LexMonitor | Recent Posts

Teenagers protest Chicago police getting high-power rifles

Sat, 22 Nov 2008 16:55:22 GMT

Nearly 100 teens marched outside Chicago police headquarters Thursday night to protest the department's plans, to equip officers with semi-automatic rifles, saying the weapons could make the streets more dangerous. The plans have been publicly backed by Mayor Richard Daley...Nearly 100 teens marched outside Chicago police headquarters Thursday night to protest the department's plans, to equip officers with semi-automatic rifles, saying the weapons could make the streets more dangerous. The plans have been publicly backed by Mayor Richard Daley...

Gail Collins- NY Times " Time for Him to Go"

Sat, 22 Nov 2008 21:43:34 GMT

November 22, 2008 Op-Ed Columnist- NY Times Time for Him to Go By GAIL COLLINS Thanksgiving is next week, and President Bush could make it a really special holiday by resigning. Seriously. We have an economy that’s crashing and a...

Phone and Fax for Herman Bell and Jalil Muntaqim

Sat, 22 Nov 2008 22:10:24 GMT

PhonSF 8 defendants Herman Bell and Jalil Muntaqim (aka Anthony Bottom) are being held in intolerable conditions in the San Francisco County jail, a facility designed to hold arrestees for only a day or two. The Free the SF 8...

City of Columbus, Georgia Pays $175,000 To Settle Injury Lawsuit

info@serious-injury-litigation.com (Finch McCranie LLP) — Sat, 22 Nov 2008 20:15:28 GMT

As Georgia lawyers handling automobile accident and truck accident cases we have litigated many such cases against Georgia municipalities. I recently read about a case where a man and his wife in Columbus, Georgia filed a personal injury lawsuit against the City of Columbus and a former firefighter to recover for injuries sustained after he ran into their vehicle with a city fire truck. The former firefighter who reportedly tested positive for cocaine an hour and 15 minutes after the crash resigned his job shortly after the collision

What is interesting about the case is that under current Georgia law, city and county governments have sovereign immunity which is waived only to the extent of available liability insurance they may have in force. In this case, the City had $100,000.00 in liability coverage and therefore that was the extent to which the plaintiffs could normally recover from them even if a jury had awarded them substantially more. Fortunately for these injured victims the City of Columbus apparently saw fit to pay them an amount over and above the $100,000.00 in liability insurance and settled the case with them for $175,000, but it could have been different.

Georgia’s sovereign immunity law is unfair to victims of automobile and truck accidents which are caused by the negligence of government employees in the performance of their jobs. People should call their state legislators and ask that cities and counties be held accountable like a private person. It is outrageous to think that a person can be injured or killed by a negligent city or county employee and that the victim would be limited in their recovery to whatever insurance may have been purchased by the governmental entity. The state and the counties should be liable for injuries or death just like any other private citizen.

Creeping consequentialism and insidious economics, part III

phorwitz@law.ua.edu (Paul Horwitz) — Sat, 22 Nov 2008 20:57:49 GMT

Thanks again to commentators for offering thoughtful responses to my last post. Some reactions: 1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism. And Aaron Williams suggests that calling something intrinsically wrong is "just dogma." These are familiar and understandable concerns. To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments. For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn’t it really mean that the negative social consequences of allowing full recovery here...

Thanks again to commentators for offering thoughtful responses to my last post. Some reactions:

1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism. And Aaron Williams suggests that calling something intrinsically wrong is "just dogma."

These are familiar and understandable concerns. To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments.

For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn’t it really mean that the negative social consequences of allowing full recovery here outweigh the positive ones?

Not necessarily. The court might share my doubts that a legal rule limiting the recovery of negligent victims will affect their future behavior. (A jaywalking pedestrian is already ignoring a risk of self-injury; will her incentive to take care really be greater if she now also knows that, if she is run over by a tortious driver with substantial insurance, the damages she would obtain will be less?) Yet the court might believe that it is unjust to require the injurer to pay full damages.

But doesn't "injustice" here translate into "creates (net) bad consequences"? I don't see how it does. To be sure, the court cares about "consequences" in a minimal sense: a legal rule permitting negligent victims full recovery is a "consequence" that the court wishes to avoid. But that is a trivial type of consequence for our purposes: the real question is whether the justification for a rule of diminished recovery is based on consequentialist reasoning (such as utilitarian or economic analysis), or instead on other grounds.

True, specifying what is "unfair" about a victim's obtaining full recovery, or about an injurer creating unreasonable risks to others without having to pay for them, is a complex matter. But that does not mean that the underlying justification really must be consequentialist.

(Here is one useful overview of nonconsequentialist, and specifically deontological, analysis, clarifying how it differs from consequentialism. And here is a useful overview of consequentialism, indicating some ways that it might accommodate deontological objections.)

But there is a wrinkle in this example, and in all cases where we evaluate whether a person's conduct is unreasonably risky. It is especially easy to fall into the trap of assuming that any evaluation of risky conduct must be consequentialist in the deep sense, simply because we must consider the expected harms and benefits that might flow as a consequence of taking the risk. But that assumption is unwarranted. Shooting a gun in the direction of another person is often unjustified conduct because of the risk that it might kill, or wound, or frighten the victim. But the reason it is unjustified could be because it is socially inefficient behavior (warranting legal sanction on a consequentialist account) or because it shows flagrant disrespect for the rights of the victim (perhaps warranting punishment, on a just deserts or retributive account; or warranting a duty to compensate if harm results, on a corrective justice or fairness account).

Put differently, the fact that possible or probable consequences of one's action are morally and legally relevant to its permissibility does not mean that permissibility is just a question of maximizing good consequences. Another example: most agree that a right of self-defense depends on the actor's believing that an aggressor is confronting him with some threshold level of risk of harm (i.e., some probability of a bad consequence), and yet most accounts of why we have a right to self-defense are not consequentialist in the deep sense. E.g., a nonconsequentialist account could rely on the defender's right of autonomy, or the attacker's forfeiture of his right to life. (I have given a fuller account of this argument here.)

2. JSD points out that "reasons" can refer either to the agent's actual motivating reasons for action, or to the normative reasons that, we might say, should have motivated the actor. JSD says that only normative reasons explain the permissibility of an action. Maybe. On the other hand, among criminal law theorists there is a raging debate over whether subjective reasons affect permissibility. If A shoots B, not knowing that B was about to attack him, is A's conduct justifiable? Or is it only justifiable if he was subjectively acting for the right reason (self-defense) or at least with an honest belief (that B was about to attack him)? T.M. Scanlon's new book also explores this issue from the perspective of moral philosophy. (E.g., does the permissibility of a bombing raid that kills civilians depend on the purposes of the bomber, or of the person who planned the bombing? Or does permissibility turn only on the objective reasons supporting the raid?)

3. Thanks to Patrick O'Donnell for his reminder of how widely these debates over how to justify moral and legal norms extend--not only to tort law and criminal law, but also to health law, and indeed, I would say, to every moral and legal issue. And I share his admiration for the work of Robert Goodin, who endorses a nuanced form of consequentialism for public policy decisions.

4. Is a sadistic pleasure (from driving into a crowd, say) really irrelevant to permissibility, or is it simply outweighed by other reasons? A good question. But many utilitarians are willing to "launder" or exclude sadistic, malicious, racist, and some other preferences, giving them no weight in their calculus. Usually it will not matter whether we launder such preferences; for they will normally be outweighed by the bad consequences they are associated with. But on the margin, such preferences, if not laundered, could make a difference to permissibility. We do not permit teenage thrill-seekers to drive faster on public roads than other drivers who get no special thrill from driving fast; but shouldn't a thorough (nonlaundering) utilitarian permit the teenager to drive a bit faster, assuming that all other factors in the utilitarian calculus are the same for both sets of drivers? To be sure, it would be impossible to accurately detect who genuinely obtained that special thrill; but quite apart from this practical problem, I believe that in principle we should, in this context, judge the thrill of speeding irrelevant to permissibility.

4. Ohwilleke comments: If juries are given a Learned Hand instruction, in a form that asks them to apply expected costs and benefits in a utilitarian way, they are likely to ignore the instruction, and rely on their gut. This does not surprise me. Part of the reason for this is that most ordinary people are not straightforward utilitarians. Their "gut" feelings of fairness often reflect nonconsequentialist principles of justice. (But it is also true that their "gut" sometimes reflects unconscious psychological framing effects, hindsight bias, or an unrealistic assumption that if an activity or product is risky, the risk must be unjustifiable.)

Hillary Clinton and interbranch rotation

phorwitz@law.ua.edu (Paul Horwitz) — Sat, 22 Nov 2008 21:06:15 GMT

It apparently is a done deal that Hillary Clinton will be Barack Obama's Secretary of State--and that we will be hearing a lot from Doris Kearns Goodwin. One of the discussion points during the last couple weeks has been why Clinton would give up the chance to remain in the Senate for life and to amass institutional seniority and broad policy power (following the primaries, several people compared Clinton to Ted Kennedy after his failed 1980 presidential bid, when he settled in the Senate and emerged as a powerful liberal voice) to spend perhaps as few as 3-4 years as...

The assumption behind this discussion is that, having given up her Senate seat, Clinton will never get it (or the other New York seat) back. And this probably is true. Imagine a best-case scenario of Clinton serving as secretary of state for 1 1/2 Obama administrations, until 2014. Her seat, initially filled by an appointee and then a special election, will be filled for a full term in 2012, probably by a Democrat. Charles Schumer, the other New York Senator, will be up for re-election in 2010 and would serve until 2016. Since Clinton is highly unlikely to challenge a fellow Democrat for the seat (baring truly unforeseen circumstances), her Senate career is over.

This is illustrative of the disappearance of what Vik Amar in a 1996 article in Vanderbilt called "interbranch rotation," individuals moving directly from the Senate into the executive branch, especially cabinet posts, then back into the Senate soon after leaving the cabinet. Amar traces this disappearance to direct election of senators under the Seventeenth Amendment. Statistics from 1989 showed fifty people moving directly from the Senate to the cabinet in the first 200 years of the system, forty-one of them prior to the turn of the twentieth century. More significantly, of those 41, 13 returned to the Senate within three years of leaving the cabinet--all before the advent of direct senatorial election. One senator has made the Senate-Cabinet-Senate move since the Seventeenth Amendment was enacted--Philander Knox. He actually made the Cabinet-Senate-Cabinet-Senate move. He was McKinley's and Teddy Rooselvelt's Attorney General, was chosen for the Senate in 1904, left the Senate in 1909 to be Taft's Secretary of State, then was elected to the Senate in 1916. Notably, however, Knox's first period in the Senate (1904-09) came prior to the establishment of direct election; in other words, he left his AG position to be immediately appointed to a Senate seat and only had to run for popular election once. I cannot recall an instance since 1989, prior to Clinton, of a sitting Senator jumping to the cabinet.

Amar argues that the old scheme of legislative appointment allowed for side deals and bargains that made interbranch rotation possible and attractive as an option. A sitting senator could leave the Senate to serve in the cabinet for some time, with an under-the-table deal in place with the state legislature that, upon leaving the cabinet, he would be reappointed to the next Senate vacancy from the state. Amar then focuses on the implications for federalism and separation of powers, particularly how this affects Senate functions in areas such as treaty making and appointments, where the body works directly with the Executive.

But the loss of interbranch rotation has a different implication in defining who is likely to be a successful presidential candidate and how an individual can position herself for a run. Recall that Obama is the first person since Kennedy elected directly from the Senate with no significant executive experience. Rick Hills has argued that the recent spate of former governors elected (Bush II, Clinton, Reagan, and Carter, and going back farther, FDR) and recent candidates who have run based entirely on gubernatorial success (Huckabee, Romney, Palin in 2012) reflected a rebirth of federalism--experience at the state level seen as a benefit in a federal executive.

I tend to look at it through a separation of powers lens. There is a modern insistence (perhaps in the electorate, clearly in the media) that a presidential candidate have both executive experience and have served in some high elected office. Someone who has served in federal cabinet positions (or like Eisenhower been a military commander in time of war) but never held elective office would be constantly reminded that he never has been elected to anything. Most legislature-only candidates are constantly reminded that they only have been legislators (it did not hurt Obama because he was running against a fellow Senator), but it struck me as being an issue in 2004. The only positions that give a potential presidential candidate both electoral and executive experience are Vice President and Governor.

Historically, the Senate-Cabinet-Senate move might have been another way to get both credentials and set oneself up for a presidential run at the appropriate time (Knox ran for the GOP presidential nomination in 1908). But direct election removes (or makes incredibly risky) the option. Would a sitting Senator make the move to the Cabinet, knowing that the likelihood of returning to the Senate is virtually non-existence, on the remote (statistically and politically speaking) chance to be President? Such a person would have to be willing to gamble, old enough upon leaving the cabinet to be a viable presidential candidate, willing to leave elected public life if the move did not work, and, relatedly, old enough not to need to be in politics at the end.

I am guessing (this obviously is pure speculation) this is Clinton's political calculus for 2016. She ran for Senate to set herself up for the presidency; the direct route did not work, so maybe she tries a more circular path. If Obama is a successful President and the two are perceived as having a good working relationship, she could make herself a front-runner as the "heir" to Obama's presidency (it will not be Biden, who would be too old by that point). Clinton would be 69 in 2016, so old enough that she might, if unsuccessful, be willing to depart elected life. If this is her path, it will be interesting to see whether her now-significant executive experience (Secretary of State and First Lady cum adviser and counsel to the President) will be derogated because she never was elected to an executive position.

Competitive Federalism and Preemption

profbainbridge@sbcglobal.net (Steve Bainbridge) — Sat, 22 Nov 2008 19:54:53 GMT

At today’s Federalist Society panel, the question came up as to whether a supporter of federalism can consistently with that position also support preemption of state laws, such as NY’s Martin Act, that allow state attorneys general to regulate the national economy through enforcement proceedings. I answering that question affirmatively, I mentioned that the issue had been one of my...

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Using Twitter to Find That Next Job

cmintz@bioinsights.com (Cliff Mintz) — Sat, 22 Nov 2008 20:51:38 GMT

I never truly understood the power and reach of Twitter until I caved in and started using it about a month ago. Over the past couple of weeks, I realized that Twitter is an ideal tool for networking and job hunting. Apparently, I am not alone. Miriam Salpeter from Keppie Careers has graciously agreed to shares some tips on using Twitter to help you search for a Job. Follow Miriam on Twitter @Keppie_careers.

Tweeting Your Way to a Job

Would you believe that you can tweet yourself to a job opportunity 140 characters at a time? It’s been done! Statistics show that job search networking is much more effective when you make “loose” connections - touching base with people beyond your immediate circle whose networks and contacts are much different from your own. With over 3 million users, Twitter offers an unparalleled opportunity to create an extended network.

Not convinced that Twitter is actually a high-powered job search tool? Read on to learn how Twitter can uniquely position you for job-hunting success!

What Can Twitter Do For You?

Afford access to other professionals in your field. When you follow industry leaders, you’ll know who spends time with them, what conferences they attend (and what they think of the speakers!), what they’re reading and what is on their minds. This is great information to leverage for your search.
Provide exposure and credibility as well as personal and professional relationships when you connect to others in your industry.
Offer you a venue to demonstrate your expertise and share information in quick, pithy bursts of wisdom. This is perfect if you don’t have the time or energy to create a blog.

Unique Aspects of Twitter

It is casual and immediate and a great place to “meet” informally.
You’ll find an array of people on Twitter, including CEOs, top-level executives, hiring managers, recruiters and everyone in-between! It’s one-stop shopping for your networking needs. You’ll be surprised to find that stars in your field (mentors) may follow you if you reach out to them!
Unlike Facebook, where it is kind of creepy if you start trying to “friend” people who are connected to your contacts, it is acceptable (and expected) to follow people on Twitter because another friend or colleague does.
It forces you to be brief. Coming up with your “Twit-Pitch” - what you have to offer in 140 characters or less - will help you clarify your value proposition. Remember: less is more!

erview that resulted in a perfect position!
Kyle Flaherty used Twitter to find a job that moved him and his family to Austin, TX from Boston. He tweeted to approximately 650 contacts that he had left his job. He included a link to a blog post outlining his interest in connecting. He explains, “Within hours I had several emails, IMs, phone calls and tweets about the topic and it actually ended up that I took a new job.” Follow this link for an interview with Kyle’s new boss, Pam O’Neil, who explains how she and Kyle used Twitter to fill the position.
Heidi Miller, the “Podcasting Princess,” found a freelance project using Twitter by tweeting updates about her job hunt. Many of her colleagues questioned the wisdom of being so open about her search; they worried she look desperate or foolish. However, the ends justified the means.

As more and more get involved (dare I say addicted?) to Twitter, opportunities to leverage this tool for job search networking will grow exponentially. Don’t be the one left behind! Get on board and start connecting for success!

Bog Glob: Saturday posts on the billable hour

stephanie@idealawg.com (Stephanie West Allen) — Sat, 22 Nov 2008 21:37:08 GMT

Excerpt from "From Cravath: How to Cut Corporate Legal Costs" (BusinessWeek):..."Hire lawyers who have more work than they know what to do with, because it will force them to be efficient." Lawyers who aren't busy may find that handling a matter expeditiously is not in their interest. "You want the...

Excerpt from "From Cravath: How to Cut Corporate Legal Costs" (BusinessWeek):

..."Hire lawyers who have more work than they know what to do with, because it will force them to be efficient." Lawyers who aren't busy may find that handling a matter expeditiously is not in their interest. "You want the lure of an additional hour to be a bad thing, not a good thing," [Evan R.] Chesler says.

That leads to a third and core bit of counsel: Try to work out fees that are not based on the billable hour. "The billable hour can be a terrible thing," says Chesler. In litigation, he explains, "it creates all the wrong incentives," feeding a system "where it's more profitable to lose than it is to win." ...

Click to read the rest.

From Lawyers Ditch Billable Hour Structure (NPR via In Search of Perfect Client Service):

Private law firms charge their clients a fortune in billable hours. Now, some firms are doing away with this form of billing because clients just can't afford it. With the economy failing, some lawyers are finding themselves out of a job too.

Click to read the rest.

Blog Glob: "New Pain-Inducing Advil Created For People Who Just Want To Feel Something, Anything"

stephanie@idealawg.com (Stephanie West Allen) — Sat, 22 Nov 2008 21:50:17 GMT

Excerpt from "New Pain-Inducing Advil Created For People Who Just Want To Feel Something, Anything" (The Onion):PHILADELPHIA—Wyeth Pharmaceuticals unveiled a new pain-causing line of Advil this week that will help millions of benumbed, hollow consumers to feel at least somewhat alive for up to four hours."Advil Release delivers a soothing...

Excerpt from "New Pain-Inducing Advil Created For People Who Just Want To Feel Something, Anything" (The Onion):

PHILADELPHIA—Wyeth Pharmaceuticals unveiled a new pain-causing line of Advil this week that will help millions of benumbed, hollow consumers to feel at least somewhat alive for up to four hours.

"Advil Release delivers a soothing burst of pain when cold and listless Americans need it most," Wyeth CEO Bernard J. Poussot said during a press conference Monday. "Just two capsules can deliver all-day relief in the form of searing, life-affirming agony; the kind of agony Advil users trust when being a pale specter of humanity adrift in a meaningless and uncaring universe is just not an option anymore."

According to Poussot, the new drug works by delivering a powerful stimulant straight to the brain's pain center, causing an intense stinging sensation all over the body. ...

Click to read the rest.

BioCrowd-Beta Is Ready For Launch

cmintz@bioinsights.com (Cliff Mintz) — Sat, 22 Nov 2008 21:15:01 GMT

I want to let my readers know that a beta-version of BioCrowd is ready for review. For those of you who may not know about BioCrowd, it is a social network for life sciences students and professionals that was created by Vincent Racaniello a Professor at Columbia University College of Physicians and Surgeons and me.

The reason we started BioCrowd was that Vincent and I both perceived a need for undergraduate and graduate students and postdoctoral fellows to more effectively network with established scientists and life sciences professionals to further advance their careers or find jobs. The social interactivity of Facebook and the business connectivity of LinkedIn are what led to the creation of BioCrowd.

We are looking for a few brave women and men who want to help to beta-test BioCrowd before we launch. If you are interested, please visit us at www.biocrowd.com and drop us a line. For those of you who don't want to participate at the moment, but want to learn about our progress, you can follow us on Twitter and FriendFeed ,

Until next time...

Good Luck and Good Job Hunting!!!!!!!

Milwaukee Public Schools wasteful spending exposed

info@sequence-inc.com (Tracy Coenen) — Sat, 22 Nov 2008 20:54:13 GMT

It has long been a mystery how a school system as bad as Milwaukee Public Schools (MPS) can spend over $14,000 per year per child.On a daily basis, the school district is spending $3,287,671.23 a day, 365 days a year. At that rate of spending, you’d think they would have something to show for it. Instead, [...]

Curious Registry Stuff: Real Offender is the Law

Sat, 22 Nov 2008 21:52:05 GMT

Here is the intro to this good piece (ht, Doc), called "Real Offender," In its relentless efforts to expel Wendy Whitaker from her Columbia County home, the state of Georgia has crossed the line from protector to persecutor of its citizens. The state isn’t inciting torch-wielding mobs to chase Whitaker from her home 20 miles west of Augusta. But it is using a gaggle of state attorneys and a

Mobster Offers Only Pennies Per Hour in Restitution to Families of Victims

chicagosyndicate@gmail.com (Joe Batterz) — Sat, 22 Nov 2008 20:13:58 GMT

Prosecutors want James "Little Jimmy" Marcello to pay millions in restitution for the victims' lost lifetime earnings. There were fourteen of them, killed in cold blood by the Chicago Mob. Federal...

Junior Says Tampa Trial is Not Fair

chicagosyndicate@gmail.com (Joe Batterz) — Sat, 22 Nov 2008 20:36:42 GMT

John A. "Junior" Gotti thinks it's just not fair for prosecutors to insist that his mob racketeering trial take place in Tampa. Charles Carnesi, 1 of Gotti's attorneys, told a judge Thursday that...

On the Anniversary of JFK's Assassination, Questions Remain for Some Regarding the Mob's Role, If Any

chicagosyndicate@gmail.com (Joe Batterz) — Sat, 22 Nov 2008 21:20:13 GMT

Will we ever know for sure? Saturday, marks the 45th anniversary of the assassination of President John F. Kennedy. Gunshots rang out at Dealey Plaza in Dallas, echoing around the world. Those shots...

Chicago's Police Hold Summit with their Organized Crime Division

chicagosyndicate@gmail.com (Joe Batterz) — Sat, 22 Nov 2008 22:13:28 GMT

There are at least 80 gangs dealing drugs on the city's streets, protecting their business and territory with guns. On Saturday, Chicago Police gang and tactical officers from across the city will...

State Liquor Authority decision modified following Article 78

Kevin@sheerinlaw.com (Kevin Sheerin) — Sat, 22 Nov 2008 19:21:20 GMT

Cris Place v. NY State Liquor Authority Appellate Division, First Dept 2008 NY Slip OP 09161

The SLA imposed a $1000 bond forfeiture and a $8,500 civil penalty against the Petiitoner after a hearing which found that marijuana use; after-hours drinking; violation of local laws and ordinances and cabaret activity took place at the accused premises. The First Department ruled that there was no substantial evidence to support the marijuana accusation but the other charges were backed by substantial evidence. The Court sent the case back the the SLA for reconsideration of the penalty. The decision can be found here: www.nycourts.gov/reporter/3dseries/2008/2008_09161.htm

Marcilynn Burke -- Recently Tenured at Houston

Sat, 22 Nov 2008 21:08:01 GMT

Please join me in congratulating Marcilynn Burke who received a unanimous vote in favor of tenure on Friday, November 21, 2008 from her colleagues at the University of Houston Law Center. This is a wonderful accomplishment and well-deserved. Carol N....

Good Facts for a Nuisance Question

Sat, 22 Nov 2008 21:35:50 GMT

If you are looking for really compelling facts for a nuisance law question, there was an interesting story in the NY Times this summer entitled, "An Old Sound in Harlem Draws New Neighbors' Ire." I have attempted to attach the...