Tuesday, December 29, 2009
Thursday, December 24, 2009
Monday, December 21, 2009
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.
Thursday, December 17, 2009
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.
Thursday, December 10, 2009
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.
Wednesday, December 9, 2009
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.
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.
Monday, December 7, 2009
Good luck to all who took the November test! Feel free to celebrate and bemoan in the comments.
Friday, December 4, 2009
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.
Thursday, December 3, 2009
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.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.
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.
We'll be sure to keep you posted on any developments in this case.
Update: Mr. Woods was executed as scheduled.
Monday, November 30, 2009
• 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.
Saturday, November 28, 2009
Tuesday, November 24, 2009
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.
Monday, November 23, 2009
"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.
Sunday, November 22, 2009
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.
Friday, November 20, 2009
[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.
Wednesday, November 18, 2009
Less than four months after California leaders stitched together a patchwork budget, a projected deficit of nearly $21 billion already looms over Sacramento, according to a report to be released today by the chief budget analyst.
California's finances have been so bad that the governor's finance director, Mike Genest, told a budget forum in Washington last week that back in February he had combed through the U.S. Constitution to research whether California could legally declare bankruptcy -- or revert to some kind of territorial status. (Neither was realistic, he determined.)
Tuesday, November 17, 2009
The article goes on to explain how President Obama is clearly struggling in terms of expressing his pro-choice interests while also appeasing his opponents. By conceding the lack of federal subsidies, the bill was able to pass in the House. However, the question, as Toobin so aptly puts it, is whether the President has crossed a fine line between compromise and surrender.
Monday, November 16, 2009
As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take. All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."
As expected, Sotomayor came out on top. She asked 146 questions during the 13 November arguments this term, by NLJ's count, for an average of 11.2 questions per argument. Roberts came next, asking 110 questions during 11 arguments in the November cycle of 2005, for an average of 10 questions per argument. As for Alito, he asked only 45 questions in the 13 March 2006 arguments, for an average of 3.5 per argument.
Sunday, November 15, 2009
Increasing the debt ceiling may keep the wheels of government spinning, but it does nothing to fix the underlying problem: the gargantuan chasm between spending and revenue. Recognizing this, the Obama administration is floating some interesting proposals for dealing with the epic mismatch:
1) Domestic agencies will likely face a 5 percent cut or a freeze of their budgets;Congress is also looking at ways to "generate more revenue" (read: raise taxes) to not only reduce the deficit, but also to pay for new domestic programs such as health reform. For example, the recently passed health bill contains a 5.4 percent surtax on individuals making over $500,000 and families who make over $1,000,000. Interestingly, unlike most of our tax brackets, this surtax is not indexed for inflation. That means, essentially, that more and more people are subject to the tax as their nominal incomes increase into the area covered by the bracket--a phenomenon called bracket creep.
2) Excess TARP money may be used to reduce the debt (somewhat circular in that TARP is all borrowed funds to begin with);
3) The roughly $47 billion a year Medicare fraud industry will (hopefully) be attacked.
As currently implemented, the surtax would affect 0.3 percent of taxpayers in 2011 and due to the lack of indexing, 0.5 percent of taxpayers in 2019.
Saturday, November 14, 2009
The paper tries to measure the return on investment in a law school education, using three prototypical students (the “Also Ran,” the “Solid Performer” and the “Hot Prospect”). . . . The results are somewhat disheartening, especially considering the surging interest in law school during this tough job market.
One big caveat with these types of rankings is that the inputs are different: The students who are accepted to Harvard — and then choose to attend — are probably different from the students who go to the University of Iowa, or for that matter, the University of Southern California, or Yale, or any other school.
Wednesday, November 11, 2009
Tuesday, November 10, 2009
Randolph "Dolph" Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes on cigarettes shipped from low-tax jurisdictions to higher tax jurisdictions. He was in the first few minutes of his argument when he made a small slip-up.
"There is no such adjective -- I know we have used it, but there is no such adjective as 'choate.' There is 'inchoate,' but the opposite of 'inchoate' is not 'choate.'"
Monday, November 9, 2009
Saturday, November 7, 2009
[Ed. Note: We will remove any comments regarding test questions from the MPRE. Save us the effort by not making any such comments.]
Wednesday, November 4, 2009
Did you do that?
Alright, on to the main show.
What happens when you strike jurors on the basis of race? Batson hearings, that's what! Well, what happens when, according to the Las Vegas Sun, "the prosecution ask[s a] black juror if he would feel ridicule from the black community if he voted to put [the defendant] to death . . . and the juror did not take offense to the question?" Further, what happens when the appellate prosecutor claims that "the juror had 14 relatives of which only three were not in prison and the juror also had a personal relationship with the defense lawyer?" Even more, according to the prosecutor, the juror was also excluded for other reasons. There's a (compound) question the Nevada Supreme Court will have to decide.
Tuesday, November 3, 2009
Gov. Arnold Schwarzenegger signs bill facilitating construction of NFL stadium in San Gabriel Valley
Monday, November 2, 2009
Going Maine-stream? Voters To Determine Whether To Affirm Gay Marriage, Extend Medical Marijuana Law in Maine
The legalization question is joined by six other measures on the ballot, including extending the legalization of medical marijuana and requiring state spending increase caps to equal inflation plus population growth unless given direct voter approval.
For our previous coverage of Maine's legalization of gay marriage, see here.
Sunday, November 1, 2009
Saturday, October 31, 2009
Friday, October 30, 2009
What, exactly, explains this perplexing phenomenon to which mainstream media outlets are only recently starting to pay attention?
Thursday, October 29, 2009
Brief Answer: According to the Illinois General Assembly, possibly yes.
Wednesday, October 28, 2009
Today, a [constitutional] convention moves an important step closer to reality as Repair California -- the coalition spearheaded by the Bay Area Council together with organizations of various philosophies across the state -- files its language for two measures to appear on the November 2010 ballot. Voters will be asked first to amend the Constitution to permit themselves to call a convention, then, second, they'll be asked to actually call it. A convention can work. It can give the constantly evolving state an updated government that better serves its restless people.It's coming California. There is light at the end of the tunnel. More to follow.
Personally, I don't see why the State's Attorney's Office and the Circuit Chief Judge got so upset. So what? The judge was made to eat his words. Literally. The fact is, the defendant followed a court order and justice was served (Jamaican Jerk-style, but sans slaw). I bet the Assistant State's Attorney was just upset that she didn't get a drumstick.
Tuesday, October 27, 2009
In the past decade, the movement towards establishing the right to counsel in civil cases has been gaining traction, and in 2006, the ABA issued a statement showing its support. Well, from the ABA's mouth to Governor Schwarzenegger's ears, and we get the first state law in California mandating legal representation for indigent civil litigants, otherwise known as the "Civil Gideon."
Monday, October 26, 2009
C.J.R. went to dinner with his wife at some swanky Manhattan eatery. Not wanting to let good wine go to waste (or, decent wine...), C.J.R. did what any good Conservative would do (with his wife, Jane, concurring)--he offered to share it with his neighbor. Who says Conservatives aren't community organizers? Not only that, but he signed the bottle, too!
C.J.R.--In Vino Veritas, indeed!
It's the moment nosy Norwegian neighbors have been waiting for — the release of official records showing the annual income and overall wealth of nearly every taxpayer in the Scandinavian country.
In a move that would be unthinkable elsewhere, tax authorities in Norway have issued the skatteliste," or "tax list," for 2008 to the media under a law designed to uphold the country's tradition of transparency.
Sunday, October 25, 2009
Friday, October 23, 2009
I didn't realize DWI statutes applied to motorized recliners. Maybe Mr. Anderson should have argued for the rule of lenity.A Minnesota man has pleaded guilty to driving his motorized La-Z-Boy chair while drunk. A criminal complaint says 62-year-old Dennis LeRoy Anderson told police he left a bar in the northern Minnesota town of Proctor on his chair after drinking eight or nine beers.
Prosecutors say Anderson's blood alcohol content was 0.29, more than three times the legal limit, when he crashed into a parked vehicle in August 2008. He was not seriously injured.
The $8,000 credit for first-time buyers, due to expire Nov. 30, has probably pulled sales and construction forward, signaling housing may cool in coming months. While Congress is considering extending the incentive, lower prices and mortgage rates have also contributed to steadying a market that endured the worst slump since the Great Depression.
“The rush to take advantage of the tax credit is obviously pushing up sales,” said Michael Gregory, a senior economist at Capital Markets in Toronto, who forecast sales would rise to a 5.5 million pace. “Although this is going to be temporary, it does absorb some excess supply and helps bring the market into balance going forward.”
Thursday, October 22, 2009
Call it fear, call it whatever you want. I'm just not comfortable with it. This vaccine was approved in six months by the FDA, and its efficacy rate has only been measured up to five years. Although I don't doubt Merck's reliability, (given the englightening Vioxx debacle) I can't quite get on board with a vaccine that does not detect much more than an annual pap smear. Also, as time goes on, Merck continues to expand the side effects and had to recently change the labeling to include fainting and seizures.
That being said, I am all for individual choices. I fully support having the option to get the vaccine if I so desire, and I respect those who believe this vaccine is the best way to fight cervical cancer. However, once the government decided to make Gardasil mandatory for immigrants, it went too far. How can the CDC liken an HPV vaccine to one for the measles or chicken pox where children can actually spread the disease just by common interaction? And if the vaccine isn't mandatory for US citizens, what kind of judgment is the American government making about immigrant women? Welcome to the United States where we will deny you entry if you don't get a vaccine that we cannot guarantee is safe for our own people. Let freedom ring.
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I wrote an article last spring detailing the potential antitrust problems with the BCS system. Seems like Congress is getting serious.
When Tribeca residents call the New York Law School a brightly shining beacon of secondary education, they are not exaggerating — nor are they being complimentary. Since this spring, the law school’s new building at W. Broadway and Leonard St. has emitted a continuous fluorescent glow, 24 hours a day, seven days a week. The bright light is disrupting the school’s neighbors at 6 Varick St., who say their street views are ruined and the incessant illumination is a waste of electricity.I realize that NY Law students stay up late studying, but do they really have to keep the neighborhood up with them?
Tuesday, October 20, 2009
For example, it notes that law school admissions are:
[v]ery competitive. Applicants must supply high LSAT scores, good grades, recommendations, and be able to write and argue well. However, provided you meet these requirements, there's flexibility in the undergraduate curriculum, so you can major in almost anything.
[e]xtremely competitive, with many schools admitting students at single-digit rates. If you've ever been in an introductory science course, you know that the majority of students have their hopes set on medical school. While many forego their dreams for research careers (or transfer to Arts), the pool of applicants has, and always will be, through the roof. So start studying for those MCATs, do some research, and make sure your professors write glowing recommendations.
Law School. If your primary motivation to pursue graduate school is linked to your parent's wishes, you're better off at law school. While a dispassionate student can probably gain entry into medical school, the intensity of study will be too much for someone who is just good at science. Law school produces students who are verbally articulate and strong writers - skills that are applicable to nearly every professional field. (emphasis added)
Monday, October 19, 2009
Questions about safety and claims of personal preference are understandable. Given the outstanding efficacy and safety record of approved influenza vaccines, our overriding concern then, as health care workers, should be the interests of our patients, not our own sensibilities about mandates. On this, the facts are very clear: the welfare of patients is, without any doubt, best served by the very high rates of staff immunity that can only be achieved with mandatory influenza vaccination – not the 40-50 percent rates of staff immunization historically achieved with even the most vigorous of voluntary programs. Under voluntary standards, institutional outbreaks occur every flu season. Medical literature convincingly demonstrates that high levels of staff immunity confer protection on those patients who cannot be or have not been effectively vaccinated themselves, while also allowing the institution to remain more fully staffed.Although Dr. Daines' regulation swept aside the "understandable" concerns "about safety and claims of personal preference" based on overriding public health concerns, a new legal challenge threatens the mass-vaccination scheme. Indeed, Justice Thomas McNamara of the New York Supreme Court granted a temporary restraining order ("TRO") last Friday enjoining enforcement of the regulation pending a hearing on October 30.
The TRO is a big victory for the plaintiffs, and--at least to some degree--reflects a determination that the vaccination scheme is likely to be struck down on the merits. The Public Employees Federation, one of the three plaintiffs seeking to nullify the regulation, was kind enough to share their court briefing with us.
Tacitly conceding that states and municipalities have the constitutional authority to require mass vaccinations for public health purposes in light of the Supreme Court's holding in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Federation essentially argues that the New York state constitution is violated by the regulation because it was implemented by an agency rather than the legislature. The brief alleges that Dr. Daines lacked authority to order the vaccinations, and additionally notes that every other vaccination scheme implemented was done under the auspice of a legislative mandate.
What I find most interesting, however, is a factual point the Federation wisely makes early on in the brief: no other state has followed New York's lead in implementing a compulsory swine flu vaccination program of any kind--be it by regulation or legislation. This, frankly, surprises me in light of the mass hysteria surrounding the whole ordeal. And, from a democratic government perspective, it's a pretty persuasive (albeit, legally irrelevant unlike the jurisprudence in the 8th Amendment context) argument against Dr. Daines' regulation. After all, the plaintiffs' claims would be mooted out if the state legislature goes ahead and passes a mandatory vaccination law itself. But no such law has been passed anywhere.
Should unelected administrators like Dr. Daines be able to circumvent the legislative process via regulation? In the face of a possible pandemic with massive public health consequences, it's a surprisingly challenging question to answer.
Friday, October 16, 2009
The WSJ Law Blog reported that Salzano sued a New Jersey newspaper, The Record of Hackensack (or The Bergen Record), because it referenced a complaint as alleging that Salzano stole, as opposed to converted, the funds. The case has now reached the New Jersey Supreme Court, which heard arguments earlier this week. The newspaper argues that journalists may not be expected to know legal terms of art and, citing the “fair-report privilege,” maintains that the media should be free to report on allegations in complaints without the risk of liability.
The appellate court, however, ruled that the “fair-report” privilege did not apply to situations where a complaint is newly filed and the claims don’t stick. And, apparently at least one Justice was very skeptical of the “journalist’s aren’t lawyers” argument. Justice Robert Rivera-Soto stated that “If [a complaint] were written in Sanskrit, you’d have to get someone translate it.”
To be honest, I’m not convinced by the Record’s arguments either. While I admit that I’m not familiar with the intricacies of the fair-report privilege, any argument that journalists should categorically be let off the hook when legal terminology is used strikes me as asinine. And the standard here is one of negligence, as opposed to actual malice, because it appears Salzano is a private figure. Ignorance of legal terminology certainly rises to the standard of negligence.
That isn’t to say that I believe the paper should be held liable. As a matter of fact, I feel very strongly that they should not. A more compelling legal argument could have been made in their favor. Specifically, it must be proven that the defamatory statement (i.e. that he was accused of converting the funds) was false. Typically, the plaintiff bears this burden. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Although the statement that Salzano was accused of stealing funds is literally false, more is necessary. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (the law protects false “details that, while not trivial, would not if corrected have altered the picture that the true facts paint”). Technical falsity is insufficient to overcome the burden of proving falsity; “material falsity” is required. See Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (requiring “substantial truth”); Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992) (requiring “material falsity” as opposed to "substantial truth" after the burden was switched from defendant to plaintiff).
Is the statement that Salzano was alleged to have stolen funds, when in actuality he was alleged to have converted them, materially false? I don’t think so, although I suppose it is debatable. What do you think?
Thursday, October 15, 2009
"You have to understand what is going on down there," Vladimíra Dvořáková, chairwoman of the Accreditation Commission that oversees standards in universities, said. "It is not about one politician giving an envelope to the faculty to get a degree. It concerns property worth billions of crowns to the Czech state. The Plzeň dean was also a director at the State and Law Department of the Academy of Sciences, a position of a huge importance. He gave expert opinions in areas relating to property owned by the state."One has to wonder if the guy who came up with this scheme has seen The Departed...
Wednesday, October 14, 2009
The IRS will open offices in Beijing, Panama City and Sydney in connection with the probe, which has revealed accounts held in 70 countries and every continent except Antarctica, he said. The agency also intends to hire more than 800 new employees in the next year and add staff to eight existing overseas offices, including Hong Kong and Barbados.