Have Yourself a Very Mobby Christmas

Here's some more Mob & Christmas news for your viewing pleasure. According to the Chicago Sun-Times, a local mob capo was given an amended court order of house arrest so he could indulge in a family (but not Family) dinner for Christmas.

I wonder if he will remember to leave a tip and take the cannoli.

Bah! Humbug! . . . and the Mob

From the Wall Street Journal:

As Christmas approaches, cities and towns across Italy are getting dolled up with decorations. Not the town of Portici. . . . Portici is chock-full of Catholic faithful who will pile into local churches for Christmas Mass. But those who dare deck their streets and storefronts with boughs of holly risk running afoul of the law. For the rest of the year, police will patrol the streets of Portici on the lookout for Christmas lights, wreaths, trees, red welcome mats or any other decorations that could be construed as expressions of holiday cheer. Decor that is publicly displayed outside shop windows, storefronts or sidewalks is now "subject to immediate removal and the payment of fines by transgressors," according to an ordinance freshly issued by Portici Mayor Vincenzo Cuomo.

At first blush, it seems like Mayor Cuomo is lacking Christmas spirit. However, the ban on Christmas cheer was put into place as "the latest front in his battle against the Camorra, the Naples-based mob known for its brutality and economic savvy." Specifically, when Christmas rolls around, the Camorra's costs go up, and so (naturally) local protection payments increase and become "festive":

Christmas-time payments . . . [are] commonly carried out through the forced sale of overpriced decorations -- from Advent calendars to poinsettias -- by the Camorra to shopkeepers. This year, the few shopkeepers who insist on hanging decorations outside their shops, hoping to lure customers into their stores, need exemptions from the mayor's office. Shopkeepers also face random checks by police demanding receipts showing the tinsel has been legitimately purchased.

At least the mob is in the holiday spirit. . . .

Is Law School Non Partisan?: A follow-up

As I discussed in a previous post, I find the role of partisanship and its potential to hinder insightful debate within a law school atmosphere rather intriguing. Therefore, when I read this New York Times article about how ideology is beginning to play a primary role in the life of former Supreme Court clerks, I expected to be similarly amazed. But I wasn't.

The article discusses how Justices are likely to hire clerks who agree with their political platform, and in turn, the presidential administration is more likely to hire former clerks of Justices that support the administration's political platform. I really want to be shocked that political figures are not actively seeking diverse partisan interests to avoid problems of groupthink, but it seems like that is simply the way the political world functions. While the same may not be true in finance or medicine, in politics, you want people on your side who at least agree with your overall approach to issues, and then they can debate you on more nuanced topics of how to tackle a specific problem. I am trying to follow through with my own thought process and think about what would happen if Obama began hiring all of Scalia's former clerks, but I cannot quite grasp how significant the effect would be.

The most interesting aspect of the article, in my opinion, was the idea that some firms have a tendency to hire more former clerks of either conservative or liberal justices, suggesting that law firms have political leanings as well. The article does not imply that firms are specifically turning candidates away for their political views, but simply notes a general correlation. At the end, the author claims that while these trends may be predictable, they effectively blur the line between law and politics. I guess the real question is whether that line exists, where it falls, and how much it matters in the real world.

US to EU: Eat My Carbon

For all of you international law fans, there is an interesting case out of Europe today. By way of background, the EU-ETS is Europe's cap and trade scheme for carbon emissions. Starting in 2012, airlines will be required to purchase carbon permits for all flights into or out of E.U. member states. From Aviation Week:

Three U.S. airlines and the Air Transport Association filed suit in a U.K. court Dec. 16 seeking to block implementation of Europe’s greenhouse gas emissions trading scheme (ETS).

The suit was filed by ATA, Continental, American and United against the U.K. Secretary of State for Energy and Climate Change. It is the first legal action brought by U.S airlines in a European court to halt the inclusion of international aviation in the ETS.

U.S. airlines sue in a U.K. court over E.U. law. Procedural issues aside, the key legal question is whether the E.U can require an E.U. bound foreign aircraft to offset its carbon emissions even if most of its flight took place outside the E.U. (Think an American Airlines flight from Los Angeles to London).

If the E.U. loses this case, they may be forced to remove airline emissions from the ETS (cheaper flights for euro-fans, bad news for Tuvalu). Imagine if European based carriers were subject to an additional tax on their extra-EU flights while foreign carriers could avoid the levy. The foreign airlines would have an instant price advantage and would likely take over large chunks of the market. For that reason alone, I have a feeling the E.U. law will trump the U.S. airlines in the U.K. court-making that European dream vacation just a little more expensive.

Finals . . . .

On behalf of the BBL Team, I want to apologize for the decreased frequency in posts. Like most of our readers, we have finals too. We will be back in full force within a few days. In the meantime, thank you for all of the article recommendations; keep them coming.

Cheers!

Law Professor Seeks to Raise $100,000 for Charity

Suja Thomas, the Mildred Van Voorhis Jones Faculty Scholar at the University of Illinois Law School, has posed an interesting challenge to readers of her new blog, "The Give Blog." Continuing a promise that began on November 23, 2009, she plans to potentially donate $50,000 of her own money to five charities:

To celebrate the launch of this blog, with your help, we hope to give away $50,000 to five charities – The Hunger Project, The Grameen Foundation, Safe Passage, Catholic Charities USA and the Eastern Illinois Foodbank. . . . [Through December 24], [w]e will match contributions of up to $100 from new donors to these charities, and each charity can receive up to $10,000 from us. (We will match up to $100 of new donations to each of the five charities such that a person who has not given to any of these charities in the past could be matched up to $500.) So together, with your contributions, we can give $20,000 to each of these charities, or $100,000 to all five of them.

We commend these efforts, and encourage everyone to take a look at the site. If you desire to participate, you may send an email "stating the amount that you will donate and make the donation directly to the charity. The charity will confirm that you are a new donor and the amount of your donation, and then [The Give Blog] will match your contribution."

Client Meeting from Hell

Lawyer beats client with baseball bat. From the Charleston Gazette:

A Charleston [West Virginia] lawyer beat his client with a baseball bat on the East End Wednesday afternoon after the client allegedly broke into his house. . . . A witness described lawyer Joshua Robinson chasing [his client] David Lee Gump II along the 1500 block of Lee Street, hitting him in the head, back and upper body at about 5 p.m. Wednesday. . . . Gump, 35, of South Charleston, was arrested and charged with battery and burglary, according to a criminal complaint filed in Kanawha County Magistrate Court. . . . Gump, who spoke with the Gazette at his house prior to his arrest on Thursday, said he didn't break in to Robinson's house. He said he was knocking on the door and standing on Robinson's porch, trying to confront him about a $1,100 check that he said belongs to him.

The incident is under further investigation. This would make for a killer MPRE hypo.

House Subcommittee Approves College Football Playoff Legislation

We assumed it had to happen eventually. . . . From ESPN:

A House subcommittee approved legislation Wednesday aimed at forcing college football to switch to a playoff system to determine a national champion, over the objections of some lawmakers who said Congress had more pressing matters on its plate. . . . The bill, which faces long odds of becoming law, would ban the promotion of a postseason NCAA Division I football game as a national championship unless that title contest is the result of a playoff. The measure passed by voice vote in a House Energy and Commerce Committee subcommittee, with one audible "no," from Rep. John Barrow, D-Ga.

Doubt this goes anywhere.

Is Tennessee "Volunteering" Hostesses for Recruits?

From the New York Times:

The N.C.A.A. is conducting a wide-ranging investigation into the University of Tennessee’s football recruiting practices, according to interviews with several prospects, their family members and high school administrators. A significant part of the investigation is focused on the use of recruiting hostesses who have become folk heroes on Tennessee Internet message boards for their ability to help lure top recruits.

Since Lane Kiffin took over as head coach of the Vols in 2008--shortly after the Raiders gave him the boot--his tenure has been anything but uncontroversial. The article reports that:

Interviews with multiple recruits and their family members revealed that the N.C.A.A. has strong interest in Tennessee’s use of recruiting hostesses, students who are part of a formal group at the university that hosts all manner of prospective students at campus visits, including athletes. It is not clear whether the university sent the hostesses to visit the football players. . . . [However, i]n one case, hostesses traveled nearly 200 miles to attend a high school game in South Carolina in which at least three Tennessee recruits were playing.

Another top running back prosect, "Marcus Lattimore . . . who made an unofficial visit to Tennessee but said he would not enroll there, said multiple Tennessee hostesses attended a game at [his high school] James F. Byrnes High School in Duncan, S.C., in September. He said they brought signs, including one that read, “Come to Tennessee.”

Under N.C.A.A. recruiting rules, hostesses are considered representatives of the university, effectivly meaning they cannot recruit players off campus. These visists, thus, would constitute violations of those rules.

Open Thread: November MPRE Scores Are Out!

It feels like it was only yesterday when we joined in this open thread to commiserate about the MPRE, but "score release day" has come and gone.Your score report is now available, and can be accessed at this link.

Good luck to all who took the November test! Feel free to celebrate and bemoan in the comments.

How Low Can the Pleadings Standard Go?

Recent legislation seeks to overturn the infamous Bell Atlantic v. Twombly and Ashcroft v. Iqbal cases responsible for holding plaintiffs to a higher pleadings standard. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Before Twombly, FRCP Rule 8 laid out a notice pleading standard which required a short and plain statement of the claim showing that the pleader is entitled to relief in order to give defendants fair notice. At the initial pleadings stage, the plaintiff had the burden of making factual allegations that, if true, stated a cause of action on which relief could be granted. Although the allegations needed to satisfy all elements of the claim, no evidence was required.

However, in Twombly, the Supreme Court created a plausibility standard establishing that a pleading must contain something more than a statement of facts that merely create a suspicion of a legally cognizable right of action. Revisiting Twombly in Iqbal, the Court rejected the theory that the heightened standard applied only to antitrust conspiracies, claiming that “Twombly expounded the pleading standard for ‘all civil actions.’” 129 S.Ct. at 1955. Supporters of these decisions believe that the heightened standard will reduce the amount of frivolous claims and avoid cases in which discovery is unlikely to reveal relevant evidence.

Well, Senator Arlen Specter begs to differ. Proposing the Notice Pleading Restoration Act, he is joined by several other officials in arguing that a higher pleadings standard simply favors defendants who succeed in concealing evidence, especially large corporations. As a result, courts are more likely to wrongly dismiss cases.

In certain respects, I do agree that the standard may be too high. First, it seems unfair to say that a meritorious case is always factually supported from the beginning. For instance, the plausibility standard is likely to be invoked is discrimination cases where the defendants will succeed on the basis of pure information asymmetry. Sometimes, the information necessary to meet the standard is in the hands of the defendants, and plaintiffs get caught in the catch 22 of needing discovery documents to solidify their claim while being stopped short of actually engaging in discovery. Also, I think that courts are able to impose certain limits on the discovery process to avoid the idea that it merely becomes a fishing expedition amounting to a waste of time and money. However, I think the major attack comes from the idea that lawyers, judges, plaintiffs and defendants alike have absolutely no idea what a plausibility standard actually entails. As a result, the Iqbal decision seems to imply that judges are left to decide right from the start whether the plaintiff is likely to have a meritorious claim, and without enough information, this decision can be construed as rather arbitrary.

I will say that, in reading about this new legislation, I was intrigued by the vast number of Twombly supporters who truly believe that the heightened standard will promote worthy claims, save resources, and encourage settlements. I know that I am instinctively uncomfortable with both Twombly and Iqbal, but I am open to being persuaded otherwise.

An Opportunity to Clarify Atkins v. Virgina?

Maybe. As the New York Times reports:

A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

While the Court, in Atkins v. Virginia, 536 U.S. 304 (2002), held that executing the mentally retarded violates the Eighth Amendment prohibition on cruel and unusual punishment, state practice following the decision has--as the Times notes--been inconsistent.

We'll be sure to keep you posted on any developments in this case.

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Update: Mr. Woods was executed as scheduled.

"Obama-shaped" Drugs

Police find "200 pills in the shape of the President and cartoon characters" in a drug raid in southern Texas. Hmm . . . as if the world didn't have enough problems. Parents take note: make sure those Flinstone's Vitamins aren't really potent ecstasy.

Student Sues Under ADA for Testing Accommodations

A classmate passed along this interesting article from October describing a Princeton University freshman's suit for extra time on her exams. The student claims in the suit to have a hodgepodge of learning disabilities:

• Mixed-Receptive-Expressive Language Disorder, which limits her ability to comprehend language, express language or recall material.

• Disorder of Written Expression, which leaves her ability to communicate in writing below the level expected based on age, intelligence or life experiences. When she writes, she has to repeatedly re-check what she has composed.

• Developmental Coordination Disorder, which leaves her ability to spell, punctuate and form sentences below the level expected based on age, intelligence or life experiences. She needs to read material several times over, isolate key words and highlight them so she can locate them again. Also under this disorder, her visual-motor processing skills are in the sixth percentile, "far below the average person, let alone the typical Princeton University student." She also suffers eye strain when taking tests and needs periodic breaks because of the way she reads passages over and over.

• Attention Deficit Hyperactivity Disorder, which limits her ability to focus. When reading, any distraction requires her to go back to the beginning of the passage.

Best Christmas/Post-Finals Present Ever?

Beer that is made in Scotch and sherry barrels? I'd call it "Heaven on Earth"-- Jim Koch agrees, and he labels it "Utopias" accordingly. Some states, however, disagree, and call it "just plain illegal." Fred laments for the poor lads and lasses in those sorry excuses for "states."

I know what I want Santa to bring me this year (besides motivation to finish next semester)!

Open Thread: Finals Prep and Superstition

Well, BBL fans, the least wonderful time of the year is upon us: Finals.

For some of the more fortunate of us (i.e. those with post-graduation job offers), it's largely a huge pain and a waste of time--one just needs to graduate and sit for the bar. However, seeing as most of us are overachievers, we're basically still studying nearly as hard as a 1L.

For those of us who are victims of the economy, this is just another potential hurdle--I mean, if I can't get a job with my grades now, how the will I get one next semester if my grades get worse?

For our younger readers (especially the first semester 1Ls), this is a time of increased hair-loss, weight-gain and the occasional heart palpitation.

So, in furtherance of what we all know is some mad procrastination, your dear friend Fred has decided to ask "what's more appropriate than sharing some Finals superstitions?" Tell us, dear readers, what kind of odd, nonsensical action(s) do you take to make yourself feel more comfortable before, during, and after finals week?

I'll start: I have a blue waffle knit shirt I wear for every fall semester final. It is called my "battle shirt" in reference to the red shirt Gen. A.P. Hill wore during the Civil War... and because it is awesome. It's a tradition I started as an undergrad. Also, I listen to "Touch of Gray/Grey" by the Grateful Dead as the last song before typing "Start" into the stupid SecureExam program.

So, kids--tell us whatcha got!

Professor Epstein Wants Wal-Mart Doctors

Professor Richard Epstein from the University of Chicago School of Law has written an op-ed in Forbes regarding the current health care proposals being floated in the House and Senate. Unsurprisingly, as a staunch libertarian, Professor Epstein does not support the current plans. His proposed solutions are quite surprising however:

The current bills should be dropped forthwith. The new motto is "redistribution last." Deregulation of an overheated market should be the new focus. Slash state mandates on health care coverage; allow interstate competition in insurance markets; relax interstate licensing requirements; permit nonmedical institutions like Wal-Mart ( WMT - news - people ) and CVS pharmacy to enter the primary care markets; reform medical malpractice law; and thin out senseless privacy diktats. Lower costs will revive the voluntary market and reduce costs and increase access for seriously sick people. The health care debate will continue to careen out of orbit until we return to the basic libertarian presumption that government intervention is an evil until shown to be a good.

Can Wal-Mart save healthcare? The article is worth the read.

P.S. Forgive my recent infrequent posting. It's final seasons here in California.

Stanford Law scholars explore legal challenges of personal robotics

We all love Asimo, but what if he malfunctions and decides to destroy someone's property? Further, "who will be to blame if a robot-controlled weapon kills a civilian? Who can be sued if one of those new cars takes an unexpected turn into a crowd of pedestrians? And who is liable if the robot you programmed to bathe your elderly mother drowns her in the tub?" An article from the Stanford University news wire discusses efforts taken by legal technology scholars at Stanford Law School who have sought to answer these questions on the scope of legal challenges in the field of robotics:

"I worry that in the absence of some good, up-front thought about the question of liability, we'll have some high-profile cases that will turn the public against robots or chill innovation and make it less likely for engineers to go into the field and less likely for capital to flow in the area," said M. Ryan Calo, a residential fellow at the Law School's Center for Internet and Society.

And the consequence of ignoring the issue, according to Calo, is that "[t]he United States will fall behind other countries – like Japan and South Korea – that are also at the forefront of personal robot technology, a field that . . . expect[ed] to exceed $5 billion in annual sales by 2015."

Calo and his Stanford colleagues are also considering liability protections that can be put in place to protect innovation in this lucrative field. This is complicated, however, as "the issues go beyond claims of personal injury and property damage." As the article notes:

"We're going to need to think about how to immunize manufacturers from lawsuits in appropriate circumstances," Calo said, adding that defense contractors are usually shielded from liability when the robots and machines they make for the military accidentally injure a soldier. . . ."If we don't do that, we're going to move too slowly in development[.]" . . . When something goes wrong, people are going to go after the deep pockets of the manufacturer."

Check out the full article.

Genetic Anti-discrimination Law Takes Effect

On November 21, 2009, the Genetic Information Nondiscrimination Act (Pub.L. 110-233) took effect. From the LA Times:

The most sweeping federal anti-discrimination law in nearly 20 years takes effect today, prohibiting employers from hiring, firing or determining promotions based on genetic makeup. Additionally, health insurers will not be allowed to consider a person's genetics -- such as predisposition for Parkinson's disease -- to set insurance rates or deny coverage. Not since the Americans With Disabilities Act of 1990 has the federal government implemented such far-reaching workplace protections.

The bill was signed into law by President George W. Bush on May 21, 2008.

Clerkship Applications up 66% From Last Year...

Back in February, we inquired whether the economic climate would lead to fewer candidates applying for judicial clerkships. As we noted:

[W]ith firms laying off by the dozen and swelled profits drying up, can anyone comfortably state that clerks will continue to receive BigLaw's "most favored associate" status? Probably not. In fact, it is entirely conceivable that clerking could pose an affirmative disadvantage for students with respect to firm employment: offers can be revoked, bar expenses unpaid…the potentially adverse consequences of choosing to clerk rather than go straight to a firm are plentiful.