Source: http://www.nationallawjournal.com/id=1202637032014?rss=rss_nlj
Monday, June 30, 2014
Payout Resolves Objections to $1.6B Toyota Settlement
Patent Law — Best Practices as Seen From the Bench
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LawBiz® Legal Pad On the Road!: Old Files
Pop Quiz! When do you get rid of client documents? A) As soon as the case is over B) 2 years after case is closed C) Never. Watch this week’s clip to hear Ed’s answer…
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/D-wTwE4yQew/
Eric Turkewitz on Legal Blogging
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Fighting Video with Video
Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
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Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
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Class Denied in Suit Over Reality Star's 'Skinny Girl' Drinks
Eric Turkewitz on Legal Blogging
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Sunday, June 29, 2014
Revenge Porn: Societal Costs and Legislative Solutions
Dr. Holly Jacobs is the Founder, President, and Executive Director of Cyber Civil Rights Initiative, which is the parent organization for the End Revenge Porn Campaign. She is a national commentator and writer on the subject and holds a PhD in Industrial/Organizational Psychology. While pursuing her graduate degrees, Jacobs became a victim of revenge porn and has since dedicated her life towards providing resources and advocacy to victims of online harassment.
Professor Mary Anne Franks is the Vice President of Cyber Civil Rights Initiative and an Associate Professor of Law at the University of Miami School of Law. She holds a JD from Harvard Law School and prior to her teaching career, obtained both her Masters and PhD in Modern Languages and Literature as a Rhodes Scholar at Oxford University. As part of her continuing efforts with the Cyber Civil Rights Initiative, she works with state legislatures to draft legislation against non-consensual pornography.
LawBiz® Legal Pad: Why Do Clients Leave Their Law Firm?
Ed notes that poor client service is responsible for 63% of clients leaving their law firm.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/0Tk3G4qRRmc/
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No district court jurisdiction for federal employee challenging adverse employment action (6-3)
The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.
Elgin v. Dept of Treasury (US Supreme Ct 06/11/2012)
A federal statute bars employment in the executive branch of male citizens who failed to register for the draft. Elgin, who had been discharged from his job, first challenged the decision before the MSPB - arguing that the statutory bar was unconstitutional - but an ALJ dismissed his case on the ground that the MSPB lacked authority to review the constitutionality of a federal statute. Rather than appealing from that decision, Elgin sued in federal district court.
The US Supreme Court held that the district court lacked jurisdiction because it is "fairly discernable" from the CSRA's text, structure, and purpose that Congress precluded district court jurisdiction over Elgin's claims. Based on CSRA's text and structure, there is no exception for constitutional challenges to federal statutes. If the MSPB lacks power to hear such claims, they can be meaningfully addressed by the Federal Circuit.
The DISSENT argued that Elgin's "constitutional claims are a far cry from the type of claim that Congress intended to channel through the [MSPB]."
Source: http://www.lawmemo.com/blog/2012/06/no_district_cou.html
New York top court upholds ruling blocking sugary drink ban
Source: http://jurist.org/paperchase/2014/06/new-york-top-court-upholds-ruling-blocking-sugary-drink-ban.php
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Ethical Perils of Social Media for Lawyers and Judges
Judge Herbert B. Dixon, Jr. sits on the Superior Court of the District of Columbia and is a former chair of the National Conference of State Trial Judges. He is the technology columnist for The Judges' Journal magazine and a former member of the ABA Techshow Planning Board. Judge Dixon is Senior Judicial Advisor to William and Mary Law School's Courtroom 21 Project, the Presiding Judge for the Superior Court's Technology-Enhanced Courtroom Project, and a frequent speaker on topics related to the intersection of law and technology.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/03/ethical-perils-social-media-lawyers-judges
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.
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First Circuit Affirms District Court’s Exclusion of Event Study as Unreliable Under Daubert
In Bricklayers & Trowel Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, No. 12-1750, 2014 U.S. App. LEXIS 8994 (1st Cir. May 14, 2014), the United States Court of Appeals for the First Circuit affirmed a district court’s exclusion of an event study as unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Plaintiffs, AOL shareholders, had offered the event study to show that alleged misstatements by defendant Credit Suisse First Boston (“CSFB”) ultimately caused declines in AOL’s stock price. The First Circuit agreed that plaintiffs’ expert, Dr. Scott D. Hakala, in performing the event study, failed to examine relevant “event dates,” classified certain dates as relevant even though the disclosures on those dates largely repeated previously disclosed information, and failed to control for confounding factors. As plaintiffs’ loss causation evidence consisted entirely of the event study, the First Circuit also affirmed summary judgment on behalf of CSFB. Notwithstanding the common and widely accepted use of event studies in securities cases, Bricklayers reminds practitioners of the need to fully scrutinize event studies under Daubert admissibility rules.
CSFB’s research analysts covered AOL stock and, in regularly published research reports, issued “target prices” for the stock. AOL shareholders alleged that CSFB’s research reports misrepresented its analysts’ true opinions about AOL, allowing AOL’s stock to trade at artificially inflated prices. They sued CSFB under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission (“SEC”) Rule 10b-5, 17 C.F.R. § 240.10b-5. In response to CSFB’s motion for summary judgment, plaintiffs proffered Dr. Hakala’s event study. That study, for certain selected “event dates,” purported to distinguish price movements resulting from general market conditions from movements attributable to company-specific events. Using this study, Dr. Hakala purported to show a connection between the allegedly false research reports and drops in AOL’s stock price once information regarding AOL’s true financial condition reached the market. CSFB attacked the event study as unreliable under Daubert. The United States District Court for the District of Massachusetts agreed, excluding the event study and granting CSFB summary judgment.
In affirming, the First Circuit determined the event study suffered from three substantial flaws. First, like the trial court, it observed that a number of the 57 event dates Dr. Hakala deemed relevant to his study failed to align with any alleged disclosures in the complaint. Indeed, the court found a “complete disconnect” between the event study and the complaint, leaving the court “guessing” as to how Dr. Hakala selected the event dates. It noted that the study seemed “more concerned simply with identifying abnormal market movement than in supporting the shareholders’ causation allegations.” To the extent that selected dates failed to correspond to the complaint, they simply “d[id] not ‘help the trier of fact.’”
Second, the First Circuit found that a number of the selected event dates concerned published references to previously disclosed information, thus allowing Dr. Hakala to attribute AOL stock-price declines to information that was not new. The First Circuit determined that Dr. Hakala repeatedly ignored the efficient market principle by attributing price fluctuations to previously disclosed information. In an “informationally efficient” market, however, “all publicly available information is impounded in [the] price” rapidly after the information is disseminated. Plaintiffs had previously availed themselves of this principle by invoking the fraud-on-the-market presumption of reliance to obtain class certification. This same principle necessarily applied to Dr. Hakala’s event study, where the time lag between the original disclosures and the proposed event dates ranged from one day to roughly a month. According to the First Circuit, “the event dates occurred after an efficient market would have processed the news.”
The AOL shareholders attempted to salvage Dr. Hakala’s work by arguing that the event-date disclosures at issue included at least some information not included in the original disclosures. The First Circuit agreed with plaintiffs that the event-date disclosures did not merely “parrot” previously released information. Yet, it found that these disclosures “did no more than to provide gloss on public information” and so could not have moved AOL’s share price in an efficient market.
Finally, the First Circuit observed that confounding factors, such as news stories, statements or events, coincided with a number of event dates and potentially affected AOL’s stock price on those dates, which impacted the event study’s reliability. The court agreed that proof of loss causation required plaintiffs to show that CSFB’s alleged reports, as opposed to some other news stories, moved the stock price on any given day. It also agreed that Dr. Hakala had offered no reliable means to address this. Rather, he simply made a subjective judgment call as to the effect of confounding information on the stock price “without any methodological underpinning.” Although some subjective judgment calls are necessary when crafting an event study, “a subjective analysis without any methodological constraints does not satisfy the requirements of Daubert.”
Although five of the 57 event dates remained after the application of Daubert, the First Circuit held the district court did not abuse its discretion in treating the entire study as inadmissible. And because the plaintiffs needed to show a connection between CSFB’s deceptive practices and the drop in AOL’s stock price, and relied exclusively on Dr. Hakala’s event study to do so, there was no genuine dispute as to loss causation. The First Circuit affirmed the award of summary judgment to CSFB.
Bricklayers demonstrates the effective use of Daubert to attack an event study on multiple fronts that, cumulatively, allow for the exclusion of the entire study.
Justices Find NLRB Recess Appointments Invalid
Source: http://blogs.wsj.com/law/2014/06/26/justices-rule-nlrb-recess-appointments-were-invalid/?mod=WSJBlog
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Saturday, June 28, 2014
Legal Ethics and Cybersecurity
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/03/legal-ethics-cybersecurity
Straight From The Hole
Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.
Without having been there, it's likely inconceivable to understand what happens to a mind in isolation. Some of us have trouble being alone for an hour, an evening, a day. Add day upon day, year upon year. But not the way it is for us, where we still have access to television or internet, even if there is no other living person around. No, this is completely different.
But to add insult to injury, don't leap to the assumption that if a prisoner ends up in the hole, he must have done something pretty bad to deserve it.
In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.
The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.
Punishment can be deserved or not. There's no due process in prison. There's no one to complain to about being punished based on a false accusation, a trumped up allegation, a guard pissed off by an attitude. Authorities own the lives of prisoners, and can be as harsh as they want to be, as arbitrary as they feel like. And there isn't a damn thing you can do about it.
Rideau explains that the prison protests in California are an outgrowth of a system run amok and no other means of addressing their grievance.
And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.
While prisoners are sentenced to incarceration, no judge sentences them to isolation for decades. There is no requirement that any neutral party review the decision to inflict this torture on another human being. It can be imposed for a sound reason or no reason at all. Who is to disagree? But no matter what the reason or nonreason, to put a person in the hole for years, for decades, is to impose psychological torture of a terrible kind on a human being. And there is nothing, absolutely nothing, the prisoner can do about it.
In California, inmates did the only thing left for them to do, protest. Not too many of us care about what happened to "criminals." After all, bad dudes who did bad things to other people. A pox on them. They get what they deserve and their out of sight, out of mind. But there is good reason to give them just a little bit of though. For one thing, they are still people, and we are still purportedly a civilized society that doesn't condone the needless brutal treatment of people. But if you lack anything remotely resembling empathy, than do it for your own sake:
Why should you be concerned about the inhumane conditions of prolonged solitary confinement, with all the social, emotional and mental deterioration that it entails? Well, every year men from California’s Pelican Bay and other supermax prisons around the nation are released directly from the vacuum of their cells into free society, to live and work among you and your loved ones. As a matter of self-preservation, maybe we should all join the prisoners’ request for rehabilitative opportunities that will improve the mental health of those in solitary.
Go say "hi" to the guy who moved in down the block kids. So what if he spent the last two decades in the hole and seems a bit odd. I'm sure he'll get over it.
© 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/straight-from-the-hole.aspx?ref=rss
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UN rights experts urge Israel not to legalize force feeding of prisoners
All Zimmerman or All Trayvon Martin
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 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/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
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Former Madoff accountant pleads guilty to aiding in scheme
Source: http://jurist.org/paperchase/2014/06/former-madoff-accountant-pleads-guilty-for-aiding-in-scheme.php
THE NLJ 350
Source: http://www.nationallawjournal.com/id=1202658249779?rss=rss_nlj
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One Cool, Calm & Collected Burglar
You’ve probably never burgled before. But if you did, don’t you think you’d be a little nervous? Not this lady. She was as cool as a cucumber, as reported by wdrb.com (Louisville, Kentucky)
Police say a Florence, Ky., woman was so comfortable burglarizing homes that she even stopped to take a shower during one of her crimes.
Virginia McFadden, age 31, is charged with nine counts of burglary after police say she broke into residences on Sherwood Avenue, Everett Avenue, Highland Avenue, Glenmary Avenue and Murray Avenue.
A shower! How was this clean, cool burglar busted?
Police say McFadden was caught on surveillance video trying to use one of her victims’ gift cards at WalMart.
Doh!
She was arrested Thursday afternoon after police say she confessed to the burglaries.
Here’s the source, including a mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/zMoK_w1Zjr0/asdf-30.html
The Ramifications of NSA Monitoring on Attorney-Client Privilege and the Bill of Rights
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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Friday, June 27, 2014
Lender Can’t Collect Deficiency for Repo
Source: http://valawyersweekly.com/2014/01/02/lender-cant-collect-deficiency-for-repo/
Supreme Court rules against Obama on recess appointments
Source: http://jurist.org/paperchase/2014/06/supreme-court-rules-against-obama-on-recess-appointments.php
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Panel Presentation Pointers for Legal Professionals
Supreme Court Rules On Obama Appointments, Abortion Protests
The court ruled on cases involving some of President Obama's recess appointments and a Massachusetts law that created a buffer zone to keep protesters a certain distance away from abortion clinics.
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Petters claw back could go worldwide
The trustee in the Tom Petters bankruptcy case has asked the judge for permission to extend his claw back efforts outside the borders of the United States.
Doug Kelley said Petters’ $3.65 billion Ponzi scheme extends to a total of 26 jurisdictions. A hearing on his request in scheduled in U.S. Bankruptcy Court later this month. Kelley said that residents of Australia, Ireland, Switzerland, the Netherlands and Malta will be targeted and there are hundreds of millions of dollars at play. The list of countries could expand, he said.
The money ended up outside the U.S. because foreign investors invested in feeder funds that in turn invested in larger hedge funds that invested with Petters, Kelley said in an interview with the Star Tribune.
“We’ll get records of the master fund and then records of the feeder funds and then we’ll know where to go,” Kelley said. “We basically reverse the process.”
The bankruptcy team has hired lawyers outside the U.S. to identify potential targets.
The bankruptcy has been underway for five years. Kelley has retrieved more than $400 million to be returned to creditors and investors who lost money. Petters is serving a 50-year prison sentence.
Source: http://minnlawyer.com/minnlawyerblog/2014/04/04/petters-claw-back-could-go-worldwide/
Montana judge strikes down immigration law
Source: http://jurist.org/paperchase/2014/06/montana-judge-strikes-down-immigration-law.php
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Supreme Court rules abortion clinic buffer zone violates First Amendment
Perils of Law Firms Possessing Massive Amounts of Unreviewed Client Data
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.
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Thursday, June 26, 2014
Townhome Neighbors Can’t Challenge Access
Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/
Conviction Tossed; Juror Couldn't Look at Child Porn Evidence
Source: http://www.nationallawjournal.com/id=1202637051379?rss=rss_nlj
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Senate Republicans Laud Recess Appointments Decision
This Week on Legal Talk Network (6/23/2014)
So tune in. It's all right here . . . This Week on Legal Talk Network.
Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_Pilot_6-23.mp3
Affirmative action ban in state constitution violates US constitution (8-7)
Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting."
The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause.
Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)
(Plaintiffs limited their challenge to racial discrimination in public education.)
The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the "lengthy, expensive, and arduous process" of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university's admissions policy has four options - lobby the admissions committee, petition the leadership of the university, seek to influence the school's governing board, or initiate a statewide campaign to alter the state's constitution.
"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change."
Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that "have no application here," and one said that the majority relied on "an extreme extension" of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).
Source: http://www.lawmemo.com/blog/2012/11/affirmative_act.html
Federal courts warn of email scam
The federal judiciary has learned of an email scam, in which emails purporting to come from federal and state courts are infecting recipients with computer viruses, it announced on its website
According to the Security Operations Center of the Administrative Office of the U.S. Courts, the emails are instructing recipients to report to a hearing on a specified day and time. The emails also instruct recipients to review an attached document for detailed case information. When the attachments or links in the email are opened, a malicious program is launched that infects the recipient’s computer. Several state courts have reported similar schemes, and also are warning the public about potential viruses.
The court’s website states that unless you are actively involved in a case in federal court and have consented to receive court notifications electronically, you generally will not be served with court documents electronically.
Source: http://minnlawyer.com/minnlawyerblog/2014/01/20/federal-courts-warn-of-email-scam/
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Twitter: A Sleeping Discovery Giant?
Are you still practicing law?
In years gone by, many people attended law school because a legal education enhanced their skills. In today’s world, entry into law school is first evaluated based on ROI, return on investment. And, in some instances, the comparison is coming up short. After the Great Recession, getting a job after law school was not guaranteed. Law school graduates, in addition to being uncertain about their job market, faced extraordinary debt burden.
A 2012 survey indicates that at least 24% of law school graduates are not practicing law. Rather, they were finding their way into nonprofit and education sectors and the federal government. This compares with9% in a similar 2003 survey. One factor pushing this statistic is the need to reduce or pay some of that student debt.
And when considering whether lawyers are satisfied in their chosen career, measured against whether they would go to law school again if given the opportunity, almost 2 out of seven said “no.” This latter statistic seems to be consistent with similar statistics of earlier years. In the 1970s, in response to a survey that I commissioned with the State Bar of California, almost 1/3 of the respondents indicated they were not satisfied with the practice. But they didn’t have the huge amount of debt that today’s graduates are carrying. I suspect that what keeps people enrolling in law school is another statistic: those graduates with the highest grade point averages have median pay levels that exceed $121,500, more than those who achieve the lowest grades. This is a significant difference, and the reason for the continued attraction of law schools.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/XBIYiT9hnPg/
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Wednesday, June 25, 2014
Boehner Plans to Sue Obama Over Executive Orders
Source: http://blogs.wsj.com/law/2014/06/25/boehner-plans-to-sue-obama-over-executive-orders/?mod=WSJBlog
Greece v. Galloway: Prayer in Government Assemblies
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.
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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/
Supreme Court to rule in Amtrack regulatory dispute
Source: http://jurist.org/paperchase/2014/06/supreme-court-to-rule-in-amtrack-regulatory-dispute.php
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The Power of a Structured Settlement: A Personal Story
All Zimmerman or All Trayvon Martin
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
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Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
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The Ethical Implications of NSA Surveillance for Lawyers
David Ries is a member in the Pittsburgh office of Clark Hill Thorp Reed, LLP where he practices in the areas of environmental, commercial, and technology law and litigation. He regularly deals with privacy and security issues in his practice and frequently writes and speaks on them for legal, professional, and academic groups.
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The Benefits of Tech Automation: Why Attorneys Should Opt In
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