Saturday, May 31, 2014
Where Should the GM Civil Cases Be Heard? Lawyers Make Their Pitches
Medical Marijuana and Defending Workers’ Compensation Claims
Source: http://ringlerradio.com/?p=13782
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Marijuana, Federal Law, and the States: The Great Legal Divide
Brian Vicente is a Colorado criminal defense attorney and founding partner of Vicente Sederberg. He also serves as Executive Director for Sensible Colorado, chairs the Denver Mayor's Marijuana Policy Review Panel, and coordinates the Colorado Bar Association's Drug Policy Project.
Dan Riffle is a former assistant prosecutor for Vinton County, Ohio who has turned lobbyist on Capitol Hill. He currently serves as the Director of Federal Policies for Marijuana Policy Project and has shepherded 2013 legislation through Illinois making it the second largest medical marijuana state.
Kathy Haddock is the Senior Assistant City Attorney for the City of Boulder, Colorado. She is primarily responsible for advising finance, records, elections, airport, special districts, and special projects including medical and recreational marijuana. She has also been responsible for drafting the laws that license and govern medical marijuana businesses in Boulder, Colorado.
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Supreme Court finds Florida IQ cutoff for executions unconstitutional
China officials sentence 55 in public rally
Source: http://jurist.org/paperchase/2014/05/china-officials-sentence-55-in-public-rally.php
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Friday, May 30, 2014
US judge allows force feeding of Guantanamo prisoner to continue
Iran judge orders Facebook CEO to appear in court
Source: http://jurist.org/paperchase/2014/05/iran-judge-orders-facebook-ceo-to-appear-in-court.php
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Sterling Responds To NBA, June 3 Hearing Still On
LA Clippers owner Donald Sterling argued that there is no basis for stripping him of his team because his racist statements were illegally recorded "during an inflamed lovers' quarrel."
Source: http://www.npr.org/2014/05/28/316537613/sterling-responds-to-nba-june-3-hearing-still-on?ft=1&f=1070
Managing Overflow Work with Freelance Attorneys
Leila Kanani is an IP solo attorney and founder of Intermix Legal. After over 10 years of practice in BigLaw, she left for more control and balance in her life. Her objective in creating Intermix was to provide a flexible framework for experienced attorneys to participate in project-based contract legal services for solos and small firms.
Gil Schipani is the founder of Tempus Fugit Law, which specializes in substitute counsel/court coverage for lawyers as well as single transaction services. He is currently a partner with Schipani and Sinay and former Assistant City Solicitor of Brockton, Massachusetts. His practice area focuses on real estate, personal injury, business, and employment law.
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Greece v. Galloway: Prayer in Government Assemblies
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.
Mid-year union dues increase: Hudson notice required, opt-in not opt-out
The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)
This is a remarkable decision for two reasons.
First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.
The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.
The US Supreme Court held (7-2) that
"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.
Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."
Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.
Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html
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Sidley Austin Looks to Riverbed to Build a Broader Network
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
Thursday, May 29, 2014
Revenge Porn: Societal Costs and Legislative Solutions
Dr. Holly Jacobs is the Founder, President, and Executive Director of Cyber Civil Rights Initiative, which is the parent organization for the End Revenge Porn Campaign. She is a national commentator and writer on the subject and holds a PhD in Industrial/Organizational Psychology. While pursuing her graduate degrees, Jacobs became a victim of revenge porn and has since dedicated her life towards providing resources and advocacy to victims of online harassment.
Professor Mary Anne Franks is the Vice President of Cyber Civil Rights Initiative and an Associate Professor of Law at the University of Miami School of Law. She holds a JD from Harvard Law School and prior to her teaching career, obtained both her Masters and PhD in Modern Languages and Literature as a Rhodes Scholar at Oxford University. As part of her continuing efforts with the Cyber Civil Rights Initiative, she works with state legislatures to draft legislation against non-consensual pornography.
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China officials sentence 55 in public rally
Source: http://jurist.org/paperchase/2014/05/china-officials-sentence-55-in-public-rally.php
The Best of the Plaintiffs Bar
Source: http://www.nationallawjournal.com/id=1202624154645?rss=rss_nlj
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No Venue Change for Subcontractor’s Fraud Claim
Source: http://valawyersweekly.com/2014/01/02/no-venue-change-for-subcontractors-fraud-claim/
LawBiz® Legal Pad: The Key to Success
What’s the most important element of running a successful firm? Tune in to hear what Ed believes is a vital part of any business.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/qQsOkW_so_Y/
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Nurse Has Sovereign Immunity
Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/
Supreme Court rules Secret Service agents entitled to immunity while protecting president
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House Backs NSA Phone-Data Limits; Tennessee Brings Back Electric Chair
Wednesday, May 28, 2014
Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
© 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/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
ENERGY LAW: A SPECIAL REPORT: Digging In
Source: http://www.nationallawjournal.com/id=1202626153260?rss=rss_nlj
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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
After a More Modest Win, Apple Seeks a More Modest Injunction
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Thai military government seeks to restrict dissent, limit protests
Like The Juice On Facebook, And Follow Him On Twitter, Or Else …
Or else what? If you don’t like The Juice on Facebook, and/or follow him on Twitter (@LegalJuice), expect a visit from Officer Cartman. He gets very angry if you do not respect his authority.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/tlaNY9EpyZo/like-juice-facebook-follow-twitter-else.html
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Gideon’s Promise: Do Low Pay and Heavy Workloads Undermine the Right to Counsel?
Jonathan Rapping is the president and founder of Gideon's Promise, a training and support group for public defenders in the south aimed at creating greater access to justice for indigent defendants. He is also the director of the Honors Program in Criminal Justice at Atlanta's John Marshall Law School, where he teaches criminal law and criminal procedure. Rapping is the former director of public defender training programs in the District of Columbia, Georgia, and Louisiana. He is the recipient of the Lincoln Leadership Award from Kentucky's Department of Public Advocacy, the Sentencing Project Award from the National Association of Sentencing Advocates and Mitigation Specialists, and the Gideon's Promise Award from the Southern Center for Human Rights.
Dawn Porter is a lawyer and the founder of Trilogy Films. She was the director and producer of the award-winning Gideon's Army, a documentary about public defenders associated with Gideon's Promise, which premiered at the 2013 Sundance Film Festival and aired on HBO Documentary Films. Prior to beginning her film and television career, Porter worked as an attorney at Baker and Hostetler and ABC Television Network. Among her many projects, she directed "Spies of Mississippi," a documentary on PBS about celebrity Chef Alexandra Guarnaschelli; produced "Serious Moonlight" starring Meg Ryan and Timothy Hutton; and produced "The Green," an independent feature starring Cheyenne Jackson (from 30 Rock) and Emmy-winning actress Julia Ormond.
Special thanks to our sponsor, Clio.
Tuesday, May 27, 2014
Headlines from ABA TECHSHOW 2014
Natalie Kelly is the Chair of this year's ABA TECHSHOW. She is the Director of the State Bar of Georgia's Law Practice Management Program where she provides extensive practice management and technology consulting to members of the Georgia Bar. Kelly is a Certified Consultant and Trainer for AbacusLaw, Amicus Attorney, PCLaw, PracticeMaster, Tabs3, Time Matters, Billing Matters, and TimeSlips software applications. She also speaks and writes frequently on these topics. At home, Natalie is a hard-working wife and mother of 3 daughters.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/04/headlines-aba-techshow-2014
Protip: Don't Screw With Old Folks
When the unit arrived at the Macons' home, two weeks before Merien's arrest, officers had two outstanding warrants for couple's son, Derrick Macon, then 50, including one for child support. Officers insisted they be allowed into the home, William Macon said.
Because the officers did not have a search warrant, William Macon refused, he said.
William Macon, 83 years old, wasn't to be easily pushed. You gotta love tough old birds. And before anyone gets all bent out of shape about his "derelict" deadbeat son, it turns out that while the team knew all about the outstanding warrants for child support, they somehow missed the order holding that he wasn't the father of the child. But let's not have facts impair a good story.
When the deputies saw Merien drive up to the back of the home, they approached with guns drawn — one pointed at her head as she sat in the car — and pressed her about her son's whereabouts, according to the lawsuit.
"I was really surprised when they walked up with their guns," Merien Macon, a retired clerical worker, said last week. "I was scared. I was shocked. I was surprised."
Macon, who had dropped off her son earlier, told them she didn't know where he was and she did not want to answer questions, [Macon's lawyer, Elizabeth] Kaveny said.
And so the deputies, duly chastised by their overly violent conduct frightening a nice old woman, apologized profusely and left her in peace outraged by her refusal to do as they commanded, decided to teach an old woman a lesson.
At that point, Merien Macon became upset and told the officers she would not speak to them. The officers handcuffed, frisked and arrested Merien Macon on a charge of obstruction of justice.
The officers then took her to a nearby parking lot, where they gave her a phone and told her to call her son and find out where he was.
Merien's husband, William, a retired electrician, called that "a hostage situation," attempting to trade off his wife for his son. The sheriff's office claimed that was not at all the case, and they were just being thoughtful.
The sheriff's office denied attempting to pressure Macon to call her son and said she was moved to the parking lot because her husband had become upset and neighbors were starting to gather.
They didn't want to upset old William by forcing him to watch her cuffed, frisked and with guns pointed at his wife's head. A very sensitive gesture in law enforcement, likely to win a medal at some point.
The Macons sued for what was done to Merien.
Merien Macon was charged with felony obstruction of justice, leading her to file a lawsuit against Sheriff Tom Dart and the officers involved. A Cook County jury recently sided with her, awarding Macon $327,500 and agreeing with her husband that what happened that afternoon went too far.
Frankly, that's a very healthy award, give that most plaintiffs in her situation could hope for a fraction of that at best. But then, picture a jury hearing the testimony in this case, looking at the 77-year-old woman and her loving 83-year-old husband, and pondering the cuffs on her wrists, the hands on her body, the gun at her head, all over a mistaken child support warrant. It doesn't get more sympathetic than this.
"I've seen this type of thing over and over and over," William Macon said. "But when it happens to you it becomes more personal."
Truth. Unless you happen to be knowledgeable about your rights, have the guts to assert them with a gun pointed at your head and, purely by happenstance, a couple of cool codgers, chances aren't good you would end up with a verdict of this magnitude. This makes it an exceptionally good reason to both applaud the Macons, and to care a whole lot about when things like this happen "over and over and over." Because next time it could be you, and it will, without question, become "more personal."
H/T Spencer Neal
© 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/2013/07/13/protip-dont-screw-with-old-folks.aspx?ref=rss
For-Profit Colleges Face Test; Expansion of Speed Cameras Stirs Debate
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Plaintiff Can Access Police Investigation Records
Source: http://valawyersweekly.com/2014/01/02/plaintiff-can-access-police-investigation-records/
Squire Sanders Suspends Vote on Law Firm Merger with Patton Boggs
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Litigation Surrounding General Motors Ignition Switch Problem
License Loss Keeps Habeas Claim Alive
Source: http://valawyersweekly.com/2014/01/02/license-loss-keeps-habeas-claim-alive/
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The 2014 Midsize Hot List
Monday, May 26, 2014
Sound The Retreat (Update)
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
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Louisiana legislature approves restrictive abortion bill
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Does A Consumer’s Exercise of a Rescission Right Mean that the Loan Is Automatically Rescinded? Perhaps Not, According to One Federal Court, If the Consumer Does Not Also File a Lawsuit for Rescission
In Baker v. Bank of America, N.A., No. 5:13-CV-92-F, 2014 U.S. Dist. LEXIS 9578 (E.D.N.C. Jan. 27, 2014), the United States District Court for the Eastern District of North Carolina held that even if a consumer timely exercises his or her right to rescind a loan transaction under the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et. seq. — i.e., during the three-day statutory “cooling-off” period — that exercise does not automatically cause the loan to be rescinded. Rather, the court held, if a consumer’s notice of rescission is met with silence by the lender, the consumer must also file a lawsuit in order to complete the rescission before the statute of limitations expires (in this case, the statute of limitations was determined to be four years). The Baker case provides a thorough interpretation of the effect of the statutory three-day “cooling-off” period, for which, it was noted in the decision, case law is “exceedingly sparse.”
In Baker, the consumer entered into a refinancing transaction knowing that the terms were less favorable than the consumer had been quoted. Two days after closing the loan, the consumer mailed a signed rescission notice to the lender. The lender did not respond to the notice and funded the consumer loan. The lender allegedly refused to rescind the transaction despite multiple requests from the consumer. The consumer, unable to refinance on more favorable terms, eventually became delinquent on the loan and foreclosing procedures were initiated. Personal bankruptcy proceedings resulted in a discharge of the personal obligations under the loan but the foreclosure proceedings continued on the basis of the lender’s security interest in the property.
This case arose when the consumer responded to the continued foreclosure proceedings by filing an action for rescission pursuant to the TILA, nearly six years after the original notice of rescission had been sent to the lender. The defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The consumer argued that the rescission automatically voided the security interest pursuant to Section 1635(b) of the TILA, which provides that “when an obligor exercises his right to rescind . . . he is not liable for any finance or other charge and any security interest given by the obligor . . . becomes void upon such a rescission” (emphasis added). The consumer argued that this sentence provided for an automatic right of rescission that voided the transaction so long as the consumer sent notice of rescission within the three day statutory period.
The court disagreed. Instead, the Court distinguished between the “exercise” of the right of rescission and “full rescission.” The exercise of the right to rescind is accomplished by the giving of notice, whereas the full rescission is defined by a “full unwinding of the transaction and a return to the status quo.” Because the security interest becomes void only upon rescission, the lender maintained a security interest that could be foreclosed upon until such time as the transaction was fully rescinded.
In reaching its conclusion, the Court declined to follow unpublished decisions from the United States Court of Appeals for the Ninth Circuit (which includes California) and the United States District Court for the Eastern District of Pennsylvania (within the Third Circuit), which had previously held that the notification made pursuant to the TILA automatically voided a security interest. Rather, the Baker court held, where, as here, a lender fails to respond to a consumer’s exercise of his or her right to rescission within the three day statutory period, the consumer “must file a lawsuit to complete the rescission process in cases where the lender fails to respond to the notice or otherwise fails to recognize the borrower’s rescission rights.”
It is worth noting here that the Supreme Court granted certiorari on April 28, 2014 to a case which hinges on the question of whether or not the TILA right of rescission for the lender’s failure to furnish required disclosures must be invoked by filing a lawsuit or whether such rescission is automatic upon notice made within the three-year statutory period. See Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092 (8th Cir. 2013) (per curiam), cert. granted, No. 13-684 (U.S. Apr. 24, 2014).
The Baker court also disagreed with the consumer that lawsuits seeking rescission pursuant to the TILA have an unlimited limitations period. The court held that such a limitations period would cloud title to property to such an extent that Congress could not have intended that the right of rescission have an unlimited limitations period. However, the court did not wade too deeply into the debate regarding which statute of limitations was appropriate. Here, the right of rescission — that is, the right to sue for rescission — arose at the very latest when the lender failed to respond to the notice of rescission within the twenty day statutory period. The suit in Baker was filed nearly six years later and therefore must have been untimely. Although the court discussed the conflicting decisions of a number of other courts that placed the statute of limitations at the one-year and three-year mark, the court in Baker ultimately concluded that the relevant statute of limitation is “at most four years” and continues its analysis no further.
Given the uncertainties in the statute of limitations noted by the court, which identified decisions concluding the statute of limitations in these cases is as short as one-year, three-years or “at most four years,” the fate of individual rescission claims will remain varied. In addition, a consumer may be required to assert a claim for rescission in order to effect the full rescission desired, but a lender that fails to take “any action necessary or appropriate to reflect the termination of any security interest” within twenty days after receiving notice of rescission remains liable for civil penalties. Although such civil penalties are subject to a one-year statute of limitations, the TILA does provide for attorney’s fees in cases where the lender violates the TILA by failing to respond to a timely notice of rescission. Thus a lender would still be wise to consider the risks and costs of litigation, civil penalties and attorney’s fees before ignoring a notice for rescission.
Managing Overflow Work with Freelance Attorneys
Leila Kanani is an IP solo attorney and founder of Intermix Legal. After over 10 years of practice in BigLaw, she left for more control and balance in her life. Her objective in creating Intermix was to provide a flexible framework for experienced attorneys to participate in project-based contract legal services for solos and small firms.
Gil Schipani is the founder of Tempus Fugit Law, which specializes in substitute counsel/court coverage for lawyers as well as single transaction services. He is currently a partner with Schipani and Sinay and former Assistant City Solicitor of Brockton, Massachusetts. His practice area focuses on real estate, personal injury, business, and employment law.
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