A Judge Tests China’s Courts, Making History

LUOYANG, China – Judge Li Huijuan happened to be in the courthouse file room when clerks, acting on urgent orders, began searching for a ruling on a mundane case about seed prices. “I handled that case,” Judge Li told the clerks, surprised that anyone would be interested.

But within days, the Luoyang Middle Court’s discipline committee contacted her. Provincial officials had angrily complained that the ruling contained a serious political error. Faced with a conflict between national and provincial law, Judge Li had declared the provincial law invalid. In doing so, she unwittingly made legal history, setting in motion a national debate about judicial independence in China’s closed political system.

Gulf Coast Isn’t the Only Thing Left in Tatters; Bush’s Status With Blacks Takes Hit

From the political perspective of the White House, Hurricane Katrina destroyed more than an enormous swath of the Gulf Coast. The storm also appears to have damaged the carefully laid plans of Karl Rove, President Bush’s political adviser, to make inroads among black voters and expand the reach of the Republican Party for decades to come.

Many African-Americans across the country said they seethed as they watched the television pictures of the largely poor and black victims of Hurricane Katrina dying for food and water in the New Orleans Superdome and the convention center. A poll released last week by the nonpartisan Pew Research Center bore out that reaction as well as a deep racial divide: Two-thirds of African-Americans said the government’s response to the crisis would have been faster if most of the victims had been white, while 77 percent of whites disagreed.

Details here from the New York Times.

Microsoft Accuses College Student of Illegal Software Sales

Threatens to Seize His 2002 Ford Escort Over $143.50 In eBay Profit

This is too much. Kent State undergrad David Zamos enrolled in a course at the University of Akron and bought Microsoft Windows and Office XP Pro for $60 at UA’s bookstore with his student discount.

But when he got home, “he realized that he’d have to reformat his hard drive to install it. Rather than lose years of term papers and mp3s, he decided to stick with his old operating system.”

When the store wouldn’t take it back, he decided to sell the unopened software he’d bought at UA on eBay.

Microsoft found out, and came after him with both guns blazing, filing an 18-page complaint against Zamos, accusing him of unfair competition and “irreparable injury to its business reputation and goodwill.”

Unable to afford an intellectual property lawyer, and convinced that he was in the right, Zamos went to the law library and went to work.

Although he ultimately got no money from Microsoft, Zamos did get them to drop their suit and apologize. And Microsoft got some really bad PR, including what you’re reading now.

The entertaining details are here from the Cleveland Scene. (via The Obscure Store)

Schiavo Appeal to Reconnect Tube Denied

ATLANTA – A federal appeals court refused early Wednesday to order the reinsertion of Terri Schiavo’s feeding tube, denying an emergency request by the severely brain-damaged woman’s parents.

The three-judge panel ruled 2-1 to deny the request, a day after a federal judge in Florida also refused a similar appeal.

Schiavo’s parents, Bob and Mary Schindler, vowed yet another appeal Wednesday.

That was quick. Details here from the AP. Or read the Court’s 2-1 Opinion here.

The majority opinion concludes with this:

There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting colleague has emotional appeal, we as judges must decide this case on the law.

Ugliness Surrounding Jackson Allegations Going Full Steam

CNN reports:

The boy who accuses singer Michael Jackson of molesting him grew up in a turbulent family where violence “was a daily occurrence,” according to court documents filed by the boy’s mother two years ago upon her divorce from the boy’s father. . . .

[T]he court documents, filed October 16, 2001, with the Los Angeles Superior Court, included the filing of a temporary restraining order by the boy’s mother against her husband in which she alleged that he “has assaulted or attempted to assault me or another member of my household … caused, threatened or attempted bodily injury to me or another member of my household” and “made me or another member of my household afraid of physical or emotional harm. . . .”

[H.] Russell Halpern, who represented the father during the divorce, said the father pleaded no contest to two misdemeanor domestic abuse charges. At the same time, the attorney said the mother is “very vindictive” and “deceitful” . . . .

“[T]he father has told me in the past that his children will say and do whatever their mother tells them to do,” the lawyer told CNN.

This is going to get much worse before it gets better. Details here from CNN.

Group Contends Record Labels Have Wrong Guy

An online civil rights group has adopted the cause of a Playa del Rey man who believes he has been mistakenly accused of improper file trading by the record industry, setting up a possible showdown over the music business’ methods for identifying suspected pirates.

The San Francisco-based Electronic Frontier Foundation on Monday asked lawyers for three record labels to drop their suit against 35-year-old Web site designer Ross Plank, asserting that he is the second target of 261 high-profile suits who is the victim of mistaken identity.

Sounds to me like Mr. Plank my be correct, and a further embarrassment to the record industry. Details here from the L.A. Times.

Few Chances for Lawyers to Develop Trial Skills

In legal circles, the phenomenon is so widespread that it actually has a name: the vanishing trial.

Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely — if ever — stepped foot in a courtroom.

The Boston Bar Association has taken a small step to remedy that problem. Earlier this month, it expanded its “lawyer-for-the-day” program at Boston Housing Court, in which attorneys give free legal advice to tenants and landlords, to include having lawyers try cases in court. The change is designed not only to help low-income litigants, but also to let trial-starved lawyers connect with a jury, relate to a judge, and develop other trial skills mastered only through real-life practice.

From a very interesting article in The Boston Globe.

Lawmakers Decry Search of D.C. Office

WASHINGTON (CNN) — Rep. William Jefferson vowed Monday to stay in Congress and fight allegations that he took bribes and hid $90,000 of allegedly ill-gotten funds in the freezer of his Washington home.

In concerns echoed by the Republican House and Senate leaders, the Louisiana Democrat blasted an apparently unprecedented weekend search of his office by FBI agents as an “outrageous intrusion into the separation of powers between the executive branch and the congressional branch. . . . ”

[M]eanwhile, the search of Jefferson’s office in the Rayburn House Office Building has caused unease on Capitol Hill about the possible breach of separation of powers between Congress and the executive branch.

Both Senate Majority Leader Bill Frist and House Speaker Dennis Hastert said they were “very concerned” about the search, which was conducted under a warrant issued by a federal judge.

Jefferson told reporters Monday, “I believe that it’s completely inappropriate to use the police of the federal government to come into the office.”

Hastert issued a sharply worded statement Monday evening saying he planned to “seek a means to restore the delicate balance of power among the branches of government.” He did not elaborate on what measures he might propose.

“Insofar as I am aware, since the founding of our republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this separation of powers line in order to successfully prosecute corruption by members of Congress,” Hastert said. “Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years.”

Details here from CNN.

The Bible Bench

The message from fundamentalists to state jurists is clear: Judge conservatively, lest ye not be a judge.

ON THE MORNING of November 14, 2003, Iowa District Judge Jeffrey Neary met with lawyers to approve routine court orders. One of the cases before him was a divorce. It was uncontested, and Neary didn’t think twice about signing the papers dissolving the marriage. Then he glanced at the couple’s names and realized the breakup was anything but typical. He turned to the lawyer for one of the parties and exclaimed, “These two people are ladies!” Neary had just signed divorce papers for Kimberly Brown and Jennifer Perez, a lesbian couple who had entered into a same-sex civil union in Vermont. Same-sex unions are not recognized in Iowa, but instead of withdrawing the order, Neary amended the paperwork to indicate that he had terminated a civil union and settled property disputes between the women.

When Neary’s decision made the news a few weeks later, Christian conservatives were enraged. In late January, a score of protesters picketed the Sioux City courthouse, waving banners that said “God Hates Fags” and denouncing Neary as a “liberal activist” and a member of an “antichristic court.”

“I was just trying to settle a dispute between two people,” Neary says. But he made his decision just days before the Massachusetts Supreme Court upheld the legality of same-sex marriage in that state. Conservative Christians were ready for a fight.

Many more details here in a long, interesting article from Margaret Ebrahim in Mother Jones. (via Bashman)

Solo’s Errant Spell-Check Causes ‘Sea Sponge’ Invasion

Spell-checking on his computer is never going to be the same for Santa Cruz solo practitioner Arthur Dudley.

In an opening brief to San Francisco’s 1st District Court of Appeal, a search-and-replace command by Dudley inexplicably inserted the words “sea sponge” instead of the legal term “sua sponte,” which is Latin for “on its own motion.”

“Spell check did not have sua sponte in it,” said Dudley, who, not noticing the error, shipped the brief to court.

That left the justices reading — and probably laughing at — such classic statements as: “An appropriate instruction limiting the judge’s criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction.”

And: “It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense.”

Details here from The Recorder via Law.com.