Wednesday, July 31, 2013
Biggest Mistakes by Lawyers in Business Development
The AAPD in 2013 and the 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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How Bad Ideas Grow Legs
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
The Craigslist Killer: A Case Study in Digital Forensics
State Bar: Friend or Foe?
Jim Heiting, former president of the State Bar of California, commented on my article in LawBiz® Tips last week. He said, "I fully agree with your article about bar associations ... and the new push to create more unemployment and less opportunity for the solo and small practitioner. Why not develop a [Bar] program that assists solos and small practitioners to represent people for reduced fees to get experience, make money, provide services otherwise unavailable at that rate, etc. We have many, many who would like to make a modest living but can't/don't seem to do it. This would assist the needy in both arenas: client and attorney."
For my money, Jim Heiting has been the only California Bar leader who truly had members' (lawyers) AND the public's interests in mind. Others before and since Jim have seen the Bar as a regulatory agency for the public with little or no concern for members. Unfortunately, this is likewise the case across the country.
There are way too few leaders in the legal community, whether in the Bar or the law school, who understand The Business of Law® and are willing to focus on members’ (lawyers) needs. Instead, they focus on creating new licensure opportunities that will not truly help the intended market and will both weaken the value of the law degree and the economic well-being of members.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/Z77WtaZXfkI/
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Liability After Facebook’s IPO
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/06/liability-after-facebooks-ipo/
The Only Constant is Change: FRCP Amendment Updates and Departures from the Zubulake Gold Standard
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Tuesday, July 30, 2013
Workers’ Compensation for Harbor Workers and Longshoremen
Steven M. Birnbaum, Esq. started his private practice in 1983 specializing in workers’ compensation under The Longshore and Harbor Worker’s Compensation Act and the California Labor Code. He is a certified specialist in workers’ compensation by State Bar of California and a certified specialist in Admiralty and Maritime Law by State Bar of California. Birnbaum is a frequent lecturer on the topic of worker’s compensation and The Longshore and Harbor Workers’ Compensation Act.
Listen to the interview as two worker’s compensation specialists discuss coverage for those working on and along the water.
The Internet of Things and Our Virtual Lives
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2013/03/the-internet-of-things/
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The DRI - ‘The Voice of the Defense Bar'
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/10/the-dri-the-voice-of-the-defense-bar/
Transvaginal Mesh Complications and Litigation
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Pardon Our 100th Interruption
The Lost Art of the Online Discussion
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Absolute Novelty Worldwide - Not Always So Absolute
Gay Marriage Activists Turn Focus On States That Ban It
A federal judge ruled last week that Ohio, which bans gay marriage, must recognize the marriage of two men wed this month in Maryland. The ruling is seen as likely to unleash more lawsuits challenging states that don't allow same-sex unions to recognize marriages legalized in other states.
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Source: http://www.npr.org/templates/story/story.php?storyId=206728483&ft=1&f=1070
Monday, July 29, 2013
Inside BU Law’s Housing, Employment, Family and Disability Clinic
Sacramento’s New One-Day Divorce Program
Judge Mize began his career with an undergraduate degree in psychology, followed by graduate work at the School of Social Welfare where he earned his Master of Social Work. He found his work in social issues to be a defining part of his 26 years working as an attorney, and his current work on the bench. He has served as the presiding judge of the Sacramento Superior Court and is currently the supervising judge of Sacramento’s Family Court. Judge Mize is best known for his civil reform efforts which have garnered him several honors including the California Judge Association’s Alba Witkin Humanitarian Award and Sacramento County Bar Association’s Judge of the Year Award.
Tune into to hear about the inner workings of the new one-day divorce program, who qualifies, how it’s run, and more.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2013/06/sacramentos-new-one-day-divorce-program
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Focus on Privacy: The Facebook Internet Tracking Case
Legal Translation Services for Law Firms
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/06/legal-translation-services-for-law-firms/
LABOR & EMPLOYMENT: California Gets Serious About Noncompete Clauses
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202611447076&rss=rss_nlj
Accelerate Your Use of Metrics
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/08/accelerate-your-use-of-metrics/
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All Zimmerman or All Trayvon Martin
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
No district court jurisdiction for federal employee challenging adverse employment action (6-3)
The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.
Elgin v. Dept of Treasury (US Supreme Ct 06/11/2012)
A federal statute bars employment in the executive branch of male citizens who failed to register for the draft. Elgin, who had been discharged from his job, first challenged the decision before the MSPB - arguing that the statutory bar was unconstitutional - but an ALJ dismissed his case on the ground that the MSPB lacked authority to review the constitutionality of a federal statute. Rather than appealing from that decision, Elgin sued in federal district court.
The US Supreme Court held that the district court lacked jurisdiction because it is "fairly discernable" from the CSRA's text, structure, and purpose that Congress precluded district court jurisdiction over Elgin's claims. Based on CSRA's text and structure, there is no exception for constitutional challenges to federal statutes. If the MSPB lacks power to hear such claims, they can be meaningfully addressed by the Federal Circuit.
The DISSENT argued that Elgin's "constitutional claims are a far cry from the type of claim that Congress intended to channel through the [MSPB]."
Source: http://www.lawmemo.com/blog/2012/06/no_district_cou.html
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Sunday, July 28, 2013
Illinois governor signs bill allowing online voter registration
Chat with Two National Leaders of the Workers' Comp Bar
Cathy Stanton is an attorney with experience in dealing with all types of workers’ compensation claims, including those related to occupational diseases. In addition to being the president of WILG, she is also a member of the New York State Trial Lawyers Association and other organizations. Stanton has been named Super Lawyer for 2012 in the specialty of Workers’ Compensation by Super Lawyers magazine, this is her 6th time receiving the award.
The second half of the show Pierce will chat with Deborah Kohl, past president of WILG, and current president of The College of Workers’ Compensation Lawyers about the college and it’s efforts.
Deborah Kohl has been an attorney working in the area of workers’ compensation and disability law for more than 30 years. Kohl has been listed in the national publication Best Lawyers in America and is a frequent author and speaker on workers’ compensation law.
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Choosing a Law Firm Entity Structure
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/10/choosing-a-law-firm-entity-structure/
Appellate Court Blocks Import of Key Lethal-Injection Drug
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Dayton appoints Jeffrey Bryan to Ramsey Co. bench
Gov. Mark Dayton appointed Jeffrey Bryan as judge in Ramsey County. He replaces Thomas Mott who retired earlier this year.
Bryan is an Assistant United States Attorney and prosecutes white collar defendants, violent gangs, drug trafficking organizations, and career criminals.
Previously he was an associate attorney at Robins, Kaplan, Miller & Ciresi, specializing in complex civil litigation. Bryan served as a law clerk for U.S. District Court Judge Paul Magnuson. He received his B.A. with highest honors from the University of Texas at Austin and his J.D. from Yale Law School.
Additionally, Bryan is an active member of the Minnesota Hispanic Bar Association, and previously chaired the Minnesota Minority Recruiting Conference Committee for Twin Cities Diversity in Practice.
He lives with his family in St. Paul.
Source: http://minnlawyer.com/minnlawyerblog/2013/07/11/dayton-appoints-jeffrey-bryan-to-ramsey-co-bench/
The Day Tripper Dilemma
What came of Reynolds' post was a curious thing, a swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds' disastrous Ham Sandwich Nation "fix" for the criminal justice system and even more numerous posts on the underlying issues.
One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn't in the one post to which they were directed is "weaksauce." He's right. It's not that this matters much, as they haven't come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn't demand to be taught from the ground up.
But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it's an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn't substantive is well-taken.
So if they can't be expected to read a hundred posts (and it's not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they're generally disinclined to disagree with their political guru, is there any way to address this gap?
Bear in mind that when the post that made Reynolds cry was written, it wasn't for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system. Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.
Obviously, I can't go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us. Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn't. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.
One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it's hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad. If he did, he wouldn't have done so in the first place.
One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he's playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It's easy to pass off shallow ideas to those who know nothing about the practical impact.
Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they've got a clue because they read tripe like Reynolds' Ham Sandwich Nation. It's a shame to pass up an opportunity like that. It's a dilemma. I regret not having done a far better job of making use of the opportunity to illuminate.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/the-day-tripper-dilemma.aspx?ref=rss
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Cyber Threats to Law Firms and Businesses: How Do We Defend Ourselves?
• Stewart Baker has been described by The Washington Post as “one of the most techno-literate lawyers around.” His long list of experience includes serving as the first Assistant Secretary for Policy for the Department of Homeland Security and the General Counsel of the National Security Agency. His current law practice covers homeland security matters, travel and foreign investment regulation, international trade, cybersecurity, and data protection.
Tune in to hear Baker explain the difference between active defense against cyber-defense and vigilantism, the meaning of the Attribution Revolution, and what President Obama Cybersecurity Executive Order means and how it may be amplified by pending legislation.
Saturday, July 27, 2013
How Bad Ideas Grow Legs
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
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Law means a better life, not death
The following note is prompted by the comments of Susan Cartier Liebel of Solo Practice University® and her post about Kimberly, a young mother who just gave birth to her third child and was a 3L law student at Stetson. She became ill but failed to go to a doctor to address her own health. She was busy with her family and "stuff."
This is for all of you out there whether lawyer or law student, mother or father, who puts
themselves last. You put off going to the doctor for that chronic cough while you rush your child to the pediatrician for a hang nail. You eat your cold dinner out of a jar standing up and talking on the phone while you make sure your child’s meal is hot and she’s seated lest she choke on her food. You do so because ‘you can handle it’. Well, here’s the truth. You can’t.
You can’t care for your kids or your spouse if you break down physically. You can’t care for your clients if you don’t take time to reinvigorate and refresh. Remember the airline admonition: Put your air mask on first and then help your child and others around you. None of us are superhuman or immortal. There is nothing more important than your health, no final, no brief, no exam, no trial, no event. Remember this the next time you get no sleep or ignore that persistent cough or inexplicable pain in your side because ‘you don’t have time’ to slow down. Remember you can break down, too. No machine and certainly no human can work without stop and without repair from time to time.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/sGnvRFt6F24/
Maximize Your Technology Investment
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/08/maximize-your-technology-investment/
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Supermarket Chain Sanctioned for Failing to Preserve Audio Record
Sidley Austin Looks to Riverbed to Build a Broader Network
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
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Child’s Play: What E-Discovery Teams Can Learn from Kindergarteners
Old School Marketing in the Legal World
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/04/old-school-marketing-in-the-legal-world/
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Corporate
One of the firm's core strengths, our Corporate practice, assists clients throughout the United States and abroad in maximizing their business opportunities. We represent clients that range from private to public companies and from startups and emerging businesses to international corporations. We are proud to offer CRADLE TO LIQUIDITY® services.
We provide general business legal advice, assist in structuring and implementing major transactions, prepare agreements to address unique business arrangements and consult with clients to resolve major business and ownership issues. We handle such matters as initial and later stage venture and other financings; leveraged buyouts and recapitalizations; public offerings; mergers and acquisitions; SEC compliance; private equity transactions; real estate capital markets transactions; corporate, LLC and partnership formation; and corporate partnering, joint venture and other strategic alliance arrangements. Because of our diverse client base, we have experience representing substantial entities in complicated multinational and multi-state transactions, as well as advising smaller and emerging clients on the full spectrum of business matters.
Source:
http://www.corporatesecuritieslawblog.com/practice-corporate.html
Friday, July 26, 2013
Back to School Spotlight on Law Students
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Is Batman Legally Dead?
• Baroni has been watching the Batman films since he was a kid and continues to be an enthusiast. Batman fan by night, he works as general counsel for Palace Entertainment by day. He is also a member of the Orange County Bar Association.
• Daily is co-author of the book The Law of Superheroes and the blog Law and Multiverse. Both publications discuss the hypothetical legal ramifications behind comic book characters and their powers. When James isn’t meticulously analyzing the law of comic books and characters, he works in intellectual property and patent law.
Tune in for, what Baroni describes as, the perfect “legal cocktail chatter” on the legalities behind Batman’s death, what he left behind, and the chances of a resurrection of one of America’s most beloved comic-book characters.
Special thanks to our sponsor, Clio.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2013/07/is-batman-legally-dead/
I’ll Tumblr for Ya
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/07/ill-tumblr-for-ya/
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"Nobody's dying, nobody's sick... You can't let the client suffer..."
A Canadian lawyer was on his way to a hearing for a client. Driving to the airport, he found himself in a deluge that "buried" his car, a new Ferrari. He abandoned his car and found another way to the airport to fly from his city to another for a hearing on the following morning. All this for the benefit of his client. By the way, he won his motion on the following day!
Client service to the extreme! What have you done for your clients lately?
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/vWnwOqh2lS0/
Find Now, Read Later
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/07/find-now-read-later/
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Fourth Circuit upholds decision to block parts of South Carolina immigration law
Source: http://jurist.org/paperchase/2013/07/jurist-the-us-court-of-2.php
Thursday, July 25, 2013
Don't Bury Big Law Just Yet
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Second Circuit Rejects the Application of American Pipe's Tolling Rule and Rule 15(c)'s "Relation Back" Doctrine to the Three-Year Statute of Repose for Section 11 and 12(a) Claims
In In re IndyMac Mortgage-Backed Securities Litigation, No. 11-2998-CV, 2013 WL 3214588 (2d Cir. June 27, 2013), the United States Court of Appeals for the Second Circuit held that the tolling rule established by the United States Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), which suspends the applicable statute of limitations for putative class members upon the commencement of a class action, does not apply to the three-year statute of repose contained in Section 13 of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. § 77m. The Court also held that the “relation back” doctrine of the Federal Rule of Civil Procedure 15(c) does not permit putative class members to intervene in the class action as named parties to revive claims that were previously dismissed for want of jurisdiction. This decision thus holds that litigants cannot circumvent Section 13’s statute of repose for 1933 Act claims by invoking American Pipe or Rule 15(c).
The case began as two securities class actions alleging that IndyMac MCS, Inc., an issuer of mortgage-backed securities, violated Sections 11 and 12(a) of the 1933 Act, 15 U.S.C. §§ 77k, 77l, by making fraudulent misrepresentations and omissions in the offering and sale of certain financial instruments in 2006 and 2007. The United States District Court for the Southern District of New York consolidated the cases and appointed a lead plaintiff pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. §§ 78u-4, et seq.
The district court dismissed all claims arising from the offerings of securities not purchased by the lead plaintiff. Because the lead plaintiff failed to demonstrate injury arising from offerings of securities that plaintiff did not purchase, it could not demonstrate standing to assert the claims.
Several putative class members sought to intervene to assert the dismissed claims. By this time, however, more than three years had passed since the issuances of the securities. Under Section 13’s statute of repose, actions to enforce a liability created by Sections 11 or 12(a) of the 1933 Act cannot be filed more than three years after the security was offered to the public or was sold. The intervenors nevertheless asserted two theories for why the claims were not time-barred under Section 13. First, they argued that American Pipe’s tolling rule, which explicitly applies to statutes of limitations, applies equally to Section 13’s statute of repose. American Pipe’s tolling rule dictates that the commencement of a class action suspends the applicable statute of limitations as to all putative class members who would have become parties had the class action continued. Second, the proposed intervenors argued that their claims could “relate back” the previously dismissed claims to the Amended Consolidated Complaint through Rule 15(c) even though the repose period had passed. Rule 15(c) provides that an amendment to a pleading is considered to have been filed on the date of the original pleading to avoid potential time bars. The district court denied the motions to intervene holding that the Section 13 repose period had expired and could not be tolled under American Pipe or effectively extended by Rule 15(c). See In re IndyMac Mortgage-Backed Sec. Litig., 793 F. Supp. 2d 637 (S.D.N.Y. 2011). The proposed intervenors appealed.
The Second Circuit affirmed. The Court noted that although courts have used the terms “statute of limitations” and “statute of repose” interchangeably, these concepts are distinct. Statutes of limitations limit the availability of remedies and may be subject to equitable considerations such as tolling. Statutes of repose, in contrast, create substantive rights and run without the interruption of equitable considerations (such as tolling). They are subject only to legislatively created exceptions. The Court observed that the three-year limitation period in Section 13 has been repeatedly recognized as a statute of repose, not a statute of limitations.
The Second Circuit held that American Pipe’s tolling rule does not apply to Section 13’s statute of repose. The Court noted that it is unsettled whether the tolling rule is “judicial tolling,” which is an equitable concept, or “legal tolling” based upon Rule 23 of the Federal Rules of Civil Procedure. However, the Court explained that the application of the American Pipe tolling rule to Section 13 is barred regardless of whether it is viewed as judicial or legal tolling. If the tolling rule is judicial, then its application is barred by the Supreme Court’s decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), which holds that equitable principles do not apply to Section 13’s statute of repose. If the tolling rule is legal, then its application is barred by the Rules Enabling Act, 28 U.S.C. § 2072(b), which prevents the Federal Rules of Civil Procedure from modifying substantive rights, because statutes of repose create substantive rights.
While the proposed intervenors argued that failing to extend American Pipe to Section 13’s statute of repose would burden the courts and disrupt the function of class action litigation, the Court reasoned that the sophisticated, well-counseled litigants in securities class actions will prevent such negative consequences. The Court also held that it is an issue that the legislature, not the judiciary, should address.
The Second Circuit also held that absent circumstances which would render the newly asserted claims independently timely, the Rule 15(c) “relation back” doctrine does not permit members of a putative class, who are not named parties, to intervene as named parties and revive claims that were dismissed for lack of jurisdiction. The Court reasoned that it is a long recognized rule that if jurisdiction is lacking at the commencement of a suit, it cannot be aided by the intervention of a plaintiff with a sufficient claim.
The Court also explained that its holding is consistent with the PSLRA. Nothing indicates that district courts must choose a lead plaintiff with standing to sue on every claim. Standing only requires the existence of a named plaintiff sufficient to establish jurisdiction over each claim.
Thus, the Court affirmed the partial denial of motions to intervene. The proposed intervenors could have avoided the operation of Section 13’s statute of repose by making timely motions to intervene as named plaintiffs, or by filling their own timely actions and, if prudent, seeking to join their claims under Rule 20 of the Federal Rules of Civil Procedure.
This Second Circuit decision puts potential class members on notice that the substantive right to assert a Section 11 claim extinguishes after three years, pursuant to its statute of repose, unless the claim is asserted by a named plaintiff in a class action suit or by an individual plaintiff in its own suit. Litigants cannot avoid Section 13’s statute of repose by invoking American Pipe or Rule 15(c).
For further information, please contact John Stigi at (310) 228-3717.
LawBiz® Legal Pad: No, It's Not the Same: Pricing vs. Billing, Part 2
Ed advises: keep track of your work, bill timely, and collect efficiently.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/X1BYLrWp6tE/
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Federal Judge Blocks North Dakota’s Abortion Ban
Source: http://blogs.wsj.com/law/2013/07/22/federal-judge-blocks-north-dakotas-abortion-ban/?mod=WSJBlog
Law Librarians at the Front Lines of Change
• Lastres, an attorney, is director of library and knowledge management for Debevoise and Plimpton. He is responsible for the firm’s information and knowledge management initiatives. He is the co-founder of the OnFirmerGround blog — a collaborative effort of international law library associations seeking to promote the value that law firm librarians bring to the business and practice of law.
• Flaherty is corporate counsel of Kia Motors America. He manages all legal matters from transactional to litigation. Before moving in-house he worked at BigLaw where he focused his practice in commercial litigation and e-discovery. Flaherty is known for his meticulous auditing system made specifically for law firms, on which he regularly speaks and writes about.
Tune in for a sneak preview of their upcoming presentation and the future of legal research.
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