Monday, November 30, 2009

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)!

Saturday, November 28, 2009

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!

Tuesday, November 24, 2009

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.

Monday, November 23, 2009

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.

Sunday, November 22, 2009

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.

Friday, November 20, 2009

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.

Wednesday, November 18, 2009

Next Stop: Poor House

California just can't get a break. From the LA Times:
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.
Yeesh. And unlike the Federal Government, California cannot print money or use quantitative easing to deal with the shortfall. Things are so bad that California is researching ways to declare bankruptcy:
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.)
California's fiscal implosion may end up being a con law professor's dream. Can a state declare bankruptcy (note: the current bankruptcy code only provides a reorganization option for municipalities, not states)? Can a state revert to a territory? If Californians revolt and install a dictator, would Congress enforce the guarantee clause?

Whatever the answers may be to such heady constitutional questions, the reality is that life in California is going to get a whole lot worse in the very near future.

Tuesday, November 17, 2009

Follow up: Is President Obama Aborting his Campaign Promises?

A few weeks ago, the House of Representatives passed its healthcare bill by a vote of 220-215. As Jeffrey Toobin reports, a significant factor contributing to the Democrats' success was their "big tent" approach to abortion. At the last minute, Michigan Democrat Bart Stupak proposed removing all government subsidies for abortion from the bill, and the amendment passed by a vote of 240-194.

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.

How do you get your blog posts published into a book?

Be Nobel Prize winning economist Gary Becker, or legal intellectual giant Judge Richard Posner. Since 2004, both Becker and Posner have been writing a blog on current economic and legal issues. Recently, "their essays from that blog have been collected into a book, Uncommon Sense, which includes insights on everything from polygamy to organ sales to taxes on fattening foods." CNBC.

Monday, November 16, 2009

Notes on Justice Sotomayor's Bench Presence During Oral Arguments

From the National Law Journal:
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."
The Journal provided a tally of the number of questions Justice Sotomayor "asked in the second two-week cycle of arguments this term and compared it to the number asked by Roberts and Alito, the other recent newcomers to the Court, during the comparable period early in their tenures":
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.
I suppose Justice Sotomayor is taking a more hands-on approach than Justice Thomas, who thinks his colleagues talk too much. Check out the article.

Sunday, November 15, 2009

A Current Look at the Deficit and Proposed Tax Changes

Time for an update on our nation's deficit. As you may know, the United States' total debt is limited to a statutory ceiling set by Congress. Currently, this ceiling is $12.1 trillion. As of Friday, November 13, 2009, our nation's debt stood at $11.99 trillion. At our current rate of cash burn (something like $100 billion a month), we don't have very long before we hit the ceiling. Congress will likely increase the ceiling, albeit with some huffing and puffing from deficit hawks, because a failure to do so would constitute a default by the United States and would shut down the government (that being said, such a situation happened before in 1995).

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;

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.
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.

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

Is Law School a Good Investment?

Not according to the new research paper, "Mamas, Don't Let Your Babies Grow Up to Be Lawyers." From Economix:
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.
Of course, there are a few problems with the methodology employed by the authors:
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.
Check out the article and the paper.

Wednesday, November 11, 2009

Through the Looking Glass

I am a huge history buff. In particular, I love to see where two particular cultures or countries diverged and then examine whether the reason for that divergence was justified. In 1791, the United States ratified the Bill of Rights which included a nifty provision prohibiting the establishment of a state religion by the federal government. Our former masters, the English, opted not to enact such a prohibition. Maybe they should have.

Is Law School Non Partisan?

Law students are often inherently interested in controversial political issues, upcoming legislation, and elections. So how do those interests manifest themselves in a school setting? Well, the presidential election of 2008 is considered by many to be one of the most exciting and inspiring elections in our nation’s history, and I agree that it was. However, the most enlightening part for me was watching the swarms of Obama posters, buttons, cookies, and t-shirts floating around Penn Law school without a McCain supporter in sight. Did we really not have any, or were they just hiding out of fear? I sadly think it may be the latter.

Is This The End? We Can Only Hope...

The jury returned a death sentence for Brian Dugan.

This is a big day in DuPage County and Illinois. This murder has haunted the entire DuPage County State's Attorney's Office for the better part of 25 years. Yours truly was in the gallery yesterday and saw the masterful closings from both the State and the Defense.

For a brief history of the Jeanine Nicarico murder, click here.

Stripper-Mobile Driving Up The Strip: Free Speech or Indecency?

Only In Vegas...

Tuesday, November 10, 2009

9th Circuit Revisits the "Abuse of Discretion" Standard

Abuse of discretion. Remember it? It was that hazy standard of review you toiled over in civil procedure. Happily, Judge Bea on the 9th Circuit has attempted to make it a bit clearer. On November 5, an en banc court decided United States v. Hinkson, No. 05-30303 (9th Cir. Nov. 5, 2009), clarifying the circuit's standard. The question in Hinkson was principally whether the district court in that case abused its discretion in denying the defendant's motion for a new trial based on newly discovered evidence. The facts and implications of the opinion follow below.

Similarly Situated?

A cool little gadget from the NYT: it tells you the unemployment rate for people in your age group (among other distinguishing features). If only they had one for law students...

Justice Scalia on Vocabulary

The Business Insider reports that Justice Scalia gave an attorney arguing before the Court a quick lesson on word usage:
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.
He "slipped up" when he used the word "choate." Justice Scalia promptly corrected him:
"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

Posner on the Legal Profession

No longer a gentlemanly cartel? The legal profession is morphing, says Judge Posner at The University of Chicago Law School's commencement speech last June. I realize that this might be old news, but I just ran across it recently, and thought it would interest our readers.


Saturday, November 7, 2009

Open Thread: Reflections on the MPRE

The November administration of the MPRE has come and gone. And while we'll (apparently) have to wait five weeks for scores to be released, that will not stop the most neurotic of us from worrying about it. Here's an open thread to do just that--enjoy!

[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

How to be a Blogger: An Interview with David Lat

What is legal blogging, and why don't law students do more of it? This is a question that has been on my mind over the past few weeks (and really, months). Is blogging merely a hobby? A form of broadcast for the average person? For us, it has practically become a lifestyle. However, this wasn’t always the case; Blackbook Legal was actually conceived over a cup of chili at Potbelly's. Given our whimsical entrance into the blogosphere, I thought it best to seek an “expert opinion” on these important questions. I caught up with one of the legal profession's most notable and distinguished media personalities: David Lat of Breaking Media. David was very generous with his time, and I was grateful to speak with him both about his experiences and blogging in general.

BREAKING NEWS: Gay Marriage Banned in Maine

Well, that was quick... Maine voters have overturned the law allowing for gay marriage.

For our previous coverage of this issue, click here.

Wholly Racial Questioning, Batson!

Do this: open another tab, and play this clip in the background before reading.

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

Get ready, Los Angeles football fans! The NFL is coming to town. The LA Times reports that Governor Schwarzenegger has signed a bill "exempt[ing a] proposed 75,000-seat stadium from state environmental laws[, an action] . . . intended to hasten the planning process." Exempting the project from California's environmental law is a considerable step toward its completion. This is because the "environmental law[]" to which this legislation principally provides an exemption is the California Environmental Quality Act ("CEQA"). See Cal. Pub. Res. Code § 21000, et seq.

Monday, November 2, 2009

Ignorance Of The Law Isn't An Excuse!

Or, at least it shouldn't be after seeing this book. While I can't say that I have read it, I can say that I read a rather hysterical review of it here. I liked it so much that I decided to share it with you all on this lovely Monday.

Going Maine-stream? Voters To Determine Whether To Affirm Gay Marriage, Extend Medical Marijuana Law in Maine

An interesting story from the Bangor Daily News (HT: Daily Beast): The validity of Maine's gay marriage legalization hangs in the balance, with voters on both sides trying to finally put the question to rest.

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.

Driving That Train: Casey's "Undue Burden" - Better Tell Your Folks!!

It's not like Illinois is behind the times or anything-- the General Assembly finally got around to incorporating the Court's Planned Parenthood v. Casey, 505 U.S. 833 (1992) ruling into it's abortion notification law. Casey (and its later progeny) held in part that a State can require minors who seek abortions to give their parents notice of their intent, or, if that would be an "undue burden" on the minor (e.g., due to a terribly abusive home), then the minor would have to petition a court for a "judicial bypass."

Sunday, November 1, 2009

St. Charles Townspeople To Urinators: "You're Pissing Us Off...Now Pay Up!"

A little brite for your Sunday night: St. Charles (one of Chicagoland's posh exurbs) has decided to try and shake a prevalent problem it has downtown: public urination. The solution? Pass a law (or an ordinance), of course!