Source: http://jurist.org/paperchase/2014/03/pakistan-court-charges-musharraf-with-high-treason.php
Monday, March 31, 2014
Pakistan court charges Musharraf with high treason
[JURIST] A court in Pakistan on Monday charged former president Pervez Musharraf [JURIST news archive] with high treason. If convicted, the former leader could face the death penalty. Musharraf pleaded not guilty [BBC report] to each of the charges against him, including unlawfully suspending the constitution, firing Pakistan's chief justice and instituting emergency rule in 2007. Musharraf called the charges politically motivated, maintained that the country had prospered [CNN report] under his 2001-2008 rule and insisting that his declaring a...
ADA applies to bar applications also
The Department of Justice has accused more than one bar association of violating the Americans With Disabilities Act.Louisiana and Vermont licensure systems inquired as to the mental health of applicants. Apparently, some of the same questions of which the complaint by DOJ is registered are asked in a standard national Conference of Bar Examiners questionnaire.
The Bar is not qualified to conduct a mental health diagnosis or treatment, according to the DOJ. Past behavior ... conduct ... can be reviewed, but not one's state of mind or status.
I wonder how this analysis will resonate with those who complain that one's competency to act as an attorney can be judged by one's age. Shouldn't conduct be the standard? Aren't you presumed innocent (i.e., competent) until proven otherwise? That would be ageism ... a status I think that is also protected by law.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/FBayFVmaX64/
criminal law criminal law cases criminal laws criminal lawyer criminal lawyers
Rajaratnam’s Little Brother Awaits Important Insider Trading Ruling
The younger brother of convicted hedge fund manager Raj Rajaratnam will likely have to wait for an appeals court’s decision in an important insider trading case before he knows if a federal judge will dismiss the insider charges against him.
Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
Northwestern Football Players Get Ok to Unionize; Merger Kabuki; Rap Lyrics on Trial
The AM Roundup: Law Blog rounds up the morning's news
A Painful Arrest – For The Arresting Officer
There are lots of ways to resist arrest. This one in particular, every male officer would likely agree, should carry an enhanced sentence. As reported by The Chicago Tribune:
“Something’s wrong with her,” said Cook County Judge Adam Bourgeois Jr., who initially ordered the 20-year-old held on $50,000 bail. After a short recess, Bourgeois decided to instead release Ashleigh Heather Edwards on an individual recognizance bond with electronic monitoring.
You’re curious, right? What did she do?
Edwards, of Berwyn, assaulted [an] officer on a parked train outside the Galewood station on Chicago’s Northwest Side at about 3:40 p.m. Friday, according to an arrest report. The officer tried to remove Edwards after crew members said she entered the train’s “engine compartment” without permission.
Edwards yelled and ran to the other side of the train, police allege, before the officer caught her and attempted to place her under arrest. At that point, police and prosecutors said, Edwards grabbed the officer’s penis and squeezed it to inflict pain, while also kicking and punching and trying to pull away.
Ouch, ouch, ouch! But that wasn’t the end of it.
The officer used pepper spray to restrain her, the arrest report said. But while exiting the train in the 2000 block of North Narragansett Avenue and walking toward the police cruiser, prosecutors said Edwards again grabbed and squeezed the officer’s genitals.
The Juice is inclined to agree with the Judge’s assessment that “Something’s wrong with her.” And in case you think it wasn’t that big of a deal for the officer …
The Metra policeman was taken by ambulance to West Suburban Hospital in Oak Park, where he was treated and released, according to court documents.
As for Ms. Edwards:
[She] will return to court Friday. She faces a felony charge of aggravated battery to a peace officer, along with misdemeanor counts of resisting a police officer and criminal trespass to state land. No booking photo was immediately available.
Here’s the source, including her mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/C9QY9GyK_G8/asdf-14.html
real estate attorney real estate lawyer solicitor solicitors statute law
Northwestern Football Players Get Approval to Unionize
Northwestern University football players receiving athletic scholarships are employees and therefore can unionize, according to a Wednesday ruling by a National Labor Relations Board regional director.
ADA applies to bar applications also
The Department of Justice has accused more than one bar association of violating the Americans With Disabilities Act.Louisiana and Vermont licensure systems inquired as to the mental health of applicants. Apparently, some of the same questions of which the complaint by DOJ is registered are asked in a standard national Conference of Bar Examiners questionnaire.
The Bar is not qualified to conduct a mental health diagnosis or treatment, according to the DOJ. Past behavior ... conduct ... can be reviewed, but not one's state of mind or status.
I wonder how this analysis will resonate with those who complain that one's competency to act as an attorney can be judged by one's age. Shouldn't conduct be the standard? Aren't you presumed innocent (i.e., competent) until proven otherwise? That would be ageism ... a status I think that is also protected by law.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/FBayFVmaX64/
labor attorney lafayette attorney law law enforcement law firm
Sunday, March 30, 2014
Second Circuit Upholds SEC’s Authority to Obtain Disgorgement from Non-Trading Insider Profits Earned by Portfolio Fund from Insider Trading
In SEC v. Contorinis, 2014 U.S. App. LEXIS 2927 (2d Cir. Feb. 18, 2014), the United States Court of Appeals for the Second Circuit upheld the authority of the Securities and Exchange Commission (“SEC”) to obtain “disgorgement” from a money manager profits earned by another party from trades based material nonpublic information known to the money manager, even though the manager did not receive any of those profits. Citing the intangible benefits received by the manager and the underlying misuse of inside information, the appellate panel’s decision upheld a broad view of insider trading liability in civil enforcement actions brought by the SEC.
In October 2010, Joseph Contorinis was convicted of trading on inside information about the acquisition of supermarket chain Albertson’s Inc. In a subsequent civil action, the SEC alleged that the former Jefferies Group portfolio manager used that inside information to generate a profit for the Jefferies Paragon Fund (the “Fund’). The SEC sought to recover from Contorinis $7.26 million in profit earned by the Fund, plus an additional $2.5 million in interest. Following Contorinis’ criminal conviction, the SEC moved for summary judgment in the civil case. Contorinis acknowledged that the criminal conviction had a preclusive effect that required a finding of liability in the civil action. The United States District Court for the Southern District of New York granted the SEC’s summary judgment motion, ordering the defendant to disgorge all of the profits made by the insider trades and pay prejudgment interest on the disgorgement amount. Notably, Contorinis did not directly receive or control that $7.26 million. Instead, the profit went to the Fund. Contorinis appealed.
By a 2-1 majority, a panel of the Second Circuit affirmed. The appellate panel held that Contorinis could be required to disgorge the profit that he did not personally realize because he gave the Fund the benefit of his inside information, just as a tipper “can be required to disgorge profits realized by their tippees’ illegal insider trading.” In fact, the majority reasoned, Contorinis had greater control over the fund’s trades and profit than a tipper does over a tippee, as he obtained the information, executed the trades, and was “entirely responsible for the size of the Paragon Fund’s gains.”
Although Contorinis did not receive the direct profits from the trading activity, the panel explained that other, more intangible benefits conferred on him by the insider trades justified the disgorgement amount. According to the majority decision, “[w]hether the defendant’s motive is direct economic profit, self-aggrandizement, psychic satisfaction from benefitting a loved one, or future profits by enhancing one’s reputation as a successful fund manager, the insider trader who trades for another’s account has engaged in a fraud, secured a benefit thereby, and directed the profits of the fraud where he has chosen them to go.” The majority reasoned further that prior case law supported this outcome, specifically precedent holding that “an insider trader may be ordered to disgorge not only the unlawful gains that accrue to the wrongdoer directly, but also the benefit that accrues to third parties whose gains can be attributed to the wrongdoer’s conduct.”
In a strong dissenting opinion, Circuit Judge Chin described the underlying district court order as “inconsistent with both the nature and purpose of disgorgement.” Judge Chin emphasized that disgorgement is an equitable remedy designed to “deprive violators of their ill-gotten gains,” not a punitive measure. Here, according to Judge Chin, the district court’s order was an abuse of discretion, as it “penalized” Contorinis by requiring him “to pay an amount substantially above what he acquired through his wrongdoing.” Additionally, Judge Chin noted that the appellate panel had previously held that Contorinis “could not be required to forfeit profits that the Fund earned through his illegal use of inside information” in the related criminal case. Criminal forfeiture and civil disgorgement are “largely the same” conceptually, Judge Chin argued, and therefore any differences between the two remedies do not justify opposite results in cases with “the same defendant, the same investment fund, and the same proceeds.” The dissenting opinion also distinguished the situation of a tipper and tippee as involving “concerted actors,” whereas Contorinis’ trading activity involved proceeds that went “directly to an innocent third party and [were] never possessed by the defendant.”
This decision upholds an expansive view of civil liability to the SEC for insider trading and boosts the SEC’s power to deter that activity. As the profits in these cases are oftentimes substantial, concern regarding potential disgorgement orders for the full profit amount — instead of just the portion of the profit that a trader personally receives — may curb future trading on inside information. Further, the issue may not yet be settled in the Second Circuit, as Contorinis could petition for en banc review based upon the panel’s split decision and Judge Chin’s strong dissent in a case involving a novel issue of federal securities law enforcement.
Twitter and Yahoo! Silenced -- For Now -- in Subpoena Spat
Twitter and Yahoo won't get a chance to respond to efforts by the U.S. Department of Justice to bar the companies from sharing information about grand jury subpoenas, at least for now.
copyright lawyer corporate law corporate lawyer criminal attorney criminal defence lawyer
Tenth Circuit Looks Past “General Partnership” Labels in Agreements to Determine Whether Certain Investments Constitute “Securities”
In SEC v. Shields, No. 12-1438, 2014 U.S. App. LEXIS 3369 (10th Cir. Feb. 24, 2014), the United States Court of Appeals for the Tenth Circuit reversed the district court’s order granting defendants’ motion to dismiss, holding that the complaint alleged sufficient facts to (1) raise a plausible claim that the interests at issue involved are securities, and (2) rebut the presumption that an investment labeled as a “general partnership” is a “security.” The Tenth Circuit’s holding reaffirms that although an investment may be labeled as a “general partnership” interest, courts must look beyond the labels to determine whether the investment constitutes a “security.”
The Securities & Exchange Commission (“SEC”) filed a civil enforcement action against Jeffory Shields a/k/a Jeffrey D. Shields, Geodynamics, Inc. (“Geodynamics”), four joint ventures and others, alleging violations of Sections 5(a) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a); Sections 10(b) and 16(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(a); and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. The SEC alleged that Shields, managing partner of Geodynamics, offered and sold over $5 million of interests in oil and gas exploration and drilling joint ventures to sixty investors across 28 states. The money collected was used to fund GeoDynamics. Shields allegedly marketed the oil and gas drilling ventures to individuals with little experience in the oil and gas exploration business by making cold calls to thousands of people and promising annual returns of between 256% and 548%. The SEC alleged that Shields denied investors access to information, lied to investors to keep them misinformed and comingled funds.
Shields provided potential investors with offering documents which stated explicitly that the investors had the rights of general partners, and that the joint venture interests were not securities. In addition, the documents provided the investors with the power to remove the managing venturer, GeoDynamics, the right to terminate the partnership, and the right to inspect records. However, unlike GeoDynamics, the investors did not have the power to bind the joint ventures by executing contracts, spending funds, or interpreting contracts. Additionally, the investors were required to sign drilling and completion contracts, thereby locking themselves into contracts with GeoDynamics, who unilaterally set the contract price.
Defendants moved to dismiss the SEC’s complaint. Defendants asserted that the investments at issue were general partnership interests, as stated in and evidenced by the agreements, not securities. Because they were not securities, defendants argued, the SEC failed to state a claim upon which relief could be granted. The United States District Court for the District of Colorado granted defendants’ motion to dismiss. The district court reasoned that the SEC’s allegations were “insufficient to state a plausible claim that the joint venture interests at issue” were securities. The SEC appealed.
The Tenth Circuit reversed. The Court acknowledged that an investment contract, which is a type of security, exists where there is “(1) an investment, (2) in a common enterprise, (3) a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” The Court focused solely on the third requirement. The third requirement is satisfied, the Court explained, when the efforts of individuals other than the investor significantly affect the “success or failure of the enterprise.” Additionally, the Court acknowledged that while there is a general presumption that a general partnership is not a security, this presumption is rebuttable. The Court looked to Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which provided examples of situations when a general partnership can be a security, such as when the agreement leaves little power in the partner’s hands, when the partner lacks experience and knowledge that he or she is incapable of exercising his or her partnership powers, or where the partner is so dependent on a unique entrepreneurial or managerial ability that he or she cannot replace the manager or exercise his or her partnership powers.
Based upon these principles, the Tenth Circuit held that the allegations in the complaint raised a plausible claim that the interests involved were securities. Specifically, the SEC raised issues of fact regarding whether the investors were relying upon the efforts of GeoDynamics and Shields to “significantly affect the outcome of the ventures.” Additionally, the Court held that the SEC alleged sufficient facts to “rebut the presumption that the purported general partnerships here [were] not securities.” The Court reasoned that the complaint satisfied the factors in Williamson to rebut the presumption, as the SEC alleged facts to show that the investors had limited power to control or manage the investment — even if they removed GeoDynamics as the manager, they were still locked into contracts with GeoDynamics. These contracts were the key ways in which the investors would make profits. Thus, the investors were required to rely on GeoDynamics for the success of their joint venture.
Also, the SEC alleged that the investors had little or no experience in the oil and gas drilling business, which meant that they relied upon Shields to provide them with the necessary information. The Court held that this raised a factual issue as to whether their voting rights, which were provided in the agreements, were illusory or a sham. Additionally, the SEC alleged that Shields marketed GeoDynamics as having a unique expertise in the oil and gas industry, so much so that he was able to offer annual profits of 256% and 548%. The Court held that the investors’ lack of experience in the industry combined with the GeoDynamics’ expertise, forced the investors to completely rely upon GeoDynamics, thereby raising an issue of fact as to whether the investors had any other alternative than to continue with GeoDynamics. Thus, the investors lacked the control or management abilities of general partners.
The Court in Shields held that the disctric court erred because it “focused only on the form of the [joint venture agreements] . . . without considering the economic realities of the transactions and the investors’ lack of access to information needed in order to actually use the powers reserved to them under the [agreements].” Although an agreement may expressly state that the parties involved are general partners and that the interests are not securities, such interests may still be considered securities and subject to federal securities regulations if the agreement is found to be an investment contract or the facts show that the presumption that a general partnership is not a security is rebutted. As confirmed by Shields, parties may be subject to federal securities regulations even if they explicitly state in their agreements that the interests involved are general partnerships and not securities.
Europe rights official speaks against proposed Greek migrant law
[JURIST] The Council of Europe (COE) [official website] Commissioner for Human Rights Nils Muiznieks [official profile] on Wednesday called upon the Greek government to abandon plans [statement] to include a clause in a draft immigration law that would allow the government to deport migrants following the rejection of their claims of abuse by law enforcement officials. Muiznieks expressed serious concern [AP report] about the amendment's effect on reporting of abuses, saying that it would "foster impunity, since, most likely, migrants...
Officer Safety and Second Hand Smoke
Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant. Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.
In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.
After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.
Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns.
The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.
The Circuit wasn't as impressed. While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.
But that wasn't the only argument. There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.
Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court. Instead, the court reached the conclusion of remarkably wisdom: An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential: At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."
Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger. They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.
This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.
And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/13/officer-safety-and-second-hand-smoke.aspx?ref=rss
NLRB: Northwestern football players are university employees
[JURIST] The Chicago office for the National Labor Relations Board (NLRB) [official website] on Wednesday ruled [report, pdf] that football players at Northwestern University qualify as employees, and therefore have the right to unionize. In its finding, the NLRB used the "right to control" test, which considers a variety of factors in determining the level of control an employer has over an alleged employee. First, the board found that "grant-in-aid scholarship football players perform services for the benefit of the...
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Saturday, March 29, 2014
Rights group releases annual report on global executions
[JURIST] Amnesty International (AI) [advocacy website] on Wednesday released their annual report [text; PDF] on death sentences and executions throughout the globe. The rights organization recorded that executions took place in 22 countries in 2013, an increase by one from 2012. Neither the 2012 or 2013 report included Egypt or Syria as AI could not confirm if judicial executions took place. According to AI 778 reported executions took place in 2013, a 15 percent increase from 2012. The report acknowledges...
Tech Companies Attack Plaintiff Expert in 'No Poach' Case
At a hearing Thursday, U.S. District Judge Lucy Koh said she was underwhelmed by experts on both sides of the case, which is set for trial in May.
cyber law defense attorney defense lawyer discrimination lawyers district attorney
LawBiz® Legal Pad: Disaster Preparedness and Recovery Planning
No one can predict when a disaster will strike your law firm. Ed stresses the importance of having a solid plan for such situations, because "failing to plan is planning to fail."
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/qoo3xb4baww/
How Bad Ideas Grow Legs
Last January, Instapundit lawprof Glenn Reynolds wrote a short essay that became the darling of many folks who take an interest in criminal justice issues entitled Ham Sandwich Nation: Due Process When Everything is a Crime. To be kind, it was a simplistic rehash of long-time, discredited silver-bullet solutions to complex problems. The only virtue was that it came from Reynolds, who was a law professor and thus credible by definition even though he was dabbling at the edges of an area of law about which he knew nothing.
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
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It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
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Partner Departures at Patton Boggs; Merger Talks Continue
At least eight partners have decided to leave Washington, D.C., law firm Patton Boggs LLP, a development that could raise questions about ongoing merger discussions with larger firm, Squire Sanders.
A spokesman for Patton Boggs said the moves would not affect the firm’s merger talks with Squire Sanders and are not otherwise “material” to the firm.
A spokesman for Patton Boggs said the moves would not affect the firm’s merger talks with Squire Sanders and are not otherwise “material” to the firm.
Supreme Court rules in federal gun possession case
[JURIST] The US Supreme Court [official website] on Wednesday ruled in US v. Castleman [opinion, PDF; SCOTUSblog backgrounder] that a federal law [18 USC § 922(g)(9), text] banning gun possession after a state domestic abuse conviction involving "physical force" can be satisfied by the degree of force supporting a common law battery conviction, namely, "offensive touching." In 2001, James Alvin Castleman pleaded guilty to a Tennessee misdemeanor of having "intentionally or knowingly cause[d] bodily injury to" the mother of his...
Source: http://jurist.org/paperchase/2014/03/supreme-court-rules-in-federal-gun-possession-case.php
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Licensing of tax preparers
The IRS lost its appeal to institute competency exams for as many as 700,000 paid tax preparers. The federal court said the IRS lacked the authority to impose the new rules without congressional authorization. While this argument would not likely hold water as concerns additional licensing requirements for lawyers, the arguments used rang a bell.
For example, i) the proposed regulations were onerous; ii) the proposed regulations would have put thousands of mom-and-pop tax preparers out of business. On the other side of the coin, the IRS needed to weed out ill-trained and incompetent tax preparers.
Paid tax preparers fill out 60% of all U.S. tax returns and the government has found significant problems over the years by the work done by this group.
The arguments are all to familiar and can be super-imposed on the legal profession where more than 60% of the practitioners are solo.
The question always is "how good does good have to be?" What would these people do if they couldn't find a tax preparer (substitute attorney) at a price they could afford to pay for work that was substantially correct,even if not perfect?
I would like perfection ... but even the best lawyers from major law schools (in my experience) are not perfect ... are always at a price that most of us can't afford to pay. As one of my mentors has said, don't shoot for perfection; when you're 80% good, go!
Related to this, though by a stretch, I listened to an NPR program in the last couple of days that talked about teenage suicide, a growing epidemic. The psychologists maintain that the stress caused by our current generation seeking perfection, and then realizing they can't reach that goal, is the catalyst for many suicide attempts.
To the IRS and to the Bar: Define "competence" so our professionals can attain the standard and the average American citizen can afford to engage professional assistance.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/USLZmpCXU_8/
Friday, March 28, 2014
Auto Parts Antitrust Case Produces First Civil Settlement
A Japanese automotive parts supplier has agreed to pay $6 million to resolve claims of price-fixing and bid rigging in the first civil settlements in a sweeping antitrust case coordinated in federal court in Detroit.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636781749&rss=rss_nlj
THE PRACTICE: Retaliation Suits Put Firms Up Against the 'Ropes'
A second critical maxim of employment law litigation is illustrated by the Ropes & Gray lawsuit: Do not speak ill of the departed.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180267&rss=rss_nlj
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License Loss Keeps Habeas Claim Alive
A petitioner may pursue her habeas claim after completion of a jail sentence; an Augusta County Circuit Court says petitioner’s claim is not moot because she ultimately seeks reinstatement of her nursing license. It is reasonable to suggest that prior to the Supreme Court of Virginia’s decision in E.C. v. Va. Dep’t of Juvenile Justice, ...
Source: http://valawyersweekly.com/2014/01/02/license-loss-keeps-habeas-claim-alive/
Federal government to recognize same-sex marriages in Michigan
[JURIST] US Attorney General Eric Holder [official website] announced on Friday that the federal government will recognize the same-sex marriages [statement] of Michigan couples. The statement is in accordance with Holder's initial statement [text] that the Department of Justice (DOJ) will be extending all federal benefits to same-sex couples legally married according to state law following the decision in United States v. Windsor [SCOTUSblog backgrounder; JURIST report]. Same-sex couples were granted marriage rights in Michigan after a federal judge's ruling...
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Court Enters Owners’ Draft Order
A Richmond Circuit Court will enter a dismissed agreed order submitted by defendant owners, in this dispute over whether a money judgment order should be entered or a dismissed agreed order due to the payment of the amount the court has said is due from defendants to plaintiff. The matter of the American Institute of ...
Source: http://valawyersweekly.com/2014/01/02/court-enters-owners-draft-order/
No Venue Change for Subcontractor’s Fraud Claim
In this suit by a subcontractor hired by defendant demolition company to remove epoxy coating from a concrete floor at Camp Peary, Va., the Norfolk Circuit Court says venue is permissible in Norfolk as to plaintiff’s fraud claim and defendant’s objection to venue is overruled. Plaintiff Specialty Products Inc. (SPI) allegedly bid on the epoxy ...
Source: http://valawyersweekly.com/2014/01/02/no-venue-change-for-subcontractors-fraud-claim/
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Dayton’s contract with Lillehaug for shutdown work violated statute
Justice David Lillehaug
When he first signed on to serve as legal counsel to Gov. Mark Dayton during the 2011 shutdown, David Lillehaug agreed to do so pro bono.
That arrangement changed, however, as the shutdown wore on. Lillehaug and his former law firm Fredrikson & Byron billed for their time. [LiIllehaug was appointed to the Minnesota Supreme Court last March.] Ultimately Fredrikson charged $77,000 for the work.
There is nothing wrong with hiring an outside lawyer, but the Minnesota Office of Legislative Auditor said that when Dayton’s office decided to pay Lillehaug, it violated state statute and policy. The OLA recently published its audit of the Governor’s Office.
The report said that when Dayton’s office hired the firm it did not draft a professional contract and instead used an engagement letter. The letter did not specify an end date for the legal work and did not set a cap on the attorney fees. The Governor’s did not free up funds to pay for the services either.
The report recommended the Governor’s office develop procedures to execute contracts that comply with state statute.
Two Pa. Federal Judges Confirmed With Close Votes
Two nominees for the Eastern District of Pennsylvania were confirmed by the Senate on Wednesday, leaving five empty seats on the bench.
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Thursday, March 27, 2014
ABA committee backs pro bono requirement for students
The nonprofit organization Equal Justice Works, which offers opportunities for attorneys to represent underserved clients, recently launched Law Students for Pro Bono. In fewer than two weeks, more than 600 students and lawyers had signed a petition asking the ABA to create an aspirational goal for law schools to promote students’ participation in 50 hours of pro bono service before they are admitted to the bar. So the ABA Standing Committee for Pro Bono and Public Service signed on, and supported the 50-hour requirement to the Council of the Section of Legal Education and Admissions to the Bar.
“The student response to the Law Students for Pro Bono campaign has been incredible,” said David Stern, executive director of Equal Justice Works, said in a press release. “Students from across the country have come together to ensure that schools are imparting upon future lawyers the values that are core to the legal profession.”
Source: http://minnlawyer.com/minnlawyerblog/2014/02/03/aba-backs-pro-bono-requirement-for-students/
SMU's Next Law Dean Has Administrative Background
Southern Methodist University has named Wake Forest University Vice Provost Jennifer Collins as the next dean of its Dedman School of Law. Collins, who has also taught law at Wake Forest since 2003, will assume the SMU deanship in July.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634048159&rss=rss_nlj
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Highlights from the Hobby Lobby Arguments
- The Wall Street Journal
Justice Elena Kagan: So suppose an employer...refuses to fund or wants not to fund vaccinations for her employees, what -- what happens then?
Source: http://blogs.wsj.com/law/2014/03/25/highlights-from-the-hobby-lobby-arguments/?mod=WSJBlog
Tenth Circuit Looks Past “General Partnership” Labels in Agreements to Determine Whether Certain Investments Constitute “Securities”
In SEC v. Shields, No. 12-1438, 2014 U.S. App. LEXIS 3369 (10th Cir. Feb. 24, 2014), the United States Court of Appeals for the Tenth Circuit reversed the district court’s order granting defendants’ motion to dismiss, holding that the complaint alleged sufficient facts to (1) raise a plausible claim that the interests at issue involved are securities, and (2) rebut the presumption that an investment labeled as a “general partnership” is a “security.” The Tenth Circuit’s holding reaffirms that although an investment may be labeled as a “general partnership” interest, courts must look beyond the labels to determine whether the investment constitutes a “security.”
The Securities & Exchange Commission (“SEC”) filed a civil enforcement action against Jeffory Shields a/k/a Jeffrey D. Shields, Geodynamics, Inc. (“Geodynamics”), four joint ventures and others, alleging violations of Sections 5(a) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a); Sections 10(b) and 16(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(a); and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. The SEC alleged that Shields, managing partner of Geodynamics, offered and sold over $5 million of interests in oil and gas exploration and drilling joint ventures to sixty investors across 28 states. The money collected was used to fund GeoDynamics. Shields allegedly marketed the oil and gas drilling ventures to individuals with little experience in the oil and gas exploration business by making cold calls to thousands of people and promising annual returns of between 256% and 548%. The SEC alleged that Shields denied investors access to information, lied to investors to keep them misinformed and comingled funds.
Shields provided potential investors with offering documents which stated explicitly that the investors had the rights of general partners, and that the joint venture interests were not securities. In addition, the documents provided the investors with the power to remove the managing venturer, GeoDynamics, the right to terminate the partnership, and the right to inspect records. However, unlike GeoDynamics, the investors did not have the power to bind the joint ventures by executing contracts, spending funds, or interpreting contracts. Additionally, the investors were required to sign drilling and completion contracts, thereby locking themselves into contracts with GeoDynamics, who unilaterally set the contract price.
Defendants moved to dismiss the SEC’s complaint. Defendants asserted that the investments at issue were general partnership interests, as stated in and evidenced by the agreements, not securities. Because they were not securities, defendants argued, the SEC failed to state a claim upon which relief could be granted. The United States District Court for the District of Colorado granted defendants’ motion to dismiss. The district court reasoned that the SEC’s allegations were “insufficient to state a plausible claim that the joint venture interests at issue” were securities. The SEC appealed.
The Tenth Circuit reversed. The Court acknowledged that an investment contract, which is a type of security, exists where there is “(1) an investment, (2) in a common enterprise, (3) a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” The Court focused solely on the third requirement. The third requirement is satisfied, the Court explained, when the efforts of individuals other than the investor significantly affect the “success or failure of the enterprise.” Additionally, the Court acknowledged that while there is a general presumption that a general partnership is not a security, this presumption is rebuttable. The Court looked to Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which provided examples of situations when a general partnership can be a security, such as when the agreement leaves little power in the partner’s hands, when the partner lacks experience and knowledge that he or she is incapable of exercising his or her partnership powers, or where the partner is so dependent on a unique entrepreneurial or managerial ability that he or she cannot replace the manager or exercise his or her partnership powers.
Based upon these principles, the Tenth Circuit held that the allegations in the complaint raised a plausible claim that the interests involved were securities. Specifically, the SEC raised issues of fact regarding whether the investors were relying upon the efforts of GeoDynamics and Shields to “significantly affect the outcome of the ventures.” Additionally, the Court held that the SEC alleged sufficient facts to “rebut the presumption that the purported general partnerships here [were] not securities.” The Court reasoned that the complaint satisfied the factors in Williamson to rebut the presumption, as the SEC alleged facts to show that the investors had limited power to control or manage the investment — even if they removed GeoDynamics as the manager, they were still locked into contracts with GeoDynamics. These contracts were the key ways in which the investors would make profits. Thus, the investors were required to rely on GeoDynamics for the success of their joint venture.
Also, the SEC alleged that the investors had little or no experience in the oil and gas drilling business, which meant that they relied upon Shields to provide them with the necessary information. The Court held that this raised a factual issue as to whether their voting rights, which were provided in the agreements, were illusory or a sham. Additionally, the SEC alleged that Shields marketed GeoDynamics as having a unique expertise in the oil and gas industry, so much so that he was able to offer annual profits of 256% and 548%. The Court held that the investors’ lack of experience in the industry combined with the GeoDynamics’ expertise, forced the investors to completely rely upon GeoDynamics, thereby raising an issue of fact as to whether the investors had any other alternative than to continue with GeoDynamics. Thus, the investors lacked the control or management abilities of general partners.
The Court in Shields held that the disctric court erred because it “focused only on the form of the [joint venture agreements] . . . without considering the economic realities of the transactions and the investors’ lack of access to information needed in order to actually use the powers reserved to them under the [agreements].” Although an agreement may expressly state that the parties involved are general partners and that the interests are not securities, such interests may still be considered securities and subject to federal securities regulations if the agreement is found to be an investment contract or the facts show that the presumption that a general partnership is not a security is rebutted. As confirmed by Shields, parties may be subject to federal securities regulations even if they explicitly state in their agreements that the interests involved are general partnerships and not securities.
Comparing the New iPads for Lawyers
As we approach the gift-giving season, the new iPads are here. Will you be purchasing the newest model for yourself or as a gift, or are you still wondering what’s different and new? In this edition of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the new iPad Air and iPad Mini with retina display, how the newest iPads reflect how we use technology, and which model makes the most sense for lawyers. The second half of the show will cover the findings of the Am Law Tech Survey 2013.
The Ramifications of NSA Monitoring on Attorney-Client Privilege and the Bill of Rights
Attorney-Client Privilege predates US history and is a fixture of Western Law. Pro advocates of its proliferation declare its necessity to a fair and adequate defense. According to many legal experts, NSA monitoring of privileged attorney-client communications stands in direct violation to the United States Bill of Rights and yet others disagree. In this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams shed light on this issue with guests Dean Erwin Chemerinsky of the University of California, Irvine School of Law and Dr. John Eastman of Chapman University Fowler School of Law.
Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law. His areas of expertise include, but are not limited to, constitutional law, federal practice, and civil rights. Erwin is a renowned author of seven books and nearly 200 articles in top law reviews. He has argued before the nation's highest courts and has been counsel to detainees in Guantanamo Bay Detention Camp in the Guantanamo Bay Naval Base, Cuba. He is also a regular commentator on legal issues before the national and local media.
Dr. John Eastman is the Henry Salvatori Professor of Law and Community Service at Chapman University Fowler School of Law. He was the School's Dean from June 2007 to January 2010, when he stepped down to pursue a bid for California Attorney General. John is the Founding Director of the Center for Constitutional Jurisprudence, former law clerk for Justice Clarence Thomas, and has served as the Director of Congressional and Public Affairs at the United States Commission on Civil Rights during the Reagan administration. He is also a regular commentator on legal issues before the national and local media.
Special thanks to our sponsor, Clio.
Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law. His areas of expertise include, but are not limited to, constitutional law, federal practice, and civil rights. Erwin is a renowned author of seven books and nearly 200 articles in top law reviews. He has argued before the nation's highest courts and has been counsel to detainees in Guantanamo Bay Detention Camp in the Guantanamo Bay Naval Base, Cuba. He is also a regular commentator on legal issues before the national and local media.
Dr. John Eastman is the Henry Salvatori Professor of Law and Community Service at Chapman University Fowler School of Law. He was the School's Dean from June 2007 to January 2010, when he stepped down to pursue a bid for California Attorney General. John is the Founding Director of the Center for Constitutional Jurisprudence, former law clerk for Justice Clarence Thomas, and has served as the Director of Congressional and Public Affairs at the United States Commission on Civil Rights during the Reagan administration. He is also a regular commentator on legal issues before the national and local media.
Special thanks to our sponsor, Clio.
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NLRB's recent significant decisions
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.
Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.
Source: http://www.lawmemo.com/blog/2012/12/nlrbs_recent_si.html
The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
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Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
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