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June 30, 2008

Juror to Judge: What Was the Point?

At Sentencing Law and Policy, Doug Berman points to yesterday's examination by The Washington Times of the case of Antwuan Ball, who faces 40 years in prison over a $600 drug deal. Federal prosecutors charged the D.C. man with a massive racketeering, drug conspiracy and murder indictment, with marching orders from former Attorney General Alberto R. Gonzales to pursue the death penalty. But jurors in November 2007 acquitted him on every count, save for a $600, half-ounce crack-cocaine deal seven years ago. That should have been good news for Ball, except for this:

Federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?

Of particular interest to blogger Berman in highlighting this story is what he describes as a "remarkable" letter from one of the jurors who acquitted Ball of most charges. In a May 16 letter to U.S. District Judge Richard W. Roberts, "Juror #6" writes:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

It is a fascinating case and The Washington Times explores it in depth. It also provides these additional documents:

June 30, 2008 | Permalink | Comments (4)

Divorce May Undo Lawyer's Career Change

It is the dream of so many Biglaw lawyers: To simplify, to downsize, to forgo big bucks in favor of personal fulfillment. And it was the dream the former Washington, D.C., Biglaw partner had pursued -- at least until his plans were foiled by last week's Massachusetts Appeals Court opinion in the case, C.D.L. v. M.M.L. The unidentified lawyer had it all, graduating from law school near the top of his class, clerkships with a federal circuit court and then the Supreme Court, a private practice in energy law with the D.C. office of a large Wall Street firm, average annual income of $700,000, a large house in Maryland and private schools for the kids. Eventually the travel and stress got to him and he began to contemplate downsizing. He and his wife came up with a plan for him to leave his firm and seek an alternative career, but still earn sufficient income to keep their lifestyles comfortable.

But then the couple's relationship began to go south. Well, actually, she went north, to Massachusetts, while he stayed south, in D.C. Then, in January 2001, without any discussion with his wife, the husband quit his lucrative law firm job. Ever since, he has been unemployed, living off his assets and savings, making only "minimal attempts" to obtain other work by applying for low-paying jobs for which he has no experience.

Unemployment is good work, if you can afford it. But then the judge in the couple's divorce trial ordered the husband to pay his former wife alimony of $711.54 a week, reasoning that even though the husband was not working, he had the ability to earn an income of at least $200,000, more than sufficient to meet the needs of the wife and the couple's youngest child. The husband appealed, arguing that the divorce judge erred in attributing income to him at this level. Unfortunately, he found no sympathy with the Appeals Court, which noted that he "has taken no steps to diminish" his own comfortable lifestyle and that he has the "historical capacity to earn at a level close to four times the attributed income."

We discern no error. The judge considered these issues and made such findings as were necessary, all of which are supported by the evidence. In her findings, the judge considered employment prospects and potential income commensurate with the husband's education, training, and employment history, including his past earnings. Reduced to essentials, the judge found that the husband has an ability to obtain employment in several fields, including the law, which would yield sufficient income.

So much for changing careers. In this case, the lawyer's leap off the treadmill may have been an exercise in futility. But then again, he has had the last seven years off.

June 30, 2008 | Permalink | Comments (1)

Florida Judge Makes History

Quince_2008_2 On Friday, Peggy A. Quince was sworn in as chief justice of the Florida Supreme Court, becoming the first black woman to lead that state's court system -- or any branch of government in Florida. This is not her first time making history. Fifteen years ago, she became the first black woman appointed to a Florida district court of appeal. "One of the ways you give back to your community is by being there and being visible," Quince said after her swearing in. "Young people find it's not all about whether you are a rap star or a baseball player or any of those kinds of careers. But there are also other careers available that can make a difference."

The 60-year-old jurist was raised in Virginia by her father, a longshoreman, and attended segregated schools growing up. She graduated from Howard University in 1970 and then attended law school at Catholic University. Her first legal job was in Washington, D.C., as a rent-control hearing officer. In 1977, she went into private practice in Norfolk, Va., and then moved to Florida a year later, opening an office in Bradenton. In 1980, she joined the state Attorney General's Office, handling appeals in the Criminal Division and eventually becoming Tampa bureau chief. Gov. Lawton Chiles named her to the 2nd District Court of Appeal in 1993. In 1998, Chiles and Gov.-elect Jeb Bush named her to the Supreme Court.

An editorial in the St. Petersburg Times says that Justice Quince will face difficult challenges during her two-year term as chief.

Praised for her quick mind and engaging personality during a ceremony Friday, she takes the gavel at a time when the court is on the verge of remarkable turnover and faces considerable challenges. Two of the seven justices are resigning, and two more will reach mandatory retirement age during her two-year term. The chief justice also acts as the chief administrative officer of the judicial system, and Quince takes charge in an era when the Legislature has to be constantly prodded to adequately fund the judicial branch. The work of outgoing Chief Justice R. Fred Lewis, who will remain on the court, in pressing for social services and aid for the mentally ill also will have to continue.

Already, she has created a task force to compile oral and written histories of black lawyers in Florida, says another report. In comments at her swearing in, former Florida Attorney General Bob Butterworth praised her for breaking through the dual glass ceilings of race and gender, adding, "You bring to the center chair not only wisdom and integrity but a big heart."

June 30, 2008 | Permalink | Comments (0)

Rehashing Kerry's Choice of Law School

As someone who graduated from Boston College Law School, I took it as a personal insult in 2004 when blogger and law professor Ann Althouse asked, "If John Kerry is so smart, then why did he go to BC Law?"

Since he was rich, it can't have been the lure of a free ride. You would think, with his anti-war activism, he would have been a very attractive candidate for admission to Harvard (or another top-ranked law school) if only his LSAT and GPA were at all within range.

Cautioning that she meant "no offense to Boston College," she conjectured that Kerry's attendance there was likely related to his "mental capacity." No offense taken, Ann ... if only I could understand your point.

That, of course, was water under the bridge. But now Thomas H. Lipscomb revisits Kerry's choice of law school in a post at The Huffington Post, suggesting that it was not Kerry's academic incapacity that sent him to BC, but his much-debated military record. The fact that Kerry went to BC over one of those more desirable schools indicates he had something to hide, Lipscomb suggests.

Why had a Boston snob like John Kerry gone to a subway law school like Boston College? A source who had been on the Harvard Law School admissions board revealed that with Kerry's bad military record he was turned down for admission though clearly qualified because they didn't want to admit someone who they thought would be unable to pass the bar.

Subway law school? In three words, Lipscomb demeans both a law school and a public-transit system. Who's the snob in this scenario? Roger Parloff writes this week at Fortune's Legal Pad blog about MBTA employees' offense taken over a series of restaurant ads that touted how "fresh" its fish are by insulting MBTA workers. ("This conductor has a face like a halibut.") Has the MBTA been alerted to Lipscomb's below-the-belt jab? And it's not even accurate -- BC Law is more than three miles from the closest subway stop. Heck, it might as well be in Wisconsin, where Althouse teaches.

For now, I can only hope that someday a BC Law grad will be elected president, and I will no longer have to feel like a second-class citizen. Meanwhile, I will continue reading that subway blog, Eagleionline, which tipped me off to Lipscomb's post.

June 30, 2008 | Permalink | Comments (1)

June 27, 2008

LTWC 2008: Nine Innings of E-Discovery

LegalTech isn't just about CLE sessions on outsourcing and information management -- a true power-attendee manages to squeeze in a bit of beer and baseball too. E-discovery 2.0 blogger Kurt Leafstrand pulled off a rare feat Wednesday night by making it out to the Dodger's game with a group hosted by LTN editor Monica Bay (decked out in full Yankees gear), and to pontificate on the history of EDD.

At the game, I happened to sit next to a colleague from another vendor who mentioned that her firm is about to celebrate twenty years in e-discovery. Twenty years! What a remarkable milestone for any company. It got me wondering about how much technology has evolved over that time period, and raised an interesting question to noodle over between innings: With all of the investment and innovation in the e-discovery space, who’s actually winning the e-discovery tug of war, twenty years in?

Leafstrand ventures a few theories of his own, but he's interested in your thoughts on the "war against documents."

June 27, 2008 in LegalTech West Coast 2008 | Permalink | Comments (1)

LTWC 2008: Judge Laporte's Helpful Formulas technology editor Sean Doherty reports from Friday morning's keynote address by Judge Elizabeth Laporte, down in LA for the morning before flying back up to her seat in the Northern District of California. Working in a region that encompasses San Francisco and Silicon Valley, Judge Laporte has had the chance to learn a thing or two about e-discovery while presiding over disputes between some of the largest tech companies in the world.

Sean notes that "[s]he had a lot to say about how counsel and their clients need to understand and learn about their electronically stored information prior to attending 'meet and confers' and other pretrial discovery conferences."

The lessons to take away are not to treat the early meetings as "drive-by conferences" and prepare for them: Do your homework. And when you know the extent of your ESI, be prepared to discuss it openly and with candor to your opponent and to the court. You also need to go beyond the extent of ESI and know how it was created and how it is maintained -- all in a way that can inform the parties and the court of its nature and accessibility, or inaccessibility. And most of all, remember that the "cover-up is worse than the crime."

While she was at it, Judge Laporte managed to pepper her technical speech with a few literary allusions, including a formula from a Salman Rushdie story that lawyers should never let their litigation support staffs use on them, "P2C2E": Process too complicated to explain.   

June 27, 2008 in LegalTech West Coast 2008 | Permalink | Comments (1)

LTWC2008: Blawgers Still Like Paper Books

At least two legal bloggers are promoting old-fashioned ink-and-paper books at LegalTech. J.Craig Williams, of May It Please the Court and Lawyer 2 Lawyer fame, offered autographed copies of his new tome "How to Get Sued" during Thursday's blogger breakfast. Later in the day Fios, Inc.'s corporate technology counsel Mary Mack was signing her new guide "A Process of Illumination: The Practical Guide to Electronic Discovery."

Were there any other authorial debuts in the legal technology field this week? Let us know in the comments.

June 27, 2008 in LegalTech West Coast 2008 | Permalink | Comments (0)

LTWC 2008: Second-Day Thoughts on the Keynote

It's day two of LegalTech West Coast and the bloggers have had a little time to contemplate Thursday's sessions away from the show floor. Things are different out here in LA. Walking from my hotel down to the convention center I noticed other pedestrians -- not as much of a novelty here anymore as the price of gas inches past $5 a gallon -- and the fact that they actually wait at crosswalks instead of diving through the traffic like New Yorkers. It's different out among the show's booths too. There aren't as many vendors and attendees as the massive LegalTech New York extravaganza, but that means firms and IT staff have more of a chance to chew over new technologies and have in-depth discussions without worrying that another pack of Flavia-powered show-goers are going to run them down in the aisles.

So far most bloggers are still thinking through the first day's keynote address by Chevron GC Charles James:

-- Law Biz Blog: "While Mr. James disclaims any real knowledge of technology, he certainly understands what he needs from technology to do his job better.  Those who serve customers/clients must listen to the needs/messages from those who sign the check if they want to survive and thrive in the future. Thank you Mr. James for being so direct and so candid."

-- Document Retention and Electronic Discovery Hot Topics: "He humbly noted that he had been overly seduced by the idea of automation while under-estimating the value of change management to lead to successful implementations."

-- Post Process: "His final remark was a challenge to vendors: he said that after the country’s legal system “is fixed,” effectively ending the e-discovery gold rush, he hoped that vendors would put as much zeal into crafting KM solutions as they currently do with EDD."

June 27, 2008 in LegalTech West Coast 2008 | Permalink | Comments (0)

June 26, 2008

LTWC 2008: New Ruling on an Old Technology

We briefly interrupt our special LegalTech West Coast coverage to note the news from the East Coast on the Supreme Court's long-awaited decision on the right to bear, well, a deadly piece of technology. Here's a quick link-wrap on the Justices' decision in the D.C. gun ban case:

-- The BLT: The Blog of Legal Times : "Initial Shots Over Heller"
-- Tex Parte : "Gun Giddiness"
-- WSJ Law Blog : "Praise the Lord and Pass the Ammunition!"

June 26, 2008 in LegalTech West Coast 2008 | Permalink | Comments (0)

LTWC 2008: Live From the Show Floor

Rob Robinson from Orange Legal Technologies  has done us one better on the legal tech blogging front. He's got a live webcam at the Orange booth right now, and he'll be interviewing many of the show's usual suspects today and tomorrow. Here's the line-up:

Thursday, June 26th (All Times PST)

10:00 am - Exhibit Hall Opens  - Live Updates Begin | Blogger’s Breakfast
10:15 am - Ronda Raymond - OrangeLT™ VP of E-Discovery Services /  OneO® Discovery
11:15 am - Monica Bay, Editor in Chief, Law Technology News / Blog: Common Scold
12:30 pm - Kurt Leafstrand, Director of PRD MGT, Clearwell / Blog: e-discovery 2.0
  5:00 pm - Exhibit Hall Closes - Conclusion Of Day 1 Live Updates

Friday, June 27th (All Times PST)

10:00 am - Exhibit Hall Opens  - Live Updates Begin
10:15 am - Brian Meegan - OrangeLT™ VP of Operations / Partner Update
11:30 am - Kevin O’Keefe, President, LexBlog / Blog:  Real Lawyers Have Blogs
  1:00 pm - Dr. Jim Dertouzos, RAND Senior Economist / Evidence Lifecycle Management

June 26, 2008 in LegalTech West Coast 2008 | Permalink | Comments (3)

LTWC 2008: Chevron GC's Keynote Address

Chevron GC and former Jones Day antitrust partner Charles James proclaimed himself a Fred Flintstone when it comes to technology during this morning's LegalTech West Coast keynote address. So how did he get picked to open the show? "I am the target... my IT needs are astronomical."

Like a guy who's had five root canals addressing a dental convention, James found himself both praising the hard work and technological advances of his several-hundred-strong audience, and decrying the need for that work in the first place. He started by running through some impressive numbers. Chevron gets sued an average of 2.5 times a day, he estimates; they've got more than 400 lawyers on their in-house legal team, and spend $190 million a year on outside counsel; the oil company has about 500 law firms working for it around the world -- James says he helped winnow that down from 700 when he started in 2002 -- with the lion's share of the work going to about 35 preferred provider firms. "I go to bed each night with $10 billion in potential litigation exposure hanging over my head," he said.

He then cited some of the IT success stories he and his team have made in recent years. Chevron has an in-house Web site detailing legal procedures for their teams around the globe -- it was in shambles six years ago; now it's the first thing they teach new in-house hires how to use. Their new e-billing system for legal has given them the kind of granular info they needed to get rid of extraneous or ineffective law firms, and hire more in-house lawyers (they've added 60 in the past year). Like a grocery store's customer rewards card, it stores all kinds of added details about each firm, beyond just dollars and cents. If Chevron sees that a single lawyer at a firm is billing them more than 1,200 hours a year, James makes him or her an offer they can't refuse: Come work for us in-house, or we'll find someone else who can.

But James also took the opportunity to run down his list of vendor gripes. First, stop grossly overselling the practical capability and functionality of products. Jargon like "complete enterprise solution" and "seamless integration" are misnomers that get thrown around in far too many a vendor pitch, he complained. I knew that somewhere in the back of the room, Law Technology News editor Monica Bay was smiling in weary recognition.

Second, noting the convention center's proximity to south central LA, James quoted Rodney King: "Why can't we all get along?" Interoperability continues to be a major issue. New systems are built on proprietary standards, increasing the cost of installation, while an older but effective system loses support when its maker merges with another vendor and decides to let that product fade into history.

Finally, James lived up to his early morning promise to be controversial. "Electronic discovery is a waste of society's resources," he told the room full of e-discovery specialists. Allowing himself to fantasize out loud for a bit, the embattled oil executive painted a picture of a world without plaintiffs lawyers, litigation holds or over-zealous attorneys general. "Everything is a crime these days," he said. "I'm not being facetious." So what's left for all the legal tech vendors in this idealized where most of their work is unnecessary? Knowledge management -- tools that can help a massive, global corporate entity like Chevron take care of business effectively. And maybe help them make gas a little cheaper too.

June 26, 2008 in LegalTech West Coast 2008 | Permalink | Comments (1)

LTWC 2008: Top Picks

LegalTech West Coast is just getting started, and a look through the schedule reveals some don’t-miss events:

  • “Practice Management Defined,” Thursday June 26, 10:30-12:00. George Rudoy of Shearman & Sterling (and LTN’s editorial advisory board) will lead a discussion on how to integrate different practice-specific legal tech services. Want to make sure you have all your practice management bases covered, and all your tech working together? Stop by after the keynote!
  • “The Role of Mobile Remote and Wireless Technologies in Disaster Recovery,” 1:30-3:00, Thursday, June 26.  If there’s one thing we’ve learned recently, it’s that the weather has become predictable in its unpredictability, so there’s no excuse for being caught without a disaster recovery plan (and one based on mobile technologies sounds like a good idea). Even the most prosaic events can be a problem if you’re unprepared. Learn how with moderator Eric Anderson of Sonnenschein Nath & Rosenthal, and panelists Steve Devine and Gail Ballinger of O’Melveny & Myers.
  • “E-Discovery Jeopardy!”  1:30-3:00, on Friday, June 27, moderated by Craig Ball, a member of LTN’s editorial board and writer behind the "Ball in Your Court" column.  Craig will perform the role of Alex Trebek in this e-discovery game, while Patrick Young of LexisNexis, Heather Stewart of Snell & Wilmer, and Lisa Rosen of Rosen Technology Resources will moderate. Are you the Ken Jennings of e-discovery -- or maybe just looking for an unintimidating and fun way to learn about it?  Come and see one of Craig Ball’s fabulous presentations. 

By Katie Montgomery

June 26, 2008 in LegalTech West Coast 2008 | Permalink | Comments (0)

LTWC 2008: LegalTech West Coast Trivia Answers!

Chevron_2 1. Keynote speaker, Today! 9 a.m.: Charles James, VP and GC, Chevron

2. The Los Angeles Convention Center is the venue for LegalTech West Coast

3. The third panel of the "Law Technology News presents FutureTech" track is called "TomorrowLand," inspired by the iconic venue at Disneyland in Anaheim, also home of K-Rod and the Los Angeles Angels of Tijuana/SoCal/Orange County/San Diego/Riverside etc.

4. True, any non-vendor blogger can attend LTWC free. Just email [email protected].

5. The "Bloggers Breakfast" will be held today, after the keynote, from 10-11 in room 508. Everyone is welcome!

6. 2008 marks the 27th year of LegalTech.

Gldellsmall  7. Green Law -- our LTN column on how the legal tech community can combat global warming, is also the title of FutureTech's 1:30-3 pm panel, "Green Law: It's not easy going green... or is it?"  (Friday, Room 503)

8. Feb 2-4, '09 is the next LegalTech NY

9. Magistrate Judge Elizabeth Laporte presents the Friday morning keynote

Henry_210. The esteemed and venerable Henry Payne Dicker ([email protected]) heads up LegalTech!

June 26, 2008 | Permalink | Comments (1)

June 25, 2008

LegalTech West Coast Trivia

As we gear up for the first day of LegalTech West Coast tomorrow, here's a little test of your conference knowledge -- past, present and future:

1. Who is the keynote speaker opening LegalTech West Coast '08 on Thursday June 26?

2. Where is LTWC being held?

3. What Disneyland icon is being honored as part of the FutureTech panel on Friday June 27?

4. True or False: Non-vendor bloggers can get a free full conference pass to LTWC.

5.  When and where is the Bloggers' Breakfast?

6. 2008 is the ___th year of LegalTech.

7. What panel is named after a column in Law Technology News?

8. What are the dates of LegalTech New York 09?

9. Who is the Friday morning keynote speaker at LTWC?

10. Who is the head of LegalTech?

June 25, 2008 in LegalTech West Coast 2008 | Permalink | Comments (0)

Labor Department Questions Law Firm About Immigration Advice to Clients

Exactly a year ago we wrote about law firm Cohen & Grigsby, which came under fire when its seminar -- on how U.S. employers can skirt federal requirements that they seek qualified American workers before applying for a green card for a foreign worker -- showed up on YouTube.  Now, the Associated Press reports that the Department of Labor is investigating another law firm, New York-based Fragomen, Del Rey, Bernsen & Loewy for allegedly putting into practice the same types of strategies described by Cohen Grigsby so as to disqualify American job applicants and clear the way for hiring immigrants.

The Labor Department inquiry is unprecedented because it focuses solely on the advice that the firm gave its corporate clients and does not target the corporations themselves.  Fragomen disputes that it told its clients "whom to hire or not to hire," but instead, merely gave "critical legal advice" about the process for hiring immigrants. Ultimately, the Labor Deparment will decide whether any of the pending applications submitted by Fragomen clients will be denied or subjected to additional government oversight. 

June 25, 2008 | Permalink | Comments (0)

DOJ Honors Program Contaminated by Cronyism

Does the politicization of Department of Justice (DOJ) under the Bush Administration have no bounds?  Sure, perhaps former Attorney General Alberto Gonzales wasn't the sharpest tool in the shed, but none of us would dispute that the President has the power to put anyone he chooses at the helm of DOJ, subject only to confirmation by the Senate.  That's how our system works.

But the politicization of the hiring process at DOJ penetrated far below the top levels, contaminating even  the supposedly merit-based, DOJ Honors program designed to attract top talent to government service, according to a report prepared by the Department's inspector general. [Source: New York Times and Associated Press].  The report found that many qualified candidates were rejected because their resumes were regarded as reflecting liberal leanings, such as membership in Greenpeace or previous employment with a Democratic Senator.  By contrast, less qualified students perceived as "conservative" because of, for example, affiliation with the Federalist Society, received favorable treatment.  The evidence is stark; from the AP story:

[i]n 2002, many applicants who identified themselves as Democrats or were members of liberal-leaning organizations were rejected while GOP loyalists with fewer legal skills were hired, the report found. Of 911 students who applied for full-time Honors jobs that year, 100 were identified as liberal -- and 80 were rejected. By comparison, 46 were identified as conservative, and only four didn't get a job offer.

Though advisers to then-Attorney General John Ashcroft introduced a political slant to the honors program in 2002, use of a candidate's political background as a litmus test for hiring accelerated in 2006, not surprisingly under Gonzales.

Some administrative officials defended the policy as a way to increase the diversity of the Honors Program, by reaching out to candidates at schools beyond the traditional Ivy League feeders.  Yet even taking officials at their word, surely they could have developed a more suitable process for expanding the program to include a wider swath of candidates than basing selection exclusively on politics. 

June 25, 2008 | Permalink | Comments (1)

June 24, 2008

LegalTech West Coast 2008

LegalTech West Coast 2008 kicks off this Thursday in Los Angeles, and the Legal Blog Watch is going all LegalTech all the time for the two-day show. I'll be reporting here live from the show floor, and using the blog as a central clearing house for blogosphere commentary on the event like we did back in February with LegalTech New York. We'll also keep an eye on the news from the Los Angeles County First Annual Small & Solo Conference, where Carolyn Elefant will keep us updated with a few tweets.

Plan to be at the shows yourself? Drop us a line: [email protected].

June 24, 2008 | Permalink | Comments (0)

Hustler, Mugs and Parodies

Hustler, "the name you trust, the sexual erotica you desire," demonstrated today just how desirable the publication is -- to work with. LFP, Inc., the adult entertainment company that owns Hustler trademarks, and CafePress, a user-generated commerce Web site, announced an amicable resolution to the Hustler trademark dispute. LFP had filed the suit in the Los Angeles Federal Court alleging that the use of the word "hustler" in user-generated CafePress products, like t-shirts and mugs, infringed on LFP's trademarks.

LFP dropped the suit on the condition that CafePress remove certain content from the site. According to a press release, the companies plan to build "a positive relationship" and work together to create "a positive educational process for creators of user generated content." Trustworthy, amicable, and educational -- that's hot.

This isn't the first time CafePress has come under fire for trademark infringement. Charles Smith, a 50 year-old loather of Wal-Mart, started selling "Wal-o-caust" products -- anti-Wal-Mart paraphernalia insinuating that Wal-Mart's attempts to take over the world were similar to those of Hitler -- on CafePress in 2005. Wal-Mart filed a suit against him, and the two-year legal battle was anything but amicable. But when Smith moved his products to, CafePress was no longer in the line of fire.

U.S. District Judge Timothy C. Batten Sr. ultimately ruled that Smith had not violated the company's trademark, making Smith's case the latest in a string of parody lawsuits favoring the parodists. A few months before Smith's decision was handed down in March, Haute Diggity Dog won a case filed against them by Louis Vuitton Malletier (LVM) alleging that the company's "Chewy Vuiton" chew toys shaped like Louis Vuitton purses violated LVM's trademark. Similarly, in 2002, a case filed by Mattel against Aqua, the band that produced the one-hit-wonder "Barbie Girl," was decided on behalf of the parodist.

June 24, 2008 | Permalink | Comments (9)

What Do You Get When You Google 'Obscene?'

In the decades since Miller v. California established a test for obscenity, courts have still not managed to establish a hard definition. While Miller's three-prong test is slightly more illuminating than Justice Stewart’s infamous “I-know-it-when-I-see-it” standard, its third prong -- that obscene materials have to be deemed so by community standards -- has continued to vex attorneys.

But according to today's New York Times, community standards might become easier to gauge. Florida defense attorney Lawrence Walters is arguing that Google searches provide insight into these standards, claiming that because Florida residents are more likely to search for "orgy" than they are "apple pie" or "watermelon," the community must not find group sex any more obscene than they do picnic fare.

"Time and time again you'll have jurors sitting on a jury panel who will condemn material that they routinely consume in private," said Mr. Walters, the defense lawyer. Using the Internet data, "we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed," he added.

His search terms of choice, however, are questionable. Dotcult points out that the Internet is private by nature. As a rule, people are willing to take their views on apple pie into the open. A better test, perhaps, would be to compare other searches that generally occur behind closed doors. Google Trends shows that Pensacola residents are far more likely to search for "weather," which one is likely to look into before leaving the house, than they are "orgy." Widening the potentially obscene search terms, Floridians are still more likely to check weather conditions than to Google the word "porn." Instead of relying on Google, Florida could also go the way of the one state that has found a way to define "community standards." Effectively proving that it has none when it comes to matters of the flesh, Oregon terminated its obscenity laws in 1987.

See also: WSJ Law Blog, Ben Fry, Gawker

June 24, 2008 | Permalink | Comments (0)

June 23, 2008

Rothgery Wins at the Supreme Court... or Does He?

After reading the Supreme Court's ruling in Rothergy v. Gillespie County, I'm left with one simple question: Did Rothgery win the case or not?  By way of background, Rothgery was arrested and jailed for possession of a firearm because his record erroneously indicated that he'd previously been convicted of a felony.  Rothgery argued that he should have been assigned counsel when he went before the magistrate at the initial probable cause proceeding, and that had the court done so, the lawyer would have discovered the error in his record, thereby sparing Rothgery time in the slammer.  The Sixth Circuit, however, disagreed, holding that because a prosecutor was not involved in the matter before the magistrate, the proceeding was not a "prosecution" within the meaning of the Sixth Amendment, and therefore, the right to counsel did not attach.

In today's Rothgery decision, the majority reversed the Sixth Circuit's ruling, holding that:

We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment  right to counsel.

Well, this sounds like a win for Rothgery... until you take a look at the concurrence by Alito, joined by Roberts and Scalia.  The trio acknowledges that "attachment marks the beginning of the prosecution," but that  attachment of the Sixth Amendment right "does not mark the beginning of a substantive entitlement to counsel."  In other words, as the concurring Justices understand the opinion, Rothgery's Sixth Amendment rights attached when he appeared before the magistrate, but the state was only required to provide counsel to the extent necessary to guarantee Rothgery effective assistance at trial.  In this case, Rothgery never went to trial -- so did he win this case or not?  I just can't tell. 

At least I'm not alone in my confusion.  At Volokh, Orin Kerr writes that he's trying to understand what it means for the Sixth Amendment to attach, while Scott Greenfield says "the question remains whether the defendant must have counsel present at the proceeding, or whether he has to request it, or whether he gets counsel afterward."

Justice Thomas, the lone dissenter, stays out of this mess by taking the position that by its terms, the Sixth Amendment only applies when a prosecution is commenced -- and no prosecution took place here.  I don't agree with Thomas' narrow interpretation, but at least I can understand it. 

June 23, 2008 | Permalink | Comments (3)

Lawyers Put One Woman's Intuition to Work

Whether you call her intuitive or just plain psychic, Laura Day, a corporate psychic consultant is in hot demand by Hollywood movie producers, high tech companies and yes... even lawyers.  As described by Newsweek, companies use Day's services -- at a price tag of $10,000 a month -- to predict the success of products or movies or for insight on whether to pull out of a multi-million dollar deal. Even ordinarily rational, logical lawyers have retained Day to gain an edge in court.  From the article:

A Manhattan attorney who serves as special counsel to several white-shoe law firms has used Day's insights to help her select juries and anticipate the opposing team's arguments. "Day saves me thousands of minutes on my cell phone" working a case, says the attorney, who also didn't want to be publicly identified.

Has your firm ever used a psychic or intuition expert in its cases, and if so, on what kinds of matters?  Do these folks have some type of special insight that others don't?  Post your comments below.

June 23, 2008 | Permalink | Comments (3)

Introducing LexMonitor

With nearly 2,000 law related blogs -- and counting -- how can lawyers track them all?  Up until recently, news aggregators or readers such as Bloglines or Google Reader, offered the most effective tool to efficiently monitor blog postings by gathering the feeds all in one place.  But many lawyers still don't use newsreaders either because they don't know how or don't have the time to load the feeds from their favorite blogs into the reader.

Two recent sites address these news reader deficiencies by taking an alternative approach to law blog tracking.  One site that launched a few weeks back, Alltop - Law, pulls headlines from a diverse collection of popular law blogs (including Legal Blog Watch) listed on one page.  With Alltop, readers can scroll through the postings at one Web site without opening an aggregator, just as they might peruse headlines at a newsstand.

A second site, LexMonitor, described as a "free daily review of law blogs and journals," went live this past weekend.  To my mind, the different topical channels -- such as family law, personal injury law or even AmLaw 200 are the stand-out feature of the site because they enable readers to follow postings from blogs on certain subject matters in one streaming, Web-based feed.  The channels will help lawyers keep abreast of new developments in specific practice areas and foster robust conversation between bloggers who cover the same subject, since they now have an easy way to follow each others' postings. In addition to aggregating feeds, LexMonitor promises to "make content from the legal blogosphere more accessible, meaningful, and valuable by highlighting discussion, blogs, tags, and authors you may wish to follow."

Have you tried either of these tools yet?  What's your favorite way to track law blogs?

June 23, 2008 | Permalink | Comments (1)

Foreclosure Cases Making Big Money for Small Firms

Okay, so they're not in the Am Law 100 or even the Am Law Second Hundred, but two relatively small Hartford firms, Hunt, Leibert and Jacobson and Reiner, Reiner and Bendett are reaping millions from their busy foreclosure practices, reports the Hartford Courant. Of the record 18,000 foreclosure suits filed in Connecticut last year, 8,000 came from Hunt, Leibert and 4,000 from Reiner, Reiner.   

The firms dominate the foreclosure courts for two reasons. First, they are the only Connecticut law firms approved as "designated counsel" by the main government-sponsored mortgage lenders and guarantors, known as Freddie Mac and Fannie Mae. Large lenders with mortgages backed by those agencies have a financial incentive to use designated law firms when foreclosing on loans, and some smaller lenders are required to use the designated firms. Second, Hunt Leibert and Reiner, Reiner process foreclosure lawsuits more quickly than their competitors, requiring an average of three to four months to close a case in comparison to the median seven-and-a-half months at other firms. 

The speed with which the firms handle foreclosures has drawn criticism that they are overly aggressive, unnecessarily taking homes and rushing through foreclosures for bank clients concerned with speed above all else. The firms are also the subject of homeowner complaints filed with the state's attorneys' office, alleging mistreatment in the foreclosure process. 

And it's not just lawyers getting rich off of foreclosure. This related piece from the Courant reports that the self-employed state marshals who serve foreclosure papers are grossing a half-million dollars a year.  One process server, John Fiorella grossed $2 million and even with the $1.2 million in expenses associated with clerical staff, mileage and copying costs, he nets $878,000 -- as much as some Am Law 100 partners.   

June 23, 2008 | Permalink | Comments (0)

June 20, 2008

More on 'Velvel v. Bush'

Our post here Monday on plans by Massachusetts School of Law dean Lawrence Velvel to convene a conference to prepare for the war crimes prosecutions of President Bush and other administration officials drew comments from several bloggers and a correction from the law school's spokesperson.

First, the correction. The initial announcement bore this headline: "Law School Calls Conference to Plan War Crimes Trials of Bush and Other Involved Administration Higher-ups." After we picked up on the story, MSL spokesperson Sherwood Ross sent an e-mail saying that although the conference is being held at MSL, that does not mean that the school is sponsoring the conference. "It is not," he writes. Also, Ross's initial statement said that one goal for the conference would be to set up "an umbrella coordinating committee with representatives of legal  groups concerned about the war crimes such as the Center for Constitutional  Rights, ACLU, National Lawyers Guild, among others." In his correction, he wrote, "Please delete the words National Lawyers Guild." Hmmm.

As for blogosphere reaction, here is a round-up:

  • At Above the Law, David Lat poked jabs at MSL dean Velvel, expressing surprise that a liberal such as he would espouse hangings, and at the school's students, suggesting that the school's unaccredited status may have a role to play: "If they can't find employment elsewhere, maybe they can go prosecute President Bush."
  • At The Volokh Conspiracy, Orin Kerr wonders whether the story is even real.
  • At Althouse, Ann Althouse notes that she has never heard of MSL, but says the conference isn't a terrible idea. "It's a little bit inflammatory, but if the issue of war crimes is taken seriously and presented in an appropriately legal fashion, what is so bad about it?"
  • At, Michael Krauss calls the news a disgrace to the law school and suggests the Secret Service should visit Velvel and provide "a legal lesson to the Dean about death threats against the President."
  • At Convictions, Phillip Carter relates the conference to the Supreme Court's grant of cert this week in Ashcroft v. Iqbal, a case involving top administration officials' legal accountability to detainees. "Somehow, I don't think this is what the Supreme Court had in mind when they granted cert," he writes.
  • At, Bainbridge describes it as the "unhinged loony left in action."

As I read through these reactions, I cannot help but wonder whether a worthy idea got lost in the message. Althouse is right: a substantive academic conference exploring whether the U.S. committed war crimes wouldn't be "so bad." In fact, it could be a step forward in bringing about a better public understanding of issues surrounding torture, detention and the military. The problem here is in the way it was presented, with the conference organizer sounding as if he is accuser, prosecutor, judge, jury and executioner. After the announcement, what's left for the conference?

Another downside to all this is the negative publicity it has given to a school that doesn't deserve it. When MSL opened its doors in 1988, I was the editor of Massachusetts Lawyers Weekly and followed its launch closely. I've continued to keep a curious eye on it ever since. Despite -- or in spite of -- its accreditation battles with the ABA, MSL has established itself as a serious law school. Part of its appeal is that it requires no LSAT, meaning that its doors are open to some who would be less welcome elsewhere. Many of the MSL grads I've met went there as a second career. The school has an accomplished faculty and an adjunct faculty of judges and lawyers who are well regarded in New England. Many of its graduates have distinguished themselves.

I interviewed Velvel way back when MSL was getting started and have not spoken to him since, that I recall. The irony in all this is that, for all the controversy he creates -- and this is not his first time in the limelight -- without his hard work over the years, MSL probably wouldn't be where it is today.

June 20, 2008 | Permalink | Comments (5)

Now You Can Brush Up on British Law

First-year law students know that they have England to blame for so much of their misery, thanks to our reliance here on its many centuries of common law. Without the Duke of Norfolk's Case in 1682, we might have no Rule against Perpetuities to perplex about. Without Shelley's Case in 1581, there would be no need today to learn the Rule in Shelley's Case. But lawyers in the United States may be surprised to find out that even after we declared our independence and began to forge our own body of common law, Britain's jurists continued to grind out opinions of their own. Now, we have an opportunity to brush up on the most recent 200 years of British case law, thanks to a five-part series in The Times examining England's 100 most important cases of the past 200 years.

"Everyone will have their favourites, from the Paisley snail to the Carbolic Smoke Ball Company," promises the introduction. If these names mean nothing to you, this series may be for you. The 100 cases were chosen by Gary Slapper, professor of law and director of the Centre for Law at the Open University, who summarizes each one and provides a link to the original law report as it appeared in The Times. The series coincides with the launch of The Times Archive, a searchable database of everything that appeared in The Times since its launch in 1785. The archive includes the formal Law Reports spanning those years, as well as a history of legal drama as it played out in news reports, letters to the editor, commentary and trial transcripts.

One of the earliest cases was that of Ormond v Payne, in 1789, which involved a butcher and prince’s coachman. The claimant, George Ormond, was a butcher living at Turnham Green, West London. The defendant, Don Payne, looked after the affairs of the Prince of Wales at Carlton House.

The butcher sued Payne after the prince’s coachman drove into the butcher’s cart, breaking his leg. According to Osmond, the coachman was in a terrible hurry and 'in liquor'. The moment the horses were harnessed and he had mounted the box, he 'called for a glass of gin, drank it, threw the glass violently upon the pavement, flogged his horses' and sped away. The jury found that Payne was liable for the coachman's actions and awarded damages  of £100.

A lesson, perhaps, in how the common law gave rise to the modern-day DUI lawyer.

June 20, 2008 | Permalink | Comments (1)

The Top 10 Law Songs

Theclashlondoncalling Just in time to load up your iPod for listening on the beach, the blog Above the Law has come out with its list of the Top Ten Law Songs. There was a fierce battle for first place between The Clash's "I Fought the Law" and Warren Zevon's "Lawyers, Guns and Money," writes ATL's Kashmir Hill, but The Clash came out on top -- as well they should. Here is the complete list:

  1. I Fought The Law - The Clash
  2. Lawyers, Guns, and Money - Warren Zevon
  3. 99 Problems - Jay-Z
  4. Folsom Prison Blues - Johnny Cash
  5. We're All Winners, as arranged by Nixon Peabody
  6. Law and Order theme song
  7. Hurricane - Bob Dylan
  8. Alice's Restaurant - Arlo Guthrie
  9. I Fought The Law - Bobby Fuller 4
  10. The Road Goes on Forever - Robert Earl Keen

Read ATL's full post for details on each song and links to lyrics and performances. Not having voted, I can't complain about the omission of Bob Marley's, "I Shot the Sheriff." For the submissions that did not make the top 10, see here.

June 20, 2008 | Permalink | Comments (0)

Trademark Tidbits: Mister Softee and Super Duck

Homehead2 Mister Softee is back. We're not talking about the summer return of the ice cream truck to neighborhood streets, but the brand owner's return to federal court. Back in 2005, the New York Times reported on Mister Softee's legal efforts to protect its trademark from being ripped-off by look-alike ice cream vendors. At the time, the company's lawyers were gathering evidence for lawsuits to be filed in New York and elsewhere. Now, Marty Schwimmer at The Trademark Blog reports that Mister Softee filed suit this week in federal court in Manhattan against a number of defendants.

If that news leaves you thinking, "That's just ducky!" then you've got the wrong case. You want Boston Duck Tours v. Super Duck Tours, wherein the 1st U.S. Circuit Court of Appeals ruled that just because it quacks like a duck, that doesn't mean it violates trademark law. The court lifted the preliminary injunction in a trademark suit brought by one of Boston's ubiquitous duck tour operators against another over its name and a logo showing a duck splashing in water. The trial court erred in finding that the phrase "duck tour" was non-generic, the 1st Circuit concluded. The Boston Globe has more.

For a decidedly non-generic use of Boston's duck boats this week, see here.

June 20, 2008 | Permalink | Comments (1)

Celtics Win a Loss for Legal Services

There was joy in Boston this week as the Boston Celtics won their 17th NBA championship, the team's first since 1986. But the joy begot misery for Greater Boston Legal Services, as post-game revelers vandalized its office, located just a block from the TD Banknorth Garden. GBLS executive director Robert A. Sable tells Julia Reischel at the Massachusetts Lawyers Weekly blog The Docket that vandals smashed in the windows of GBLS's street-level lobby and left furniture and carpeting covered in shattered glass. As if that was not bad enough news for the poverty agency's tight budget, it has just spent $300,000 renovating the lobby with new windows, new furniture and a kids' area.

According to Sable, the vandalism occurred soon after the police lost control of a rowdy crowd trying to make its way down Friend Street toward the Garden and the sports bars that surround it. The police had barricaded the entrance to Friend Street, but the barriers were breached by revelers coming from nearby Faneuil Hall Marketplace around midnight on Tuesday night.

Sable says that, according to a video taken by GBLS’s security camera, at 12:08 a.m. a passerby smashed the windows with a sign pole that he had apparently yanked from the ground.

Someone caught the vandalism on video and, needless to say, posted it to YouTube. "What is so depressing," Sable tells Reischel, "is that the crowd cheers like they have done something worthwhile."

June 20, 2008 | Permalink | Comments (1)

June 19, 2008

Lawyer Blurbs: Razor Blades, Rock Bands and TV Shows

• If you're thinking about buying the hugely popular blog, How Appealing, be prepared to pay a pretty penny.  According to Howard Bashman, "it would take a lot more than one million dollars to cause me to walk away from this [How Appealing] blog.  Bashman made the comment in a post describing his recent audition for the television show, "So You Want to Be A Millionaire."  [H/T ABA Journal.]

• Lawyers rock... really!  In fact, here in Washington D.C., ten law firm bands (with names like Beats Workin and "de profundis") will compete in a Battle of the Bands to raise money for the D.C. homeless.  [Source: Reading]

• Was Perkins Coie trying to be cutting-edge with this unusual piece of law firm swag? It's an emergency flashlight/beacon to stash in your car; it comes complete with a razor blade, to cut away your seat belt if you've had an accident and are hanging upside down.  It's a novel idea, but seems to me that giving away razor blades, which can easily be used for dangerous or malicious purposes, may not be the sharpest PR idea for a law firm.

June 19, 2008 | Permalink | Comments (0)

LinkedIn Valued At $1 Billion: What It Means for Lawyers

Social networking is growing up.  The latest evidence: LinkedIn, a more staid, career-oriented networking site for professional advancement and interaction just closed a round of funding that values the company at $1 billion.  Though still a fraction of the $15 billion Facebook valuation, hitting the $1 billion mark represents a major milestone for the LinkedIn.

So what does all of this mean for lawyers?  More than anything, the LinkedIn valuation sends a message that social networking sites are here to stay and lawyers need to get on board.  And as Kevin O'Keefe pointed out last week at LexBlog, many lawyers have already gotten the message.  O'Keefe notes that 98,000 lawyers added profiles to LinkedIn in the last two months alone for a total of 216,000.  Moreover, a comparison of growth in traffic at LinkedIn and lawyer directory sites like Martindale and FindLaw shows that LinkedIn is "blowing them all away" says O'Keefe. (Of course, it should be noted that LinkedIn attracts visitors looking for all types of professionals, not just lawyers.)  The LinkedIn profiles are professional and show a lawyers' current place of employment, job history and other information that they choose to provide.

So... do you have a profile up on LinkedIn (or other social networking sites)?  If not, why not?

June 19, 2008 | Permalink | Comments (1)

Report Gives Thumb Drive Thumbs Down for Security

One of the biggest security threats to corporate data comes from the smallest of sources -- the ubiquitous USB flash drive, also known as the thumb drive.  According to this report released by the European Union Agency for European Network and Information Security (ENISA),  uncontrolled use of flash drives can lead to viruses or security breaches that can cost businesses thousands of dollars to correct, reports IT  For starters, 80 to 90 percent of USB flash drives sold to businesses were not encrypted.  Most are not stored in a secure location and consequently are easily or inadvertently lost.  Finally, despite the fact that they might contain private data, financial information, business plans or other confidential records, ENISA warns that USB flash drives are usually overlooked by corporate policies on audits, back-ups, encryption and asset management.

The ENISA Report makes 19 recommendations for best practices for use of flash drives in business.  These recommendations include better oversight of employee use of "plug and play" devices, increasing awareness of security risks and engaging in risk assessment to evaluate the costs of data leakage to a business.

How careful are you or your law firm with USB drives?  Are the potential security problems related to USB flash drives exaggerated?  If you have any horror stories that you're willing share about lost or damaged USB drives, you're welcome to post them in the comments section below.

(H/T to EDD Blog.)

June 19, 2008 | Permalink | Comments (0)

GCs May Grouse About Cost, But Do They Really Want Change?

Every few months, the blawgosphere ignites over a provocative post lobbed by a corporate insider bashing law firms for overlawyering and sky-high rates, and predicting their eventual demise just like the mastodon or medieval guilds. Yet for all of the bluster and doomsday predictions, the reality is that corporate clients continue to hire large firms. Bruce MacEwen examines the reasons at his blog, Adam Smith, Esq.

MacEwen's post grew out of remarks by Ron Friedmann at Legal OnRamp (currently invitation only), that corporations have no choice but to hire firms on the terms they dictate because large firms hold a monopoly on talent and reputation, and use their market power to drive up rates. Accordingly, Friedmann proposed the concept of regulating law firms to break their stronghold on the market.

But MacEwen doesn't buy Friedmann's basic premise, i.e., that corporations are effectively forced to hire large firms and accept monopolistic rents because of lack of competition.  Instead, MacEwen posits that corporations voluntarily choose to hire large firms, not because they have no choice, but because ultimately, they don't want to change:

Finally, I elaborate a bit on the thinking behind my suspicion that "GC's don't really want to change," by analogy to shopping at Tiffany's... My point about the imprimatur of a brand name, or "quality" [...] may be a bit more subtle or at least a bit different than the implication that GC's will pay a price equal to the "detriment...if they didn't have it." My point was that having a Magic Circle or a New York Elite firm's name on your acquisition agreement or your IPO registration or your massive IP licensing deal has an in terrorem effect against challengers. It's like buying your diamond engagement ring at Tiffany's instead of on 47th Street. It may not actually be better quality, but it's perceived that way, and at some (I would suggest fairly self-aware) level that's precisely the bargain the buyer is striking.

That's what I meant by "GC's don't really want things to change." They want Tiffany to stay in business, and more importantly, to stay in business on the Tiffany business model--not the 47th Street business model.

At least one other blogger, Patrick Lamb, responded to MacEwen. While Lamb agrees that brand matters in mega-deals or lawsuits, when companies need assistance on routine deals and disputes, cost counts more than pedigree.  While like Tiffany's, large firms will always remain in demand for special-occasion, bet-the-company types of legal services, Lamb believes that there's still a demand in the market for the 47th Street law firms as well.

June 19, 2008 | Permalink | Comments (0)

June 18, 2008

Judge to IRS: Fulfill 34-year-old FOIA Request

The IRS has flouted three court orders enforcing a 1974 FOIA request, a federal judge has ruled. On Friday, U.S. District Judge Marsha Pechman in Seattle gave the IRS 30 days to produce the requested information, The Reporters Committee for Freedom of the Press reports.

The order was entered in response to a motion filed in February by Syracuse School of Management Professor Susan B. Long, codirector of the Transactional Records Access Clearinghouse (TRAC), a data-research organization that compiles government statistics for the public. Long's motion sought enforcement of three previous court orders dating back to 1976. RCFP explains:

The FOIA saga that spanned four decades began in 1974 when Long, then a graduate student at The University of Washington, filed her original request for statistics from the IRS. She received a court order to enforce the request two years later.

For years, the IRS complied, providing her with the information about its audit policies and practices. Starting in mid-2004, however, the IRS stopped sending Long data.

A 2006 motion resulted in two more court orders against the IRS, but they were unenforceable: On paper, Long had a right to all the documents she wanted to compile the TRAC database. But in practice, she described the IRS’ stance as 'open defiance' of the orders.

The IRS claimed an FOIA exemption meant it did not have to comply with the request. But the judge found that the IRS had waived this argument three decades ago.

June 18, 2008 | Permalink | Comments (0)

Another Ethics Ruling on Metadata

Is it ethical to search for metadata in a document you receive from opposing counsel? As we've reported here in the past, the American Bar Association says yes but the New York County Lawyers' Association says no. Maryland and the District of Columbia have also sided with the ABA on the issue, while Arizona, Alabama and Florida agree with New York. Now, the Ethics Committee of the Colorado Bar Association has weighed in with a formal opinion on review of metadata and adopted the ABA's view. It says that a lawyer may ethically review a document for metadata. If, however, the lawyer discovers confidential information within the metadata, the lawyer should assume it is there inadvertently and immediately contact the sender.

Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred.  In some instances, the lawyers may be able to agree on how to handle the matter.  If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

Notably, the Colorado ethics panel says that the states that have come out against review of metadata based their opinions "on incorrect factual premises regarding the nature of metadata." Those incorrect premises, it explains, are that all metadata are necessarily confidential and that viewing metadata is surreptitious. The opinion also emphasizes that the sending lawyer has a duty of reasonable care to be informed about the nature of metadata and the steps that should be taken to remove it.

[Hat tip to]

June 18, 2008 | Permalink | Comments (0)

ABA Recognizes Lawyer's Pro Bono Work

Victor J. Garo, the Massachusetts lawyer who devoted nearly three decades of pro bono work to help clear his client's name, will be honored by the American Bar Association with its Edmund S. Muskie Pro Bono Service Award. Garo represented Joseph Salvati, one of four men who were framed for a 1965 gangland murder and spent decades in prison. In 2001, Garo helped bring about a dismissal of all charges against Salvati. Last year, he was lead counsel for a team of lawyers who won the largest award ever against the U.S. government in a wrongful imprisonment case -- $101.7 million.

The ABA's Tort Trial & Insurance Practice Section will present Garo with the award during the ABA annual meeting in New York City Aug. 10. TIPS Chair Peter Bennett of Portland, Maine, called Garo's dedication to pro bono work unparalleled. "In the Joseph Salvati case, he invested more than 30,000 hours of pro bono time to right a wrong and to uncover the government’s cover up of a public injustice of epic proportion. His commitment to the rule of law and service above self are examples for all lawyers to follow." Garo's work has already won him a number of honors, including Boston University School of Law's first Victor J. Garo Public Service Award and selection by Massachusetts Lawyers Weekly as one of the 35 most influential Massachusetts lawyers and judges of the last 35 years.

June 18, 2008 | Permalink | Comments (0)

June 17, 2008

Associated Press Clashes With Bloggers

You'd think that more than anyone else, the Associated Press would follow the news.  If it did, it might have realized from stories like this or this, that sending a takedown notice to a blogger is not necessarily the wisest way to protect a copyright interest.  But last week, AP took the takedown route, with a notice to the Drudge Retort (the liberal alternative to the Drudge Report) to remove from the site copyrighted AP materials.  The  disputed content comes from selections ranging in length from 32 to 79 words.

AP's announcement immediately sparked fury across the blogosphere, as many bloggers rely upon blurbs from AP for their postings.  A-list blogger Mike Arrington of Tech Crunch fired the blogging equivalent of the shot-heard-round-the-world, with this exhortation:

So here’s our new policy on A.P. stories: they don’t exist. We don’t see them, we don’t quote them, we don’t link to them. They’re banned until they abandon this new strategy, and I encourage others to do the same until they back down from these ridiculous attempts to stop the spread of information around the Internet.

Others agreed with Arrington.  Brian Ledbetter (who himself was the subject of an AP takedown notice) asks: Will [AP] ever learn how this Internet thing works?  Dan Solove of Concurring Opinions opines that AP's policy is likely counterproductive and that it's unlikely that AP ever experienced any harm as a result of bloggers excerpting content.  In addition to criticizing AP's policy generally, Scott Greenfield of Simple Justice raises a practical concern: Precisely how many words of content exceeds fair use?

However, the debate isn't entirely one sided.  Dan Lewis argues that not everything is fair use and analyzes the AP test under the four factors of the fair use test, concluding that AP's position is plausible. 

At the New York Times Bits blog, Saul Hansell looks at the case from a news organization's perspective.  He writes:

A key part of the legal question here, and probably the ethical one too, is whether by using its material, a Web site inhibits the A.P.’s ability to earn money from its work. Several lawyers suggested to me that the A.P. may have a hard time proving how a few paragraphs in a blog represents real harm. Most blogs aren’t reporting news in direct competition with the A.P.; they are commenting on the news or offering a place to discuss news. Some sites, and this gets a tad dicey, are mainly about presenting lists of links to articles that the blogger, or the members of a community, find interesting. I’ll bet there are users who go to a site like Digg, rather than an A.P. client like Yahoo News, to find out what’s going on in the world. Still, if enough people click on links from these sites back to the sites of the A.P. clients who publish its articles, value is being created for the A.P., not destroyed.

As of this writing, AP has not retracted the notice.  However, as AP reports, it plans to meet with the Media Bloggers Association to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it.

As a blogger myself, I guess I'm disloyal, because I see AP's point -- though I also believe that AP chose the worst possible facts upon which to assert its copyright claims.  Citing short excerpts with attribution and subsequent commentary, as many bloggers do seems perfectly consistent with fair use -- and AP should't have attacked that particular practice.  At the same time, what I've noticed in my review of  hundreds of blog posts daily in my aggregator, many entries consist of nothing, absolutely nothing more than a complete article from AP (or another news source), followed by a small link at the end that merely says "source," with no attribution.  This type of practice is deceptive since many readers (who often rely on aggregators) may not even read to the end of the post to find the link to the accurate source, and thus, may credit the blogger for a story that AP reported.  Seems to me that AP should have gone after these kinds of wholesale content lifters, rather than going after bloggers who borrow small snippets in an effort to start a broader conversation.

Update: Is AP's stance hypocritical? AP apparently helped itself to a block of content from a blog post, notes Volokh and others. But Volokh adds that it is possible that AP obtained authorization to use the material.

June 17, 2008 | Permalink | Comments (2)

Roundup of Advice for Summer and Permanent Associates

Summer may be here, but school isn't out for law students by a long shot. As summer associates, law students still have plenty to learn about marketing, the business of law and the importance of feedback.  Fortunately, an abundance of experts are willing to share their knowledge online.  Here's a sampling:

Consultant Christy Burke, a member of the editorial board of ALM's Marketing the Firm shares ideas on how associates can bring in business through networking. Tips include tapping personal contacts, seeking guidance from partners and identifying niche markets that haven't yet been tapped by other lawyers.

Heller Erhman recruitment manager Regina Robins explains the basics of the business of law to summer associates. Believe it or not, many law students don't know or care about the economics of law practice, including concepts like utilization (number of a lawyers' hours consumed by billable matters) or partner-associate leverage (the number of associates managed by a partner). Yet as Robins point out, these concepts matter because they help associates understand what they need to do to contribute to the bottom line -- and avoid falling below it.

Finally, author Rachelle Canter emphasizes the importance of lawyers providing feedback to associates. Though Canter focuses on the firm's responsibility, my own takeaway is that if firms are going to invoke a "don't ask, don't tell" policy when it comes to feedback, then associates need to take proactive steps to make sure they get it. (H/T Counsel to Counsel)

June 17, 2008 | Permalink | Comments (0)

Economic Downturn Means More Malpractice Suits

With the economy down, look for legal malpractice suits to increase, says a bulletin by Marsh Inc., a global insurance broker and strategic adviser. The bulletin, summarized in The Insurance Journal, identifies several new risks that may arise due to the slow down:

-- Contract scrutiny: Experience shows that contract details are more heavily scrutinized during periods of economic downturn. [...]
-- Looking for others to blame: frequently, the scoping of engagement is not sufficiently robust, and formal disengagement is not usually a standard process at major law firms. This means that when things do not work out as a client desires, the client may attempt to seek compensation from the law firm alleging poor advice. [...]
-- Client selection: will firms be tempted to take on the 'wrong type' of client as good work slows down? [...]
-- Impact on smaller businesses: Smaller law firms could be affected by an increase in the detection of mortgage fraud. Some insurers have remarked to Marsh that incidences of mortgage fraud backed by organized crime have begun to surface in the claims notifications of some of the smaller law firms involved in, particularly, 'buy to let' transactions.

There's also one final risk that the article doesn't mention.  In slower times, firms may be tempted to take on weaker professional malpractice cases that they may have declined in busier times.

Has your firm taken steps to review its retainer agreement or screen clients to protect itself against possible claims?  Or are firms beginning to feel desperate enough to take on questionable cases or clients that a year or two ago would have been rejected out of hand? 

June 17, 2008 | Permalink | Comments (0)

The Am Law School 200 -- Too Many Law Schools?

We've all heard of the Am Law 200. Well now, welcome to a new version:  the Am Law School 200. The Associated Press reports that the American Bar Association last week granted provisional approval to two North Carolina law schools, giving the United States the dubious honor of becoming the first nation in the world with 200 accredited law schools.

Unfortunately, when it comes to law schools, more doesn't necessarily mean better, at least insofar as law students are concerned.  For universities, law schools are a financially attractive proposition, with large classes and limited need to offer financial aid.  But more law schools means more competition for high-paying jobs and more opportunities for students to borrow money to attend.  In fact, the AP story reports that students typically borrow an average of $87,907 to attend private law schools and $57,170 for public schools.

The two most recently accredited law schools are both located in North Carolina, which the article notes has the fewest lawyers per capita of any state.  Of course, with two new law schools, that statistic is likely to change.

By the way, back in May, New York Personal Injury Attorney Eric Turkewitz discussed his home state's plans to add three more state law schools.  While Turkewitz doesn't see a need to increase the number of law schools, he finds value in the New York plan to the extent that it would create new public law schools, with affordable tuition for state residents.  Turkewitz proposes that rather than build new schools, the state might consider converting private schools to public in order to make the law more accessible to talented people of lesser means.

June 17, 2008 | Permalink | Comments (1)

June 16, 2008

Iowa Flooding Closes Courts, Law School

Floodwaters are receding in Iowa and residents there are beginning to assess the full impact of the Great Flood of 2008. In Cedar Rapids, the tragic flooding closed the federal and county courthouses and required both courts to set up temporary courtrooms elsewhere. A notice posted this morning on the Web site of the U.S. District Court says that the court building remains closed and that operations will move elsewhere in Cedar Rapids and "be extremely limited" this week. (The disaster does underscore the efficacy of electronic filing, which continues to operate without interruption.) Damage to the county courthouse was extensive, according to the Cedar Rapids Gazette,  where courtrooms in the building's basement and sub-basement were ruined. The Iowa Judicial Branch Web site has updates on court closings and openings throughout the state. In Iowa City, the University of Iowa College of Law is closed for "the immediate future."

I have been unable to find news reports or blog posts detailing the impact of Iowa's flooding on practitioners there. Nothing about the flooding shows up on the Web site of the Iowa State Bar Association. West Des Moines lawyer Rush Nigut has some posts at his blog, Rush on Business, noting that his firm, Brick Gentry, is offering office space to help displaced lawyers and pointing to these news photos, which include shots of the flooded county courthouse. But I have found nothing indicating whether any lawyers were, in fact, displaced. Perhaps no news is good news in this case. If readers of this blog have information on the status of lawyers in flood areas, please share it below.

June 16, 2008 | Permalink | Comments (1)

Blawg Review Celebrates Bloomsday

It being Bloomsday, what better place to host Blawg Review than Dublin? Eoin O'Dell does the honors, hosting Blawg Review #164 at his blog For anyone not baptized in the works of James Joyce, June 16 was the 1904 day in the life of Dubliner Leopold Bloom, chronicled in the novel Ulysses, and celebrated by Joyce's fans all over the world. O'Dell, fellow and senior lecturer at the School of Law, Trinity College Dublin, notes that the novel loosely parallels Homer's Odyssey, and his installment of Blawg Review loosely parallels Ulysses -- at least its chapter headings. To those who have tackled Joyce's dense and lengthy masterwork, fear not: O'Dell's roundup of the week's legal blogs is far shorter and much easier to understand. Oh, and there will not be a quiz.

June 16, 2008 | Permalink | Comments (0)

Tim Russert, the Lawyer

Count me among the many who were shocked Friday to hear of the death of Tim Russert, Washington bureau chief for NBC News and moderator of its program, "Meet the Press." I was also far from alone, I suspect, in not knowing that he was a lawyer until I read his obituary. But he was. He was a 1977 graduate of Cleveland-Marshall College of Law and remained a card-carrying member in good standing of the New York bar. The BLT sums up his brief legal career:

His time in legal practice, however, was relatively short. The Buffalo native went to work in Washington as chief of staff for Sen. Daniel Patrick Moynihan (D-N.Y.) in 1977 and then worked to help elect New York Gov. Mario Cuomo in 1982. But television journalism soon beckoned. He joined NBC in 1984, and took over as 'Meet the Press' host in 1991.

Russert's legal training came in handy in 2006, The BLT notes, when he was called to testify in the trial of I. "Scooter" Lewis Libby. He also played a role in another historic legal case, as the Wall Street Journal's Law Blog notes: "On election night 2000, his famed analysis of electoral votes on his handheld whiteboard served as a bookend to the Supreme Court’s controversial decision in Bush v. Gore." No doubt, Russert's legal training contributed to his fairness and skill as a journalist. He will be missed.

June 16, 2008 | Permalink | Comments (1)

Law School Plans to Prosecute Bush

The Massachusetts School of Law at Andover will convene a conference in September to lay plans to prosecute President Bush and other high administration officials for war crimes. "This is not intended to be a mere discussion of violations of law that have occurred," says MSL's dean Lawrence Velvel in a statement announcing the conference. "It is, rather, intended to be a planning  conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth."

The ends of the earth, in this case, may be Crawford, Texas, where President Bush is likely to be found after his term is up at 1600 Pennsylvania Avenue. The Wild West locale could be the perfect place for such a trial, given the punishment Velvel proposes for anyone who is convicted. "We must insist on appropriate punishments," Velvel said, "including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s." Sending administration officials to the gallows, he added, "would be a powerful lesson to future American leaders."

Hangings could be a tough sell, even for a law school dean. Velvel acknowledges as much, noting that past practice has been to allow former presidents and cabinet members to retire to lives of relative peace and prosperity. Not this time, he hopes. In addition to President Bush, others Velvel wants to put on trial include Vice President Richard Cheney, former Secretary of Defense Donald Rumsfeld and former Justice Department lawyer John Yoo. He leaves the final list of war-crimes defendants to be determined at the Sept. 13 and 14 conference, but suggests it could also include federal judges and members of Congress. Other items on the conference agenda: what crimes were committed, where might they be prosecuted, and who will coordinate all this.

Apart from the national and international political implications of all this, there could be local hurdles to overcome. Three citizens of Andover -- the town where MSL is situated -- were among those hanged for witchcraft as part of the 17th century Salem witch trials. These days, however, the town is a chichi Boston bedroom community known as home to equally chichi Phillips Academy. No doubt, any proposal to erect a gallows on the MSL campus might not make it past the local planning board.

June 16, 2008 | Permalink | Comments (40)

Imposter Could Give Lawyers Bad Name

An Illinois woman who tried to pass herself off as a lawyer will now need a real one after her arrest last week. Police in Joliet arrested the woman, Misty Giblin, Thursday on a charge of impersonating a lawyer, The Herald News reports. "It's one of the stranger cases we've had," the police chief said.

Strange, indeed, given that Giblin appears to have orchestrated the entire ruse seeking to pocket little more than petty cash. After befriending a couple in her neighborhood, she told them that she was a lawyer concentrating in divorce and family law. She asked them if they would be interested in adopting a child who would be taken away from an unfit mother. They were, so Giblin had them sign some legal papers. This was when the couple first became suspicious, because Giblin would not let them keep copies of the papers, explaining that the adoption was private.

Their suspicions grew deeper when Giblin told them the mother was about to give birth and would need money orders for $70, $40 and $5. At this point, another friend pointed the couple to the Department of Corrections Web site. There, they learned that Giblin was paroled from prison in 2006 where she had been serving a three-year sentence for theft and passing bad checks. The couple called police, who investigated and determined that Giblin was not a lawyer. After her arrest, Giblin told police her occupation was "homemaker." Sure it is.

June 16, 2008 | Permalink | Comments (89)

June 13, 2008

Ten Effective Law Firm Marketing Techniques

With a slowing workload, why not take the opportunity to work on marketing?  Courtesy of Larry Bodine at The Law Marketing Blog, here are ten of the most effective law marketing techniques.  The list includes spending money -- he recommends shelling out at least 2.5 percent of gross revenue on marketing, doing things like jazzing up your Web site with video -- and start with low hanging fruit by mining existing clients for additional work.  Bodine offers nine other tools, but the most important is this one: Don't waste money on marketing that is not measurable.  If you can't point to any results from a given technique, don't do it.

June 13, 2008 | Permalink | Comments (1)

Economy Taking Toll on Public Defenders' Offices

It's not just Biglaw attorneys facing lay-offs in these recessionary economic times.  ABC News reports that severe budget shortfalls are forcing public defender offices across the country to fire or furlough attorneys.  Anticipating increased workload due to reductions in staff, some public defenders' offices have said that they will begin to reject cases.  But this solution raises a constitutional dilemma as the Sixth Amendment entitles criminal defendants to assistance of counsel. 

So what's the response to the anticipated shortfall?  Perhaps a budget increase so that PD offices won't have to cut staff?  Or what about appointing all lawyers in private practice to take on cases to help with the shortfall?  Of course not.   Instead, there's talk that judges will punish local defenders for turning down cases by holding them in contempt.  At least in Florida, state law provides that judges may not allow a public defender to withdraw from a case based only on inadequate funding or excess workload.

In the meantime, here's my proposal:  redistribution.  Why not take those new biglaw attorneys now out of work and dispatch them to jurisdictions where representation is needed?  I don't intend to demean the work of public defenders by suggesting that new attorneys can do their job. But at a minimum, these new lawyers could could handle simpler cases or take on some of the grunt work and research to help alleviate the public defenders'  work load.  Associates would get some hands-on experience and a snapshot of what the criminal system is like, and public defenders would get some needed relief.  What do you think?

June 13, 2008 | Permalink | Comments (2)

Courting a Superstar Job Candidate on Stage

Even amongst the lawyers in the Am Law 100, there's still a tippy-top tier of true superstars whom firms will go to any length to attract and retain.  And what better way to lure a lawyer superstar than on stage?  As Ropes & Gray partner John Montgomery learned, the "play's the thing" that ultimately convinced litigation partner Joan Lukey to jump ship for Ropes after 34 years at  Wilmer Hale.

I've got to confess that I nearly missed this adorable story.  After all,  the Am Law Daily headline, "Ropes Lures Longtime Wilmer Cutler Heavy Hitter" that appeared in my aggregator didn't seem any different from the dozens of other similar announcements about partners jumping ship.   In fact, it's only because a longtime friend and former law classmate of mine is a partner at Ropes that I decided to read further.  Seems Montgomery and Lukey were longtime friends since their days at Boston College in the 1970s but Montgomery had never reached out to Lukey until recently, believing that she could play an important role in helping Ropes increase its focus on complex commercial litigation.  Initially, Lukey declined since she had not been looking to leave her firm.  But here's what happened next:

A few days later, Montgomery enlisted William Shakespeare's help. Both lawyers were tapped for roles in a May 21 production of King Lear produced by the Boston Lawyers chapter of the Federalist Society, part of the chapter's annual "Shakespeare and the Law" event. Lukey played the part of Cordelia. Montgomery's role was the King of France, the noble despot who sweeps Cordelia off her feet after Lear takes away her dowry and her greedy fiancé dumps her. In the lawyers' final scene, in which the King of France and Cordelia stroll off the stage with hands clasped, Montgomery slipped an envelope into Lukey's hand. Inside was a contract. "That really pushed me over the edge," she says,  laughing.

In the end, Lukey accepted the offer to move to Ropes, never even asking Wilmer for a counter offer.  And for both Lukey and Ropes, this drama has a happy ending: The firm will give Lukey time to carry out her responsibilities as president of the American College of Trial Lawyers and to work from New York where her daughter will attend law school.   And of course, Ropes will reap some financial benefit from the numerous clients who will move with Lukey, including 18 with pending cases.   

June 13, 2008 | Permalink | Comments (0)

Presidential Politics Roundup

There have been a few developments since my last Presidential Politics Roundup, most notably, Hillary Clinton's speech last weekend announcing the suspension of her presidential campaign.   Below are some of the issues raised by Clinton's departure from the race, as well as an analysis of how yesterday's Supreme Court ruling recognizing the right of Guantanamo detainees to avail themselves of habeas corpus procedures is impacting the campaign message of the remaining two candidates.

What happens to the lawyers who chose the wrong candidate? -- Now that Clinton has pulled out of the race, what's the fate of the lawyers who lined up to support her either with campaign contributions or  "sweat equity" on the campaign trail?  As Legal Times reports, Obama intends to welcome to his campaign lawyers formerly on the Clinton team, if only to maintain party unity.  But whether Obama will consider these lawyers for administration positions is another matter.  For now, not surprisingly, most speculation about Obama's potential appointees revolves around lawyers who declared loyalty to Obama from the inception of his campaign.

Campaign finance laws and Hillary Clinton's debt -- Though most of Clinton's campaign team has disbanded, her campaign finance lawyers still have some work to do. They face the daunting task of helping Clinton dig herself out from under a mountain of campaign debt. With her campaign now suspended, Hillary Clinton owes more than $30 million in debt that she racked up during her primary campaign.  As reported by The Politico (via CBS News), Clinton will likely explore a variety of accounting maneuvers -- some never before tried in presidential politics -- to repay the debt without running afoul of campaign finance laws.   And presumably, she'll need campaign finance lawyers and accounting experts to smoothly navigate these regulations.

The Supremes' Guantanamo Ruling and the Presidential Campaign -- Bloomberg analyzes the implications of the Supreme Court's Guantanamo ruling for the presidential campaign and the next administration.  Because the Supreme Court's ruling applies solely to Guantanamo detainees, there's inceased pressure on the government to close the facility.  Indeed, even prior to the Supreme Court decision, both McCain and Obama pledged to eliminate Guantanamo.   However, simply deciding to close Guantanamo may prove to be the easiest job for a future administration.  The harder question is what happens to current inmates, particularly those who can't be prosecuted but would pose a threat if released.   

June 13, 2008 | Permalink | Comments (0)

June 12, 2008

Historic Ruling in Guantanamo Case

Tony Mauro at The BLT describes the drama this morning at the Supreme Court as it handed down its historic opinion in the Guantanamo detainee case, Boumediene v. Bush:

When Chief Justice John Roberts Jr. said from the bench this morning that Justice Anthony Kennedy had a decision to announce -- and for several minutes thereafter -- it was unclear which way the Supreme Court would go. ... But when Kennedy, after describing the facts and legal issues paused, leaned forward and started talking about basic principles, it was clear: he had provided the fifth vote to declare that Guantanamo detainees have habeas corpus rights that were violated when Congress stripped courts of habeas jurisdiction in the Military Commissions Act of 2006.

The 5-4 ruling was, as Lyle Denniston wrote at SCOTUSblog, "a stunning blow to the Bush Administration." American Bar Association president William Neukom said the decision "reaffirms the vision of our founders, and helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe." Kathryn Kolbert, president of People for the American Way, described it as a rebuke of "President Bush's vision of the presidency as an office of limitless power." And here is what the court, itself, had to say, in the words of Justine Kennedy's majority opinion:

We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

Mauro at The BLT writes that the U.S. District Court in Washington, which now has habeas jurisdiction over the detainees as a result of today's ruling, is already responding to the decision. As many as 200 detainees have filed habeas petitions, and many were being held pending the outcome of Boumediene.

June 12, 2008 | Permalink | Comments (3)

Here's a Change: Judge Earns Praise

The blogosphere is much like the mainstream media in its coverage of judges. Our blogging skews towards members of the bench who distinguish themselves in less than exemplary ways (like, say, having porn on their computers) and is sometimes accompanied by calls for the judge to step down. But the reverse is happening in Massachusetts, where a popular judge's decision to step down from the bench has prompted legal bloggers to express remorse over the judicial system's loss. "The Massachusetts judiciary – and as a result, the people of the Commonwealth of Massachusetts – are about to lose one of liberty’s most effective and reliable friends," writes Harvey Silverglate at the blog The Free For All. He is referring to Superior Court Judge Isaac Borenstein, who last week announced his intention to retire in September, at the age of 58, after 22 years on the bench.

Early retirement is rare among state judges in Massachusetts, who have life tenure. But Borenstein told Massachusetts Lawyers Weekly that he wants to do other things with his life. "I want to be able to work on political campaigns. I want to be able to do pro bono work. … I want to go to Guantanamo and defend those cases. I want to come out openly on civil rights and civil liberties." This is not surprising for a judge known for the courage of his convictions. This was most clearly illustrated by his handling of the notorious Fells Acre daycare child abuse case, as MLW publisher David Yas writes at his blog, The AffiDavid, "where he defiantly stood up to the Supreme Judicial Court in granting new-trial motions where he felt that the accused in the abuse cases had not been given a fair shake." A 2005 MLW editorial called Borenstein and the other judges who were involved in that case "profiles in courage."

There is another reason the Cuban-born Borenstein is leaving the bench, one Silverglate says "follows an increasingly typical narrative." That, of course, is the salary, which at just under $130,000 does not square with Borenstein's son's $52,000 annual tuition at Carnegie-Mellon University. As Silverglate points out, public servants such as Borenstein find themselves between an economic rock and a hard place. "This trend is playing out around the country as our courts – both  state and federal – continue to suffer judicial flight due to the  inadequate salaries given to even our most seasoned judges." While legal bloggers Silverglate and Yas both say they will miss having Borenstein on the bench, they and others in Massachusetts look forward to his return to a career as an advocate.

June 12, 2008 | Permalink | Comments (0)

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