Wednesday, February 20, 2013
Legal Talk Network Live at LegalTechNY 2012-Burke & Company’s Christy Burke Talks About What’s New in Legal Industry
Tuesday, February 19, 2013
How's The Tumidity There?
Tumid? Seriously, does anyone know what "tumid" means? Some legislators did, because they put it in Section 3303.14 of the Columbus (Ohio) Code:
"Nude" or "state of nudity" means a state of dress or undress that exposes to view: ...
2. Human male genitals in a discernibly tumid state, even with a complete and opaque covering, or
3. A covering or device that when worn, depicts, represents, or simulates human female genitals, human female areolae or nipples, or human male genitals in a discernibly tumid state.(Emphasis added by The Juice.) If you still don't know what "tumid" means, click here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/s0OgmCo99Oc/post_600.html
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Ivory Coast ex-president Gbagbo appears before ICC
Source: http://jurist.org/paperchase/2013/02/ivory-coast-ex-president-gbagbo-appears-before-icc.php
Hiring Your First Employee
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/03/hiring-your-first-employee/
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Sunday, February 17, 2013
Child’s Play: What E-Discovery Teams Can Learn from Kindergarteners
Kill Lists: The Neo-Warrior's View
Of course, there are always others who see it differently. Unsurprisingly, one of those "others" is John Yoo, of the DOJ torture memo fame. Via Jack Goldsmith at Lawfare, Yoo has offered his views at the Wall Street Journal.
Not only are the complaints of a wholesale lack of due process misguided, but the real problem is that we're even uttering the words "due process" at all. Not for the benefit of terrorists, Yoo argues, but because affording rights to military enemies "risks stretching those protections a mile wide and an inch deep—weakening them for all Americans."The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . .
The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.
The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.
And lest you think it's only the torture-loving Yoo who sees things in black and white, the New York Times Room for Debate covered the issue, and found others, like Pepperdine lawprof Gregory McNeal, who agree with Yoo.
Military targets — whether persons or objects — are simply not an appropriate subject for judicial review, and this is a good thing.
The Constitution, McNeal contends, isn't offended when we kill our military enemies, and whose passport they carry doesn't change the threat.
What appears to give rise to these polar views isn't a different view of the constitutional command for due process, but rather a problem with the definition of a military enemy. As the government uses the word "war" as a rhetorical device, it's meaning has been diminished for some and embraced by others. This problem was clear long ago, when former Attorney General John Ashcroft explained life to us dopes:
Apparently, this is all a matter of how we define "war", and who our enemies might be. Sure, the phrase "war on terrorism" has become ubiquitous in public discourse, but it's just a phrase designed to capture a sense of gravity. It's not literal. At least I thought it wasn't. Ashcroft thinks otherwise.
There is no comparison with the "war" Ashcroft speaks about. Some will argue that the soldiers in a jihad don't wear uniforms, so it's foolish to argue that the lack of a uniform makes them immune from being prisoners of war. But this returns us to the question of whether this is a war, or something else. Terrorists don't wear uniforms. Terrorists don't serve a country. Terrorists don't fit neatly within the confines of our historic understanding of war.
This rationale, that anything we chose to call a war thus becomes one, shows a fundamental rift in our American psyche. We want to be protected from international terrorism, but can't find a pigeonhole to fit it so that it neatly fits within any recognized paradigm that tells us how to address it.
That was written four years ago. If the lie is perpetuated long enough, it becomes real. Clearly, it's very real to John Yoo, as it is to others. By embracing the rhetoric of "war," it all makes sense. Obviously, judges play no role on the battlefield. Clearly, our Constitution doesn't dictate who dies in battle. But that requires us to view the world as a battlefield, from Des Moines to Kabul.
The problem with blurring definitions is that you end up with blurred definitions. When Timothy McVeigh bombed the Murrah Couthouse, it wasn't a declaration of war, but an act of a deadly madman. When the Twin Towers came down, it was different because they weren't from here. The rhetoric changed. War was declared. Americans rallied against a vague group called "Islamic terrorists" who represented no sovereign and wore no uniform. Rather than consider whether this undermined the definition of war, our frenzy and anger seized control and we let the lines blur.
More than a decade later, we are paying the price for ignoring Orwell. There will be many Americans for whom the rhetorical device of "war" remains sufficiently convincing to answer the question of whether our President is engaged in the killing of Americans without due process or whether he is fulfilling his constitutional duty to protect us against an aggressor who would destroy our nation.
Soon after the atom bombs were dropped on Hiroshima and Nagasaki, the Empire of Japan unconditionally surrendered to the United States of America. On September 2, 1945, a delegation, both in uniform and in the daytime formal wear of diplomats, signed the treaty.
This delegation represented the sovereign against whom America fought and for whom their soldiers died. They had the authority to end the war. Who would John Yoo look to if his enemy combatants decided to surrender? No one speaks for those who hate America. They wear no uniforms. They have no diplomats. They represent no nation. So who, if Yoo has his way and we characterize this as neo-war and the world as the battlefield, would unconditionally surrender if we win?
If there is no one to surrender, there can be no war, because our enemies can never be known and the hostilities can never end. Maybe it isn't the same as crime, but it also isn't the same as war. But when the targets of our drones to be killed because the President says so are our own people, we cross a line should never be blurred. And that's why due process matters before the American government can kill Americans.
© 2012 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/2013/02/10/kill-lists-the-neo-warriors-view.aspx?ref=rss
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Gambling on Sports and the Law
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/gambling-on-sports-and-the-law/
Today's Journalism Lesson? Fade to Black
There is a long list of people who Teri Buhl, self-proclaimed investigative journalist, says she's going to sue. It looks like she'll have to add one more to the list. The problem started when her public twitter profile stated that her twits were not for publication. It headed south from there.
Mark Bennett started the ball rolling after Gideon engaged Buhl on twitter to find out what the heck she thought she was doing by claiming her twits were "protected." Tim Cushing picked it up at Techdirt, which angered Buhl sufficiently that she demanded a retort, including an absurd smack at Bennett for using the story on his blog "to promote his business," because, you know, why else would a lawyer blog?.
But Cushing wasn't prompt enough to satisfy Buhl, so he asked Jim Romenesko to publish it instead. Mike Masnick at Techdirt then ripped her a new one, after which Buhl let everyone know, including Romenesko who did her a solid, that they were all getting sued.
Whew.
The reaction to Buhl has not been kind. Rather than hum a few bars of Mrs. Robinson, pretty much everybody has responded that she's utterly nuts, and her efforts to salvage her shredded dignity have only gotten her into deeper trouble. She's posted various comments to other people's posts, regaling about her greatness as an investigative "jurno" and how she's beloved by her fans. The fans have yet to appear to back her up, but they're probably too busy rereading her old articles from when she had a job to waste their time.
All this is a preface to the reason why I hop aboard this out-of-control train. As others took note of the wreck, they included the initial screen shot of Teri Buhl's twitter bio, the one that she created and put on twitter for her adoring fans to know who she was and what they could do with her twits. It included an image of the "jurno" herself as part the bio.
See that sweet yet professional picture of a woman above the name Teri Buhl? Buhl says you're not allowed. At least not here, because it's her picture and she hasn't given me permission to public it. You see, according to the Buhl doctrine of copyright, it's her picture and nobody can use it. Kinda like her twits, but different.
That it's part of the subject at issue means nothing. Fair use doesn't exist under the Buhl Doctrine. Ironically, she is apparently unaware that Antonin Pribetic has copyrighted the letter "B," and is no doubt preparing a complaint as I type. She did not get his permission to use it, like I did.
Which finally brings me to the point of this post. The Knight Center for Journalism in America at the University of Texas, Austin, posted about this hotmess, including initially the screenshot above. And then came Buhl's copyright complaint:
Update 02/07/13: Freelance reporter Teri Buhl contacted the Knight Center and requested the pictures in her Twitter profile be removed from the story, stating that the images are copyrighted and the Knight Center – along with the journalism websites Poynter.org and JimRomenesko.com – do not have permission to publish them. The Knight Center has removed the photos from the screenshot from her Twitter account per her request.
Fade to black. This is the lesson for budding journalists in Austin. Capitulate. Somebody complains? Screams "copyright"! Fade to black. Don't say no. Don't react with a chuckle and passing mention of fair use. Don't teach students that a "jurno" doesn't succumb to threats, no matter how absurd and contrary to the law. Nope. Fade to black. It's so much easier and less risky. Journalists wouldn't want to take any risks, after all.
Buhl offers a laundry list of absurd explanations for her bizarre actions, which have given rise to no shortage of hilarity. But the treatment received at the hands of the Knight School isn't funny. In fairness, they aren't the only ones to wimp out, with Poynter’s Jeff Sonderman showing a similar lack of spine. But then, he's not charged with teaching the next generation of journalists why they're deserving of First Amendment protection.
While all of this might well strike us, as lawyers, as utterly ridiculous, given that we would expect those engaged in journalism to have at least a working knowledge of the law as it applies to them, it apparently isn't the case for those who teach it. Are they clueless? Do they not use "fair use" in Austin?
Maybe they just offer professional courtesy to Buhl, as one of the tribe, even though they realize that there is no legal impediment whatsoever to the screenshot of her twitter bio, as the core of the story about her insane claim of unpublishable twits. But if so, then the message to students is be bold when it comes to revealing the awful truth about others, but when it comes to one of our own, fade to black? This would be too cynical even for me to believe,
So if it's not hypocritical circling the wagons as a courtesy to one of their own (whether with or without free donuts), then it's just plain old capitulation. Not a good lesson for the next generation of a group upon whom we depend for our information, knowledge and understanding of what is happening in our world. All the news that's fit to print, unless someone tells them not to and threatens them with a lawsuit. Then, fade to black.
© 2012 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/2013/02/09/todays-journalism-lesson-fade-to-black.aspx?ref=rss
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The iPad Practice
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/08/the-ipad-practice/
The Fiscal Cliff Impact
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/the-fiscal-cliff-impact/
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California Court of Appeal Recognizes That Wide Discretion Granted to a Board of Directors Under the Business Judgment Rule May Be Tempered By a Corporation's Private Contractual Obligations to Its Shareholders/Members
In Scheenstra v. California Dairies, Inc., No. F062768, ___ Cal. Rptr. 3d ___, 2013 WL 363148 (Cal. App. 5th Dist. Jan. 30, 2013), the California Court of Appeal, Fifth District, affirmed the judgment of the California Superior Court, Tulare County, that the board of directors of defendant California Dairies, Inc. (“Cal Dairies”), a milk marketing and processing cooperative, had exceeded its discretion when it adopted a quota system that breached its contractual obligations to its members and exceed the grant of power in Cal Dairies’ Bylaws. This decision highlights that a board of director’s discretion under the business judgment rule may be limited by contractual obligations the corporation undertakes with the corporation’s shareholders/members.
Cal Dairies markets its members’ milk to the best advantage of its members. Upon joining Cal Diaries, a member agrees to be bound by the cooperative’s Bylaws as they exist and as they may be amended. The Bylaws thus constitute a contract between Cal Diaries and each of its members.
One such member was plaintiff John Scheenstra. Between 2002 and 2007, plaintiff began expanding his milk production capacity. In the fall of 2007, the board of directors of Cal Dairies began considering the need to reduce the milk production of its members due to anticipated overproduction. The board decided to exercise the discretionary authority granted in section 7.3 of Cal Dairies’ Bylaws to institute an internal production quota. Section 7.3 of the Bylaws obligates Cal Dairies to accept all of the milk of its members “subject to the right of the Board, in its discretion, upon written notice to the membership . . . to allocate equitably among the members on a uniform basis . . . the quantity . . . of milk to be received by the Association.” Cal Dairies adopted a system that set a production quota based upon average daily production numbers for 2007. At the time the board adopted the supply management program, it knew (1) there were member dairies with declining production and allocating a base using an annual average would provide those dairies with a base in excess of their actual production and such excess base would be a saleable asset; (2) there were a number of member dairies, including plaintiff’s, with increasing production; and (3) the base allocation would not account properly for dairies with increasing production.
After attempting (and failing) to obtain relief directly from the board by showing that the quota system was causing him extreme hardship, plaintiff filed a lawsuit for breach of a written contract, breach of the covenant of good faith and fair dealing, and negligent misrepresentation.
After a bench trial, the trial court dismissed each of plaintiff’s claims except for the claim for breach of contract. The trial court analyzed the terms of the Bylaws and concluded that Cal Dairies breached its contractual obligation to implement a supply management program equitably, uniformly and based upon representative years of production. With respect to damages, the trial court determined that the correct measure of damages was the difference between the amount plaintiff received under the improper formula, and the amount he would have received under a proper uniform, equitable plan.
Cal Dairies appealed, arguing that the trial court erred by failing to apply the business judgment rule and give deference to its board of directors’ choice of terms for the production quota system. The Court of Appeal rejected Cal Dairies’ argument. As a preliminary matter, it held that Cal Dairies, as a nonprofit cooperative association, was a membership corporation without capital stock. Accordingly, any deference given to its board of directors would be derived from the business judgment rule. (Even if Cal Dairies had been an unincorporated association, it still would have benefited from an analogous “judicial deference” rule. Like the business judgment rule, the “judicial deference” rule insulates from court interference management decisions made by directors loyally, with due care and in their good faith belief that the decisions are in the organization’s best interests.)
The application of the business judgment rule to the facts of this case, however, was not straightforward. The board decision at issue — establishing the terms of the production quota system — was subject to the terms of the contract between plaintiff and Cal Dairies. Thus, the board’s decision implicated both its management responsibilities and Cal Dairies’ contractual obligation to perform as agreed with plaintiff and the other member dairies. Here, the contract granted discretion to the Cal Dairies board on a matter involving business operations, but also limited that discretion by requiring the board to allocate milk quantities equitably among members on a uniform basis. In a situation where a contract grants a board limited discretion, the Court concluded, the board’s decision will not be afforded deference under the business judgment rule until after the court properly determines that the action of the board falls with the discretionary range of action authorized by the contract. Here, the Court of Appeal affirmed the judgment on the breach of contract claim in favor of plaintiff.
Scheenstra stands for the proposition that the business judgment rule will not protect board decisions in contravention of specific contractual obligations. To benefit from the deference granted by the business judgment rule, a board of directors must act within its authority and pursuant to its obligations to its shareholders/members.
For further information, please contact John Stigi at (310) 228-3717 or Alejandro E. Moreno at (619) 338-6664.
International Law Opportunities at Suffolk University Law School
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Saturday, February 16, 2013
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
Pennsylvania voter ID law suspended for primary election
Source: http://jurist.org/paperchase/2013/02/pennsylvania-voter-id-law-suspended-for-primary-election.php
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Dayton appoints Pamela Alexander in Hennepin County
Judge Pamela Alexander
Pamela Alexander was appointed judge today in Hennepin County. She takes the spot on the bench that was created by the retirement of the Hon. Robert A. Blaeser.
Alexander is the President of the Minnesota Council on Crime and Justice, and previously served as a Municipal and District Judge for Hennepin County from 1983 to 2008. Prior to her judgeship, she worked as an Assistant Hennepin County Attorney and was a criminal defense attorney with the Legal Rights Center, Inc. She has also served as an adjunct professor at the University of St. Thomas Law School and the William Mitchell College of Law. Judge Alexander earned her B.A. from Augsburg College and her J.D. from the University of Minnesota School of Law.
“Throughout her career, Judge Alexander has demonstrated exemplary courage and a commitment to justice for all people,” said Gov. Mark Dayton in a statement announcing the appointment. “Her legal expertise, acquired through nearly 30 years of experience on the bench, has prepared her well for this new role. I am confident that Judge Alexander will serve the Fourth District with distinction.”
Alexander is a member of the Minnesota Supreme Court Equal Fairness in the Courts Committee and a recipient of the 2011 Woman of Courage Award from the Emmett Till Legacy Foundation.
Source: http://minnlawyer.com/minnlawyerblog/2013/01/30/dayton-appoints-pamela-alexander-in-hennepin-county/
Multitasking ain't
In a recent USA Today article, texting and music listening while driving and walking are leading to an increase in the death of pedestrians. People are still talking on the phone and texting while driving, despite the statistics that prove it can be deadly and despite it being against the law.
But now, we have new statistics that show the same result -- injury and death -- arises from just walking and texting or listening to music and being in "another zone." All of which confirms that multi-tasking is a misnomer. We can do one thing at a time, not many different things at the same time.
Those who reach the pinnacle of success are able to do many things ... but focus on one thing at a time. There just ain't no such thing as multi-tasking.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/H-Qj8pbo9b0/
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Law Firms Go Mobile
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/04/law-firms-go-mobile/
Revenue Growth Modest at Many Firms, But Profits Surge
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Inside BU Law’s Housing, Employment, Family and Disability Clinic
Defending a Serial Killer
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/10/defending-a-serial-killer/
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