pleaded guilty to second-degree sexual assault. A doctor's examination of the girl found no evidence of penetration, but it is not clear what other evidence was presented. A year later, in a separate hearing, J. G. was assigned a risk classification. His probation was going well, but the judge was also told that the boy had been accused of similar behavior before he molested the 8-year-old girl. J. G. was placed in the moderate-risk category, requiring notification of local police, schools and child-care facilities. An appeals court limited the notice to J. G.'s own school. But the boy's lawyers, Craig J. Hubert and James M. Graziano, contend that a 10-year-old should not be subject to the sex-offender law at all -- an argument that becomes especially important if the Legislature allows any Internet access to the names of moderate-risk offenders. While the notification law in New Jersey clearly applies to juveniView the article here Old article I know, but I do not have this here, so I am adding it. 06/16/2001 By LAURA MANSNERUS J. G., as he is identified by New Jersey's courts, is 16, trying to finish high school and hoping to clear his record of something he did when he was 10. But that may be impossible, because J. G. committed a sex offense, and for sex offenders the rules are different. In fact, the rules collectively known as Megan's Law, establishing a register of sex offenders...

To see the rest of this article, please visit the Sex Offender Issues Blog

China: Find Me That Factory!

dan@harrismoure.com (Dan Harris) — Wed, 19 Nov 2008 08:46:38 GMT

There is an old joke about a United Nations family planning conference. A leader up front, trying to scare people about overpopulation, exclaims how there is a woman giving birth somewhere in the world every 3 seconds. A jokester at the back of the room stands up and says, "find me that woman!" I thought of that joke today. All Roads Lead To China just did a post entitled, "A Question of Chinese Toy Factory...There is an old joke about a United Nations family planning conference. A leader up front, trying to scare people about overpopulation, exclaims how there is a woman giving birth somewhere in the world every 3 seconds. A jokester at the back of the room stands up and says, "find me that woman!" I thought of that joke today. All Roads Lead To China just did a post entitled, "A Question of Chinese Toy Factory Closures," in which he asks all sorts of questions as to why so many Chinese toy factories have closed down when China's overall economic statistics are still not all that bad. The post asks the following of those factories that have closed:

1) How many of these factories existed 6 months ago vs. which ones were brought online to cope with the Christmas rush? 2) How many of these factories closed due to the fact that many brands have been reducing the number of suppliers they use? 3) How many of these factories were really viable entities that competed in the market vs. those that simply were producing low end commodities that were uncompetitive? 4) How many of these factories were simply “shacks out back” vs. well capitalized?

All Roads goes to great lengths to emphasize that he is not minimizing the economic troubles of China's factories, and I emphatically make that same statement. But, and I know this is going to sound strange, I have been asking my firm's China clients just about every weekday for the last month how they have been impacted by the Global and China downturn and not a one of them has mentioned factory closings. Indeed, I have asked many of them if they have experienced any problems from factory closings of their own or of their suppliers and the only response I have gotten is "no." So yes, like All Roads, I absolutely believe factories are closing in China and with that, massive worker and community dislocation. But also like All Roads, I have very real questions as to what sort of factories those were. What are you hearing/seeing out there?

Family Wins $20.5 Million in Cerebral Palsy Lawsuit

dave@burke-eisner.com (David Austin) — Wed, 19 Nov 2008 18:35:07 GMT

One of Pennsylvania’s largest medical malpractice verdicts in recent years was handed down on Monday in a cerebral palsy lawsuit. The jury awarded $20.5 million to a 7-year-old boy and his parents for injuries the boy suffered at birth.

Cody’s Ordeal

Cody White was born on June 30, 2001 by Caesarean section. His mother, Laura, called her physician that day to express concern about her unborn baby and she was told to go to Community Medical Center.

When she arrived, a fetal monitor showed signs of distress. The doctor was called but did not arrive until two hours later. During that time, Cody was receiving inadequate oxygen and consequently suffered damage to his brain.

Cody now suffers from cerebral palsy, mental retardation and blindness. He cannot walk or talk and will require round-the-clock care for the rest of his life.

Cerebral Palsy Lawsuit

In 2003, Cody’s parents filed a lawsuit against the delivery doctor and the medical center where he was born. The trial lasted two weeks and jurors deliberated for about four hours before finding the doctor 60 percent negligent and the hospital 40 percent negligent.

The majority of the $20.5 million award will go toward Cody’s care. The money will also compensate him for his lost earning capacity as well as his pain and suffering.

Religious liberty for some, not all

nblack@nicoleblackesq.com (Nicole Black) — Tue, 18 Nov 2008 18:51:38 GMT

This week's Daily Record column is entitled "Religious liberty for some, not all." A pdf of the article can be found here and my past Daily Record articles can be accessed here. ******Religious liberty for some, not all “Hypocrisy is oftenest clothed in the garb of religion.” — HOSEA BALLOU I was...

(This is a content summary only. If you're reading this anywhere other than an RSS reader, the content has been lifted. Please visit my blog, Sui Generis http://nylawblog.typepad.com , to read the entire post)

One heckuva Social Security scam....

kim.dayton@wmitchell.edu (Kim Dayton) — Tue, 18 Nov 2008 21:12:19 GMT

A woman accused of helping her religious leader hide a decaying corpse on her toilet so they could continue collecting her Social Security was convicted of a misdemeanor in a deal for her to testify against the leader, a prosecutor...

Medical Marijuana Bill Filed- HB 164

Tue, 18 Nov 2008 21:46:54 GMT

Texas has some of our nation's most outdated marijuana laws. Possession of any usable amount of pot is a Class B misdemeanor that carries a sentence of up to 6 months in jail, and a $2,000 fine. In reality most misdemeanor pot defendants get probation. However, Texas makes no distinction between recreational and medicinal pot smokers. All marijuana consumers are criminals in Texas.

I have witnessed the prosecution of the infirm for marijuana possession. It is a horrible practice that degrades our justice system. If prosecutors will not use their discretion to dismiss cases against the sick, then Texas must join the 14 other states that allow the medical use of marijuana.

To that end House Bill 164 was submitted last week. The text of the bill can be viewed here. Notice our state's peculiar spelling of "marihuana."

164 would create an affirmative defense to marijuana possession. MM patients would need to show that a doctor recommended marijuana use. If so, patients could avoid conviction, probation, and further incarceration. 164 would still allow the arrest of MM patients, so drug warriors can feel good about that.

From HB 164-

It is an affirmative defense to prosecution under Subsection (a) that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.

It is time Texans acknowledged that medical marijuana patients deserve compassion and protection, not prosecution.

Thanks to the Marijuana Policy Project for highlighting this important piece of legislation.

Firefighters Look to U.S. Supreme Court To Overturn Second Circuit Case

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 18 Nov 2008 11:09:49 GMT

Earlier this year, a case out of New Haven caused quite a stir at the Second Circuit when it addressed (or, as some people believe, failed to address) a reverse discrimination case.

Now, word comes that the firefighters who lost the case are seeking to have the U.S. Supreme Court decide the issue by asking the nation's highest court to review the matter. Doug Malan, from the The Connecticut Law Tribune reports:

A group of 20 New Haven firefighters are pushing to have the nation’s highest court determine if the city discriminated against them when it denied promotions despite high test scores. For some of the men, the U.S. Supreme Court’s decision on whether to hear their case will determine whether the firefighters remain in what they believe to be dead-end jobs due to their skin color.

After a divided Second Circuit this summer turned down the firefighters’ appeal, national law firms and advocacy groups have lined up to assist the New Haven parties on both sides.

The plaintiff firefighters in Ricci v. DeStefano allege that they are victims of a system that was changed in midstream to favor black firefighters over white and Hispanic ones and that they have been blocked from attaining fire lieutenant and captaincy ranks. In 2004, the city of New Haven told its Civil Service Commission to stop administering two written exams that were used to determine the most qualified candidates for promotion because too few minority candidates were advancing. City officials feared a lawsuit would be filed by minorities under the federal Civil Rights Act.

Although the case was originally set for a conference on September 29, 2008, that date has been extended. A check of the Supreme Court's docket does not yet give an indication on when the court will review the matter and determine whether to take the case. But given the other matters under consideration, it is not unreasonable to expect a ruling on whether to accept the case by the end of the year.

The case is notable for employers in Connecticut because there aren't a lot of reverse discrimination cases out there. If the Supreme Court decides to hear the case, it is likely that there will be some new guidance about what is, and is not, appropriate in such cases.

Garcia Defends Decision Not to Charge Spitzer

lawblog@wsj.com. (Dan Slater) — Tue, 18 Nov 2008 13:44:00 GMT

U.S. Attorney Michael Garcia comments on the indictment of former New York City police Commissioner Bernard Kerik, who pleaded not guilty to federal corruption charges, Nov. 9, 2007. (AP/Julie Jacobson)

Michael J. Garcia, who yesterday resigned from his post as the U.S. Attorney for the Southern District of New York, made corruption a top priority. But, as today’s New York Times suggests, the case that perhaps drew the most attention was the one he didn’t bring.

?I think at the end of the day that decision is the right decision,? Garcia told the NYT, referring to his decision, made two weeks ago, not to bring charges against former New York Governor Eliot Spitzer. ?And it?s justice in that case,? he added. ?And I stand by it.? Garcia, 47, will leave office on December 1 and head to Kirkland & Ellis. He’ll be succeeded — at least temporarily — by his deputy, Lev L. Dassin, 43.

In the interview with the Times, Garcia said that although there was evidence that Spitzer violated the Mann Act, which prohibits transporting people across state lines for the purpose of prostitution, there were none of the other factors that traditionally weighed in favor of bringing charges, like the use of juvenile prostitutes, or commercial or other exploitation of them.

Garcia said he disagreed with critics who suggested that the decision ?gives a free pass to human trafficking.? He said that criticism was ?not accurate if you look at the history of the cases we?ve done.? Garcia, says the Times, cited situations in which the office had charged people in Mann Act cases, and in which extra factors, such as the use of juvenile prostitutes, weighed in favor of that.

Networking, Thought Sharing and Enough Already

SHG@simplejustice.us (Scott Greenfield) — Tue, 18 Nov 2008 09:10:55 GMT

Someone out there (my bet is on Kevin O'Keefe) can tell me the actual percentage of lawyers who are actively engaged in the ever-increasing world of online activity. If a new lawyer was to stumble into the middle of the blawgosphere, or perhaps the tweetosphere, he would be left with the impression that the primary concern of American law is marketing. It appears to be an obsession.

Is this a problem?

In the blawgosphere, my bet is that I'm in the distinct minority on this one since almost every other lawyer, PDs excepted, is client-hunting. They are not shy about it. They want to network and market. They want to establish their brand. They want to be on the cutting edge of . . . the cutting edge.

Please don't misunderstand. I am a capitalist through and through. I work for a fee. I find no shame in being paid for my services, even as others in my niche tend to prefer what I was informed yesterday was a "larger world view" encompassing the goodness of humankind. Pollyanna I'm not.

But this constant, obsessive, flagrant effort at marketing has me in a twist. Or to be more precise, being a lawyer with a blog and there swept into the assumption that my only purpose here is to self-promote makes me very annoyed. I have nothing against you marketing guys, but I do not want to be tarred along with you.

As Kevin has informed me in no uncertain terms, maintaining Simple Justice is, whether I like it or not, marketing. I understand his point, and reluctantly agree. But it's no more intentional marketing than beating a case at trial, with the word of my victory spreading amongst my peers and potential clients. I didn't win the case to market myself, but it's an unintended consequences. I'm not against it, but I didn't ask for it either.

What I'm seeing is that the "how to" of marketing, the advice on self-promotion and, worst of all, the language that pervades blawgospheric discourse has become increasingly directed to open, notorious marketing. Many of the most popular blawgs around are solely directed toward marketing. Many of the best writers in the blawgosphere post only about marketing. How to snag the last client on earth will be the final post in the blawgosphere.

Is this all we lawyers are? Is this all we want to be?

I used to think the use of business lingo amongst lawyers was funny. Business people, perhaps feeling left out because lawyers tossed latin around with abandon, came up with cute phrases to conduct their affairs to make the insiders seem more "with it." The early word, networking, has become so common and old school as to make its user seem out of touch. We used to use the phrase "talk to other people" before networking. How antiquated does that sound?

I've seen the phrase "thought sharing" a lot lately. I can't wait for the CIA to get it's hands on this one.

Senator, we weren't torturing the prisoners. We were just thought sharing.

I don't "thought share," any more than I network. I do talk to other people from time to time, like normal people do. Sometimes I ask a question of them and sometimes they ask a question of me. We help each other out.

One of my gravest fears for the blawgosphere is that it will turn into one giant infomercial, all about self-promotion and marketing, both to other lawyers (Hey, got a New York case? Send it to me!) and clients (I'm the greatest lawyer since sliced bread. Hire me! Hire me!). Does anybody wonder why there is no cable channel solely dedicated to airing commercials 24/7?

Yes, I realize that there's a reason why the legal marketing blogs are so popular, far more so than a little criminal law blog like Simple Justice. For every person who visits here and reads a post, they get 100. I'm a midget and they're giants. Their visitors are lawyers, hungry for more business, a better future and bread on the table.

Someone, I expect, will read this and comment (or at least mutter to himself) so if you don't like it, don't do it. If others want to do it, what business is it of yours? There's always one person who doesn't get it, and doesn't get that he doesn't get it.

The problem is that this obsession with marketing makes the legal profession, if you're not laughing when I use the word profession, look pathetic. I am part of this profession, and I don't want to look pathetic because of other people's choices. I don't want the public, my potential clients, thinking that we are no better than used car salesman (who are probably now held in higher esteem than lawyers), trying to make a sale any way we can. I don't want my writing considered just another attempt at self-promotion under the guise of offering substantive ideas.

The newer generation of lawyers never knew a time when lawyer advertising was considered unethical and unprofessional. It was undignified. The very concept of lawyers being dignified is foreign to their experience. Imagine a world where lawyers placed integrity and ethics above the next fee, or bonus, or promotion, and as a result of their integrity, received as much as they earned (think John Houseman saying the word "earned").

So I'm begging those of you who are busily planning your next marketing assault, scribbling down the latest phrases so that you can thought-share them with your network, to just cool it. How about we lawyers take a week and stop hyping ourselves like the latest submarine sandwich and spend our time "selling" ourselves by showing rather than telling the quality of our efforts, the integrity of our services and the dignity of our profession.

Wouldn't it be nice if somebody out there thought lawyers were dignified again? Noodle on it.

Bush Administration Land Mines the Interior Department, EPA, and Other Environmental Agencies

smiths@willamette.edu (Susan L. Smith) — Tue, 18 Nov 2008 17:28:16 GMT

The Washington Post reports that the Solicitor of the Interior Department has shifted half a dozen key political appointees – including Robert Comer known for his opposition to the roadless rule and a questionable grazing agreement as well as Matthew...

Prosecutors Unhappy in Federal White Collar Cases: Supreme Court to Decide Whether There Can Be Second Trial for Defendant When First Jury Acquitted But Hung on Some Counts

Tue, 18 Nov 2008 19:29:00 GMT

Some prosecutors are a little like complaining children, they are never satisfied unless they get their way, and they will continue to whine for a long time until they do. This past Friday, in an appeal involving a white collar federal criminal prosecution the Supreme Court took a case to answer whether federal prosecutors can get a second bite at the apple when at the first trial the defendant was acquitted of the major counts, the jury hung on other counts, and in finding the defendant not guilty the jury must have resolved the facts in the defendant's favor. (Defendant's Petition here)

The defendant was involved in the Enron mess. He was charged with conspiracy, mail and wire fraud, securities violations, insider trading and for laundering the money related to the insider trading. The jury found him not guilty of everything except the insider trading and money laundering, and on these charges, they were unable to reach a verdict. The prosecutors tried to crank up a new set of charges based on the areas where the jury did not reach a verdict. The defendant pointed to the Double Jeopardy protection which includes what we call "collateral estoppel". This is the issue the Supreme Court will address in the case.

The collateral estoppel question is both a technical legal issue, along with being a common-sense concept that the average man or woman on the street can figure out (think "Joe the Plumber" gets prosecuted a second time when the first jury found him innocent on basically everything charged). Here's the technical description. Under the rule of collateral estoppel, when a first jury necessarily decides a certain fact against a party, that same party is prevented (or what as we lawyers say, is "estopped") from again trying to litigate that same fact at a later trial. However, what happens when a first jury rules for the defendant, but the jury for some reason is unable to reach a verdict on other charges that have the same basic factual underpinnings? Some of the federal courts say that the hung counts prevent the courts from being certain that the facts underlying the acquitted counts were necessarily found in the defendant's favor. Other federal courts rule in the complete opposite direction: saying that it makes no sense to even consider the charges where the jury was unable to reach a verdict when deciding whether certain facts were necessarily found in the defendant's favor. These inconsistent rulings were likely the major reason the Supreme Court agreed to take the case involving the Enron defendant.

As I said above, the question in this case is both highly technical, yet also something that non-lawyers can grasp. Most folks would understand that when you go through a trial and the jury finds you not guilty on basically everything, prosecutors should not get a second chance. Let's hope that the Supreme Court remembers to apply the Constitution that most of us live under, and not the version wanted by some whining prosecutors who will do anything to get their way.

Scalia Joins Texas Lawyer Hunting Party

lawblog@wsj.com. (Dan Slater) — Mon, 17 Nov 2008 20:32:00 GMT

U.S. Supreme Court Justice Antonin Scalia is escorted through the Jackson International Airport by U.S. Marshalls and an Airport Police Officer, April 3, 1997. Scalia bagged a 20-pound turkey while hunting with friends near Hattiesburg, Miss. (AP/Clarion-Ledger)

Apologies, Law Blog Readers. We’re not sure how we missed this. But we’d never heard of the Tex Parte Blog till today. (Gavel bang: BLT)

We knew that Justice Scalia has been a guest of Texas Tech University, where he was scheduled to give presentations on Friday and this morning as part of the Sandra Day O?Connor Distinguished Lecture Series. What we didn’t know is that, according to plaintiffs lawyer extraordinaire Mark Lanier — founder of the Lanier Law Firm in Houston, Texas Tech Law School alum and underwriter of the lecture series — Scalia had plans to join a hunting party of Texas lawyers over the weekend.

From a Friday post on Tex Parte:

. . . Scalia will join a group of lawyers for a hunt on a ranch that David Segrest, a partner in Gardere Wynne Sewell, owns near Junction. Lanier says he expects Michael Holley, an attorney at The Lanier Law Firm, and Roger Key, a partner in Lubbock?s Key & Terrell, to join the hunting party. ?He?s a big hunter,? Lanier says of Scalia. ?He?s using this weekend to see if everything is bigger in Texas.?

Notes BLT:

The juxtaposition is fairly hard to imagine: Scalia, no friend of unbridled tort litigation (though not always an enemy), chowing down and stalking deer along with Lanier, the colorful trial lawyer who won the first Vioxx verdict and is known for quoting the Bible and slamming corporate America in front of juries.
Lanier also is the author of a friend-of-the-court brief in the pending case Wyeth v. Levine, labeled by some as the business case of the century. Lanier’s brief sides with consumers who don’t want state tort actions against pharmaceutical companies pre-empted by federal law.

What to do about the auto industry

lribstei@gmail.com (Larry E. Ribstein) — Mon, 17 Nov 2008 17:28:51 GMT

Allowing GM to fail might threaten a million jobs, counting the domino effect (see this WSJ article). However, as Bruce MacEwen among others has said: If the Big Three have demonstrated anything over the past 30 years, it is their...

Allowing GM to fail might threaten a million jobs, counting the domino effect (see this WSJ article). However, as Bruce MacEwen among others has said:

If the Big Three have demonstrated anything over the past 30 years, it is their unrivalled managerial genius at misallocating productive assets and falling ever further behind their rivals. Time, one might think, to give someone else a chance to deploy those assets.

Maybe. I’ve thought until recently that it was basically a governance problem. Maybe bankruptcy would solve that by getting the assets into, say, private equity's hands. But, then, Cerberus hasn’t made a go of it either. So who would buy GM in bankruptcy? The Japanese? Why should they do a better job?

Maybe, as David Yermack suggests, cars are just a bad investment. But, then, why are the Japanese companies at least surviving? And if cars are a bad investment, then the auto workers would be out of work and not just redeployed, which is probably not politically acceptable.

Of course you can’t ignore the huge elephant in the room of the legacy labor costs. And there’s also the CAFÉ fuel economy standards, which have forced US companies out of their main competence – building big, fuel-inefficient but heavy-hauling vehicles. Holman Jenkins would attack both problems by getting rid of the CAFÉ two-fleet rule and letting GM make the lower-margin small cars in low-wage factories overseas. That sounds promising. But if you just did that, you’d still have the governance problems.

What seems clear is that we’d be better off burning the money, as Yermack suggests, than just giving it to the existing GM management/labor structure. If the only reason for doing that is to save the jobs, then here’s an idea that would at least be better than burning the money: put the same money into a huge public works/job training program for auto industry workers. Maybe they could build public transit systems.

Now you might find it strange that somebody who’s argued for free markets would advocate a huge government program. However, giving the money to GM right now is basically the same as a government jobs program only worse managed, if you could imagine that.

Market discipline is what makes firms work. But massive government subsidies and the lock-in of overpriced labor short-circuit markets in this case. Without markets, we can't expect shareholder voting, independent directors or takeovers to do the job. It follows that a huge bailout now would make GM the old-economy version of Fannie and Freddie.

Bottom line: if government is going to spend a huge wad of money, why not at least ensure that the politicians are responsible for it? I know it's hardly an ideal outcome. But anybody got a better idea?