The Legal Reader^™

Cool New Blog *PLUS* The Perils of Being Pregnant While an Associate

New blogger Ms. Morality has a cool-looking new blog and also an interesting article discussing the pitfalls of becoming pregnant while a junior associate at a large big-city law firm here. (link via How Appealing) Good luck to Ms. Morality and to her new daughter!

Liberal Lawyers Organize To Oppose Federalist Society

Liberals watched anxiously as the Federalist Society rose from a loosely organized conservative legal organization on a few law school campuses to become a Washington powerhouse with influence in the White House, Congress and various federal agencies.

Now they are fighting back.

The American Constitution Society for Law and Policy is having a coming-out party this week. For three days starting Friday, law students and attorneys will hear speeches by Supreme Court Justice Ruth Bader Ginsburg and Sen. Hillary Clinton, D-N.Y.; attend discussions on the environment, abortion, gay rights, government surveillance, human rights and other subjects; and mingle with dozens of top legal scholars and judges.

Umm, more power to 'em.

Palo Alto's VLG Narrows Merger Options to Three

Palo Alto's Venture Law Group is conducting parallel merger discussions with as many as three Bay Area firms, according to a person close to the situation.

In addition to VLG's previously reported talks with Orrick, Herrington & Sutcliffe, the 64-attorney corporate boutique is also in ongoing merger talks with Heller Ehrman White & McAuliffe and Morrison & Foerster.

The news comes a little more than two months after VLG was first reported to be in merger discussions with Orrick, which recently broke off talks with Cooley Godward over a possible merger that would have created one of the nation's largest firms.

You need a subscription to The Recorder to read the whole thing, but you can read a free preview here.

PETA Activist Changes Her Name to "GoVeg.com"

That's "go-veg-dot-com." Got that?

It might sound more than a little odd - but it's true. A young animal rights activist from Indiana once known as Karin Robertson has legally changed her name to that of a Web site run by her employer, the People for the Ethical Treatment of Animals.

It's not a first name or a last name - just one name. And don't call her "Veg" or "Dot," as some have tried to do.

"I like the whole name together," says the 23-year-old woman who is a youth educator for PETA and living in Norfolk, Virginia, where the organization is based.

It just begs the question: What is more "radical chic"? Living in a tree for a year, or changing your name to "go-veg-dot-com"? Try figuring it out for yourself here, from the AP via Findlaw.

Rape Nuts: Kobe Bryant's Trial Will Showcase Our Mixed-Up Rape Laws

Slate's Dahlia Lithwick just published this interesting examination of the history and current status of our rape laws, using the Kobe Bryant case as a springboard. Slate has it all here. (link via How Appealing)

Suit Over Litigation Tactics Revived

A federal appeals court has revived an abuse of process suit against a law firm and lawyer that allegedly used unfair tactics in litigation -- including hiding documents, obstructing discovery and fabricating privilege claims -- after finding that a lower court improperly determined that such conduct was immune from suit under the doctrine of judicial privilege.

In General Refractories Co. v. Fireman's Fund Insurance Co., a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge John R. Padova of the Eastern District of Pennsylvania had "interpreted the judicial privilege too broadly" when he dismissed claims against the law firm of Gilberg & Kiernan in Washington, D.C., and one of its attorneys, Andrew Butz.

While most litigation is ugly, the underlying litigation here was really ugly. The Legal Intelligencer reports the story here via Law.com.

Managing Partner Faces $450 Million Malpractice Suit

The managing shareholder of Carlton Fields’ Tampa office is facing one of a trial lawyer’s worst nightmares.

The owner of a Naples herbal products company contends that Luis Prats of Carlton Fields botched his breach of contract lawsuit against the co-chief executive of a major drugstore chain by mistakenly turning over confidential legal strategy documents to the other side during discovery.

This unfortunate tale is every litigator's worst nightmare, and worth the read. Find it here from New York Lawyer.

ACLU Files Lawsuit Against Patriot Act

The American Civil Liberties Union Wednesday filed the first lawsuit against the Patriot Act, the anti-terrorism law passed after the attacks of September 11, 2001.

The lawsuit claims one section of the law authorizing searches of records, including those of businesses, libraries and bookstores, is unconstitutional.

"This lawsuit challenges the constitutionality of Section 215 of the USA Patriot Act, which vastly expands the power of the Federal Bureau of Investigation to obtain records and other 'tangible things' of people not suspected of criminal activity," the lawsuit states.

Go ACLU!!! (I'm a "card carrying member," and proud of it.) While I all for fighting terrorism, if we give up our civil rights in the battle, I think to some extent that means the terrorists have already won. CNN has a story about the lawsuit here.

Hormel Fights to Defend Spam Name

"Hormel Foods has a message for a Seattle software company: Stop, in the name of Spam!"

"The canned-meat company filed two legal challenges with the U.S. Patent and Trademark Office to try to stop SpamArrest from using the decades-old name Spam, for which it holds the trademark."

Perhaps they should have sued Monty Python years ago, before the whole thing got started. Read all about it here from the AP.

Online Surveillance Among Spouses Grows

Suspicious husbands and wives who once might have hired a private eye to find out if their spouses were cheating are now using do-it-yourself technology to check on an increasingly popular hideaway for trysts - the Internet.

Divorce lawyers and marriage counselors say Internet-abetted infidelity, romance originating in chat rooms and fueled by e-mails, is now one of the leading factors in marital breakdowns . . . .

[Divorce lawyer John] Mayoue said federal statutes outlawing interception of electronic communications can apply within a marriage.

"A spouse does have a right to privacy even from his or her own spouse," he said. "I've been on both sides of this - it's the most compelling evidence you'll have in a divorce case, but also the most fraught with potential liability."

Looks like it might be a bad time to open a traditional PI business. Read all about it here from the AP via FindLaw.

Lawyer Suspended for Having Sex With Murder-Defendant Client

A lawyer who admitted having sexual contact with her murder-defendant client in a jailhouse conference room has agreed to a one-year suspension, the Washington State Bar Association said Monday.

The state Supreme Court must approve the agreement, which includes an additional year of probation, said Judy Berrett, spokeswoman for the association.

A jail officer said he saw public defender Theresa Olson, 43, having sex last August with Sebastian Burns, 26, who is charged with three counts of aggravated first-degree murder.

People never cease to amaze me . . . . Details here from the AP via CNN.com.

Giving Jurors the Law In Plain English

California Supreme Court Justice Marvin R. Baxter remembers when "malice" and "mallet" meant the same thing, at least in one California courtroom.

In 1968, Baxter, then a prosecutor, was trying a murder case. The judge told the jurors that the murder had to be committed with "malice aforethought." They thought that meant the murder had to be committed with a mallet.

The moral of the story: Juries misunderstand much of the legal terminology that they confront.

Seeking to do something about it, California's Jury Instructions Task Force has ended six years of work by producing a rewrite of more than 800 civil jury instructions in plain English. Their use will be allowed as of Sept. 1. Criminal jury instructions are being rewritten as well and are expected to be ready by September 2005.

An example of a new instruction cited by the council refers to witnesses who either forget or misstate something. The old instruction said, "Failure of recollection is common. Innocent misrecollection is not uncommon." The new one: "People often forget things or make mistakes in what they remember."

That old instruction brings to mind my favorite line from William Faulkner's Light In August:

Memory believes before knowing remembers. Believes longer than recollects, longer than knowing even wonders.

Anywho . . . . Removing the legalese from those ancient jury instructions sounds like a good idea. (I once drafted a Special Verdict Form in a complex civil case, based on California's jury instructions, that even I couldn't understand.) The National Law Journal has the story here.

Copper Mine Failure Turns To Gold

In a dusty Nevada town, a collision between Old West prospecting and 21st century technology has produced a $137 million fraud verdict.

The showdown at the courthouse in Tonopah pitted Australia's Equatorial Mining Ltd. against Kvaerner ASA, a Norwegian engineering firm.

At issue: Who was to blame for what the plaintiff, Equatorial Mining, called the catastrophic failure of its 1997 plan to purchase and develop a Tonopah copper mine?

After a seven-week trial, a jury of 10 men and women—nearly all of whom had hands-on experience in the mining industry—placed that responsibility squarely with Kvaerner. Equatorial Tonopah Inc. v. Kvaerner US Inc., No. CV 16392 (Nye Co., Nev., Dist. Ct.).

That's believed to be the second-largest jury award ever in the state of Nevada, which is not known for having either liberal juries or progressive laws. The National Law Journal has the story here.

Clifford Chance Withholds Profits to Avert Cash Crisis

Clifford Chance has moved to head off a cash crisis as it informs partners that it will not be paying their July profits distribution in order to comply with loan covenants. The move comes as it raises its borrowing limits by an extra £50m to cope with London and New York property costs.

Finance director Chris Merry is understood to have told equity partners that the July distribution - which also coincides with the firm's twice-yearly tax bill - will probably have to be delayed by several months because cash collections have been too slow. The quarterly payment would have represented approximately £70,000 for each plateau partner before tax.

That's a lot of cake. The article, which is here from the UK's The Lawyer.com, points out that this happened once before, in 2000, and that the firm is still making plenty of money.

Legal Pleading of the Year

Although the year is not yet over, The Smoking Gun has declared the winner of its "prestigious Legal Document of the Year" contest, which is this brief filed by a Colorado Deputy Public Defender concerning the history and current use of the "F-word." It's pretty damn funny. (via How Appealing)

One Out of Every 143 Americans is Incarcerated

I think this is very disturbing news. And I'm white. If I were black or Hispanic, I'd find it downright alarming. Talkleft has the relevant details here.

The Trial of Zacarias Moussaoui

Since the Sept. 11 attacks, the Bush administration has repeatedly tried to dodge the Constitution while prosecuting the war on terror. In the trial of Zacarias Moussaoui, the so-called 20th hijacker, the Justice Department is once again attempting to trample the Bill of Rights — in this case, by denying Mr. Moussaoui the right to see evidence critical to his defense. The judge should not allow the government to have its way. . . .

[T]he war on terrorism has not repealed the Constitution, and Judge Brinkema must ensure that it applies fully in Mr. Moussaoui's case.

I agree completely with this Op-Ed piece from the New York Times.

Why An Important Part of the California Recall Process Is Unconstitutional, According to U.S. Supreme Court Precedent

I'm a Californian, and a fairly apolitical one. I think the current effort to recall Governor Davis is silly, if for no other reason than that it will cost $35 million in the middle of California's worst budget crunch ever, and I think it is basically a clever way for Republican Darrell Issa to get his name burned into the memory of every Californian for only $1 million of his own money. (Quite a bargain if you think about it. Hopefully, Californians will ultimately remember how much Mr. Issa's little stunt cost them . . . .) But, at the end of the day, I don't really care.

But two California law professors do, and they think the recall may violate the U.S. Constitution:

FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, discuss the important constitutional issues that have arisen in the controversy over the California recall process. Amar and Brownstein contend that one constitutional argument that has been made is probably in error, but that another is correct, and may well require invalidation of part of the recall scheme.

The details are here from Findlaw.com.

"A Botched Constitution"

George F. Will thinks the European Union's proposed constitution has serious problems, and he thinks Europe could profit from a closer look at America's. Read his Washington Post opinion piece here.

Warring Judges in Ohio

The Ohio judiciary is playing a game of musical chairs.

On July 15, the Ohio Supreme Court voted to replace all seven justices with judges from the state's Court of Appeals, for purposes of considering a petition filed by Supreme Court Justice Maureen O'Connor.

Ray Vasvari, legal director of the American Civil Liberties Union (ACLU) of Ohio, called the en masse recusal "most unusual, but most necessary." In what some see as a case of strange bedfellows, Vasvari is serving as counsel for O'Connor, who was elected to the bench after serving as Ohio's Republican lieutenant governor. Vasvari said the case "is so unique on so many levels that we find ourselves in uncharted waters at every turn."

What prompted the recusal was a petition filed by O'Connor in June, asking the state Supreme Court to issue a writ prohibiting Judge William H. Wolff Jr., a Court of Appeals judge, from pursuing a judicial ethics complaint against her.

Read more about this very strange story here from The National Law Journal.

Justice, Attorney Charged in Mississippi

JACKSON, Miss. - A state Supreme Court justice and a prominent defense attorney were charged with fraud and bribery Friday stemming from a scheme in which the lawyer allegedly bought off judges in return for favorable treatment in court cases.

Biloxi attorney Paul Minor is accused of funneling hundreds of thousands of dollars in loans and gifts to Justice Oliver Diaz Jr.; the justice's former wife; and former Harrison County Judges Wes Teel and John Whitfield.

The AP has the story here via the Washington Post. This will surely add to the public's respect for the legal profession . . . .

Firefighters, Rescue Workers Want Trauma Compensation

"A group of firefighters and rescue workers who responded to a pipeline explosion near Carlsbad that killed 12 people three years ago have filed a lawsuit against El Paso Natural Gas Company." The lawsuit, filed on behalf of 24 firefighters and rescue workers, "says the plaintiffs suffered physical and emotional pain and were subjected to horrific traumatizing circumstances while fighting the fire and trying to help the victims."

Um, sorry about that, but isn't that the very nature of your job? Isn't that the very thing you are paid and trained by society to confront? Overlawyered.com has more on the story, including links, here.

The High Cost of Giving Away Sex.com

Confession: The (not unjustifiable) web of endless litigation spawned by Gary Kremen in trying to vindicate his rights against con-man Stephen Cohen over Cohen's theft of the domain name "sex.com" has intersected my life at least once. If you are a lawyer in Northern California, it is hard to avoid.

Nevertheless, I'll provide this handy pointer to Judge Kozinski's opinion, published today by the Ninth Circuit, holding that an internet domain name is "property" that can be the subject of the tort of "conversion" under California law in one of Mr. Kremen's cases. In the words of Mr. Kremen's lawyer, James Wagstaffe of Kerr & Wagstaffe, this may be "the first case that applies traditional property law to the Internet."

(The quotation from Mr. Wagstaffe above comes from Law.com's timely reporting on the case here.)

Under the Microscope

The Innocence Project has taken on the case of a man who has already served 20 years of a life sentence for rape and who says DNA tests exonerate him. The Miami-Dade state attorney's office argues that the identification of the man by both the alleged victim and a police officer should override test results. The case has set up a potential showdown between State Attorney Katherine Fernandez Rundle, up for re-election, and McKinley's attorneys, including nationally known defense attorney Barry Scheck.

Law.com has the details here.

Claims Dismissed in Suits Involving Angelou's Poetry

A lawsuit against poet Maya Angelou brought by a man who claims he had contracted to sell greeting cards based on her poems has been thrown out by a federal judge in Manhattan, as has the poet's countersuit.

Southern District Chief Judge Michael B. Mukasey said that a preliminary, signed letter between the poet and the man, former fight promoter Butch Lewis, was not valid because it lacked essential terms of a joint-venture agreement

Read the details here from the New York Law Journal.

Attorneys' Fee Award Reversed in Class Action Settlement

This appeal challenges the attorney fees and costs awarded class counsel following settlement of numerous class action complaints brought against various manufacturers of vitamin products. Sandra Norris, the single objecting class member, raises many issues with respect to the award of attorney fees, but the main thrust of her appeal challenges the lodestar figure requested by class counsel, the multiplier that was applied to that figure, and the size of the resulting award as a percentage of the settlement fund. We reverse and remand with directions to the trial court to provide a more complete explanation for the award of fees and costs.

The case is In re VITAMIN CASES from San Francisco Superior Court. The opinion is here.

Merger Talks Come to End for Orrick, Cooley

Cooley Godward and Orrick, Herrington & Sutcliffe have abandoned merger talks, according to sources close to both firms.

One of those sources, who was familiar with Cooley Godward's end of the negotiations and spoke on condition of anonymity, said, "We have ended discussions mutually and amicably."

Read all about it here from Renee Deger of The Recorder. (I'd first reported on the talks a month ago here.)

''How Artists and Creators Finally Got Their Due'' Gets Its Due

James Grimmelmann does a pretty hilarious job of taking apart a recent law review note on the Eldred v. Ashcroft decision upholding the extension of copyrights. Enjoy the whole, long thing here at LawMeme. (via COPYfight)

"DirecTV Dragnet Snares Innocent Techies"

"In recent months the satellite TV giant has filed nearly 9,000 federal lawsuits against people who've purchased signal piracy devices. But some of those devices have legitimate uses". "They're catching a lot of dolphins in that tuna net" says one lawyer who has defended many targets of DirecTV demand letters and suits.

Overlawyered.com has the post (and the links) here.

Tucker Max Lawsuit Dismissed

The dismissal is here.

My earlier posts about Mr. Max are here and here.

Ashcroft's Folly: How the attorney general lost the Moussaoui trial before it began

Dahlia Lithwick is back with this article from Slate:

From the get-go, the trial of so-called "20th hijacker" Zacarias Moussaoui has been hamstrung by a Justice Department that seemingly wanted one prosecution to serve half a dozen irreconcilable ends. With a single deft trial, Attorney General John Ashcroft had hoped to avenge the evil of Sept. 11 for all Americans, while showcasing the even-handedness of the American justice system for the rest of the world. He wanted to soothe us with proven legal truths: He did it, and he paid for it with his life. And Ashcroft thought he could demonstrate to terrorists everywhere that transparency and due process would triumph over theocracy and prejudice. But as this prosecution unravels, indecision on the part of the Justice Department reveals nothing less than the government's own lack of faith in the courts.

Welcome back, Dahlia! I hope you are enjoying the Wee Bald Stranger! (via How Appealing)

"Music-Sharing Subpoenas Target Parents"

A "full employment" scheme for lawyers? The music publishers seem to be getting pretty aggressive about prosecuting file sharers:

Parents, roommates -- even grandparents -- are being targeted in the music industry's new campaign to track computer users who share songs over the Internet, bringing the threat of expensive lawsuits to more than college kids. . . .

"[T]here's no way either us or our daughter would do anything we knew to be illegal," [one subpoenaed father] said, promising to remove the software quickly. "I don't think anybody knew this was illegal, just a way to get some music."

The president of the Recording Industry Association of America, the trade group for the largest music labels, warned that lawyers will pursue downloaders regardless of personal circumstances because it would deter other Internet users.

"The idea really is not to be selective, to let people know that if they're offering a substantial number of files for others to copy, they are at risk," Cary Sherman said. "It doesn't matter who they are."

Over the coming months this may be the Internet's equivalent of shock and awe, the stunning discovery by music fans across America that copyright lawyers can pierce the presumed anonymity of file-sharing, even for computer users hiding behind clever nicknames such as ``hottdude0587'' or ``bluemonkey13.''

On the one hand, "uh oh." But on the other hand, I can imagine the music industry essentially bankrupting itself by filing fruitless lawsuits against thousands of college students who have no assets. Don't these people see the success that Apple has had selling music for a dollar a song? Hello???

The NYT has the full story here.

International IP Law, British Football, and Taxes

When British football superstar David Beckham agreed to move to Spain to play for Real Madrid, a good portion of his compensation was based upon the transfer to Real Madrid of his "image rights," which can be defined as "the ability to make money out of contracting with companies to do things for them, and . . . an opportunity to make money out of the fact that one was very well known."

The problem is that the EU recognizes "image rights," while the UK does not -- neither as a cognizable legal right, nor as a valid concept for tax purposes.

Now, "[t]he commercial and legal logic of David Beckham's move to Real Madrid has the potential to confound both seasoned observers of the game and lawyers alike," The Lawyer.com (UK) reports here.

"Death Row Inmate Gets Support for DNA Test From Odd Source"

Thomas Vanes prosecuted a dozen capital cases in the 13 years he spent working for Lake County, in northwest Indiana. He sent nine men to death row, including Darnell Williams, who is scheduled to be executed on Aug. 1.

Mr. Vanes now says the Williams execution should not go forward until DNA testing is done on blood evidence that played a crucial role in the case. A federal judge in Indianapolis heard arguments yesterday in a lawsuit seeking the testing; the suit was filed by Mr. Vanes, Mr. Williams and a member of the jury that sentenced him to death.

The New York Times has this interesting story here. Although I wish Mr. Williams luck, I predict he won't have it.

Terror Case Could Redraw Lines of Executive/Judicial Power

The 9/11-related case of United States v. Zacarias Moussaoui has become overshadowed by a turf battle between federal Judge Leonie Brinkema and the U.S. government. At the heart of the matter is a judge's power to demand due process in her court under federal law versus the administration's power to maintain a barrier between its wartime activities and the reach of the bench. The case could redraw the line that divides the political and judicial branches of the government.

Law.com has this interesting article here.

Colleges Fight Back in Music File Sharing Cases

Boston College and the Massachusetts Institute of Technology have moved to quash subpoenas seeking the names of students suspected of Internet music piracy, saying they're illegal because they weren't properly filed.

The schools said the subpoenas, issued by the Recording Industry Association of America, didn't allow for adequate time to notify the students, as mandated by the Family Education Rights and Privacy Act.

Read it here via Boston.com via the AP online.

Michigan Court Won't Hear 'Jenny Jones' Case

The Michigan Supreme Court won't hear the appeal of a lower court decision that threw out a $29.3 million award against the "Jenny Jones Show" following the murder of a guest.

The lawsuit stemmed from the 1995 death of Scott Amedure, who was shot to death by Jonathan Schmitz three days after Amedure revealed an attraction to Schmitz during a taping of the show in Chicago. The show never aired.

Amedure's family sued the show, contending Schmitz was ambushed and tricked into believing his secret admirer was a woman.

[S]chmitz is now serving a 25- to 50-year prison sentence for second-degree murder.

I guess it just goes to show that murderous homophobia (or being the victim thereof) does not pay. Read all about it here from the AP via Findlaw.

More Evidence that Corrections Workers Are Not the Brightest Bulbs . . . .

A Louisiana jail illegally copied and sold its inmates copies of recordings by hundreds of artists, including the Rolling Stones, Eminem and Garth Brooks, according to a record company's lawsuit.

The suit alleges that the Claiborne Parish prison gave incoming inmates a list of 330 rock, rap, country and R&B recordings available through the commissary for $3 per compact disc.

An inmate copied the ones requested by prisoners or visitors, said Roy Maughan Jr., the lawyer who filed the suit for Baton Rouge-based Utopia Entertainment.

"You'd just tell them what you wanted and they'd burn you a copy," Maughan said Tuesday.

The defendants are Claiborne Parish Sheriff Kenneth Volentine; LaSalle Management, the private company that manages the men's section of the northern Louisiana jail; and an inmate who allegedly copied the CDs on a computer in a prison office.

The blind jailing the blind? Read all the details here from the AP via the Washington Post.

"British Guantanamo Detainees Won't Face Death Penalty: Britain"

I guess kissing America's ass to the point of your own political annihilation does have its benefits:

US prosecutors will not seek the death penalty for two British nationals detained at the controversial Guantanamo Bay prison camp in Cuba, British Attorney General Peter Goldsmith said.

He said that British nationals Feroz Abbasi and Moazzam Begg, accused by the US of being members of al-Qaeda, will not face the death penalty should they be tried and found guilty before a US-style military commission.

British Prime Minister Tony Blair took up the matter of the death penalty with US President George W. Bush during a visit to Washington last week.

Blair signaled Sunday his willingness to let a US military commission try British citizens detained at Guantanamo, so long as its rules met British standards and no death penalty was handed down.

I guess that begs the question of whether we will still execute citizens of other countries while sparing the British detainees. If so, what will be our excuse? It sounds a bit like Breaker Morant in reverse to me. Yahoo! Singapore (of all places) has the full story here. UPDATE: The NYT now chimes in here. Mo' UPDATE: We've now made the same concession to Australia, Reuters reports here.

"Hospital Patients Sue Reality TV Show for Fraud"

I think a more accurate title might be:

"Plaintiffs' Class Action Lawyer Tries a Second Time to Cash In On TV Show."

Read all about it here for yourself, and then you decide about the lawsuit filed by Gerald Clark of Lynch Martin in Shrewsbury, N.J., and Raymond Gill of Gill & Chamas in Woodbridge, against Jersey Shore Medical Center in Neptune, NJ, over the reality show "Trauma: Life in the ER."

"Judge Narrows Charges Against Lynne Stewart"

Defense lawyer Lynne Stewart scored a victory Monday when a federal judge dismissed charges that she provided material support to a terrorist group. Southern District Judge John G. Koeltl agreed with defense lawyers that the federal statute forbidding the provision of material support or resources to a designated terrorist group, 18. U.S.C. §2339B, was unconstitutionally vague as applied to Stewart and her co-defendants. . . .

[S]tewart and three others were charged with helping convicted terrorist conspirator Sheikh Omar Abdel Rahman maintain contact with the outlaw terror organization Islamic Group from behind the bars of a federal prison. Stewart had represented Sheikh Abdel Rahman at his 1995 trial for seditious conspiracy to commit terror attacks in New York City, and continued to visit him after he was incarcerated.

I found this article from Law.com to be a relief, as I never thought Stewart should have been charged for representing her client in the first place. UPDATE: Read more coverage from the AP here. UPDATE: The NYT now weighs in here.

Puerto Rico Fights Death Penalty

A clash of cultures and governments over the death penalty has erupted in Puerto Rico, pitting the commonwealth against the United States and the state of Pennsylvania.

A capital trial has begun in a federal court in Puerto Rico, and, next month, a public defender is set to fight the extradition from Puerto Rico of a man facing a murder charge in Pennsylvania, because it might be charged as a capital crime.

Both situations stir the passions of Puerto Rican nationals, and a large segment of the island's legal community. The commonwealth outlawed the death penalty in 1929. Its Constitution, ratified by Congress in 1952, provides: "The death penalty shall not exist."

This is shaping up to be an interesting battle, as Law.com reports here.

"Issues re: Tissues"

The Trademark Blog has this interesting post about litigation between Major League Baseball and a small business that sells goods via eBay. It seems the business, Tabberone, buys bulk fabric and then makes things like aprons and tissue box covers out of it, which it then sells. Some of the fabric had the licensed logos of MLB teams on it. MLB got eBay to cancel the auctions. Tabberone sued MLB, and MLB countersued. The details are here.

UPDATE: The Trademark Blog has more on the issue here.

"The Shakedown State"

Walter Olson (of Overlawyered.com) has this editorial in today's Wall Street Journal about how what started as a movement to reform California's broad consumer protection laws seems to have turned into an expansion of the often-abused statute instead.

I've posted about this issue earlier here and here.

Disgraced Law Professor Resigns

Disgraced law professor Mark M. Hager, after being suspended by the District of Columbia bar for a year, at last has resigned his tenured job at American University's law school, the Washington Post reported in April . . . . In December the District of Columbia Court of Appeals found Hager "to have engaged in 'conflicts of interest, dishonesty' and 'improper conduct' when he represented two southern Virginia mothers who wanted to sue the makers of the lice-killing shampoo Nix. The court upheld the D.C. Bar's one-year suspension of Hager and further ordered him to disgorge the $225,000 fee he shared with co-counsel."

I completely missed this one, but Overlawyered.com has the gory details here.

"Prosecuting Doctors Who Tell of Marijuana's Medical Benefits Is Wrong"

Findlaw columnist Barton Aronson has a thoughtful article here, which is hard to disagree with.

In Conant v. Walters, the Ninth Circuit barred the government from prosecuting doctors who merely inform patients about the benefits of medical marijuana. The Justice Department is appealing that ruling to the Supreme Court.

Aronson poses a question and then answers it for us:

Why the medical marijuana gag rule violates the First Amendment

Conant does not involve doctors who prescribed marijuana. It doesn't involve doctors who grew it or gave it away. At issue is simply the right of doctors to say -- and patients to hear -- something nice about the medical use of cannabis.

While the First Amendment looks askance at most restrictions on speech, this particular regulation is a three-time loser -- a viewpoint based restriction on professional speech implicating a matter of intense public interest.

The law is a viewpoint-based restriction because it punishes only doctors who recommend medical marijuana -- that is, who tell patients marijuana might be good for them. It does not punish doctors who disparage marijuana as a course of treatment.

But the government is not supposed to tell us what to think, which is why the law is so hostile to restrictions on speech keyed to the viewpoint expressed by the speaker. In a marketplace of ideas, such restrictions are the equivalent of price controls. The government isn't supposed to set the value attached to ideas, though; that's our job, and under the First Amendment, our right.

I think that Aronson's analysis is correct, and that the Supreme Court would have a difficult time ruling otherwise.

Martha's Lawyers File For Dismissal

Martha Stewart's attorneys tried to score points against government prosecutors Monday, arguing in court that information regarding charges against Stewart's was leaked before a grand jury handed out the indictment.

Robert Morvillo, lead defense council, pointed to media reports stating that Stewart would not face a criminal insider trading charges and asked the judge to have the government investigate.

Prosecutor Michael Schachter argued there was no need for investigation stating because there were no leaks from the government. He added that defense attorneys knew in advance Stewart would not be facing a criminal insider trading charge, and pointed out that defense attorneys were cited as sources in some of the articles.

Well, they're off to a running start. This one should be long and interesting. CNNfn has the story here.

Judge Dismisses NAACP Lawsuit Against Gun Maker

A federal judge dismissed the NAACP's case against handgun makers Monday, ruling that the group showed gun retailers were careless but failed to prove that its members were uniquely harmed.

The NAACP proved its members "did suffer relatively more harm from the nuisance created by the defendants through illegal availability of guns in New York," U.S. District Judge Jack Weinstein wrote in a 175-page decision.

"It failed, however, to show that its harm was different in kind from that suffered by other persons in New York," Weinstein added.

CNN has the story here. I'd originally blogged about this case when it started back in April.

N.Y. Judge Charged With Taking Gifts

"A judge charged with taking gifts while on the bench has sued the prosecutor, accusing him of abusing his power by treating a disciplinary matter as a felony. District Attorney Charles Hynes 'is proceeding in excess of his jurisdiction' in the case against Justice Gerald Garson, court papers filed Monday allege."

That takes some chutzpah. The AP has the report here.

Prosecutor Erred, Goldstein's Harass Conviction Reversed

Pornographer Al Goldstein, whose profane and volatile remarks to a former secretary earned him a harassment conviction and a jail sentence, was granted a new trial yesterday because of a prosecutor's inflammatory language.

A unanimous panel of the Appellate Term, Second Department, said that a "line was crossed" by Assistant Brooklyn District Attorney David B. Cetron when he improperly accused Mr. Goldstein of lying, denigrated Mr. Goldstein's attorney, and incited the emotions of jurors.

Law.com New York has the whole tale here.

¡Ay Caramba, Taco Bell!

Taco Bell has been ordered to pay $30.2 million to two guys from Grand Rapids, Mich., for stealing their talking dog idea. Apparently, the talking animal thing isn't yet in the public domain. The two guys from Michigan say they invented the talking Chihuahua and that Taco Bell stole it from them and used it to make people buy tacos. William W. Bedsworth on the links between fast food advertising and intellectual property.

The Recorder has the latest from Justice Bedsworth here.

Priest Proves No Comfort in Shadow of Death

"A New Mexico family is suing the local Catholic church over a funeral in which the priest allegedly said their relative was only a middling Catholic who was going straight to hell."

"Lawyers for the family of Ben Martinez say they have filed a lawsuit against the Roman Catholic Archdiocese of Santa Fe and one of its priests."

The lawyers think a court is going to tell the church how to conduct its religious business? I don't think so. Read about it here from ABC News.

Our Profession Never Ceases To Amaze Me

"Defense labels flashing charge physically impossible"

A woman says she and locksmith Robert Peters Sr. were sipping tea after he finished installing a deadbolt lock when she saw Peters' semi-erect penis sticking three inches past the bottom of his shorts. "She's mistaken," says the man's lawyer. "He's not that big." Peters' erect penis -- let's call it Robert Peters Junior -- is only four inches long, according to the attorney.

The Obscure Store reports that the Pennsylvania Express-Times is reporting this diminutive item.

"Actress Diaz Seeks Injunction on Photos"

Apparently the photographer offered actor Cameron Diaz's lawyers a "right of first refusal" on the photographs -- which were taken before she got famous -- prior to offering them for sale to the highest bidder.

But before he could sell them, the Los Angeles DA's office "raided" his apartment.

"Our office executed search warrants on June 30 involving an incident where Cameron Diaz is the alleged victim," said (DA) spokeswoman Jane Robison.

Read the details here from the AP via FindLaw.

I wish I could make my local DA jump like that when I felt I'd been wronged . . . .

Broadcaster Pat Robertson Calls For Retirement of Justices

"Religious broadcaster Pat Robertson urged his nationwide audience Monday to pray for God to remove three justices from the Supreme Court so they could be replaced by conservatives."

I would re-write that lead 'graph as follows:

"Bigoted dipshit Pat Robertson, once again cloaking his narrow-minded racist and sexist views in pseudo-Christian cloth, urged his tiny, dimwitted audience Monday to pray to his archaic vision of "God" to remove three justices from the Supreme Court so that the Bush administration could replace them with moral fascists willing to blatantly violate the Constitution by imposing their own personal, restrictive religious views upon our richly diverse and open-minded nation, against the will of the vast majority of Americans."

CNN says it somewhat more subtly here.

Fight Over 'Privilege' Heats Up

Attacking the attorney-client privilege, once a rare legal tactic, has become a standard tool of government lawyers these days and a cause for increasing concern among corporate defense attorneys.

In the latest flexing of the federal government's muscle to pierce attorney-client privilege, the Treasury Department is trying to force the Dallas-based law firm of Jenkens & Gilchrist to reveal the names of more than 600 clients who used certain tax shelters that the Internal Revenue Service considers abusive. The IRS wants to audit the investors . . . .

[S]ome lawyers, including those of Jenkens & Gilchrist, are fighting back. They accuse the government of moving dangerously close to damaging the centuries-old privilege that lies at the heart of this country's adversarial legal system.

This troubling development is apparently an offshoot of the Sarbanes-Oxley Act, the National Law Journal report here.

Jailed Killer to Get Sex Change Treatment

A convicted killer seeking a sex change is entitled, at taxpayer expense, to medical treatment that could lead to gender reassignment, a federal judge in Albany [New York] held yesterday.

U.S. District Judge Lawrence E. Kahn said the state cannot draw a distinction between prisoners who began treatment for a gender identity disorder before incarceration and those who discover their transsexual issues while in prison.

Currently, the state allows prisoners who commenced the process of gender reassignment before they were imprisoned to continue their treatment, but denies that option to inmates who seek to initiate procedures once they are behind bars.

"Surely inmates with diabetes, schizophrenia, or any other serious medical need are not denied treatment simply because their conditions were not diagnosed prior to incarceration," Judge Kahn said.

Is the desire or need to undergo gender reassignment on the same level with diabetes and schizophrenia? In New York, apparently, it is. I have my doubts, though I'll try to keep an open mind. The New York Law Journal reports it here.

Food Fight

Anheuser-Busch's Budweiser may be the "King of Beers" in the United States, but the Czech Republic's Budejovicky Budvar, which produces its own brand of Budweiser, wants to wrestle away the crown.

For 100 years, the Czech company and the St. Louis-based brewer have engaged in a global battle over the true owner of the rights to the Budweiser name. The Czechs brew their Bud in the town of Ceske Budejovic -- or Budweis as it's known in German -- and argue they have geographic claim to the name.

* * * *

The Budweiser battle is just one on a growing list of fights over geographic indications -- or names on food, wine and spirits that connote a specific place. Over the last few years, the European Union has stepped up efforts to get a worldwide registry of geographic indications. If the register is adopted, only foods, wines and spirits that are produced in a specific place could carry the geographic identifier.

No more Budweiser? Good thing I prefer imports and microbrews. Law.com's The Recorder has all the details here.

Jury Quickly Acquits Stripper

It took a jury just 40 minutes Thursday to decide that an exotic dance routine at a Chico-area strip club 2 1/2 years ago was not an act of prostitution.

It was the second straight defeat in court for the government in as many tries in connection with an undercover bust in early 2001 at the establishment formerly known as the First Amendment Gentlemen's Club on Highway 99, seven miles north of Chico.

Jurors, who watched a videotape of the nude dance routines inside the club, said they didn't feel the prosecution proved that one of nine strippers charged in the case, Caren Ariel Naiman, now 23, performed a "lewd act for money" when she allegedly pressed her breasts against customers' faces for tips.

They said the fact that one of the undercover officers engaged in a similar act while videotaping the exotic dance shows was a "factor" in their verdict.

The main reason I posted this is that the defendant's attorney, Tony Cardoza, is a good friend and classmate of mine from law school. But the story is pretty damn funny anyway.

The arresting officers spent some 150 hours in the strip club "investigating." That's almost four weeks of full time employment. Their month-long investigation allegedly included lap dances, private "sessions" with the dancers in back rooms, and instances where the dancers took dollar bills from the officers using only their breasts (which was the act of "prostitution" charged). I can only guess how much fun it was to cross examine these nimrods!

What a waste of taxpayers' money! Read it here from the Chico Enterprise Record.

From NY Associate to Eminem's Manager

Paul Rosenberg's life is cooler than yours.

Five years ago, he was an associate at a New York personal injury firm. Today, he manages Eminem, the rapper turned film star.

The Detroit Free-Press tells how he managed that.

This is quite an interesting story. And it should be my story: When I was a kid, I wanted to be a recording engineer/producer in a music studio. Instead, I failed out of an electrical engineering program and wound up being a lawyer. Who knew?

Anyway, I envy Mr. Rosenberg. You can read his story here from The Detroit Free Press, which in turn is reported by New York Lawyer.

"The Trials of Jesselyn Radack"

Sitting in her well-appointed living room in a leafy northwest Washington, D.C., neighborhood, Jesselyn Radack seems an unlikely candidate for martyrdom in the war on terror. For three years the Yale Law School graduate and self-described soccer mom made her living telling other government lawyers how to stay out of trouble.

The 32-year-old former U.S. Department of Justice ethics adviser says she thought she'd be a career government lawyer. But that was before she decided to object to the government's tactics in the John Walker Lindh case last year.

Since then she's lost two jobs -- pushed out of her Justice post and then fired from New York's Hawkins, Delafield & Wood, the firm that had taken her in -- and now finds herself unemployed and in limbo. Her personal challenges are daunting: under criminal investigation, ailing from multiple sclerosis, and expecting a third child in January. But far from singing the victim's song, Radack appears composed and stalwart, telling her story with short, chopping hand strokes and near-encyclopedic recall.

I guess it just goes to show that it can be unprofitable to challenge demagogues like John Ashcroft. Read the whole story here from The American Lawyer, via The New York Lawyer.

Pet Deaths Trigger Pain, Suffering Suits

I've always thought the field of "animal law" was fascinating. This article discusses some of its recent developments.

"Court Aces"

Law.com has an article profiling some of the attorneys who regularly argue before the U.S. Supreme Court. (via SCOTUSBlog)

Spike Lee Sued by Sara Lee

"Pie-maker Sara Lee today slapped filmmaker Spike Lee with a $90 million trademark infringement suit, claiming that the director was unfairly benefiting from a positive association with the company’s mouth-watering array of pies, pastries and assorted breakfast treats."

Details here from BorowitzReport.com. (via The Trademark Blog)

"Rules for Terror Tribunals May Deter Some Defense Lawyers"

United States officials say that when they begin military tribunals for prisoners charged with terrorism, they greatly want the trials to be seen as fair, both in the nation and throughout the world.

But as the Pentagon prepares for the first such proceedings in more than 50 years, it is encountering a potent criticism: many lawyers and bar groups say the conditions for civilian defense lawyers are so restrictive that they might not agree to participate in the process and thereby lend it legitimacy.

The issue of whether lawyers should agree to defend prisoners in proceedings at the naval base at Guantánamo Bay, Cuba, has been raised most forcefully so far by Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers, which has 11,000 members — including most of the nation's prominent defense lawyers.

The New York Times reports the story here.

"For Democrats Challenging Bush, Ashcroft Is Exhibit A"

From tomorrow's Sunday New York Times:

From Iowa to New Hampshire to South Carolina, the Democratic candidates for president these days are scrambling for issues: denouncing President Bush's tax cuts, bemoaning his deficit, decrying the chaos in Iraq. And all too often, those issues bring restrained applause from their crowds.

But there is one subject that has proved to be a surefire tonic for members of the somewhat dispirited party, and it is not the man they are trying to oust from the Oval Office.

"In my first five seconds as president, I would fire John Ashcroft as attorney general," Representative Richard A. Gephardt of Missouri said the other day, bringing cheers from Hispanic leaders in Phoenix.

"We can not allow people like John Ashcroft to take away our rights and our freedoms," Senator John Edwards of North Carolina declared in a sweltering library in Concord, N.H., on Monday, drawing a nearly instantaneous standing ovation.

Or, as Senator John Kerry of Massachusetts put it in a speech on domestic security in Lowell, Mass., last month: "When I am president of the United States, there will be no John Ashcroft trampling on the Bill of Rights."

These days, it is hard to go to any event featuring a Democratic presidential candidate without hearing a condemnation of the former Missouri senator who suffered the ignominy of losing re-election to an opponent who had died in a plane crash the month before the election.

I love it! It will serve the Repblicans right when they lose the oval office because of the vicious little Christian-right idealogue Bush chose for Attorney General! Read the story here.

Orange County, CA, Man Is Sentenced for 50th Strike

Deputy district attorney Ebrahim Baytieh had this to say about defendant Bruce Lyons, 48:

"When I was first assigned to the case, I had to do a double-take to make sure I wasn't misreading his record," Baytieh said. "The only way to describe him, other than to say he's a career criminal, is to say he's a career criminal who also happens to be a sexual deviant."

Lyons' defense attorney, Sonja Muir of Fullerton, said she had never had a client with so many strikes. "I haven't checked," she said, "but I don't know if there is anybody else" in California with a record like that.

He sounds like a real charmer, the Los Angeles Times reports here. (via How Appealing)

Howard Dean to Guestblog On Lessig

Vermont Governor and democratic presidential candidate Howard Dean will be guest blogging on Lawrence Lessig's blog for a week beginning Monday. That's very cool news, and it will be very interesting to see what Dean has to say. Is blogging cool, or what? (via The Volokh Conspiracy)

White House Escalates Pot War

The Bush administration, pressing its campaign against state medical marijuana laws, has asked the U.S. Supreme Court to let federal authorities punish California doctors who recommend pot to their patients.

The administration would revoke the federal prescription licenses of doctors who tell their patients marijuana would help them, a prerequisite for obtaining the drug under the state's voter-approved medical marijuana law.

Justice Department lawyers this week asked the high court to take up the issue in its next term, which begins in October. The department is appealing a ruling by an appellate court in San Francisco that said the proposed penalties would violate the freedom of speech of both doctors and patients.

What is it with this administration and marijuana? I don't smoke the stuff anymore, and I don't really care, but one would think John Ashcroft could find a better subject to get his panties all knotted up about.

Punish doctors??? Shouldn't we concentrate on rehabilitating people who are addicted to really bad drugs, rather than trying to de-license doctors who merely discuss something that many very sick people swear is the only thing that makes their lives tolerable?

Perhaps instead we should pass legislation that takes away the license to practice law from assholes like Ashcroft who repeatedly pursue ridiculous, moralistic lawsuits that seek to deprive American citizens of their basic constitutional rights?

What is it that John Ashcroft finds so threatening about marijuana? I know from recent events that he is inexplicably terrified because some men have sex in their bedrooms. Is he afraid that marijuana might let them enjoy it even more? God forbid! People experiencing pleasure? It must be a sin!!

(Don't tell Ashcroft, but one of my greatest pleasures is a nice pair of fleece slippers. Each day after work, I kick off my hot, heavy dress shoes and slip into my dreamy, soft, light, and cozy fleece slippers.

I'm sure if Ashcroft realized how pleasurable a nice pair of fleece slippers could be, he'd order the goons from the Office of Homeland Facism (or whatever the fuck he calls it) to seize Lands' End's list of slipper purchasers, and have the lot of us squatting naked in cages at Camp Gitmo within the hour. [Though of course our genitals would have to be covered -- with something not made of hemp -- or fleece.])

The article I quoted from above (from the San Francisco Chronicle) is here, but it does not answer my questions about the twisted nature of Ashcroft's priorities.

For example, just recently the DEA was trying to ban hemp from food products, even though hemp is completely harmless and you can't get high from it. Get a life, people. If you look around, you'll find that there is a lot of real crime that actually hurts people. Why don't you concentrate on that instead?

9th Circuit Gives Asylum to Israeli Arab

Overruling the INS's Board of Immigration Appeals, the Ninth Circuit ruled today that Abrahim Baballah, an Israeli Arab, and his wife and oldest child must be granted asylum due to their repeated abuse at the hands of the Israeli marines. This one is sure to stir up trouble. The opinion is Baballah v. Ashcroft (PDF).

Harvard Takes Back Hornstine Admission Offer

Harvard has revoked its admission of Blair Hornstine, the prospective member of the Class of 2007 who made national headlines when she sued her school system to ensure she would be her high school’s sole valedictorian.

Following a widely-publicized report that Hornstine had plagiarized material in articles she wrote for her local paper, the Harvard admissions office has rescinded her offer to attend Harvard in the fall, according to a source involved with the decision.

The Harvard Crimson has the story here. Although this seems like sad news at first blush, I think some in her town probably feel that she (or at least her father) deserves it. Look here to read the whole tawdry saga. (via How Appealing)

Calif. Lawyers Quit Bar in Ethics Issue

Three lawyers resigned from the state bar after being accused of filing frivolous lawsuits to extract settlement money from thousands of immigrant-owned businesses.

The lawyers were facing disbarment over alleged ethics violations but decided Thursday not to fight the proceedings.

Damian Trevor, Shane C. Hahn and Allan Hendrickson of the Trevor Law Group in Beverly Hills are accused of abusing a decades-old consumer protection law that lets plaintiffs file lawsuits even if they haven't been directly harmed.

I guess this is good news, though I was looking forward to reading about the prosecution. Just yesterday the Attorney General decided to go after another law firm, Brar & Gamulin, for doing the same thing . . . . Read more about Trevor, Hahn, and Hendrickson here and here. (AG link via So Cal Law Blog)

"Law Firm Is Sued Over Conduct in Liability Case"

A Texas law firm faked evidence and tried to bribe witnesses in a products liability case, according to a lawsuit filed on Monday in San Antonio by the DaimlerChrysler Corporation.

The lawsuit follows an appeals court decision last year that dismissed the products liability case and imposed sanctions of $865,000 against three of the firm's lawyers. The appeals court called the firm's conduct "an egregious example of the worst kind of abuse of the judicial system."

The main plaintiff's lawyer, Robert A. Kugle, has fled to Mexico, according to this article from The New York Times, which makes it pretty clear why the public disdains lawyers. (via Overlawyered.com)

"Judge Dismisses 'Political Prisoner' Suit" By Manson Associate

A federal judge dismissed portions of a lawsuit that claimed former Manson family member Susan Atkins is a political prisoner because of Gov. Gray Davis' policy opposing parole for most murderers.

U.S. District Judge Robert J. Timlin ruled Wednesday that Atkins cannot sue the state, its Department of Corrections, the Board of Prison Terms and three board commissioners. The judge said the commissioners are immune from prosecution for their official actions, and the U.S. Constitution bars her from taking action against the state and its agencies unless they consent to be sued.

The article continues: "Atkins, 55, is serving a life sentence along with Charles Manson and three others for their roles in a series of 1969 murders. Atkins confessed at trial that she stabbed pregnant actress Sharon Tate to death but has recanted, saying she was only present at the killing." Read the whole thing here from the AP.

I agree that Gov. Davis' apparent blanket prohibition against granting parole is troublesome. And I feel sorry for Ms. Atkins, whose role in a crime 35 years ago -- when all agree she was on drugs and basically a child -- is somewhat murky.

But, on the other hand, it is hard to imagine any governor who would like to see members of "the Manson family" paroled on his (or her) political watch. My unfortunate advice to Ms. Atkins is: Get used to it. You'll likely die in there.

Lawyer Claims Lief, Cabraser Manipulating the Internet

This is the kind of story I blog for:

A California lawyer is suing Lief, Cabraser, Heimann & Bernstein for allegedly manipulating the Internet search engine ranking process to get an unfair edge in competition among online lawyer websites.

Plaintiff Dana Taschner, in the complaint filed in California's Superior Court for San Francisco County, alleges that LCHB "has surreptitiously and systematically manipulated search engines and web directories to disparage, downgrade, or deny competing lawyers and law firms a fair and competitive presence on the internet by manipulating legal website listings in the ODP [Open Directory Project, the biggest online directory] through one of its associates (Stephen Cassidy) and another attorney by the name of Aaron Larson."

Courthouse News Service reports the story here.

Arent Fox Looks for Footing on Rough Road

First Altheimer. Then Arter & Hadden. Then Fenwick & West. Now it seems D.C.'s Arent Fox Kintner Plotkin & Kahn is in trouble. Does it ever end? (from Law.com)

A Hacker's Book v. The DMCA

Andrew Huang, an engineer and programmer in San Diego, has written a book called "Hacking the Xbox: An Introduction to Reverse Engineering." It has also been an introduction to copyright law in the digital age.

Wiley Technology Publishing, a unit of John Wiley & Sons, agreed last year to publish the book. But after Mr. Huang delivered the manuscript five months ago, the publisher backed out over concerns that the Digital Millennium Copyright Act of 1998 made it illegal to disseminate information about how to circumvent copyright protection.

Huang first self-published it, and now has a new publisher about to put it out. Read the whole story here from The New York Times.

How Not to Prepare an Appeal

In an opinion published today, the California Court of Appeal gives a good lesson in how not to prepare an appeal:

When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. In this case, the parties totally missed the appellate mark by failing to provide an adequate record for review.

[Discussion of facts omitted]

The administrative record [in this case] is large—14 binder-sized volumes. It reads as if its preparers randomly pulled out documents and threw them into binders, failing to organize them either chronologically or by subject matter. Key findings required under CEQA [California Environmental Quality Act] are impossible to find—let alone sufficient to enable us to determine whether they are supported by substantial evidence.

We publish not because the merits of this case warrant public proclamation but because we have observed a pattern of CEQA cases with poorly prepared records making review difficult, if not impossible. We iterate to anyone who will listen: CEQA has very specific requirements regarding what findings must be in the record. Do not ignore the requirements or, like these parties, you will find yourself in the unenviable position of having your judgment reversed and being forced to start over at great public and personal expense.

Judgment is reversed.

Ouch! The opinion is Protect Our Water v. County of Merced.

Web Sites Advising Suicide Becoming Targets of Law Enforcement

"The instructions downloaded from the Internet were explicit, and, according to police, followed precisely by a 52-year-old St. Louis woman in taking her own life June 2."

"To authorities, the Web site is a killer. The suicide victim would not have killed herself but for that content, St. Louis Circuit Attorney Jennifer Joyce said last week. She wants to pursue voluntary manslaughter charges against the person responsible for providing that information."

In the immortal words of Detective Axel Foley: "Get the f-ck out of here!"

If I link to that website, and the deceased finds it through me, am I a killer? If you, in turn, blogroll my site, are you? In fact, dozens of people link to me. Would they all be manslaughterers?

As this article points out, "Google even has a formal directory for sites listing methods for suicide."

With all due respect, I think Ms. Joyce needs to pop a Nembutol and catch up on her nappy time.

Fee-Shifting Fallout

When plaintiffs lawyer William Franz thinks about a 2001 U.S. Supreme Court decision on attorney fees, the image that comes to his mind is that of a neutron bomb—which kills all living things but leaves the buildings standing.

"This case effectively guts the [Americans With Disabilities Act] and other civil rights statutes, while technically not overturning them. Without the fee provisions, the statutes will continue to exist, but they’ll have no teeth," says Franz, a Boca Raton, Fla., civil rights lawyer.

The incendiary ruling is Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598.

The ABA Journal has the whole story here. Or you can access the Court's syllabus, opinion, concurrence, and dissent here.

Revealed: Altheimer's $30m Debt Mountain

Former partners set to sue; Salans poised to snap up Eastern European offices.

Disintegrating Chicago firm Altheimer & Gray is buckling under nearly $30m (£18m) worth of debt - nearly a quarter of its total revenue for 2001.

The Lawyer can reveal that this double-digit debt level at the firm, which for its last published financials in 2001 generated $117m (£70.2m) in revenue, was the final straw that pushed Altheimer to announce plans to dissolve nearly two weeks ago.

It has also since emerged that Altheimer's partners will not be paid this month. LaSalle Bank agreed to provide interim financing, but only for its remaining employees, which at the last count numbered 700 staff.

Details from The Lawyer (UK) here. Earlier details of this ongoing saga are here.

Powerful Payday

A settlement with El Paso Corp. includes up to $60 million in fees for plaintiffs' firms.

The latest settlement in litigation over California's energy crisis includes tens of millions of dollars in attorney fees to be shared by a handful of politically savvy plaintiffs' firms.

Last week, California Attorney General Bill Lockyer's office announced that Houston-based El Paso Corp. agreed to a settlement worth $1.625 billion in payouts and renegotiated long-term power contracts.

The Recorder has the details here.

EEOC Case Against Law Firm Reinstated

Robert L. Reeves of Reeves & Associates can't be happy about this:

"In reversing, the 9th Circuit found that there was enough evidence to suggest that Reeves' law firm was 'permeated with sexual harassment' and that there was a 'hostile and abusive work environment.' According to the EEOC, Reeves told sexual jokes, made suggestive comments, leered and inappropriately touched the women in the office," Law.com reports here.

The case for sexual harassement and pregnancy discrimination featured the claims of twelve female employees. That's right, twelve. Pretty impressive for a firm with only fourteen lawyers.

Read more about the Ninth Circuit's unpublished decision here.

Harry Wartnick, 'Mr. Asbestos,' Felled by Heart Attack at 55

Anyone who has ever had a brush with asbestos litigation in San Francisco will instantly recognize Wartnick's name. And, though many asbestos plaintiffs' lawyers don't have the best reputation among judges and the defense bar, Harry did, as this obituary attests. My favorite part of his obit is this:

What people might not know about Wartnick is that he was colorblind.

"He'd come to the golf course or the office and he'd have on one sock that was bright red and one sock that was bright yellow, and lime green pants," said Lawther, his former boss. "He was a fashion nightmare. It was the funniest goddamn thing, pardon my language, I've ever seen."

Harry, we hardly knew ye.

Send Spammers to Jail, U.S. Lawmakers Say

The House is debating anti-spam legislation, which may include jail sentences of up to two years for violaters, Reuters reports here. I'll drink to that.

"Judge Ticked Off, Even If He Wasn't Flipped Off"

The baliff told the judge the defendant's mother flipped him off, which she denied. The judge got mad and gave a speech. The defense attorney moved to disqualify the judge. The judge banned the defense attorney from his courtroom. Golly!

Read all about this little shitstorm from Largo, Florida here from the St. Petersburg Times. (Via How Appealing.)

Feds Appealing Medicinal Pot Grower's One Day Sentence

I found this surprising news in this morning's San Francisco Chronicle:

Federal prosecutors have signaled they will ask an appeals court to send marijuana advocate Ed Rosenthal to prison for cultivating pot for medical patients.

The U.S. attorney's office filed notice with the federal appeals court in San Francisco that it intends to appeal U.S. District Judge Charles Breyer's decision to spare Rosenthal from a prison term for his federal cultivation and conspiracy convictions last month. The notice was dated last Thursday and was obtained by reporters Monday.

Prosecutors did not explain the grounds on which they intend to appeal. The notice was filed with the U.S. Court of Appeals in San Francisco.

The whole story is here. Judge Breyer did the right thing, and they ought to let sleeping dogs lie (though, to be fair, Rosenthal has stupidly appealed his conviction).

Internet Quotation of the Week

"Forget about it, dude--even genocidal litigation can't stop file sharers."

Grokster president Wayne Rosso.

I stole this awesome quotation from Donna Wentworth of COPYfight.org, a great blog straight outta Harvard Law School. Donna has done us a great service by blogging from (something called) ILAW. Thanks, Donna!

Firm Mulls Closure of Satellite, Partner Looks to Defect

As if there weren't enough problems already (see last two posts below), Fenwick & West is apparently now struggling and may shut its Washington DC office:

Fenwick & West is looking at closing its 17-year-old Washington, D.C., outpost as the firm struggles to maneuver the continuing downturn in corporate work.

Just days after the firm announced a salary freeze for most of its 250 staff members, Mountain View-based Fenwick is mulling whether to pull the plug on its capital outpost.

New York Lawyer links to The Recorder's bad news here (though you'll need a subscription to read the entire thing).

The Vultures Gather:
"Rivals Aim to Profit From Firm's Demise"

I guess it's dead: "Altheimer & Gray's messy demise as a firm has a number of US and European rivals looking to cherry pick from among the firm's suddenly out of work attorneys, London's Legal Week reports" here.

Earlier blogging about this little nightmare - including some rather nasty back-and-forth about "will it or won't it die" - is here.

Partners Make It Official: Firm Is Dead

Say buh-bye to Arter & Hadden, according to this from The Recorder. My condolences and best wishes to all the newly unemployed.

(Read earlier incarnations of the story here.)

UPDATE: The Recorder reports "Refugees From Collapsing Firm Form New Partnership" at this link. (via NY Lawyer)

Network Can Call Itself 'Spike TV'

Filmmaker Spike Lee and Viacom have settled a lawsuit Lee filed to keep the media giant from calling its TNN cable television network "Spike TV."

Lee had obtained a temporary injunction in June, preventing the name change, but on Monday state Supreme Court Justice Walter Tolub lifted the order.

The ruling means Viacom, which also owns CBS and MTV, can proceed immediately with plans to rebrand TNN as Spike TV, the "first television network for men." Viacom said it was renaming TNN "Spike TV" to attract more men to an audience already two-thirds male. Details on the settlement were not disclosed.

The full story is here from the AP via CNN. (Earlier posts on the controversy are here and here.)

Federal Judges Rebel Over Limits to Sentencing Power

John Martin will quit his job for life as a federal judge next month, vacating 16th-floor chambers that are bigger than most Manhattan apartments.

Mr. Martin isn't leaving because of the salaries, though, despite 13 years on the bench, he still makes less than most young corporate lawyers. Nor is he departing because of the bitter Senate confirmation battles that leave judgeships unfilled and caseloads rising.

Instead, Martin will be retiring his judicial robes because of changes to federal sentencing rules that he considers so "unjust" that he no longer wants to work inside the criminal justice system.

The Christian Science Monitor has the story here. I initially blogged this story here when the AP broke it a few weeks ago.

"A Volt From Below"

This one goes straight into my "weirdlaw" file:

The Wisconsin Supreme Court has become the second state high court to uphold a "nontraditional stray voltage" jury award, ruling that a power company breached its duty to control it.

Farmers across the country have been filing suit over so-called stray voltage for years, claiming that electrical discharges adversely affect the health of their dairy herds.

This despite an apparent lack of scientific proof of causation. Utilities say such verdicts could require them to "rewire rural Wisconson."

And that's just what the utility's appellate co-counsel, Tom Armstrong of Milwaukee's Quarles & Brady, fears. "The court's decision undermines the public service commission's findings and its ability to establish uniform standards," he said. "There is no method to test what the level of ground current is that would affect a dairy cow, so you're left with no standards."

Chuck DeNardo, principal engineer for the utility company, was clearly frustrated by the verdict.

The Hoffmanns "implied that the effects came from earth currents coming up from the cable, but they showed us no measurements of exposure," he said.

Read the whole mystifying tale here from The National Law Journal.

Big Litigation Firm Found to Have Acted Unethically

Say it ain't so, Joe?

"A federal jury in Chicago ordered a prominent South Carolina law firm yesterday to pay $36 million to a former client for what the jury found was unethical conduct in a class-action lawsuit. The firm, Ness, Motley, Loadholt, Richardson & Poole, known for its lucrative work for plaintiffs in tobacco and asbestos cases, recently broke up."

As Overlawyered.com summarizes, "[t]he law firm negotiated a settlement (over the objection of its clients, which it fired at the behest of the defendant) with a convicted felon with tens of millions in frozen assets that gave the firm $2 million in fees, but 'next to no compensation' for the ostensible injured parties." The New York Times has the story here.

20 Questions for the Appellate Judge

Howard Bashman of How Appealing has just published the latest installment of his "20 Questions for the Appellate Judge." This time, the "victim" is Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit and the results -- as usual -- are fascinating.

I really want to thank Howard for doing this. Most blawgers either publish little but links to news stories (like yours truly), or publish their own political opinions, which are often of questionable value to others. But Howard provides us with a truly unique and valuable service through his 20 Questions feature. Thanks, Howard!

"Guarding Death's Door"

Time Magazine has a fascinating (and very long) article about Ronnie Earle, the DA of Austin, Texas since 1976, and the complexities of the death penalty, which you can read here. (Via How Appealing, again)

"Justice Rip Van Winkle"

In an essay in the latest Newsweek, Anna Quindlen takes Justice Scalia to task for his dissenting opinion in Lawrence v. Texas, the Texas Sodomy case. "The sour puritanism of Scalia’s tirade has gotten most of the ink, but it’s the flagrant politicization of his response that is worthy of censure," she writes. I couldn't agree more. (Via How Appealing)

Supreme Court Justices on TV - O'Connor Denies Retirement

Despite the 5-4 votes and blistering dissents, the Supreme Court is not fractured, Justices Sandra Day O'Connor and Stephen Breyer said in a rare television interview.

The justices talked about terrorism, cameras in the courtroom, tough decisions they face, and their legacies in the wide-ranging interview broadcast Sunday on ABC's "This Week."

Newsday.com has the AP's report on this rare appearance here.

And the Washington Post reports the story here, adding that Justice O'Connor "has offered her clearest public indication yet that she plans to remain at her post."

"Spread the Gospel"

"Bloggers in America are aiming to spark a political revolution that will be delivered by the web. Neil McIntosh reports."

Don't miss this article from our friends across the pond detailing how you, me, Dave Winer, and Harvard are about to conquer the world. And this revolution will be blogged!

"Taking Liberties"

The LA Weekly thinks we ought to spend the holiday weekend thinking about what is being taken from us. Details are here. What do you think? (Via talkleft)

Happy Independence Day!

From our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness . . . .

And the Preamble to our Constitution:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I'm not a sentimental person, and I'm not much for holidays. But we ought to pause once or twice a year to appreciate what we have been given, and to remember how hard so many struggled to create and preserve it.

Infinite Punitive Damages Ratio

"A jury found that a plaintiff was not damaged by false promises a former Texaco salesman made (against corporate policy) in selling franchises, but decided that the fact of the promise entitled the plaintiff to $33.8 million in punitive damages." Read about it here from my pals at Overlawyered.com (who reported it first), or now here from law.com.

The Litigation Arms Race

"With the more specialized experts needed for today's personal injury lawsuits charging as much as $750 per hour -- triple the rate of five years ago -- or flat fees of as much as $15,000 per trial and experts setting the price of the average claim at $100,000 to prepare and another $100,000 to try, there's no question that litigation is becoming an expensive option for many plaintiffs," the Miami Daily Business Review reports here.

Tucker Max

He's baaaaa-aaaack.

Court: Luster Can't Appeal Rape Conviction

An appellate court upheld a ruling that convicted rapist Andrew Luster has no right to appeal his guilty verdicts because he jumped bail and fled to Mexico during a break in his trial.

"By his flight to a foreign country, the inference is compelling that, but for his capture, he would be a fugitive to this day," Justice Kenneth Yegan wrote for the 2nd District Court of Appeals in its ruling Wednesday.

Luster, a great-grandson of cosmetics legend Max Factor, was convicted in absentia in January of drugging and raping women in his Ventura County home.

Hmmm . . . . Granted, the guy fled during his trial. But then he is convicted in abstentia, and now he has no right to appeal the conviction???

Apparently when your behavior waives your due process rights, you waive your rights to due process.

Daubert

Ted Frank is guestblogging on Overlawyered.com this week, and he has an interesting post on Daubert v. Merrill Dow Pharmaceuticals here.

Supreme Assault

The liberals have found a new pinata.

He holds no news conferences, raises no money and is usually seen in long black robes.

They've never been fond of this particular jurist, but since last week Antonin Scalia has been the target of some withering abuse.

From Howard Kurtz's Media Notes in the Washington Post.

Supreme Court leaves Free-Speech Advocates Empty-Handed

The Supreme Court is usually sympathetic to free-speech challenges, but not this year.

Justices sided with the government in every First Amendment case it ruled on during the nine-month term that ended last week, upholding laws and policies intended to protect the public from dishonest telemarketers, cross-burners, pornographers, and drug dealers in public housing.

CNN.com/Law Center has the story here.

Oklahoma Man Gets Life in Prison for Spitting

An Oklahoma man arrested on suspicion of beating his wife faced year in prison and a fine. But when he spit in an arresting officer's face, he got a life sentence instead, officials said on Wednesday.

John Carl Marquez, 36, was convicted of "placing bodily fluid upon a government employee," a felony that can carry a life sentence because of the possibility of transmitting a potentially deadly disease.

Sounds kinda harsh to me. Read about it here. (Via How Appealing.)

Fla. Telecommuter Can't Get Unemployment

A telecommuter who worked from Florida for an office in Long Island is ineligible for New York unemployment benefits, the state's highest court ruled Wednesday.

In a unanimous decision, the Court of Appeals ruled that eligibility for benefits depends on where the worker is, not where the employer is.

The court said no other state or federal court appeared to have tackled the question of who should pay such benefits for interstate telecommuters.

In this case, the court said, New York should not pay because Maxine Allen did her work in Florida. Florida already turned her down for benefits.

Sounds like poor Ms. Allen is hosed. Details here from the AP. UPDATE: Law.com New York now reports the story here.

Totally Off Topic

This guide to 1970s era WeightWatchers recipe cards has nothing to do with law, but if you want a really good laugh click here, and be sure to click on the "click here to start the tour" thing at the bottom. Then just follow the arrows. And be sure to read the text carefully. I've laughed until I cried no less than three times since I first found this site. Whoever wrote this is very clever, if not brilliant.

"Back In My Day, A Contract With A Heroin Addict Meant Something"

This one is a classic, and I'll steal it wholesale (including this post's title) from actualmalice.com:

In March 2003, Craig Veytia claims that Jason Mewes, "Jay" of "Clerks" and "Mallrats" fame, entered into an agreement assigning the rights to his life story to Veytia. Shortly thereafter, HBO announced that it was commissioning a documentary to be produced by Veytia's production company. The documentary titled "Rock Bottom," was to track Mewes' rehabilitation and efforts to kick his heroin habit.

Now, apparently Mewes is refusing to cooperate with the project and has disavowed the assignment agreement. Veytia, in turn, has filed a declaratory judgment action in Los Angeles Superior Court seeking a declaration that the assignment gives Veytia the right to "produce and exploit" Mewes' story. [complaint via thesmokinggun.com here]

Go visit actualmalice's original post here to get even more fun links.

SCOTUSBlog Publishes Annual Supreme Court Statistics

You can access them via SCOTUSBlog here. Thanks to Goldstein & Howe for compiling them. It's a useful and great public service. (Thanks also to The Southern California Law Blog for the link.)

GOP Files Challenge to Hike in Car Tax

California is operating entirely on credit for the first time ever. Meanwhile, the Republicans attack every attempt to raise new funds:

As California entered the new fiscal year without a budget or any plan to climb out of its multibillion-dollar shortfall, Republican legislators went to court Tuesday to dismantle the tripling of the car tax ordered by the Davis administration and set to take effect in October.

The LA Times has the details here.

And CBS News.com reports that California is in good company.

Volokh on Nike

Eugene Volokh's Wall Street Journal article on Nike v. Kasky is now posted on his website. (Thanks to Overlawyered.com for the link.)

Law Firm Massacre Remembered

It was ten years ago today that a disgruntled former client went on a shooting rampage at San Francisco law firm Pettit & Martin. The San Francisco Chronicle has this article, and New York Lawyer has this from the AP.

Legal Marijuana. Gay Marriage. Peace. What the Heck's Going On Up North, Eh?

Peaceniks, pot and people of the same sex exchanging wedding vows: It's a trinity from the church of high liberalism, or a right-wing trifecta of decline and doom.

Either way, it's a perfect storm of cultural weather patterns that you'd expect to be brewed only in, say, the East Village, Dupont Circle or the intersection of Haight and Ashbury.

But, whoa! We're talking about what's going on in Canada, as the Washington Post reports here.

Hacker Who Threatened Bloomberg Gets Prison

A Kazakh citizen was sentenced on Tuesday to more than four years in prison for hacking into Bloomberg L.P.'s computer system in an attempt to extort $200,000 from the business news service and its founder, Michael Bloomberg, now New York City's mayor.

U.S. District Judge Kimba Wood sentenced Oleg Zezev to 51 months in prison, one of the longest terms ever given for computer intrusion, federal prosecutors said.

Read the whole story here from Reuters.

Judge Declines to Issue "Cost-Free Speculators' Insurance"

CorpLawBlog has a post about a decision by a New York Federal Court today in which Judge Milton Pollack dismissed "complaints seeking damages for supposedly overly optimistic dot com research reports issued by Merrill Lynch and its former research analyst Henry Blodget." Quoth Judge Pollack:

The record clearly reveals that plaintiffs were among the high-risk speculators who, knowing full well or being properly chargeable with appreciation of the unjustifiable risks they were undertaking in the extremely volatile and highly untested stocks at issue, now hope to twist the federal securities laws into a scheme of cost-free speculators’ insurance. Seeking to lay the blame for the enormous Internet Bubble solely at the feet of a single actor, Merrill Lynch, plaintiffs would have this Court conclude that the federal securities laws were meant to underwrite, subsidize, and encourage their rash speculation in joining a freewheeling casino that lured thousands obsessed with the fantasy of Olympian riches, but which delivered such riches to only a scant handful of lucky winners. Those few lucky winners, who are not before the Court, now hold the monies that the unlucky plaintiffs have lost -- fair and square -- and they will never return those monies to plaintiffs. Had plaintiffs themselves won the game instead of losing, they would have owed not a single penny of their winnings to those they left to hold the bag (or to defendants).

That's putting things pretty succinctly! Thanks again to CorpLawBlog for the post, where you'll find a link to the complete order. UPDATE: Here's an article from the New York Law Journal on the order.

New Junk Science: The Green-Tinged Tongue Test

TalkLeft has an interesting post about an asinine-sounding police training program in Wausau, Wisconsin here.