Tuesday, December 29, 2009

College vs. Law School: High Powered (Undergrad) Degree Worth it When Shooting for a JD?

Among law students, there appears to be a general understanding that students who attend top tier schools have more opportunities when it comes to prominent law firms, clerkships, and academia. At some point, where you go to law school becomes the dominant question, and where you went to college becomes seemingly less relevant to the point where one wonders whether it even matters.

Thursday, December 24, 2009

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.

Monday, December 21, 2009

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.

Thursday, December 17, 2009

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.

Thursday, December 10, 2009

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."

Wednesday, December 9, 2009

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.

Monday, December 7, 2009

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.

Friday, December 4, 2009

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.

Thursday, December 3, 2009

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.


Update: Mr. Woods was executed as scheduled.

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!

Saturday, October 31, 2009

Pharmacists are Shaking in their Lab Coats

The Wall Street Journal reports that a 35-year-old woman bought close to 4,500 painkillers over the course of a year, recklessly decided to drive a car, and ultimately killed one man and severely injured another. Can these men sue the woman? Yes. Can they sue the pharmacy that filled her prescriptions? Not as easy to answer. Sanchez v. Wal-Mart Stores, pending before the Nevada Supreme Court, may be the first United States case to consider whether pharmacies can be held liable for a fatal accident caused by a customer's prescription drug abuse.

Friday, October 30, 2009

Explaining the Lag in Filling Federal Judgeships

The Obama administration's pace in filling the many federal court vacancies has been quite slow. As we observed back in early October, President Obama has appointed considerably fewer judges than President Bush did during his first year and--more significantly--has had much less success in the confirmation process than his predecessor. While President Bush got fifty-three nominees confirmed in his first year, only four of the twenty-four lower federal judges appointed by President Obama have been confirmed with the new year just around the corner.

What, exactly, explains this perplexing phenomenon to which mainstream media outlets are only recently starting to pay attention?

Thursday, October 29, 2009

You Say, We Say, We All Say, Hearsay!

Question: Whether prior statements made by an alleged murder victim and another, separate missing victim to family and friends in letters can be admitted over hearsay and Confrontation clause objections, when they are to be used against the alleged perpetrator of both crimes?

Brief Answer: According to the Illinois General Assembly, possibly yes.

Wednesday, October 28, 2009

A Quake in the Golden State

From the LA Times:
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.

What A Jerk (Chicken) That Judge Is!

Judges beware: telling a defendant that bringing chicken into your court (even if it is delicious, delicious chicken) in order to prove completion of community service may result in chicken being brought into your court room (much to your palate's delight and your career's chagrin)!

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.

The Other Circuits Ain't Got Nothing on The Seventh!

The Seventh Circuit is notorious for its braininess and eminence. With Judges Posner and Easterbrook at the helm, the Seventh Circuit is a powerhouse of jurisprudence. However, in recent years, the Seventh Circuit has seemingly decided to add another facet to its notoriety--not only is it the baddest Circuit around, but it's also the coolest.

Tuesday, October 27, 2009

Introducing the "Civil Gideon"

In 1963, the Supreme Court unanimously decided in Gideon v. Wainwright, 372 U.S. 335 (1963) that the Sixth Amendment gives all low-income defendants the right to counsel in criminal cases. A year later, the Court broached the issue of a similar right in civil cases claiming that "laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” See Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 (1964). However, in 1981, it declared that indigent litigants do not have the right to court appointed counsel in cases involving the termination of parental rights. See Lassiter v. Department of Social Services,, 425 U.S. 18 (1981).

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."

Fast Moving Week in the Senate--Two District Judges Confirmed

Nearly a month ago, we noted in a clerkship series post that the Senate Judiciary Committee had sent four federal judicial nominations to the Senate for a vote, encouraging prospective clerkship applicants to polish their applications off to receive a federal clerkship in October or beyond. So far, it looks like we chose the word "beyond" wisely--opportunities may extend well into the spring given the current pace of things.

Monday, October 26, 2009

A3 Unleashed: C.J.R. Shares Wine With Neighbors

When Justices Go Wild! This story pairs nicely with the ATL piece on Scalia's cameo.

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!

My Dad Makes More Money Than Your Dad

Probably not true (Social Security doesn't make for a lavish salary), but it would be easy to find out that kind of information in Norway. From Yahoo (via AP):
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

Big Law, Nevada-style--An Electoral Showdown?

The Nevada desert is a brutal, unforgiving place. It's like 1,000,000 degrees, and there is no shade (save for the REALLY spiny tree/cacti things). And, it looks like it may be heating up real soon: according to the Las Vegas Sun, it is looking likely to be a two-pony race for the Governor's Mansion in 2010, with two of the biggest law firms in the State training the favorites. (Side note: what kind of paper is this? Everything in Vegas should have betting lines attached!)

Friday, October 23, 2009

And now for something not quite so intellectual...

Mr. Dennis LeRoy Anderson pleaded guilty to driving his La-Z-Boy while under the influence. From Yahoo:
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.
I didn't realize DWI statutes applied to motorized recliners. Maybe Mr. Anderson should have argued for the rule of lenity.

Mr. Anderson's chair is pictured to the right. I wonder if it's in the impound lot right now.

Cash for Condos

The first-time home buyer tax credit is due to expire next month. Anticipating the death of the credit, first-time buyers rushed to the market and helped to push up September home sales. Of course, commentators anticipate that home sales will collapse as soon as the credit expires (call it the cash-for-clunkers effect). From Bloomberg:
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

O-N-E L-E-S-S. I Want to be One Less.

I am sure many of you have seen the commercial for Gardasil, Merck's HPV vaccine that was approved by the FDA in 2006 to prevent cervical cancer in women ages 9-26. Gardasil protects against 4 types of HPV, including 2 types (16 and 18) that cause 70% of cervical cancer cases and 2 more types (6 and 11) that cause 90% of genital warts cases. I know several young women who have gotten this vaccine in an effort to further protect themselves from sexually transmitted diseases. Just last week, Bloomberg news reported that the FDA cleared the vaccine for use in males as well.

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.

The Legal Profession in the Media

I admit it. I am one of those law students who grew up watching legal shows for fun. Far before Jack McCoy, there was Angela Lansbury as the curious Jessica Fletcher and Andy Griffith as the hot dog loving, ever so clever Ben Matlock. Now, I'm a proud fan of all the Law & Orders, Criminal Minds, Cold Case, Without a Trace, and occasionally Boston Legal. I came across this article about the 25 Greatest Legal TV Shows and thought it was brilliant.

Have a favorite? Feel free to share!

BCS Update

Senator Hatch has asked President Obama to launch an antitrust investigation into the BCS. CBS Sportsline

I wrote an article last spring detailing the potential antitrust problems with the BCS system. Seems like Congress is getting serious.

Tribeca residents complain about New York Law School's night lights

Downtown Express, the "newspaper of lower Manhattan," reports that residents in Tribeca have been quite upset with their neighbor, New York Law School. From the story:
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

Law School v. Med School

Having trouble deciding whether to attend law school or medical school? The McGill Tribune provides some "guidance" in an article detailing the pros and cons of both professional schools. Surprisingly, the article is somewhat accurate--and perhaps painfully blunt.

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.
This is not like medical admissions, which are:
[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.
The article goes on to state what you can do with both degrees. With regard to law school, it reasons that "Richard Nixon proved that you can get average grades in law school and run the most powerful country in the world. That would certainly make your parents proud. Lawyers can go into private practice, politics, business, and even health." Hmm. . . .

Based on these and other categories of comparison, it then picks a winner:
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)
Prospective (and confused) students ought to take a glance at the article. I am not sure I agree with the conclusions drawn from each level of comparison, so I invite you to chime in with your own opinions.

Monday, October 19, 2009

New York Swine Flu Regulation Hits Road Block

On August 13, 2009, New York's state health commissioner, Dr. Richard F. Daines, promulgated a regulation requiring certain health care workers to receive the swine flu vaccination or be subject to fines. Dr. Daines' rationale, articulated in a statement reported by the New York Times, predictably related to the welfare of the patients:
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.

The name is Bonds... War Bonds

Here's an interesting ConLaw question: Can States "stand in the shoes" of people who owned World War II war-bonds and failed to collect?

Friday, October 16, 2009

Convert? Steal? What's the Big Difference?

Oh, the difference one word can make. John Salzano had been accused of converting hundreds of thousands of dollars in funds from his father’s company. Don’t you dare say he was accused of stealing the funds! Why, you ask? Because he’ll sue you and take the case all the way to the state supreme court.

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?

How much do law school deans make these days?

Enough to sit nicely in west Los Angeles apparently. Blockshopper (LA) reports that Michael H. Schill, soon-departing dean of UCLA Law School, recently listed his Westwood Condo for a cool $1.299 million.

Thursday, October 15, 2009

Czech Law School Infiltrated by Mafia?

Apparently so, according to The Prague Post, and now "[t]he safety of the state is 'threatened' amid growing fears of mafia influence in key sectors of society after allegations that degrees were conferred after just a few months' study." The alleged infiltration's scope seems vast:
"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...

Other NFL Owners

So J-Lo, Marc Anthony, Gloria Estefan and (soon) Fergie are part owners of the Miami Dolphins? Guess Rush should consider going into the music business. As the Kansas City Star notes, "that's the kind of celebrity who brings glitz and glamour to the NFL." Hmm. . . .

Wednesday, October 14, 2009

A Farewell to Stimulus?

The IRS' UBS prosecution is working. In fact, it is working so well that the IRS has decided to open up shop across the globe to ferret out secret accounts held by US residents.

From Bloomberg:
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.
So is this a good thing? It seems clear that the current administration is bent on closing the tax gap by actually enforcing the existing tax laws (Hint: recent estimates put the tax gap, the difference between what is owed and what is collected, at well over $300 Billion). Good. Better to collect from people who under pay now rather than punish compliant taxpayers with higher rates in the future (for instance, through the imposition of a crippling Value Added Tax).

But there is a dark side to the IRS' increased enforcement efforts. The IRS will be draining private investment funds to pay the US' ballooning debt obligations. In effect, money will be moved out of the capital markets and (theoretically) productive investment opportunities to the black hole of government spending. Translation? An effective tax hike.

Of course, in any normal times, requiring taxpayers to pay what they already owe is not a controversial position. However, when an economy is in a recession, government generally acts to stimulate private industry back into action. This stimulus is usually accomplished by issuing debt, expending funds, and hoping the multiplier effect does the trick (essentially, allowing the money to flow through to private entities who spend it on other items which helps boost GDP).

But when government simultaneously increases the effective tax rates, it acts to damper the stimulus and can prolong the recession. Some argue this is exactly what happened in Japan in 1997: Japan prematurely increased taxes which helped prolong its asset price bubble recession. Nothing about what subsequently happened in Japan is something we want to happen in the US.

So while the IRS' collection efforts are warranted, perhaps they are badly timed. Of course, it could turn out that the IRS' bounty will amount to a mere pittance. But if it is any serious amount of cash, the government may just be shooting its stimulus package in the foot.

Tuesday, October 13, 2009

The NFL and Rush Limbaugh

Pro-football fans and political pundits alike have been talking about Rush Limbaugh's proposed bid to buy the St. Louis Rams football franchise, but many in the NFL are not too happy with the prospect of Mr. Limbaugh owning a team. In fact, the bid "ran into opposition within the NFL on Tuesday as [Indianapolis] Colts owner Jim Irsay vowed to vote against him, and commissioner Roger Goodell said . . . [his] 'divisive' comments would not be tolerated from any NFL insider." This got me thinking preemptively of the antitrust problems the NFL may run into if an effort to stall Mr. Limbaugh's bid is successful. (For details on the basic antitrust principles I omit for brevity, click here).

Congress granted the NFL an antitrust exemption by passing the Sports Broadcasting Act of 1961. See 15 U.S.C. §§ 1291-95. Sparing a detailed explanation, the Act essentially permits NFL teams to jointly agree to, and negotiate, television deals. Id. § 1291. Yet the provision further states that it does not otherwise limit "the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in . . . organized professional . . . football." Id. § 1294. Thus, unless I am missing something, general antitrust principles such as the prohibition on anticompetitive group boycotts could ostensibly still apply to many business aspects of the NFL. It must also be noted, of course, that the Supreme Court will soon hear arguments clarifying the latter issue in American Needle, Inc. v. NFL, 538 F.3d 736 (7th Cir. 2008), cert. granted 2009 U.S. LEXIS 4899 (June 29, 2009), where it will review the Seventh Circuit's recent decision that the NFL is a single entity which is fully immune from antitrust liability under § 1 of the Sherman Act. Until this question is conclusively resolved, however, let's discuss the potential implications in this case.

In the modern approach to group boycotts, courts subject defendants who concertedly refuse to deal with a plaintiff to per se condemnation only if the plaintiff can show that the conduct simply has no redeeming merit, and that the group possessed market power or exclusive access to a critical competitive element--otherwise, the conduct should be judged under the sliding scale approach of the rule of reason. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 293-95 (1985) (distinguishing cases holding group boycotts subject to per se condemnation to be limited to their facts as concerted refusals to deal “[which] are so likely to restrict competition without any offsetting efficiency gains. . . .”); cf. FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459 (1986) (applying the rule of reason approach because the Northwest factors were not met in a case where members of a dentists’ federation agreed to collectively refuse to provide patient x-rays to insurance companies, preventing them from evaluating the reasonableness of insurance charges, and from implementing other cost containment measures).

Commentators have analyzed whether some of the NFL's current policies would implicate the boycott rules under § 1 of the Sherman Act. But could a boycott of Mr. Limbaugh's bid to purchase the Rams--be it through a players' joint refusal to deal with him, an owners' boycott or otherwise--be subject to antitrust scrutiny? My hunch is that a boycott could be problematic, even under a favorable rule of reason analysis, because it does not seem to have much of an economic motivation. From current rhetoric--and perhaps understandably--the boycott would be based almost entirely on the controversial statements Mr. Limbaugh made regarding Donovan McNabb several years ago.

I invite our readers to chime in on this matter. I am not too sure how a court would resolve it, particularly given the uncertainty in the federal courts on the scope of the NFL's antitrust immunity. Perhaps the forthcoming Supreme Court decision will obviate the need for speculation.