Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202594007440&rss=rss_nlj
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Sunday, March 31, 2013
Judge who was videotaped screaming at litigants is ousted
A West Virginia judge caught on video screaming furiously at litigants has been removed from the bench for the duration of his term.
In-Vitro Fertilization, Custody Rights and Family Law
A Massachusetts court orders a man to pay child support for twin girls, born through In-vitro fertilization and with donor sperm and eggs, even though he was estranged from his wife at the time of conception. Is this fair? With the rise in IVF treatments, there are more and more cases across the country with complicated custody matters. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams join Attorney Maureen McBrien from the firm, Todd & Weld LLP and Certified Family Law Specialist and trial attorney Violet P. Woodhouse, to explore the legal issues surrounding in-vitro fertilization, custody rights and family law.
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Demystifying Technology Assisted Review; Taxation of Costs in Race Tires
Amidst growing data volumes and dwindling resources, traditional linear document review is quickly going the way of the dinosaur. On The ESI Report, host Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack welcomes special guest, David D. Lewis, Ph.D., President of David D. Lewis Consulting and co-founder of TREC Legal Track and Kara M. Kirkeby, Esq., Manager of Document Review Services at Kroll Ontrack, Inc., to explore the exciting new developments in technology-assisted review, and how these developments are rapidly impacting the world of e-discovery. On the Bits & Bytes Legal Analysis segment, Kroll Ontrack legal correspondent, Alicia J. Smith, analyzes the March 16th 2012 appellate court decision in Race Tires America v. Hoosier Racing Tire.
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Thai man sentenced for royal insult
[JURIST] A Thai court on Thursday sentenced 37-year-old Akachai Hongkangwan to three years and four months in prison for violating Thailand's lese majeste law. The lese majeste law found in Article 112 of Thailand's Penal Code [text] allows for anyone who "defames, insults or threatens" a member of the royal family to be sentenced to a prison term of three to 15 years. Hongkangwan was arrested on March 10, 2011, at an anti-government demonstration held in Bangkok where he was...
Source: http://jurist.org/paperchase/2013/03/thailand-man-sentenced-for-royal-insult.php
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Orrick's Next Act
Mitchell Zuklie, who is succeeding Orrick, Herrington & Sutcliffe's iconic 23-year chairman, Ralph Baxter Jr., has some big shoes to fill and some problems to address. On his to-do list: clarifying Orrick's message to the market, leveraging the firm's global footprint, and implementing a new management structure with more seats at the table.
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Not The Best Way To Dispose Of The Evidence
Come crunch time, I guess we all occasionally make the wrong decision. This would appear to be just such an occasion. As reported by The Naples Daily News:
When caught red handed with a pair of stolen $16 earrings, Naples police say a Golden Gate teen turned to drastic measures to get rid of the evidence — he drank them.How do you drink earrings?
Police say Colburn was caught shoplifting the glamorous $16 jewelry by JCPenney loss prevention officer Leonardo D. Gonzalez just after 1 p.m. on Saturday. Gonzalez watched as Colburn selected a pair of earrings from the jewelry department, took them out of the box and placed them into a bottle of vitamin water, police said.
Colburn then left the store without paying for the earrings, reports said.
Gonzalez confronted Colburn about the earrings, and began escorting him back to the JCPenney loss prevention office. It was then, police said, that Colburn gulped down the rest of the vitamin water, earrings and all.It's not looking good for Mr. Colburn, but it's still word against word, right? Nope.
When police arrived, Colburn was arrested and transported to NCH Downtown Naples Hospital for an X-ray. On the X-ray image, the earrings were observed inside Colburn, police said.Damn that contraption! To read more (a fair amount), and see the mug shot, click here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/YxaXNOcgHsQ/post_630.html
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NPR 'Grain' Series Investigates Industry, Sparks Response
NPR's Howard Berkes joins host Scott Simon for a look back at his reporting this week on the NPR series Buried In Grain. Berkes reviews the death toll from grain storage bins and the weak laws and enforcement that have failed to prevent these accidents.
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Legal Talk Network Live at LegalTechNY 2012- True Grit: E-Discovery in Big Law Firms
Monica Bay, Editor-in-chief of Law Technology News, discusses this month’s cover story, True Grit. The story dives into the intricacies of how big law firms treat E-discovery, and the surprising gray area surrounding it. Be sure to watch the interview , hosted by Legal Talk Network producer, Kate Kenney.
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Saturday, March 30, 2013
Helpful Tips for Women Solo Practitioners
New Solo host, Attorney Kyle R. Guelcher, a solo practitioner and the most recent Chair of the Young Lawyers Division of the Massachusetts Bar Association is joined by Attorney Melissa Conner, from the Conner Law Offices out of Boston, Massachusetts, to spotlight women solos. Melissa shares her recommendations on everything from which organizations female attorneys can join when first starting their office, to the benefits of a women’s bar association to how to find a mentor.
Source: http://legaltalknetwork.com/podcasts/new-solo/2012/02/helpful-tips-for-women-solo-practitioners/
NLRB's recent significant decisions
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.
Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.
Source: http://www.lawmemo.com/blog/2012/12/nlrbs_recent_si.html
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Blending Special Needs Trusts and Structured Settlements
For severely injured plaintiffs and their families, the combination of special needs trusts and structured settlements can help provide financial security to secure future needs. Ringler Radio host Larry Cohen and co-host, Carmella Limongelli discuss this beneficial combination of financial solutions with Attorney Jay J. Sangerman, an expert in special needs trusts. Listen and find out when a special needs trust should be considered and what features the trust should have to qualify as a self-settled special needs trust.
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Federal appeals court rules EPA can halt power plant construction
[JURIST] The US Court of Appeals for the Sixth Circuit [official website] ruled [opinion, PDF] Thursday that the Environmental Protection Agency (EPA) [official website] can suspend power plant construction projects before project completion based on evidence that a plant is underestimating the extent to which the project will affect its aggregate pollutant emissions. The Clean Air Act (CAA) [text, PDF] forbids the construction of new sources of air pollution without a permit, but excepts sources already in operation unless the...
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SJC Ruling on Foreclosures
Kathleen C. Engel, law professor and Associate Dean for Intellectual Life at Suffolk Law School, discusses the Massachusetts foreclosure crisis and actions being taken against four major banks. Learn more about Dean Engel at http://bit.ly/hBaALX.
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/03/sjc-ruling-on-foreclosures/
Microsoft 'Patent Tracker' Puts IP Info Online
Microsoft has launched an online tool that allows anyone to search for and view all its patents. General counsel Brad Smith said Microsoft is introducing the "Patent Tracker" as a way to create greater transparency in the U.S. patent system. The company is also hoping that making patent holdings easily searchable will curb the activities of non-practicing entities or "patent trolls."
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Amazon’s Tax Dispute May Be Destined for the Supreme Court
Amazon's Tax Dispute May Be Destined for the Supreme Court
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I’ll Tumblr for Ya
While Facebook, LinkedIn and Twitter draw the lion’s share of social media attention, there are many other social media platforms available to lawyers. Tumblr, Pinterest and Foursquare are just a few of the alternatives. How can you evaluate which of these tools might be worthy of your time and effort? On The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell survey the lesser-traveled landscapes of the social media world, identify some tools that might make sense to some lawyers in some scenarios, and speculate about the future of specialized social media tools.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/07/ill-tumblr-for-ya/
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Friday, March 29, 2013
Inside the Trayvon Martin Tragedy
The shooting death of 17 year old Trayvon Martin in Florida has sparked outrage across the country. On February 26, 2012, Trayvon died from a single gunshot to the chest. Police say neighborhood watch captain, George Zimmerman, fired that shot. Zimmerman is using Florida’s "Stand Your Ground" Law to justify the killing. Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, welcome Professor Michelle Jacobs, from the University of Florida's Levin College of Law and Professor Kenneth Novak, Ph.D., Chair of the Department of Criminal Justice at the University of Missouri - Kansas City, to explore the legal issues surrounding the "Stand Your Ground" law, neighborhood watches, and the possibility of racial profiling.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/inside-the-trayvon-martin-tragedy/
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Life prisoner's bid for sex change becomes cause célèbre
Political and religious groups at both ends of the political spectrum have jumped into the appellate battle over a Boston federal judge's order that prison officials provide sex reassignment surgery for a convicted murderer.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593931323&rss=rss_nlj
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LawBiz® Legal Pad: Marketing Plan 101
Ed reveals how to define your target market and the tactics necessary to reach it.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/3o2HK-htEOY/
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Divided Supreme Court voids class certification in Comcast antitrust suit
A divided U.S. Supreme Court on Wednesday ruled for Comcast Corp. in a dispute over the alleged monopolization of the Philadelphia cable television market, overturning an appellate ruling that certified a class of about 2 million existing and former subscribers.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593809896&rss=rss_nlj
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The U.S. Supreme Court’s Golan v. Holder Decision
On this edition of IP Counsel, host Attorney Peter Lando, partner at the firm of Lando & Anastasi, LLP, welcomes returning guest, Mary Wong, Director of the Franklin Pierce Center for Intellectual Property at the University of New Hampshire School of Law, to discuss the recent U.S. Supreme Court decision in Golan v. Holder. The Golan decision upheld a law that restored copyright protection to foreign works that were once in the public domain and makes clear that Congress has broad discretion with regard to copyright and other intellectual property protection. Peter and Mary discuss the procedural history of the case and the significance of the decision.
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Bombs Away: Erasing Information in the Big Data Era
In this April edition of Law Technology Now, host Monica Bay, editor-in-chief of ALM’s Law Technology News, joins Barclay Blair, founder of ViaLumina an information governing consulting service, to talk about the idea of digital data being erased. We know that simply putting it in the trash can on our desktop isn’t enough, but can it be done? They will also discuss mobile apps which claim they immediately erase data like Snapchat: Does this data actually self destruct? And is using apps like this a liability in court because it looks like there is something to hide?
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America's First Great Depression: Economic Crisis and Political Disorder after the Panic of 1837
Alasdair Roberts, Suffolk Law's Rappaport Professor of Law and Public Policy, discusses his upcoming book and how it relates to the United States economy today. Learn more about Professor Roberts at http://bit.ly/zTKaZP.
Burn Injury Litigation
Millions of burn injuries are reported every year in the United States. When an individual is severely burned, they can be left scarred, endure severe emotional trauma and some often succumb to their injuries. On Ringler Radio, host Larry Cohen joins Attorney Marc Breakstone, founder and principal at Breakstone, White & Gluck, to talk about the various types of burn injuries litigation, liability and prevention.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/11/burn-injury-litigation/
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Search Plus Your Legal World
Google's new "Search Plus Your World" represents a new direction in Internet search where social elements become part of our search results. Bringing our social media world into search results indicates both the growing importance of social media and the need to find new ways to get relevant results. Can we make use of what our friends and connections find on the web to get us better search results? In this episode, Dennis Kennedy and Tom Mighell take a look at Search Plus Your World, whether bringing social into search might help us, and whether this approach might work for you. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/02/search-plus-your-legal-world/
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Thursday, March 28, 2013
Not The Beanie Babies! Take Anything You Want, But Not The Beanie Babies!
What kind of person would steal a little girl's Beanie Babies? And use a knife during the heist? Perhaps the kind of 18-year-old who would want 6 Beanie Babies... As reported by The Orlando Sentinel:
Two St. Cloud men accused of taking a little girl's Beanie Babies and other items during a home invasion are being held without bail today at the Osceola County Jail.
Scott Napolillo and Sean Knapp, both 18, face charges of home-invasion robbery, aggravated assault and false imprisonment.
Napolillo is accused of pulling a knife from his waistband and forcing his way into a St. Cloud house to collect on a debt as Knapp waited outside with a souvenir baseball bat.Must have been a large debt for all that.
The men rode their bicycles to the house.Okay, maybe a medium-size debt?
The victim, who was not identified, told police Napolillo threatened to stab him if he didn't have $130 to pay off his debt, the report stated.
Told there was no money, Napolillo ransacked the home and told the victim if he tried to run a friend known as the "Marlboro Man" was waiting outside.
After packing the robbed items in a black bag, Napolillo left after saying he would come back and kill the victim if police were called, the report stated.
After the men left, a police officer on patrol in the area recognized Napolillo as a suspect in several burglaries and followed the men as they rode their bikes across St. Cloud, an arrest report stated.
The officer stopped them for riding against traffic after they cut off a car on 17th Street.
Napolillo had a dagger stuffed inside his waistband and he showed the officer that the black bag contained nine Nintendo video games, six Beanie Babies, the souvenir baseball bat, a cell phone and 13 AA batteries, the report stated.$130! STFU! NFW did you do all that for $130. Here's the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/S4Njjqx1UZE/post_628.html
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Guantanamo detainee requests immediate relief amid alleged mistreatment, hunger strike
[JURIST] Human rights lawyers on Tuesday filed an emergency motion [text, PDF] in the US District Court for the District of Columbia [official website] alleging that guards at Guantanamo Bay [JURIST backgrounder] have denied drinking water and sufficient clothing to a Yemeni prisoner. The motion was filed only a day before a fact-finding visit to the US detention center in Cuba by the International Committee of the Red Cross (ICRC) [official website], and the lawyers contend that such treatment is...
Source: http://jurist.org/paperchase/2013/03/jurist-human-rights-attorneys-on.php
How Pro Bono can be a market strategy for Solos and Law Students
Solos and Law Students-have you considered Pro Bono as an investment? It can expand your client base and knowledge, open doors for employment and networking, and enrich your standing in the community. New Solo host, Attorney Kyle R. Guelcher, a solo practitioner and the most recent Chair of the Young Lawyers Division of the Massachusetts Bar Association discusses with Attorney Luz Herrera, Assistant Professor of Law at the Thomas Jefferson School of Law in San Diego, California how she used Pro Bono to build her practice and strengthen her community.
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The Impact of Voter ID Laws and Voter Purges
Before 2006, not a single US state required voters to show identification before marking a ballot. But now, 30 states have enacted some sort of voter identification law. Are these laws necessary to prevent voter fraud or are laws being passed to discourage low income groups, the elderly and minorities from voting? Lawyer2Lawyer co-host and attorney, Craig Williams, joins Professor Richard L. Hasen, from the University of California, Irvine and Wendy Weiser, Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law, to talk voter ID laws in battleground states, voter purges and the potential impact on the upcoming election.
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Gambling on Sports and the Law
What are the odds that your office NCAA basketball pool for March Madness is illegal? Are you willing to bet that gambling outside of a casino on any sporting event breaks both state and federal laws? So then, why is it a crapshoot that you will be prosecuted under these laws? Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, take a look at America’s gambling legislation with Professor Marc Edelman of Barry University's Dwayne O. Andreas School of Law and Author and Attorney Clay Travis from Counsel On Call.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/gambling-on-sports-and-the-law/
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At the Supreme Court, A Shadow of a Doubt
With Tuesday’s arguments before the Supreme Court, the gay marriage debate reached an important crossroads. But it was an intersection illuminated by blinking yellow lights.
Source: http://blogs.wsj.com/law/2013/03/26/at-the-supreme-court-a-shadow-of-a-doubt/?mod=WSJBlog
Divided Supreme Court voids class certification in Comcast antitrust suit
A divided U.S. Supreme Court on Wednesday ruled for Comcast in a dispute over the alleged monopolization of the Philadelphia cable television market, overturning an appellate ruling that certified a class of about 2 million existing and former subscribers. The ruling was seen as another significant blow against large class actions.
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Claims College for Litigation Managers
The Claims and Litigation Management Alliance (CLM) is a national organization with over 20,000 members in the claims and litigation management profession. In 2013, CLM will launch the first national resource for continuing education called Claims College. On this Ringler Radio podcast, host Larry Cohen hears from guest, Adam Potter, Executive Director for CLM about Claims College, the faculty of senior level industry leaders and curriculum for Claims Management, Professional Lines and Workers' Compensation.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/claims-college-for-litigation-managers/
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ACC Ups Its Involvement in Outside Counsel Fee Fights
Usually fights over attorney fees remain between the company and its outside counsel, or the in-house and outside bars. But some parties are increasingly moving the fight into the courtroom, and the Association of Corporate Counsel wants to fuel that trend. A plaintiffs law firm is calling ACC's recent filing of an amicus letter in securities litigation against Citigroup "procedurally improper."
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Wednesday, March 27, 2013
BCA lab cuts back on testing today
Wade Setter, the superintendent of the lab, outlined the changes that took effect today.
The lab will no longer perform testing on suspected drug paraphernalia, like pipes used to smoke drugs, except in extenuating circumstances approved by lab management. The lab will no longer for residue or trace amounts (less than .01 grams) of suspected controlled substances. The lab will no longer test “marked pharmaceutical tablets” unless the markings indicate a controlled substance and a trial date has been set in the case.
The lab will continue to accept marijuana cases where there is a measurable amount of plant material and a court date has been set.
Setter said the changes were temporary and the BCA would continue to pursue resources to help in drug testing.
The BCA took on the case load from the St. Paul Police Department lab when testing there was suspended last summer. That additional workload has put a strain on the system.
Setter said that in January 2012 there were 250 cases in the lab with 21 days needed to process the evidence. As of Friday, the lab had 1,400 cases waiting for testing with an estimated four month turnaround time. If the backlog was not addressed, that turnaround time could grow to six months, Setter said.
More information on the changes is available at the BCA’s website.
Source: http://minnlawyer.com/minnlawyerblog/2013/03/18/bca-lab-cuts-back-on-testing-today/
Public defenders still lag behind prosecutors on payday
Nearly five years after the General Assembly made it possible for localities to help public defenders keep pace with prosecutors, only one Virginia local government provides money to supplement defender salaries, a state official said.
That one community – Alexandria – is among 25 Virginia localities with public defender offices.
By contrast, more than two thirds of Virginia’s 120 commonwealth’s attorneys’ offices received extra money from local governments in the last fiscal year, according to figures reported by The Daily Progress.
The disparity between pay for prosecutors and public defenders makes it tough to keep good lawyers on the job, Charlottesville Public Defender Jim Hingeley said. He has appealed to Charlottesville city leaders for extra money to boost salaries for attorneys in his office.
On average, local prosecutors make 25 percent more than public defenders, he said.
“When you’re handling the same cases with the same defendants in the same courtroom, there should be parity,” Alexandria Public Defender Melinda Douglas told the paper.
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The Politics Of Guns And The Influence Of Advertising
New York City Mayor Michael Bloomberg launched a $12 million ad campaign in 13 states this week to persuade senators to support gun control legislation. The ads promote universal background checks as a prerequisite for gun ownership.
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By Invitation Only
When was the last time the cops came to your front door with a dog, other than to ask for a donation to the police retirement fund? Me neither. But now that the Supreme Court has, in a 5-4 decision, held that it's an "unlawful intrusion" into the curtilage in Florida v. Jardines, that's settled. So dog sniffs are still the gold standard of probable cause, but they're not allowed on the porch.
At Volokh Conspiracy, Orin Kerr questions where Justice Nino Scalia came up with this supposed pre-Katz trespass theory of 4th Amendment jurisprudence, given his inability to find any mention of it and curiously noting that while it loomed large in the Court's earlier United States v. Jones decision, he studiously avoided using the word "trespass" in the majority decision. Orin notes:
What is striking about Jardines is that it's another 5-4 Fourth Amendment decision, reminding us that four justice of the Supreme Court are too clueless to get it right. It can't be because Scalia, whose adoration of originalism doesn't preclude creating doctrine that never existed while pretending otherwise, failed to apply Katz, given that Justice Kagan made clear in her concurrence that she would have ruled the same whether based on the trespass approach (what she calls a "property rubric") or a Katz approach. So what then is the message of Jardines for the future of search and seizure?
Despite all the scholarly focus and concern, Gideon at A Public Defender raises the implications this decision holds in the trenches:
© 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.
At Volokh Conspiracy, Orin Kerr questions where Justice Nino Scalia came up with this supposed pre-Katz trespass theory of 4th Amendment jurisprudence, given his inability to find any mention of it and curiously noting that while it loomed large in the Court's earlier United States v. Jones decision, he studiously avoided using the word "trespass" in the majority decision. Orin notes:
That happens sometimes. The core of Scalia's rationale ignores the reasonable expectation of privacy, and instead ties to the physical property.The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.
In short, the common wisdom is false.
At Concurring Opinions, Ryan Calo points out some really good questions that are raised by this peculiar approach.When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).
That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
One can never be too cynical when trying to predict the application, or lack thereof, of a Supreme Court decision to future cases. And therein lies a problem.My hope for this case was that it would reject the doctrine that citizens possess no reasonable expectation of privacy in contraband. It does not, but nor does Jardines reaffirm that doctrine. Rather, the case holds simply that bringing a dog—and perhaps other instrumentalities of investigation—onto private property without consent requires a warrant or a constitutionally recognized exception. The case still has me puzzled/worried for several reasons:
- What about people who live in apartments or even brownstones that police may approach without trespassing? Because I don’t see the votes for that case. Presumably you would lose at least Justice Thomas, and likely Justice Scalia, which by my count makes it a six-three decision the other way.
- What about technology being developed and tested today that can sense contraband within the home from above or a greater distance? I assume a chemical-sensing drone might get you Justice Scalia again on a Kyllo rationale. But Kyllo involved officers peering into the home, whereas the technology I’m flagging is much more like the dog sniff in Place or the field test in Jacobsen, revealing no more “intimate” detail than the presence or absence of contraband.
- Finally, there is what cases actually hold, and then there is the propositions they will be one day be cited for. Justice Scalia’s opinions in Jones and Jardines are careful to point out that Katz is good law—we just don’t have to reach it because there has been a trespass. But can you not just imagine a future opinion citing these cases for the proposition that the Court is returning to trespass as the lodestar of Fourth Amendment analysis? “As our recent holdings have made clear…” Maybe I’m being too cynical.
What is striking about Jardines is that it's another 5-4 Fourth Amendment decision, reminding us that four justice of the Supreme Court are too clueless to get it right. It can't be because Scalia, whose adoration of originalism doesn't preclude creating doctrine that never existed while pretending otherwise, failed to apply Katz, given that Justice Kagan made clear in her concurrence that she would have ruled the same whether based on the trespass approach (what she calls a "property rubric") or a Katz approach. So what then is the message of Jardines for the future of search and seizure?
Despite all the scholarly focus and concern, Gideon at A Public Defender raises the implications this decision holds in the trenches:
If this is the takeaway from Jardines, then the decision has huge implications for the police at the front door uninvited. Otherwise, it's a decision that only a curmudgeon could love: Get your dog off my lawn.But even using the term trespass mightn’t be such a bad thing: I think it’s just a different way of framing the same issue. When the government has ‘trespassed’ on our private property or our person or our papers, effects and things, then it is a search.
It is, in a sense, the simplest way to define a search.
In other words, do we implicitly give permission to police to enter our property for any reason other than our own physical safety? Would it be a workable bright-line rule that any incursion by the police onto one’s property is always a search and thus the onus lies on the State to prove that the search was reasonable or supported by an exception to the warrant requirement?
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Source: http://blog.simplejustice.us/2013/03/27/by-invitation-only.aspx?ref=rss
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Obligations to Clients in Settlement Negotiations
After a settlement has been reached in a lawsuit, often claimants have questions about how to handle or manage their settlement money. On this Ringler Radio podcast, host Larry Cohen and co-host, Ann Marie VonBank get some real world perspective from expert guest, Attorney James Heuer, Jr., to discuss the attorney obligations to the client during settlement negotiations and after the settlement has been reached.
U.S. News Law School rankings are out
The University of Minnesota came in tied at the 19th spot. (In state tuition $36,820; out of state was $45,484) In 2012 the U of M also came in tied for 19th.
The University of St. Thomas moved up to a tie for 124. (Tuition $1,256 per credit) Last summer, the school reported an error in the data it provided to U.S. News for the employment figures for the class of 2010. That error did not affect this year’s rankings. In 2012 UST was tied for 119.
Hamline University had the biggest gain over last year and is tied at 126. Last year the school was not in the top tier of ranked schools. (Tuition $36,396)
The William Mitchell College of Law was tied at 134, down from 127 last year. (Tuition $36,020)
This year the more emphasis was put on what school’s do to prepare their graduates for a job after graduating. In the past, the rankings counted graduates in any kind of job, but this year more weight was given to graduates who landed permanent full time jobs that required a J.D.
Conversely, graduates who had part-time or contract jobs, or jobs for which a law degree is not required, negatively affected a school’s ranking.
The full report is available here.
Source: http://minnlawyer.com/minnlawyerblog/2013/03/12/u-s-news-law-school-rankings-are-out/
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In-Vitro Fertilization, Custody Rights and Family Law
A Massachusetts court orders a man to pay child support for twin girls, born through In-vitro fertilization and with donor sperm and eggs, even though he was estranged from his wife at the time of conception. Is this fair? With the rise in IVF treatments, there are more and more cases across the country with complicated custody matters. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams join Attorney Maureen McBrien from the firm, Todd & Weld LLP and Certified Family Law Specialist and trial attorney Violet P. Woodhouse, to explore the legal issues surrounding in-vitro fertilization, custody rights and family law.
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Gambling on Sports and the Law
What are the odds that your office NCAA basketball pool for March Madness is illegal? Are you willing to bet that gambling outside of a casino on any sporting event breaks both state and federal laws? So then, why is it a crapshoot that you will be prosecuted under these laws? Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, take a look at America’s gambling legislation with Professor Marc Edelman of Barry University's Dwayne O. Andreas School of Law and Author and Attorney Clay Travis from Counsel On Call.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/gambling-on-sports-and-the-law/
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Will Lawyers Always Be Late Adopters?
Lawyers are known as notorious late adopters of technology. Is that a fair characterization? Of course it is. What makes lawyers so cautious about new technologies? Will lawyers always be late adopters? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss some recent experiences that have reinforced the idea that lawyers are late adopters, the reasons people do and do not adopt new technologies, and practical ways for lawyers to think about moving to new technologies.
Tuesday, March 26, 2013
To Tell The Truth
While lawyers for the Aurora shooter, James Holmes, weren't prepared to commit to a plea on his behalf, following Judge William Sylvester's rejection of motions relating to his coerced waiver of constitutional rights should he pursue an insanity defense, the court entered a "not guilty" plea on his behalf. But Sylvester also added a needle to the mix:
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A Colorado judge has approved the administration of “truth serum” to accused mass killer James Holmes, should he plead insanity. The unspecified drug would be used to assess Holmes’ state of mind at the time of the shootings and potentially reveal whether he is faking mental illness. Can you prove that someone is sane by drugging them?
Not reliably. The most likely drug that prosecutors would use on Holmes is sodium amobarbital, also known as sodium amytal. It has dozens of psychiatric applications, but it doesn’t seem to do any of them particularly well.
Like a bad made-for-TV movie, the hurdles to mounting an insanity defense are bordering on crazier than this mass murderer. According to the piece in Salon, the drug of choice is sodium amobarbital:
To conduct a so-called narcoanalytic interview, psychiatrists put the patient on an intravenous drip of sodium amobarbital until he slurs his speech or shows some other manifestation of the drug’s effects. The questions are easy at first—What is your name? How old are you? Where are you right now?—then progress to the incident the interviewer is focused on. The psychiatrist often uses emotionally evocative questioning to startle the subject into disclosing suppressed memories of the event. While experts debate the procedure’s effectiveness in general, everyone agrees that narcoanalytic interviews are useless on certain people. Some subjects fall asleep before the interviewer gets to the important questions, while others are so punchy that their responses are gibberish.
At the New Scientist, speculation as to the "truth serum" centers on sodium pentothal and oxytocin, both of which it concludes are largely worthless. Regardless of which drug a government-chosen psychiatrist may prefer to inject into Holmes given the court's approval of a "narcoanalytic interview," yet another constitutional question arises:
The possible use of truth drugs is a surprising development in the Holmes trial, says Jason Odeshoo at law firm Jenner & Block in Chicago, Illinois. He says the value of such drugs in this particular case is unclear. "Regardless of their effectiveness, administering truth serums arguably violates an individual's rights under the US constitution," he says. "However, the constitutional implications of using a truth serum to test an insanity plea are less clear."
This turn of events not only subjects the defendant to interrogation in defiance of his 5th Amendment rights, but now subjects him to drug-induced confession, regardless of the dubious merit of the narcoanalytic possibilities.
As troubling as the compelled confession of a defendant interposing an insanity defense may be, the idea that he would be subject to undergo drug-induced confession takes it to a whole, new level. Adding the dubious efficacy of the method, and it's just, well, nuts.
It seems that these outlandish measures are all to avoid the possibility that Holmes is not guilty by reason of insanity, such that he will be Hinkley'd and spend decades, if not the rest of his life, in a secure psychiatric facility. Because that's so much fun and nobody in Colorado would get the satisfaction of hearing the word "guilty" and the comfort of the imposition of sentence. Would it be so awful that this defendant, who engaged in conduct so utterly crazy and horrible that it defies any rational explanation, would be found insane?
As was the case with Gilberto Valle, the "cannibal cop," there will be few who will feel the slightest sympathy for Holmes given the enormity of the harm and pain he caused. Yet, it's the case of the despised defendants where the law takes a headlong dive to the bottom, where rulings for the least sympathetic defendant are made and create the precedent that is later applied to defendants who are nowhere near as hated. We do not challenge the rulings because we think well of a psycho mass murderer, but because of the next defendant who will be subject to a narcoanalytic interview because it was unfashionable to object to it here.
The public perception is that there is something fundamentally wrong with a system that would allow James Holmes to "get away with it" by a finding of not guilty by reason of insanity. This is the driving force behind the changes in Colorado law following the Hinckley assassination attempt, and the cavalier evisceration of constitutional rights as the price of pleading the defense.
Or maybe it's the public bloodlust for executing our most despised defendants that stands in the way or realizing that there is no joy to be found in a life in an insane asylum. And yet, the court has done everything possible to make the price of an insanity plea as onerous as possible.
Ironically, the only thing that could make the public perception of the criminal justice system worse in light of the horrors of this case would be a reversal on appeal based upon the court's ruling that the defendant be compelled to have drugs pumped into his veins so that he can be made to tell the truth. If the survivors of this tragedy hate the idea that Holmes might "get away with it," imagine how bad it would be for this conviction to be reversed.
© 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/2013/03/16/to-tell-the-truth.aspx?ref=rss
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The Epidemiology Of Gun Violence: Race, Region And Policy
A Washington Post analysis of statistics from the Centers for Disease Control and Prevention finds a correlation between gun deaths, and race and geographic location. African Americans are much more likely to be victims of gun-related homicide, whereas whites are more likely to commit suicide.
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Two Firms Settle Unfinished Business Claims with Howrey Trustee
Two firms that took in partners following Howrey's 2011 collapse have agreed to make payments to the bankrupt firm's estate based on the legal theory that dissolving firms have a stake in work brought by their former lawyers to their new employers. The agreements with Holland & Knight and Fenwick & West are among the first to emerge from talks between the Howrey trustee and more than 70 firms that brought on former Howrey partners.
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Paralegal Career Opportunities in Litigation Support
On The Paralegal Voice co-host Vicki Voisin welcome’s guests Ann L. Atkinson, ACP, NALA President, Michael Potters, CEO/Managing Partner of Glenmont Group, Inc. and Patrick Oot, co-founder of the Electronic Discovery Institute for a lively discussion about career opportunities for paralegals in the area of litigation support, particularly eDiscovery and technology.
The Presidential Race and the Judiciary
On November 6, 2012, people across the States will cast their vote for President. Whatever the outcome, it will influence our justice system. Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams join Kenneth L. Manning, a professor of political science at the University of Massachusetts at Dartmouth and Professor Carl Tobias from the University of Richmond School of Law, to discuss everything from diversity in the courts, Supreme Court vacancies and obstruction and the impact on the justice system.
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Remote Working Options for Lawyers
The convergence of technology has created a “tipping point” for remote work options for attorneys. Law Technology Now, host and editor-in-chief of ALM’s Law Technology News, Monica Bay analyzes the key advantages of remote work options, which is also June’s Law Technology News’ cover story, Unleashed, with Albert Barsocchini, senior director, strategic consulting at NightOwl Document Management Services and Marc Osborn, senior director, communications for LexisNexis Legal & Professional.
Source: http://legaltalknetwork.com/podcasts/law-technology-now/2012/06/remote-working-options-for-lawyers/
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Legal Talk Network Live at LegalTechNY 2012-Onit’s Eric Elman Spotlights Onit Apps
Eric Elfman spotlights "Onit Apps" for the legal marketplace which solve very specific problems for legal departments. Be sure to watch the interview, hosted by Legal Talk Network producer, Kate Kenney.
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Grieving family members sue over handling of bodies
Two Virginia widows are suing for the way businesses have handled remains of their husbands.
A Chesapeake woman claims she experienced nightmares and panic attacks after finding another decedent in her husband’s casket when she arrived for a viewing last April. Candace Wagner said the viewing for the late James “Jim” Wagner was delayed for two hours while a funeral home straightened out the mix-up, according her lawsuit.
The funeral home was hit with two lawsuits over the incident, from both Candace and son Nathan Wagner, according to The Virginian-Pilot. Each suit seeks $850,000.
A Culpeper widow claims her deceased husband has been kept from his final resting place for eight years by a cemetery’s failure to prepare a proper mausoleum.
The remains of noted Culpeper surgeon Grahame Henson have been “warehoused in a temporary unsealed, unmarked crypt,” according to his widow, June.
June Henson claims in her suit that the mausoleum she has been paying for has a flawed foundation. She says repairs have been inadequate, and – accordingly – she stopped making payments.
The cemetery has filed a counterclaim, reports The Free Lance-Star.
Source: http://valawyersweekly.com/vlwblog/2013/03/25/grieving-family-members-sue-over-handling-of-bodies/
SEC Freezes Assets and Brings Civil Charges against EB-5 Investor Visa Project
In the first SEC enforcement action of its kind, the SEC announced on February 8, 2013 that it had filed civil charges against, and received an emergency order to freeze assets of, the Intercontinental Regional Center Trust of Chicago, a designated Regional Center under the EB-5 Immigrant Investor Program administered by U.S. Citizenship and Immigration Services (USCIS), and the Regional Center’s principal. See full complaint here.
What is the EB-5 Immigrant Investor Program?
The Immigrant Investor Program, commonly known as EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under the pilot immigration program, first enacted in 1992 and rolled out in 1993, certain EB-5 visas are set aside for investments in Regional Center projects. The pilot program is currently authorized until September of 2015. Foreign nationals investing the required funds who demonstrate creation of the requisite number of jobs will receive conditional permanent residency, or a conditional “green card,” in the United States for himself/herself, his/her spouse and all dependent, unmarried children under age 21.
Are EB-5 investments exempt from federal or state securities laws?
No. There is no EB-5 specific exemption to any U.S. securities laws. Despite the investor pool consisting entirely of foreign nationals, individuals and entities raising money in these offerings must comply with (or find an applicable exemption from) the Securities Act of 1933 and state “blue sky” laws concerning the offer and sale of securities, the broker-dealer registration requirements of the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 and state equivalents, and the Investment Company Act of 1940, as well as all applicable foreign securities laws.
Who are the defendants in the SEC litigation?
Intercontinental Regional Center Trust of Chicago (Intercontinental) is a Regional Center that was designated by USCIS in June 2011. A Regional Center is an economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. The other defendants are the special purpose fund that received the investors’ proceeds and the principal of Intercontinental, who is alleged to have directed all of the illegal activities and misappropriated investor funds to a personal account.
Intercontinental has been raising funds since late 2011 for a proposed hotel and convention center located close to Chicago’s O’Hare Airport. The special purpose fund offered 499 limited liability company membership interests for $500,000 each, plus a $41,500 administrative fee, and was one of the largest EB-5 projects in the history of the program. At the time of the SEC’s receipt of the emergency order, the fund had taken in $145 million of job-creating capital and over $11 million in administrative fees.
What are the SEC’s allegations?
The allegations relate to misrepresentations or omissions in the offering documents and in documents filed with USCIS in connection with the applications for conditional permanent residency. According to the complaint filed by the SEC in U.S. District Court for the Northern District of Illinois, the offering documents made numerous false claims, including the receipt of all necessary building permits, franchise agreements with several major hotel chains, the availability of a state-sponsored bond facility, the value of the underlying land, the financial potential for the project to provide a return to investors and the refundability of administrative fees if visa approvals were not granted. The SEC’s complaint also alleges that the sponsors provided falsified documents to USCIS in an attempt to secure conditional visa approvals for investors, which approvals were a precondition to release of each investor’s $500,000 investment to the issuer. Finally, the complaint alleges that more than $2.5 million of $11 million in administrative fees were directed to the principal’s personal bank account in Hong Kong and most of the balance spent rather than available for refund.
Why is this case important?
While there have been allegations of fraud around other regional center projects, this is the first EB-5 enforcement action filed by the SEC. Press reports from September 2012 indicate that an internal memorandum prepared by the USCIS noted that Regional Centers “are not even making good-faith attempts to conform their offering documents to basic securities regulations.” Press reports also indicate that the Department of Homeland Security’s Office of Inspector General has launched an investigation into fraud in the EB-5 program. The SEC notes in its press release for this action there was close coordination with USCIS in bringing the case.
This case confirms that both the SEC and USCIS are paying attention to compliance with securities laws, and USCIS is now monitoring for securities law compliance in its review of visa applications.
Should I consider participating in the EB-5 program?
This case should not discourage anyone from considering or participating in the EB-5 program. Rather, it should be considered a strong message that these investments programs, like any other investment program, must comply with all applicable laws, including securities laws.
The EB-5 program is not right for every project that needs capital, but it can be very attractive for project sponsors, local communities and foreign investors alike.
If I am an investor considering an EB-5 investment, what can I do to better protect my investment and my ability to obtain U.S. permanent residence?
Due diligence is extremely important. Every investor should ensure he/she has an understanding, at a minimum, of the Regional Center, the investment opportunity and risks, the job counting methodology and projections, any aspects of the project that introduce risk into the visa process, and the background and experience of the project’s sponsor and the principals of the sponsor and the Regional Center.
The SEC’s allegations in the Intercontinental case suggest a failure of due diligence, as many of the allegedly false representations in the offering documents could easily have been confirmed as questionable through the same simple investigation of verifiable facts that the SEC describes in its complaint.
Effective due diligence usually requires hiring experienced professionals. Many overseas investors rely on intermediaries, such as finders and marketing firms, but many of these intermediaries have historically lacked the experience or incentive to perform effective due diligence.
We speculate that in order to be competitive in the marketplace, some Regional Centers will begin facilitating verifiable due diligence for potential investors and their professionals.
What if I have further questions?
Sheppard Mullin has substantial experience representing Regional Centers, individual project sponsors and foreign nationals considering EB-5 investment. The firm has assembled an experienced interdisciplinary team to assist with all aspects of the EB-5 program. Key members of our team have two decades of experience in the EB-5 program. We have prepared FAQs on the EB-5 program available here.
For any questions or for more information, please contact any of the members of our EB-5 team. John Tishler (858-720-8943, jtishler@sheppardmullin.com), Dawn Lurie (202-469-4963, dlurie@sheppardmullin.com) and Mahsa Aliaskari (310-228-2280, maliaskari@sheppardmullin.com) participated in drafting this posting.
Disclaimer
This update has been prepared by Sheppard, Mullin, Richter & Hampton LLP for informational purposes only and does not constitute advertising, a solicitation, or legal advice, is not promised or guaranteed to be correct or complete and may or may not reflect the most current legal developments. Sheppard, Mullin, Richter & Hampton LLP expressly disclaims all liability in respect to actions taken or not taken based on the contents of this update.
Neither the content on this blog nor any transmissions between you and Sheppard Mullin through this blog are intended to provide legal or other advice or to create an attorney-client relationship.
In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have. Before providing any such information to us, you must obtain approval to do so from one of our lawyers.
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