Sunday, June 30, 2013

The Ethics of Overcharging

Brian Tannebaum twitted about the final sentence of John Steele's post at Legal Ethics Forum, calling it "priceless."

Criminal law is not my forte but the murder two charges seem to me to be clearly beyond what an ethical prosecutor should bring.
Brian's point was that John, while disclaiming that he knew nothing about the subject, didn't let that stop him from questioning the prosecutor's ethics. This was about the Zimmerman case, a hot subject that many wanted in on. There is nothing wrong with having something to say about a high profile case that's caught the interest of many, but one might suggest that if you're going to write about it, you can't simultaneously disclaim responsibility by the "I don't know nothing about birthin' no babies" caveat. Then again, Tannebaum tends a bit toward snark on twitter sometimes.

After reading Tannebaum's twit, I asked John why, what ethical issues was he raising, what ethical proscriptions was he suggesting the prosecutor violated.  John explained.

At least by the time that probable cause affidavit was filed and the prosecutor prayed with the lawyer for the parents of the deceased, I've been of the opinion that the charges were filed not because they were supported and could be proven beyond a reasonable doubt but rather because of the politics. Looking over what evidence the State still has, I don't see that they're anywhere close to murder two and I don't buy that the theory of "let the jury dispose of our over-charging" absolves prosecutors of their responsibilities.
From the outside, much of criminal law seems best explained by politics. If the prosecutor's motivation isn't to charge a defendant with the crime the evidence supports, but with a charge intended to appease public blood lust or, more charitably, appeal to the public's sensibilities, it certainly emits an unpleasant odor.

But it's hard to prove motive, particularly malevolence. We can assume it easily enough of our enemies, those with whom we don't share the same politics, but we do so at our peril.  The system purports to weed out charges that are unsupportable by the evidence, but it offers prosecutors a rather wide berth to charge the highest and worst count conceivably supportable. 

Outsiders may see such charges as ill-conceived, improperly motivated, but that's because we have the normative sense that it offends our sense of justice and propriety. But then, we're outsiders, not the prosecutors, and they are charged with exercising the discretion of charging what they want.  It's not a free ride, as charges can be dismissed when they overcharge, or they can be humiliated at trial when the evidence doesn't bear out and the defendant walks.  Or they can get twelve men six women good and true to convict despite the lack of evidence. That's our system for better or worse.

Is a Murder 2 charge for Zimmerman so far out the ballpark as to be utterly unsupportable, a charge that no rational jury could find?  It may be beyond the pale as far as some are concerned, but does it rise to the level of overcharging that puts the prosecution's ethics in doubt?  The statute reads:

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
Was Zimmerman's mens rea depraved? There are a great many people out there who would argue it was. John Steele thinks otherwise. Both are allowed their views, particularly since the trial has yet to start and evidence yet to be introduced. Laws based on mental states like "depraved" are sufficiently vague and wiggly that they lend themselves to such disputes.

Whether that's the "right" charge under the facts and circumstances of this case remains to be seen. But that it doesn't come anywhere near an unethical abuse of power by the prosecutors seems clear. It's in the ballpark, even if somewhere near the top of the left field fence. That remains within the prosecutor's reasonable discretion, no matter how unpalatable it may seem to some.

But after John responded to my query, Hofstra lawprof Monroe Freedman decided to put in his two cents.

When a prosecutor overcharges - a common practice - the principal purpose is to "bargain" down from that frightening charge to a "negotiated" guilty plea to what the prosecutor should have had to charge and prove to a jury if the system were working pursuant to the Constitution. Too often, the charade of a negotiation is with the connivance of the court-assigned defense lawyer, who helps to con the defendant into thinking that he has gotten a truly negotiated deal to the best plea possible.

Another purpose is to frighten the defendant into asking for a lesser-included offense instruction, which gives the prosecution the possibility of a compromise verdict from the jury to a finding of guilt of a significant offense, although less than what was initially charged.

Freedman has been around forever. He's got cobwebs in his office older than I am.  But aside from his comment having utterly nothing to do with the Zimmerman case or the discussion between John Steele and me, it is such malignant, simplistic cynicism as to shock even a curmudgeon like me.

Yes, Monroe, there are prosecutors and defense lawyers like that. There are also prosecutors who charge appropriately and believe they are doing their job of protecting the public from harm. There are defense lawyers who will fight to the bitter end for their clients against all odds, and there are defense lawyers who accurately advise clients that the end will be bitter.

Since John Steele's blog is called Legal Ethics Forum, there ought to be an ethical takeaway. Mine is that Monroe Freedman has his tin foil hat on too tight, and ought to put down his keyboard and rest on laurels before destroying his legacy.  Not even a fixture in academia has the right to make people stupider by proffering such overcharges of hatred and malevolence. Not ethically.

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Wedding Vendors That Refuse Gay Customers Often Lose In Court

Suppose you own a bakery or a flower shop, or rent out your hall for wedding receptions, and you oppose same-sex marriage. Should you be required to serve gay couples? Most state public accommodation laws require businesses to serve everyone. But some vendors who oppose gay marriage on religious grounds say accommodating gay weddings would violate their religious beliefs. As gay marriage becomes more widespread, these conflicts between religious and civil rights are growing.

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Pardon Our 100th Interruption

The Kennedy Mighell Report has reached a milestone: Episode 100! As part of the celebration your hosts will bring you today’s legal technology issues in the format of one of their favorite shows: ESPN’s Pardon the Interruption. Hear how technology can make your business more efficient, highlights from the ABA Tech Show, the future of technology for lawyers, and more


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Delaware Chancery Court Establishes Procedural Framework for Obtaining Business Judgment Review for Going Private Transaction Sponsored By Majority Stockholders

In In re MFW Shareholder Litigation, C.A. No. 6566-CS, 2013 WL 2436341 (Del. Ch. May 29, 2013), the Delaware Court of Chancery analyzed one of the most important open questions of Delaware corporate law: whether it is possible for majority stockholders to structure a going private transaction to avoid “entire fairness” review by the Court and instead have the transaction be reviewed under the more deferential “business judgment” standard. After carefully considering precedent and scholarly commentary on this issue, the Court of Chancery concluded that majority stockholders sponsoring a going private transaction can obtain “business judgment” review of the transaction if:

  1. the controlling stockholder conditions the transaction on the approval of both (i) a special committee of the board of directors and (ii) a majority of the minority stockholders;
  2. the special committee is truly independent;
  3. the special committee is empowered freely to select its own advisors and to say “no” to the transaction definitively;
  4. the special committee meets its fiduciary duty of due care;
  5. the vote of the minority stockholders is fully informed; and
  6. minority stockholders are not coerced in connection with the vote.

Although this decision provides majority stockholders with a clear procedural framework for how to structure a going private transaction to avoid “entire fairness” review, some uncertainty will remain until the Delaware Supreme Court rules on this issue.

M&F Worldwide (“MFW”) is a holding company incorporated in Delaware engaged in a wide variety of businesses. MFW was 43.4% owned by MacAndrews & Forbes, which was in turn owed by Ron Perelman. In May 2011, Perelman began to explore the possibility of taking MFW private by merging it with MacAndrews & Forbes. Perelman then sent a proposal to MFW’s board offering to purchase its shares for $24 in cash. Notably, the proposal stated, among other things:

We will not move forward with the transaction unless it is approved by . . . a special [independent] committee. In addition, the transaction will be subject to a nonwaivable condition requiring the approval of a majority of the shares of the Company not owned by M&F or its affiliates.

In response to the offer, the independent directors of MFW decided to form a special committee to further evaluate Perelman’s offer. The independent directors specifically empowered the special committee to (i) perform such investigations as it deemed appropriate; (ii) evaluate the terms of the proposal; (iii) negotiate with Perelman regarding the terms of the proposal and any final agreement; (iv) report any final recommendations to the board; and (v) have the ability to decline the proposal outright. The independent directors also decided that the board of MFW would not approve the proposal without a prior favorable recommendation by the special committee. Although the special committee had the authority to negotiate and say “no,” it did not have authority to market MFW to other buyers.

The special committee interviewed four financial advisors before hiring Evercore Partners (“Evercore”). Evercore produced a range of valuations for MFW from $15 to $45 per share. With Evercore’s analysis in tow, the special committee decided to counter Perelman’s offer at $30 per share. The parties negotiated until Perelman made a best and final offer of $25 per share. Evercore opined that the price was fair, and the special committee and MFW’s independent directors unanimously decided to accept the offer and recommend it to the stockholders.

In November 2011, MFW issued a detailed proxy statement to stockholders recommending that they approve the transaction. Ultimately, 65% of the minority stockholders approved MFW’s merger with MacAndrews & Forbes, and the transaction was consummated.

In response, some stockholders sued MacAndrews & Forbes, Perelman and the other directors of MFW, alleging the transaction was unfair. After initially seeking a preliminary injunction to block the merger vote, plaintiffs instead chose to seek post-closing damages for breach of fiduciary duty. Defendants moved for summary judgment arguing that no material issue of fact existed regarding whether MFW’s special committee was truly independent with the power to say “no,” or whether the transaction was approved by a fully informed majority of the minority of stockholders. The court agreed and granted summary judgment in favor of defendants.

Whether a majority stockholder-sponsored going private transaction may be reviewed under the business judgment rule when it is both approved by a special committee of independent directors with the power to negotiate and say “no” and subject to the approval of the majority of the minority stockholders was an issue of first impression for the Delaware courts. Plaintiffs argued that the more rigorous “entire fairness” review applied, relying upon the Delaware Supreme Court’s decision in Kahn v. Lynch Communication Systems, 638 A.2d 1110, 1117 (Del. 1994). The court here, however, distinguished Kahn v. Lynch because the transaction at issue there was procedurally different from the transaction at issue in MFW. The transaction in Kahn v. Lynch was a merger between a parent corporation, Alcatel, and the subsidiary that it controlled, Lynch. Alcatel owned 43% of Lynch, and sought to obtain the rest of Lynch through a cash-out merger. Lynch created a special committee to negotiate with Alcatel. The Lynch merger, however, was conditioned only upon the approval of the special committee, not also on the approval of the non-Alcatel stockholders. Furthermore, the special committee in Lynch was not empowered to say “no,” because Alcatel reserved the right to and did in fact threaten to approach the stockholders with a tender offer at a lower price should the special committee reject the proposed transaction.

After distinguishing Kahn v Lynch, the Court of Chancery concluded that “business judgment” review should govern the transaction between Perelman and the minority stockholders of MFW because the procedural safeguards employed were the optimal ones for the minority of stockholders. The court reached this conclusion after discussing a series of scholarly articles examining majority stockholder sponsored transactions and the effect of plaintiffs litigation on the final price obtained by minority stockholders. By giving controlling stockholders access to “business judgment” review for going private transactions, a strong incentive is created to give minority stockholders much broader access to the transactional structure that is most likely to effectively protect their interests.

The MFW decision is quite significant. If the Delaware Supreme Court affirms, controlling stockholders will have a clear procedural roadmap for how to structure going private transactions to obtain the benefit of the deferential “business judgment” standard of review. This is critical. By offering the majority stockholders a procedure for obtaining “business judgment” review, the majority stockholder will be able to avoid court scrutiny of the substance of the transaction. Instead, the court will limit its oversight to whether the transaction was approved by an independent special committee with the power to negotiate and say “no,” and by an uncoerced fully informed majority of the minority stockholders. This decision also may deter a certain amount of stockholder litigation that almost always follows the announcement of a “going private” transaction by lowering the likely settlement value of cases filed in response to transactions structured pursuant to the MFW framework.

For further information, please contact John Stigi at (310) 228-3717 or Alejandro E. Moreno at (619) 338-6664.


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Clerkship Contest Starts Today (At Least Officially)

For many law students hoping to land a prestigious federal clerkship, it's a stressful Friday.


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Delaware and California Courts Split as to Whether a Reverse Triangular Merger Results In an Assignment By Operation of Law, Creating Potential Pitfalls for Delaware and Other Foreign Corporations Located in California

In Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A. No. 5589-VCP, 2013 WL 911118 (Del. Ch. Feb. 22, 2013, rev. Mar. 8, 2013), the Delaware Court of Chancery held that a reverse triangular merger does not result in an assignment of the assets of the surviving entity by operation of law. Although the Meso Scale Diagnostics decision confirms, at least under Delaware law, the long-standing view of many practitioners that a reverse triangular merger does not result in an assignment by operation of law, it does not directly affect the contrary position taken by the United States District Court for the Northern District of California in SQL Solutions, Inc. v. Oracle Corp., 1991 WL 626458 (N.D. Cal. Dec. 19, 1991), that under California law a reverse triangular merger does constitute an assignment by operation of law. As a result, foreign (i.e., non-California) corporations in California subject to Section 2115 of the California Corporations Code (“Section 2115”) must consider the holdings in Meso Scale Diagnostics and SQL Solutions when analyzing the effect that an acquisitions may have on contractual anti-assignment provisions.


A reverse triangular merger is an acquisition structure whereby one company, the acquirer, creates a subsidiary to acquire a target company. The subsidiary of the acquirer purchases the target and thereafter merges with and into the target company, with the target company surviving the merger. The result of structure is that the target company continues to exist, but as a wholly-owned subsidiary of the acquirer.

SQL Solutions. In 1986, Oracle Corporation entered into a software licensing and services agreement with a software vendor, D&N Systems Inc. Under the terms of that agreement, D&N received rights that were exclusively for its own use and were not to be assigned or transferred to a third party without Oracle’s prior written consent. In 1990, D&N merged with SybaseSub, Inc., with D&N as the surviving corporation, but changing its name to SQL Solutions, Inc. Oracle alleged that the anti-assignment terms of the licensing and services agreement were breached when the rights granted thereunder to D&N were transferred to SQL. D&N claimed that because there was only a change of ownership followed by a name change, no assignment or transfer of rights occurred.

In concluding that under California law a reverse triangular merger constitutes an assignment by operation of law, the SQL Solutions court held that California courts have consistently recognized that an assignment or transfer of rights does occur merely through a change in the legal form of ownership of a business. The SQL Solutions court found that a transfer of rights is no less a transfer because it occurs by operation of law in a merger.

Meso Scale Diagnostics. In 2007, Roche Diagnostics GmbH acquired BioVeris Corporation through a reverse triangular merger, which resulted in BioVeris becoming a wholly-owned subsidiary of Roche. Following the acquisition, Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC sued Roche alleging that the acquisition violated the anti-assignment clause of a consent agreement to which they were a party because the reverse triangular merger was an assignment by operation of law and their consent was not obtained. Roche moved for summary judgment and argued that there was no assignment by operation of law or otherwise because BioVeris was the surviving party of the merger, and, therefore, BioVeris did not assign anything to Roche.

In granting Roche’s motion, the Delaware Court of Chancery held that Section 259 of the Delaware General Corporation Law supported Roche’s position that “generally, mergers do not result in an assignment by operation of law of assets that began as property of the surviving entity and continued to be such after the merger.” In doing so, the court explicitly dismissed plaintiffs’ argument that the court should embrace the holding in SQL Solutions that a reverse triangular merger results in an assignment by operation of law. The court stated that if it were to adopt the approach in SQL Solutions, it would conflict with Delaware’s jurisprudence surrounding stock acquisitions. Specifically, the court held that under Delaware law, stock purchase transactions, by themselves, do not result in an assignment by operation of law: Delaware corporations may lawfully acquire the securities of other corporations, and a purchase or change of ownership of such securities is not regarded as assigning or delegating the contractual rights or duties of the corporation whose securities are purchased.


Foreign Corporations. Section 2115 imposes various requirements of California law on non-California corporations with substantial connections to the state. Specifically, Section 2115 provides that if a corporation is subject to Section 2115, California law trumps the law of the jurisdiction in which such corporation is incorporated with respect to certain matters. The “internal affairs doctrine,” on the other hand, holds that the laws of the state of incorporation should normally govern a corporation’s internal affairs. Internal affairs are described as those “matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders.” Edgar v. MITE Corp., 457 U.S. 624, 645 (1982). Section 2115 and the internal affairs doctrine have created confusion for foreign corporations attempting to comply with conflicting laws of two states. However, the Delaware Supreme Court decision in VantagePoint Venture Partners 1996 v. Examen, Inc., 871 A.2d 1108 (Del. 2005), and the subsequent holding by the California Court of Appeal in Lidow v. Superior Court, 206 Cal. App. 4th 351, 141 Cal. Rptr. 3d 729 (2012), shed some light as to how courts may interpret the holding in Meso Scale Diagnostics as it applies to corporations subject to Section 2115.

VantagePoint. In VantagePoint, the Delaware Supreme Court held that the internal affairs of Delaware corporations are to be decided exclusively in accordance with Delaware law. Specifically, the Court stated that the “internal affairs doctrine is a long-standing choice of law principle which recognizes that only one state should have the authority to regulate a corporation’s internal affairs — the state of incorporation.” The Court also noted that there was a need for certainty and predictability in determining the internal affairs of a corporation and that applying the law of one state over another would result in uncertainty and intolerable confusion. The Court rejected the applicability of Section 2115 and stated that the statute violated the “well-established choice of law rules and the federal constitution mandated that Examen’s internal affairs . . . be adjudicated exclusively in accordance with the law of its state of incorporation.”

Lidow. While the VantagePoint decision provided clarity as to how Delaware courts viewed the conflict between Section 2115 and the internal affairs doctrine, it was not until 2012 in Lidow that the California Court of Appeal suggested that it also agreed with the application of the internal affairs doctrine over Section 2115 in certain contexts. The court in Lidow indicated that the internal affairs doctrine in certain circumstances, such as mergers, consolidations and reorganizations, that involve a corporation’s relationship to its shareholders, trumps the requirements of Section 2115. Specifically, the court noted that the removal of an officer from a corporation for a number of reasons would fall within the internal affairs of corporation, and thus be governed by the laws of the state of incorporation, but the removal of an officer allegedly in retaliation went beyond internal corporate governance and was governed by the law of California, where the alleged wrong occurred.

Impact of Meso Scale Diagnostics. The Meso Scale Diagnostics decision finally clarified that, at least under Delaware law, a reverse triangular merger is not considered an assignment by operation of law. However, the decision did not affect the contrary holding in SQL Solutions. Which decision governs an anti-assignment provision may depend on the purpose of the primary transaction. Under VantagePoint and Lidow, if a reverse triangular merger is conducted for purposes of an internal reorganization, a California court may find that the internal affairs doctrine trumps the requirements of Section 2115. However, if a reverse triangular merger is conducted for purposes that are not integral to the internal affairs of a corporation, a California court may find that the requirements of Section 2115 trump the internal affairs doctrine.

For further information, please contact David Sands at (213) 617-5536 or Amrita Nangiana at (213) 617-5495.


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Six Hats: Parallel Thinking for Paralegals

Edward De Bono’s, Six Thinking Hats, also known as parallel thinking, is a fun method used in NALA’s year-long leadership webinars for those involved in state and local affiliated associations. On The Paralegal Voice, co-host Vicki Voisin welcomes Karen G. McGee, ACP, President of NALA, as they spotlight De Bono’s method of thinking and share some important tools paralegals can use to facilitate open discussions in a meeting or work situation.


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Building a Foundation for a Comprehensive GRC Program

Building a comprehensive GRC program that can deliver the full potential benefits is dependent on effective processes for:

Tracking relevant regulations and implementing and enforcing related policies and controls

Assessing and managing operational risk

Internal auditing and testing of controls

Dealing with incidents and losses

In this podcast, learn more about achieving such a program and how the right technology enables the bridge-building, tracking, monitoring, standardizing, documenting, communicating, and reporting needed for a GRC program that is proactive, sustainable, and defensible — without requiring a huge staff to support it.

Source: ttp://

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Saturday, June 29, 2013

The AAPD in 2013 and the Fight for People with Disabilities

The American Association of People with Disabilities (AAPD), is the nation's largest disability rights organization, helping many individuals since its inception. In this podcast, Ringler Radio host Larry Cohen joins co-host, Randy Dyer, and special guest, Mark Perriello, the President and CEO of the AAPD, to talk about AAPD’s mission for 2013, all the great things the organization is involved in and the continued fight for people with disabilities.
The American Association of People with Disabilities 2013 Leadership Awards Gala will be held on Tuesday, March 5, 2013. The AAPD is the nation’s largest "Cross Disability" organization and has raised over $1.7 Million for the 2013 Gala-an all-time record! In addition, over 25 members of Congress plan to attend.


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The Metrics Behind Predictive Coding

The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack, chats with Eric Robinson, Solution Architect at Kroll Ontrack, about the key metrics lawyers need to understand when using predictive coding or Technology Assisted Review (TAR) and how these metrics make e-discovery more economical and efficient.

Eric Robinson has more than 20 years of accumulated legal, e-Discovery and project management experience. As a Solution Architect at Kroll Ontrack, Eric works collaboratively and consultatively with clients to develop and implement strategic cost-effective, efficient and defensible discovery strategies. Leveraging his knowledge of current legal trends, regulatory matters, and information management technologies for litigation, Eric recommends defensible processes, procedures and technology solutions to optimize client efficiencies and develop best practices.
The first step to implementing predictive coding into your e-discovery review process is understanding key terms like Confidence Level, Precision, Recall, and Accuracy. And don’t worry, the intent with predictive coding is to have the mathematical values automatically computed by the document review software, no calculator required!


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Obesity can be a disability, at least in Montana

Obesity can be a disability, at least in Montana.

Full decision: BNSF Railway v. Feit (Montana 07/06/2012)

Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.

BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.

The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?

The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).

The federal court laid out these facts:

1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.

2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”

3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.

4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.

5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.

6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.

The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).

The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.

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Scalia Accuses Kennedy of Being Too German

By one reckoning, the gay-marriage battle at the U.S. Supreme Court came down to Germany v. Britain, and this time, Germany won.


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Future Law Office: Top Technology Trends Reshaping the Legal Field

In this video podcast of The Robert Half Legal Report, Charles Volkert, executive director of Robert Half Legal, and Robert Ambrogi, co-host of Lawyer2Lawyer on the Legal Talk Network discuss how law firms and corporate legal departments are leveraging technology to improve services and streamline workflow. They share key findings from Future Law Office, Robert Half Legal’s annual research program that examines important developments in the legal profession.


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Here Comes the Next Round of E-Discovery Rules

In this May edition of Law Technology Now, host Monica Bay, editor-in-chief of ALM’s Law Technology News, invites Mark Michels, a director in Deloitte Financial Advisory Services, and Henry Kelston, senior counsel at Milberg, to discuss the proposed changes in federal e-discovery rules. Kelston’s article, "Are We on the Cusp of Major Changes to E-Discovery Rules?", was recently published in Law Technology News.

Mark Michels is a director at Deloitte Financial Advisory Services. As a former in-house counsel, he specializes in advising on electronic discovery management. Mark has more than 13 years of experience in devising multi-faceted corporate discovery programs, including developing discovery compliance processes and requirements, evaluating and implementing solutions for collection, processing, review, and production of diverse corporate data, and applying continuous process improvement methodologies.

Henry Kelston is senior counsel at Milberg, specializing in complex litigation and electronic discovery. Henry is a member of the firm's e-discovery practice group and The Sedona Conference's Working Group 1 on Electronic Document Retention and Production. He is a frequent writer and speaker on e-discovery issues.

Listen in on the roundtable discussion of the future of e-discovery.


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Making Small Criminals Big (Video Update)

The problem for most people who would otherwise think an entrapment defense will save their sorry butts is that they are otherwise predisposed to commit the crime.  That makes small time criminals the perfect mark for the Bureau if Alcohol, Tobacco and Firearms, which may not be able to investigate and find anyone actually committing a crime, but has become extremely good at making crimes happen.

Via Brad Heath at USA Today:

They were waiting for a phone call that would launch a daring and dangerous crime, sending them charging through the front door of a Mexican drug ring's stash house to steal 50 pounds or more of cocaine from three armed guards. Their plan was to disguise themselves as police officers, tie up the guards, and slip away with a half-million dollars worth of drugs. If tying them up didn't work, they'd kill them all.

Only the small army of federal agents watching them knew that it was all a lie.

There was no house. No drugs.

And the only things waiting for them when the call came were a team of camouflaged federal agents with rifles and stun grenades, and the promise of a long prison sentence for a plot to steal and re-sell non-existent cocaine.

So far, they rounded up more than 1000 would be winners of the criminal lottery this way, offering wildly profitable enticement to people who they've identified as potential bad dudes.  Maybe not violent. Maybe not big league. Maybe not of the sort that would ever consider taking down a big time stash house, but at least a naughty enough to take the enticement seriously and to squeak past entrapment.

(Updated to add in the video, now that it doesn't include advertising or autostart. Thanks, Brad.)

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency in charge of enforcing the nation's gun laws, has locked up more than 1,000 people by enticing them to rob drug stash houses that did not exist. The ploy has quietly become a key part of the ATF's crime-fighting arsenal, but also a controversial one: The stings are so aggressive and costly that some prosecutors have refused to allow them. They skirt the boundaries of entrapment, and in the past decade they have left at least seven suspects dead.

The ATF has more than quadrupled its use of such drug house operations since 2003, and officials say it intends to conduct even more as it seeks to lock up the "trigger pullers" who menace some of the most dangerous parts of inner-city America. Yet the vast scale of that effort has so far remained unknown outside the U.S. Justice Department.

Cool name, trigger pullers, and calculated to put an immediate end to any potential sympathy they might otherwise receive. After all, the ATF reasons, these aren't nice, clean kids who would never break the law otherwise, and when you call them killers, even if they've never harmed a fly in their erstwhile criminal career, you almost appreciate ATF going out and finding these trigger pullers before they find you.

In many cases, the records show the ATF accomplished precisely what it set out to do, arresting men outfitted with heavy weapons and body armor, and linked to repeated, and sometimes bloody, crimes. In the process, however, the agency also scooped up small-time drug dealers and even people with no criminal records at all, including Army Rangers. It has offered would-be robbers the chance to score millions of dollars of cocaine for a few hours of work. In at least one case, the ATF had to supply its supposed armed robbers with a gun.

So maybe calling them trigger pullers isn't quite right, but you can no doubt anticipate the rationale.

Former ATF supervisor David Chipman, who left the agency last year, said the public deserves to know more about how the ATF is using its resources. "There are huge benefits, and there are huge downsides," he said. "Do you want police to solve crimes, or do you want them to go out and prevent crimes that haven't occurred yet? What are the things you're willing to do so that your kid doesn't get shot?"

Do you really want to wait until one of these trigger pullers kills your little angel? No, you don't.  And neither does the ATF, which loves children too.

ATF officials reject the idea that they should focus only on people with violent records. "Are we supposed to wait for him to commit a (obscenity) murder before we start to target him as a bad guy?" said Charlie Smith, the head of ATF's Special Operations Division, which is responsible for approving each sting. "Are we going to sit back and say, well, this guy doesn't have a bad record? OK, so you know, throw him back out there, let him kill somebody, then when he gets a bad record, then we're going to put him in jail?"

And so what if the trigger puller has never so much as touched a trigger before, or did much pulling for that matter. It's not like the ATF could entice anyone to engage in their sting who wasn't otherwise included to violence, drugs and mayhem. It's not like they are dangling hundreds of thousands, maybe millions, of dollars in front of them. Oh wait.

As it becomes more widely known what the ATF is doing, the dubious tactics are becoming less accepted.

Critics, among them federal judges, say the ATF's operations are flawed. In an opinion last year, Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago dismissed the drug-house stings as a "disreputable tactic" that creates "an increased risk of entrapment because of the potential for the extensive use of inducements and unrealistic temptations to encourage the suspects' criminal conduct."

Not to mention seven targets died as a result of these stings.  But it's so much easier and more effective to create phony crimes to ensnare the bad (and semi-bad) guys than to have to go out on the street and do something about crimes that happen without the finger of the government pushing the button.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.


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The Impact of BU Law’s LL.M. Programs

BU Law has offered a post-graduate legal education leading to the Master of Laws degree for more than 125 years. In this BU Law podcast, host David Yas, a BU Law alum, former publisher of Massachusetts Lawyers Weekly and a V.P. at Bernstein Global Wealth, welcomes John N. Riccardi, BU Law’s assistant dean for Graduate and International Programs and director of the Office of Graduate and International Programs, to take a look at the School’s graduate programs for international lawyers. Later in the program, David is joined by former student Johan S. Ellefsen, who talks about his experience with the LL.M. program and where he is today.


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Friday, June 28, 2013

A Hard Earned Raise For Atlanta Cops

As Radley Balko wrote when he twitted this story, what could possibly go wrong? in Atlanta reveals:

Channel 2 Action News has obtained an email sent to Atlanta police that says traffic ticket money will fund future pay raises.

No incentive there, right, because police are far too professional to let their personal financial interest color the exercise of authority and discretion.

An Atlanta police source told Channel 2’s Amy Napier Viteri there are concerns that linking pay raises to tickets creates an indirect quota system, but the Mayor’s Office and the author of the email insist there’s no push to write more tickets.

A cynic might suggest that anyone who would suggest such a thing is either a pathological liar or a blithering idiot.  A direct link between traffic tickets and pay raises makes perfect sense, however, for a city looking to shed itself of costs that would otherwise come out of its primary budget, and lay off the burden on the people who would benefit.  If cops want raises, let them work for them.

The police union president gets the message:

The email from police union President Ken Allen explains future police pay raises will be funded through traffic tickets and court revenue. It comes on the heels of the passage of the city’s budget.

“The mayor has designated traffic court/ticket revenue for future pay increases  ...  (This is) the first time ever that a revenue stream has been designated to salaries,” Allen told officers in the email. “Future pay increases are in our hands. We need only enforce traffic violations as we are now, but increase our attendance in court to prevent cases being dismissed."

A smart email.  Allen doesn't need to explain that the more tickets they write, the more revenue the stream produces to fund pay raises. No matter whether you think cops are smart or not, they know how their bread gets buttered.  Allen recognizes, however, the need to remind cops to close the deal by showing up in court even if it conflicts with the time when the donuts come out of the oven, since there is a tendency to do only as much of their jobs as they find convenient and consistent with the new professionalism.  After all, if they're waiting in court for traffic tickets to be called, they can't be out on the street protecting and serving us.

A representative for the mayor’s office iterated sentiments about improving how the police department engages in traffic court, “especially regarding operations and the collections process  …  There is no push to increase revenues through the writing of additional tickets.”

If they just keep saying it, people will believe it. It must be true. It must be. Even though anyone with cognitive functions above a brick knows otherwise.

But a police source told Viteri the plan could make officers work toward increasing citations, in hopes of a higher wage. Some drivers Viteri spoke to agree.

“I’m probably going to switch from sales and join the police force in that case, if that's the way it's working,” Ken Miller said.

And union president Allen persists:

Allen said enforcement of traffic laws won't change.

Tying pay increases to ticket revenue is a cop's, and politician's, dream. The cost of policing is a huge expense on a municipality. Cops are not only hugely expensive, even when they aren't generating lawsuits and settlements in the millions, but their cost goes on forever as pension benefits burden administrations led by those yet unborn. 

But it's hard, if not impossible, to beat the cops back come contract time. In negotiations, they remind us of how they risk their lives for us every day, and if we don't like them, the next time we're in trouble we should call a criminal. The arguments may fall short for those who insist on logic, but most of the public eats this stuff up.

To shift the burden off the general budget and onto the cops' shoulders is the perfect administrative solution, as it allows the mayors and city council types to embrace fiery police rhetoric while being fiscally prudent.  As for the public, the scheme relies on the age-old fantasy that only the bad people, the law-breakers, will suffer, since good, law-abiding people will never be the targets of overly-ambitious enforcement.

So the mayor says so. The union president says so. And from the tenor of the news report, they aren't quite ready to say anything else either. After all, only a cynic would besmirch the integrity of the police in the enforcement of the law and suggest that they might start handing out tickets for the most trivial of infractions.

Or worse yet, for no infraction at all, if they don't like the way you look at them. Or just write out tickets and lose them down a sewer near the Coca-Cola museum, where the tourists go who will never come back to Atlanta to dispute the notice of a warrant in the mail. They may get angry, but it's not like they vote for mayor in Atlanta.

What could possibly go wrong? 

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.


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The Fiscal Cliff Impact

As we approach the end of 2012, the nation waits on news regarding the “fiscal cliff” and whether a compromise can be reached on Capitol Hill. What exactly is the “fiscal cliff” and what are the possible resolutions? On this Ringler Radio podcast, host Larry Cohen joins colleague and co-host, Rich Ryan and guest, Dr. Christopher Coyne, Economist and Associate Professor of Finance at St. Joseph’s University, to talk about the potential impact of the fiscal cliff and the security of structured settlements.


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LawBiz® Legal Pad: Why Marketing Matters for Lawyers, Part 2

Ed shares some thoughts on electronic marketing and offers ideas on how traditional marketing can help you stand out in the crowd.
-You are more likely to be remembered, thus contacted, if you reach people on a personal level.
-Differentiating yourself will lead to increased :
--calls by clients and prospects
--calls from the media
-And most importantly: More money in the bank.


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20 Legal Technology Tips in 20 minutes

If you’re looking for the hottest tech tips for lawyers, we’ll make sure your vision is 20/20. The Legal ToolKit host and Senior Law Practice Advisor with Mass. LOMAP, Jared Correia, talks technology with Attorney Ernest Svenson from the Svenson Law Firm in New Orleans, Louisiana. Ernie has catalogued a number of useful tools for lawyers and relays them in rapid succession through word association with Jared. Listen in, and find out why Dropbox and Dilbert can both have a place in your law firm!


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The Legal Trade Show Survival Guide

Learn how to make the most of your next legal trade show experience when The Legal ToolKit host and Senior Law Practice Advisor with Mass. LOMAP, Jared Correia, chats with Andrea Cannavina, the Founder and CEO of LegalTypist, Inc. Andrea and Jared explain how to decide which events to attend, how to network, the benefits of getting involved in conference planning, and much more.



Bombs Away: Erasing Information in the Big Data Era

In this April edition of Law Technology Now, host Monica Bay, editor-in-chief of ALM’s Law Technology News, joins Barclay Blair, founder of ViaLumina an information governing consulting service, to talk about the idea of digital data being erased. We know that simply putting it in the trash can on our desktop isn’t enough, but can it be done? They will also discuss mobile apps which claim they immediately erase data like Snapchat: Does this data actually self destruct? And is using apps like this a liability in court because it looks like there is something to hide?


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Delaware Supreme Court Affirms Preclusive Effect of Non-Delaware Dismissals and Rejects Irrebuttable Presumption That a Derivative Plaintiff Who Fails to Conduct a Section 220 Inspection Is an Inadequate Representative

In Pyott v. Louisiana Municipal Police Employees’ Retirement System, No. 380, 2012, 2013 WL 1364695 (Del. Apr. 4, 2013), the Delaware Supreme Court held the Delaware Court of Chancery erred in refusing to dismiss a derivative complaint nearly identical to one brought by different stockholders in federal court in California, which the federal court had earlier dismissed for failure to plead demand futility. According to the Supreme Court, the Chancery Court’s constitutional obligation to give full faith and credit to other state and federal judgments required it to apply California (not Delaware) collateral estoppel law, and that law clearly precluded the Delaware action. The Supreme Court also held the federal plaintiffs’ failure to first conduct a books and records inspection of Section 220 of the Delaware General Corporation Law (“Section 220”), 8 Del. Code § 220, before filing suit did not, by itself, give rise to an irrebuttable presumption that they had inadequately represented the corporation. The Court of Chancery had applied such presumption in further refusing to dismiss the Delaware action on collateral estoppel grounds. This decision provides greater certainty to Delaware corporations hit with derivative actions in multiple jurisdictions.

On September 1, 2010, following a Department of Justice investigation, Allergan, Inc. (“Allergan”) announced it had pled guilty to a pharmaceutical misbranding violation, agreeing to pay $600 million in fines. Two days later, a pension fund stockholder filed a derivative action in the Delaware Court of Chancery. Over the next three weeks, other stockholders filed derivative actions in the United States District Court for the Central District of California, which were consolidated.

Allergan and its directors moved in both courts to dismiss the actions for failure to plead demand futility under Delaware Chancery Rule 23.1 and its federal equivalent, Federal Rule of Civil Procedure 23.1. The Chancery Court postponed briefing to allow another Allergan stockholder, also a pension fund, to complete a Section 220 books and records inspection and intervene as a party in the Delaware action. Ultimately, in July 2011, the Delaware and California plaintiffs “filed essentially the same amended complaint in their respective courts,” and Allergan again filed motions to dismiss in each court. Shortly before argument on the motion in Delaware, the California federal court, applying Delaware law, dismissed with prejudice the California action for failure to plead demand futility. The parties in the Delaware action thereafter addressed the preclusive effects of the California judgment in supplemental briefing.

The Chancery Court determined collateral estoppel did not apply. Collateral estoppel requires privity between the current plaintiffs and those in the former action. Because the corporation, Allergan, is the real plaintiff in a derivative suit, numerous jurisdictions, including California, would find the requisite privity between the Delaware and California plaintiffs. But the Chancery Court, purporting to apply Delaware’s demand futility law, determined no privity existed because the California plaintiffs had not yet survived a motion to dismiss for failure to make a demand on the board, and so were not acting for Allergan at the time of dismissal. It further ruled that by failing to first conduct a Section 220 inspection before filing suit, the California plaintiffs acted “to maximize the potential returns of the specialized law firms who filed suit on their behalf” and, by presumption, inadequately represented Allergan. For this reason as well, the Chancery Court held that the California dismissal could have no preclusive effect. It went on to find the Delaware amended complaint stated a claim for relief.

The Delaware Supreme Court reversed. It first found that the Chancery Court failed to afford the California federal court’s decision the “same force and effect as it would be given under the preclusion rules of the state in which the federal court is sitting” — in this case, California. According to the Supreme Court, the Chancery Court “conflated collateral estoppel with demand futility.” The motion to dismiss, however, was “based [solely] on collateral estoppel, [and] was about federalism, comity, and finality.” Thus, the Chancery Court should have applied California law, which deems “differing groups of shareholders who can potentially stand in the corporation’s stead . . . in privity for the purposes of issue preclusion.” Without deciding the issue, the Supreme Court noted that the Courts of Chancery are in fact split on the privity issue.

With respect to the Chancery Court’s ruling on the inadequacy of the California stockholder plaintiffs, the Supreme Court characterized the Chancery Court as having “sua sponte announced and applied an irrebuttable presumption that derivative plaintiffs who file their complaints without seeking books and records, very shortly after the announcement of a ‘corporate trauma,’ are inadequate representatives.” The Supreme Court declared, however, that “[w]e reject the ‘fast filer’ irrebuttable presumption of inadequacy.” Although it acknowledged that “fast filers” may be inadequate, there “is no record support for the trial court’s premise that stockholders who file quickly, without bringing a § 220 books and records action, are a priori acting on behalf of their law firms instead of the corporation.” Without the presumption, it held the Chancery Court had no basis to deem the California plaintiffs inadequate, particularly since the California complaint was so similar to the Delaware complaint, which the Chancery Court found adequately stated a claim for relief. The Supreme Court added that trial court efforts to address the “fast filer” problem “should be directed at the lawyers, not the stockholder plaintiffs or their complaints.”

Pyott strongly reaffirms the use of collateral estoppel by defendants to ensure that dismissals outside Delaware on for failure to plead demand futility have preclusive effect within Delaware. At the same time, by refusing to draw an inadequacy-of-representation inference from “fast filer” conduct alone, Pyott casts doubt on the use of any form of “fast filer” presumption, including the rebuttable presumption the Chancery Court adopted just last year to ensure that its dismissal of a derivative complaint (filed before any books and records inspection) had no preclusive effect on the future litigation efforts of other stockholders whose inspection demands were pending. See South v. Baker, C.A. No. 7294-VCL, 2012 Del. Ch. LEXIS 229 (Del. Ch. Sept. 25, 2012) [blog article here]. In fact, by stating that trial courts should direct their efforts to address “fast filer” behavior at plaintiffs’ counsel, and not plaintiffs (or their complaints), the Delaware Supreme Court is arguably signaling that the fast-filing issue is not a proper collateral estoppel consideration.

For further information, please contact John Stigi at (310) 228-3717 or John Landry at (213) 617-5561.


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The Friday Federal Law Clerk Hiring Frenzy

Friday, June 28, is the first date on which many judges will consider 3L students for coveted federal clerkships. The firestorm that Friday?s schedule promises to ignite will eclipse the seasonal withering heat and humidity, but partners who remain calm and flexible will reap benefits.


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Thursday, June 27, 2013

5 Vital Components to a Successful Custodian Interview

The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack, looks to two experts from Kroll Ontrack’s Discovery Consulting group: David Meadows, Managing Director, and Dave Canfield, Managing Consultant, as they explore the 5 vital components to a successful custodian interview, and how these interviews impact the world of e-discovery. On the Bits & Bytes Legal Analysis segment, Kroll Ontrack legal correspondent, Alicia J. Smith, highlights the growing influence of social media in e-discovery.


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NSSTA’s Take the Hill

This past April, members of National Structured Settlement Trade Association (NSSTA) decided to "Take the Hill". They headed to Capitol Hill for meetings with members of Congress and senior Congressional staff to discuss important public policy and the economic security benefits of structured settlements. Ringler Radio host, Larry Cohen talks to Ringler colleagues, Peter Early and Erin Muller about their experience at "Take the Hill" and their mission to educate our elected officials on the benefits of structured settlements.


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Virtual Staffing: Implementation and Management

On this edition of The Legal Toolkit, host Jared Correia talks with Chad Burton about how to use virtual staff in your law practice. Burton’s law firm employs virtual staffing services to manage its phones, accounting, documents and secure email. Chad covers the use of virtual staff to assist in other areas, as well, including: managing social media channels, making travel arrangements, creating presentations, and more.

Burton is the founder of Burton Law, a virtual law firm which focuses on representing businesses and individuals in litigation matters. He also serves as outside general counsel to small and mid-sized businesses, including new and existing franchises. He is a leading member of both the Dayton Bar Association and the Ohio State Bar Association. He is also a member of the American Bar Association.

Virtual staffing saves Burton Law a significant amount of overhead costs, and those cost savings are passed along to its clients. Tune in to hear more on virtual staffing, including: what to look for, how to manage the staff, and more.


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Putting Salve on the Sentencing Symptom

The New York Times editorial calling for a "new safety valve" is one that holds a certain appeal for most of us. Both in its bipartisan support, and its recognition that the magic bullet solution of mandatory minimums, while simple enough for the masses to digest and embrace, lacks a certain reasoned fairness and efficacy, the possibility of changing this hideous concept should bring applause:
Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Whether the details, not to mention the assumption and definitions, are precise isn't terribly important. The two key sentences, one beginning the third quoted paragraph and the other ending it, are the ones to focus on. 

The final quoted sentence, that 93% of people convicted for drugs are "low-level offenders," is the sort of argument intended to evoke sympathy, though there is no definition of what makes someone a low-level, as opposed to medium or higher level, offender. But it accepts the premise that any drug offender, even guys selling tons of the stuff, deserve to be punished to a term of imprisonment greater than murder.

What if the entire scheme was fundamentally flawed, a political joke if you will, perpetrated on a trusting but naïve public by a manipulative president and congress, who saw drugs as a bogeyman to be blamed for society's ills, and used to create a demand for government to save them from it.  It gave politicians an easy punching bag, drug dealers, against whom laws could be passed to show the public what a wonderful job the government was doing protecting them from evil.

What if this scenario had the added virtue of not only getting those in office re-elected by adding a cynical law here and there, but convincing the public to relinquish rights to the government, allow and approve of these same politicians increasing their power and control, as a needed component of effectively fighting the evil enemy and protecting the public?  It's the perfect set-up, really.

But this sounds like a wild conspiracy theory, right?  And if I told you this had happened, you would tell me to loosen my tin foil hat as it's clearly pressing too hard on my brain.  But what if it wasn't me saying this, but former Assistant United States Attorney, now United States District Court Judge John Gleeson?

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

*  *  *

On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the Anti-Drug Abuse Act of 1986 ("ADAA"), which established a two-tiered scheme of mandatory minimum and enhanced maximum sentences that have now become central features of the federal drug sentencing landscape. The ADAA’s five-year mandatory minimum, with a maximum enlarged from 20 to 40 years, was specifically intended for the managers of drug enterprises, while the ten-year mandatory minimum, with a maximum of life, was intended for the organizers and leaders. 

That Congress is finally prepared to revisit the notion that more than two generations of living under a legal regime driven by news story that caught the public's interest and fed its naiveté sufficiently to influence our acceptance of the notion that illegal drugs were a plague that had to be stopped at all costs, is a good thing.  But they're still only looking at the symptoms, one of which is mandatory minimums. 

The revelation that the drugs tables (and its the same from the fraud tables even though you didn't ask) in the Sentencing Guidelines were made out of whole cloth, reveal the disease.  We have functioned since 1987 under the mistaken belief that the Guidelines offer some empirical basis for sentencing people for crimes. We spent the vast majority of that time praying to the Guidelines, as if the number 161 was infallible, or brought down by Moses and enshrined on the alter of punishment.

What if it's all just a bunch of numbers that some guys in a room in Washington made up on their own, out of thin air?  After a couple generations of putting people in prison based on them, many people, tens of thousands of people, the made-up numbers that came out of that room took on the appearance of Truth.  Ten years was the sentence because, well, it's been the sentence for a very long time.

This isn't to blame the New York Times for thinking small. It's what the Times does best, and conventional wisdom is to stick with what works for you.  But as reform happens, it's worthwhile to remember what is being reformed.  Moses didn't bring the Guidelines down from the mountain. There was no massive empirical study that conclusively proved that 161 months was the right number for drug dealers. 

And here's a question that will rock the foundations of penal belief: What if drugs, regardless of whether you support legalization or not, aren't as great a scourge on society as we've come to believe, and that drug dealers shouldn't be punished as harshly as murderers?  What if the worst drug dealer, the one who sold the most drugs in the whole wide world, still wasn't as bad as a murderer?

But drug dealers commit other crimes too, you say? So they get prosecuted and sentenced for those other crimes. Yet, the days when punishment was calibrated by the relative harm done by a crime got all screwed up because Len Bias happened to OD while Congress was noodling how to screw with our heads over the sentencing guidelines, and here we are, more than two generations later, trying to figure out where we went wrong and what we can do to fix it.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.


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ABA Proposal Alarms Law School Diversity Advocates

A proposal to tighten the American Bar Association's bar passage requirement for law schools hasn't gone over well with some advocates for diversity in the legal profession.


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Ringler's Top Ten on Structured Settlements

Even though structured settlements have been around a long time, false impressions about products and services still remain. There are a lot of moving parts involved in a claim’s settlement, and lots of financial and legal information swirling around the process. In this podcast, Ringler Radio host Larry Cohen joins colleagues, Jim Early and Bill Wakelee, to debunk the misconceptions sometimes seen in the structured settlement industry, and clarify through their top ten on structured settlements.


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Is law school necessary?

The standard for competence is generally considered to be passing a test. If this is true and if you can pass the State Bar exam, the test in this case, why should we require 3 years of law school? Looking at the law school curriculum, can we truly say that this learning (e.g., 3 years vs 2 years) will help to better serve clients? Is it not true that the 3rd year is more fluffy or elective than essential to the practice?

The customer (client) is the market; the education system is the distribution system. Yet, schools seem to focus on classrooms and housing rather than the market being served, students and then clients. The net result is that the education is so expensive that fewer and fewer people can go to law school because it takes 5 to 10 years to pay off the student debt accumulated while going to school. And in today’s economy, with so many licensed lawyers unable to find work, these debts may stay on the books for a very long time with devastating psychological impact on the “student.”


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