Source: http://www.nationallawjournal.com/id=1202625300999?rss=rss_nlj
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Wednesday, April 30, 2014
Who Represents Corporate America
Our annual survey of the law firms that work for the nation's largest companies takes a global focus.
Justices Weigh Speech Rights for Public Workers; A New Window on N.Y. Crime
The AM Roundup: Law Blog rounds up the morning's news.
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Can You Really Get Busted For Walking Down The Street With A Bible?
Yes, you can get busted for walking down the street with a Bible. And yes, of course there is more to the story. As reported by The Bradenton Herald:
The Bradenton Police Department detained a naked man after he was spotted walking in the 1100 block of Martin Luther King Avenue West at 12:09 a.m. Sunday, according to a report.
Details, details. So the guy was nude. People are too uptight.
Police said the man was carrying a Bible. When an officer tried to make contact with the subject he ran east where he was caught four blocks later after a brief struggle, police said.
The man was taken to Manatee Memorial Hospital for a medical evaluation. A charge of exposure of sexual organs has been filed with the State Attorney’s Office.
You’ll find the source here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/gKjeRTkuE0w/sdf-10.html
Kenya president signs polygamy bill into law
[JURIST] Kenyan President Uhuru Kenyatta [official website; JURIST news archive] on Tuesday signed into law [press release] a controversial bill allowing polygamy. The Marriage Act 2014 brings civil law in line with customary law [BBC report], where some cultures allow a man to have multiple wives. The bill was approved by parliament last month after heated debate that caused female lawmakers to walk out because it allows men to marry additional women without consulting their first wives. The bill consolidates...
Source: http://jurist.org/paperchase/2014/04/kenya-president-signs-polygamy-bill-into-law.php
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SEC Preparing To Implement Bulk of ‘Conflict Minerals’ Rule
WASHINGTON—U.S. securities regulators are preparing to implement the bulk of a "conflict minerals" rule this spring despite a U.S. court ruling that struck down a core provision on free-speech grounds, according to a person familiar with the matter. The Securities and Exchange Commission plans to implement all but a portion of the rule requiring companies to list whether their products are "conflict free," the person said. A federal appellate court here struck down the provision two weeks ago in a tailored ruling that stopped short of broadly overturning the measure.
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Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/xWn9N4sownU/
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Federal appeals court renews Apple patent claims against Motorola Mobility
[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Friday renewd claims [opinion] by Apple against Google subsidiary Google's Motorola Mobility [corporate websites] for infringing smartphone patents. Judge Richard Posner, sitting in the US District Court for the Northern District of Illinois [official website], dismissed [JURIST report] both company's patent claims against each other in 2012 before trial, ruling that a sales ban would harm consumers. The Federal Circuit has called for the district court to...
Tuesday, April 29, 2014
Former Chief of Justice Department’s Criminal Division to Join Covington
- Bloomberg
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Alternative Energy: A Special Report
While everyone was getting excited about hydraulic fracking, alternative-energy development got hot again. In this special report, we examine two vehicles being used to finance smart energy developments.
Source: http://www.nationallawjournal.com/id=1202652521614?rss=rss_nlj
Supreme Court hears arguments in patent dispute
[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Monday. The court heard arguments first in Nautilus, Inc. v. Biosig Instruments, Inc. [transcript, PDF; JURIST report], a long-running patent infringement case. Biosig sued Nautilus [corporate websites] in 2004, alleging that Nautilus infringed its patent for a heart rate monitor. A district court found Biosig's patent invalid because of "indefiniteness." However, the US Court of Appeals for the Federal Circuit reversed the lower court...
Source: http://jurist.org/paperchase/2014/04/supreme-court-hears-arguments-in-patent-dispute.php
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THE CAREERIST: Magic Circle Partner Rates Up
Magic Circle partners' rates are up to 850 pounds per hour, which is about $1,376. That represents an increase of 62 percent since 2005, but the Brits don't make as much as the Yanks.
Source: http://www.nationallawjournal.com/id=1202631240493?rss=rss_nlj
Weighing The Risks Of Warrantless Phone Searches During Arrests
Police have long been able to search people without a warrant at the time of their arrest. Two cases before the Supreme Court ask whether cellphones should be off-limits until police get permission.
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Weighing The Risks Of Warrantless Phone Searches During Arrests
Police have long been able to search people without a warrant at the time of their arrest. Two cases before the Supreme Court ask whether cellphones should be off-limits until police get permission.
New Year’s Tech Resolutions for Practicing Attorneys
Is your legal practice less efficient because of out-of-date technology? In today's world of accelerating change, it can be difficult to keep up with client expectations. In this edition of The Kennedy-Mighell Report, legal technology experts Dennis Kennedy and Tom Mighell discuss New Year's tech resolutions. The topics include using instant messaging, implementing social media, updating operating systems, and much more. Tune in to find new ways to future-proof your practice or firm.
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Monday, April 28, 2014
ABA TECHSHOW 2014 Wrapup
Tom and Dennis recently attended ABA TECHSHOW 2014, one of the premier annual legal technology conferences. While there, they observed many interesting trends, saw innovative products, and met with numerous industry professionals. On this episode of the Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss TECHSHOW highlights, what interested them most, and their reflections on the current state of legal technology. Tune in to learn more about the How-To sessions, Legal Technology Solutions Lab, and Speakers.
Special thanks to our sponsor, ServeNow.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/04/aba-techshow-2014-wrapup
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Jurors’ Private Social Media Is Off Limits, ABA Tells Lawyers
Lawyers are free to mine the social-media accounts of jurors, but they may not request access to an account that's hidden behind a privacy wall, according to an ethics opinion issued Thursday by the American Bar Association.
Cybersecurity: Breaching The Boardroom
When the President of the United States calls something “one of the gravest national security dangers that the United States faces,” it seems worthwhile to pay attention. The President’s statement, on February 12, 2014, was not referring to the dangers of war or terrorism, but to the threat of cyber attacks on the nation’s critical infrastructure and U.S. companies. Over the past couple of years, cybersecurity has become an important corporate governance issue, as recent cyber attacks, increased federal oversight, potential legal liability and economic risks have made paying attention certainly worthwhile.
This article was originally published in The Metropolitan Corporate Counsel. To read the full article, please click here.
Source: http://www.corporatesecuritieslawblog.com/2014/04/cybersecurity-breaching-the-boardroom/
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LawBiz® Legal Pad On the Road!: Free Advertising
Ed’s wife reminds him that there’s no such thing as a free lunch, but today Ed shares tips that will promote your firm and services at little expense.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/VEEhDKXfLu4/
What Should Lawyers Know About Information Governance?
In this edition of Digital Detectives hosts Sharon D. Nelson and John W. Simek invite Jason R. Baron, former director of litigation at the U.S. National Archives and Records Administration to discuss Information Governance as it relates to e-discovery, privacy, record keeping and security. Baron connects the dots between all these areas and helps lawyers understand they need to know about information governance and the current trends he is see in this area. Baron serves as counsel to the Information Governance and E-Discovery Practice Group at the law firm of Drinker Biddle and Reath, in Washington, DC. His prior career in the federal service included acting as trial lawyer and senior counsel at the Department of Justice, and for the past 13 years as director of litigation at the US National Archives and Records Administration. He is an internationally recognized speaker on the subject of electronic records.
Source: http://legaltalknetwork.com/podcasts/digital-detectives/2014/01/lawyers-know-information-governance
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.nationallawjournal.com/id=1202636781749?rss=rss_nlj
Obesity can be a disability, at least in Montana
Obesity can be a disability, at least in Montana.
Full decision: BNSF Railway v. Feit (Montana 07/06/2012)
Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.
BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.
The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?
The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).
The federal court laid out these facts:
1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”
3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.
4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.
5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.
6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.
The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).
The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.
Source: http://www.lawmemo.com/blog/2012/07/obesity_can_be.html
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GM Confirms Investigations Under Way
- Reuters
Source: http://blogs.wsj.com/law/2014/04/24/gm-confirms-investigations-under-way/?mod=WSJBlog
Sunday, April 27, 2014
Mid-year union dues increase: Hudson notice required, opt-in not opt-out
The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)
This is a remarkable decision for two reasons.
First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.
The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.
The US Supreme Court held (7-2) that
"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.
Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."
Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.
Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html
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Arkansas judge strikes down voter ID law
[JURIST] A judge for the Pulaski County Circuit Court for the 6th Division [official website] on Thursday struck down [opinion] an Arkansas voter ID law, finding that it violates the state constitution. In the order granting summary judgment to the Pulaski County Election Commission [official website], Judge Tim Fox found Act 595 [bill, PDF] violates Article 3 §1 and Article 3 U§2 of the Arkansas constitution [text, PDF]. The law requires that voters present a limited range of government forms...
Source: http://jurist.org/paperchase/2014/04/arkansas-judge-strikes-down-voter-id-law.php
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GM Confirms Investigations Under Way
- Reuters
Source: http://blogs.wsj.com/law/2014/04/24/gm-confirms-investigations-under-way/?mod=WSJBlog
Townhome Neighbors Can’t Challenge Access
Plaintiff townhome owners do not have standing to challenge defendant developer’s use of a 50-foot easement that runs between a church and the townhome community for access and a connection to a proposed development with seven new homes; the Fairfax Circuit Court says plaintiffs have not shown they would suffer any particularized harm from installation ...
Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/
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LawBiz® Legal Pad: Value Billing
Ed discusses how increase your value by understanding what is most important to your clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/rndSR0JE53s/
'EEOC v. Ford' Accelerates Telecommuting Issues
How much is an employee's physical presence in the workplace really worth to employers?
conservator copyright lawyer corporate law corporate lawyer criminal attorney
Evernote’s Power of Collaboration, Storage, and OCR for Attorneys
Many people know Evernote as Cloud based storage for documents, but some might be surprised that it can be used in collaborative environments as well. With its advanced search functions, storage options, share features, and OCR ability, Evernote is becoming a friend to law offices everywhere. On this episode of Legal Toolkit, host Heidi Alexander is joined by tech expert Katie Floyd. Together, they discuss how to maximize your legal practice using Evernote.
Katie Floyd is a litigator and the co-creator and host of the Mac Power Users Podcast. She is a regular speaker at Macworld Expo and contributor for ScreenCastsOnline Monthly Magazine. Katie also serves as the President of her local Macintosh Users Group and is a member of the Mac Roundtable Podcast.
Katie Floyd is a litigator and the co-creator and host of the Mac Power Users Podcast. She is a regular speaker at Macworld Expo and contributor for ScreenCastsOnline Monthly Magazine. Katie also serves as the President of her local Macintosh Users Group and is a member of the Mac Roundtable Podcast.
Saturday, April 26, 2014
Townhome Neighbors Can’t Challenge Access
Plaintiff townhome owners do not have standing to challenge defendant developer’s use of a 50-foot easement that runs between a church and the townhome community for access and a connection to a proposed development with seven new homes; the Fairfax Circuit Court says plaintiffs have not shown they would suffer any particularized harm from installation ...
Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/
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Supreme Court Watch: Employment law cases
We will be watching three pending cases at the US Supreme Court as the Court's session opens today:
Kloeckner v. Solis
Oral argument on October 2.
The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."
Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?
Vance v. Ball State Univ
Oral argument on November 26.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Genesis HealthCare v. Symczyk
Oral argument December 3.
Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.
Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html
Sound The Retreat (Update)
Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society? It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
© 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.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
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Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss
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Headlines from ABA TECHSHOW 2014
Breaking all of its previous attendance records, ABA TECHSHOW 2014 will certainly go down as one of the most successful. True-to-form, many of the attendees were from small firms and solo practices. With the introduction of How-To sessions, lawyers will be getting more out of ABA TECHSHOW for many years to come. On this episode of the Digital Edge, hosts Sharon Nelson and Jim Calloway interview this year's ABA TECHSHOW Chair Natalie Kelly. Together, they cover the highlights of the 2014 show plus take a look into the future Planning Board. This year's hottest topics: the re-emergence of paperless, the Cloud, and iOS. Tune in to hear about the Solutions Lab, Exhibits, and much, much more.
Natalie Kelly is the Chair of this year's ABA TECHSHOW. She is the Director of the State Bar of Georgia's Law Practice Management Program where she provides extensive practice management and technology consulting to members of the Georgia Bar. Kelly is a Certified Consultant and Trainer for AbacusLaw, Amicus Attorney, PCLaw, PracticeMaster, Tabs3, Time Matters, Billing Matters, and TimeSlips software applications. She also speaks and writes frequently on these topics. At home, Natalie is a hard-working wife and mother of 3 daughters.
Special thanks to our sponsor, ServeNow.
Natalie Kelly is the Chair of this year's ABA TECHSHOW. She is the Director of the State Bar of Georgia's Law Practice Management Program where she provides extensive practice management and technology consulting to members of the Georgia Bar. Kelly is a Certified Consultant and Trainer for AbacusLaw, Amicus Attorney, PCLaw, PracticeMaster, Tabs3, Time Matters, Billing Matters, and TimeSlips software applications. She also speaks and writes frequently on these topics. At home, Natalie is a hard-working wife and mother of 3 daughters.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/04/headlines-aba-techshow-2014
Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Source: http://www.nationallawjournal.com/id=1202634055202?rss=rss_nlj
The Curious Practice Of Bringing Immigrants Back — To Deport Them
U.S. officers at the ports of entry are arresting undocumented immigrants as they try to leave the U.S. They're then prosecuted and sent to prison, only to be removed from the U.S. anyway. Why bother? That's a question people on all sides of the immigration debate are asking.
ABA TECHSHOW 2014 Wrapup
Tom and Dennis recently attended ABA TECHSHOW 2014, one of the premier annual legal technology conferences. While there, they observed many interesting trends, saw innovative products, and met with numerous industry professionals. On this episode of the Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss TECHSHOW highlights, what interested them most, and their reflections on the current state of legal technology. Tune in to learn more about the How-To sessions, Legal Technology Solutions Lab, and Speakers.
Special thanks to our sponsor, ServeNow.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/04/aba-techshow-2014-wrapup
Friday, April 25, 2014
The Curious Practice Of Bringing Immigrants Back — To Deport Them
U.S. officers at the ports of entry are arresting undocumented immigrants as they try to leave the U.S. They're then prosecuted and sent to prison, only to be removed from the U.S. anyway. Why bother? That's a question people on all sides of the immigration debate are asking.
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Two Steps Forward in Chicago: Helping Advance Women in Law
With “Two Steps Forward,” we feature people who have strived to advance the careers of women in corporate law—an ongoing, formidable challenge. Here are five individuals who have worked to improve the status of women in corporate departments, in law firms, at law schools and in the business community throughout the Chicago area.
Source: http://www.nationallawjournal.com/id=1202652533579?rss=rss_nlj
Talking Legal Evolution: Innovation's Pace in the Legal Industry
Over the past few months, the legal industry has seen various conferences discussing innovation, disruption, and reinvention in the delivery of legal services. One of these events is the Forum on Legal Evolution, held this February in New York, at which Dennis was an attendee. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the Forum, some of the innovative ideas about technology presented at the conference, and what this and other future-looking projects might mean for lawyers and the practice of law.
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OPINION: Chemerinsky: God, Birth Control and Corporate America
Can a corporation claim to have religious beliefs and, if so, does it violate those beliefs to force the business to include contraceptive coverage in the health insurance it provides its employees? The U.S. Supreme Court has just granted review in two cases on the issue.
Source: http://www.nationallawjournal.com/id=1202631180111?rss=rss_nlj
With New E-Cigarette Rules, FDA Hopes To Tame A 'Wild, Wild West'
The Food and Drug Administration is proposing to expand its regulatory powers to e-cigarettes and other popular products containing nicotine.
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Tweet Suits: Social Media And The Law
In this age of social media, is every negative experience a possible class action?
Two Steps Forward in Chicago: Helping Advance Women in Law
With “Two Steps Forward,” we feature people who have strived to advance the careers of women in corporate law—an ongoing, formidable challenge. Here are five individuals who have worked to improve the status of women in corporate departments, in law firms, at law schools and in the business community throughout the Chicago area.
Source: http://www.nationallawjournal.com/id=1202652533579?rss=rss_nlj
Thursday, April 24, 2014
FCC To Propose Change To Net Neutrality Rules, Media Report
The FCC is expected to put out new Internet traffic rules that would let content providers negotiate for better service. NPR's Melissa Block talks with Wall Street Journal reporter Gautham Nagesh.
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The Portfolio Management Approach to E-Discovery
For years, there was an unspoken notion that the only way to approach e-discovery was on a case-by-case basis; that every case was unique and similarly required a unique approach to discovery. But the constant cycle of collecting, analyzing, reviewing, and producing data wholly disconnected from other projects has created a lot of inefficiency. On this episode of the ESI Report, host Michele Lange interviews portfolio management experts David J. Kearny and John Winkler about an alternative approach to e-discovery.
David J. Kearney is the Director of Technology Services at Cohen and Grigsby PC, where he advises on technology, legal project management, and ediscovery litigation and support processes. David has years of experience managing technical staff while recommending, implementing, and managing hardware, software and workflow solutions, including e-discovery and project management, and has authored articles on e-discovery management practices, forensics, and other topics.
John Winkler is an Account Executive at Kroll Ontrack. He partners with law firm and corporate clients to provide sound advice and best practices in connection with the management of electronically stored information in litigation and investigation. With over 12 years of experience in legal technologies, John works with clients to effectively reduce the proposed scope of discovery.
David J. Kearney is the Director of Technology Services at Cohen and Grigsby PC, where he advises on technology, legal project management, and ediscovery litigation and support processes. David has years of experience managing technical staff while recommending, implementing, and managing hardware, software and workflow solutions, including e-discovery and project management, and has authored articles on e-discovery management practices, forensics, and other topics.
John Winkler is an Account Executive at Kroll Ontrack. He partners with law firm and corporate clients to provide sound advice and best practices in connection with the management of electronically stored information in litigation and investigation. With over 12 years of experience in legal technologies, John works with clients to effectively reduce the proposed scope of discovery.
Source: http://legaltalknetwork.com/podcasts/esi-report/2014/03/portfolio-management-approach-e-discovery
Funded Jobs
In today’s newspaper, Don J. DeBenedictis, staff writer for the Journal, discusses law schools’ new approach to help law school graduates find jobs. This idea is one of several being discussed to match the supply and demand of legal services. It is clear that there is a greater demand for legal services than is now being fulfilled. However, many contend there is an oversupply of lawyers. Some writers suggest, I believe correctly, that there is not an oversupply, but rather a mismatch between the two.
One reason for the mismatch is that most lawyers seek to work for the smaller percentage of affluent clients. Working for the less affluent client requires a reduced level of compensation. Sometimes it is difficult to match the reduced remuneration working from low to modest means clients with the debt level resulting from educational expenses.
The staff writer discusses law schools in California that are now providing funds to graduates who are willing to work for government or public interest employers. The amount of money received by the graduates is not grand. We’re talking about, perhaps, $15 per hour. However, the graduates are earning enough money to pay expenses and gain valuable experience preparatory for their next job. This program reminds me of one Southern law school that provided sufficient funds to open a new law practice if the graduate located in a rural or other geographic community that needed legal services. Provided the graduate remained in that location for five years, the “loan” would be forgiven.
It seems that any suggestion brings out adversaries. The positive side of seeking to match supply and demand is countered by those who say that law schools are merely disguising their percentage of graduates employed. While this may be true, it is also true that these graduates are employed, just not at a high level of income written about by the sensationalist media. It is also true that American Bar Association statistics separate between traditional jobs and “funded” jobs, thus disclosing the truth of the employment claims made by law schools.
One could also look at this as a postgraduate fellowship. This is an incredibly positive effort on the part of law schools and their funding sources for this program. My congratulations.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/RgkshQhBz3E/
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Appellate Court Issues Opinion on SEC’s Conflict Minerals Rule
Yesterday, the Court of Appeals for the D.C. Circuit issued its opinion in the challenge to the SEC’s Conflict Minerals Rule. We have reviewed the D.C. Court of Appeals decision and find that it leaves much of the SEC’s rule intact. It is specifically the requirement that companies describe products as not “DRC conflict free” in their SEC filings and on their website that the Court held constitutes “compelled speech” in violation of the First Amendment. In the words of the Court: “Products and minerals do not fight conflicts. The label ‘conflict free’ is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted. . . . By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.”
The Court of Appeals upheld the other elements of the SEC Final Rule, however, and rejected the petitioners’ arguments about the absence of a de minimis exception and the SEC’s application of the rule to companies that only contract to manufacture products. The decision therefore leaves intact the requirement for the issuer to conduct a “reasonable country of origin inquiry,” exercise “due diligence on the source and chain of custody of its conflict minerals” and file a conflict minerals report in the circumstances specified in the rule. Under the DC Circuit decision, however, an issuer cannot be required to describe its products as “not DRC conflict free” in its report. The Court of Appeals suggested that issuers use their own language to describe their products and also invited the SEC to consider publishing a centralized list of products that it believes are affiliated with the Congo war based on information that issuers submit.
The case could be consolidated and reheard en banc with the unrelated case related to meat labelling requirements that raises a similar First Amendment issue. It is also possible that the SEC could stay its rule until the appellate process is completed. As of this writing there has been no word yet from the SEC.
LawBiz® Legal Pad: Value Billing
Ed discusses how increase your value by understanding what is most important to your clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/rndSR0JE53s/
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