Governor Snyder has appointed Midland County Prosecutor Michael Carpenter to the 75th District Court seat to be vacated by retiring Judge John Hart. Carpenter will assume the position on Jan. 1, and must run in November 2014 for a new term. He is a 1994 graduate of Cooley Law School and was first elected Midland County Prosecutor in 2004.
Legal writing guru Bryan Garner shares with ABA Journal a 2006 interview he conducted with the legendary David Foster Wallace about persuasive writing. It's an exhilarating and useful read. Especially enjoyable is Wallace's speculation about why so much academic (and legal) writing is so bad:
My guess is that disciplines that are populated by smart, well-educated people who are good readers but are nevertheless characterized by crummy, turgid, verbose, abstruse, abstract, solecism-ridden prose are usually part of a discipline where the dynamic between writing as a vector of meaning—as a way to get information or opinion from me to you—versus writing as maybe a form of dress or speech or style or etiquette that signals that “I am a member of this group” gets thrown off.
The story has been head-scratching right from the start -- a father losing custody, albeit temporarily, of his 7-year old son for giving him a Mike's Hard Lemonade to drink at a Tigers ball game, not realizing the lemonade was alcoholic. How could this happen? Answering that question led to a revision of the state's child protective custody law in 2011, and now, to a federal court decision rejecting judicial immunity for the kind of pre-signed, "fill in the blanks" removal order that led to young Leo Fratte's detention in "protective custody" for two nights. From Judge Avern Cohn's decision denying immunity to Wayne County Probate Judge Judy Hartsfield:
It is not Hartsfield’s actions in signing the form of order that plaintiffs complain about. Rather, it is Hartfield’s actions in putting in place a policy which allowed a pre-signed removal form to be filled in and docketed by non-judicial personnel, without judicial review, for a petition submitted to the family court after normal business hours. These actions, if true, are administrative. Hartsfield essentially signed pieces of paper that had no vitality until a third party–in this case a probation officer–filled in certain information on the paper. At the time the form of order was signed by Hartsfield, there were no parties before the court nor were there any active child custody proceedings. Her actions therefore could not have been “judicial acts.”
The underlying story is pretty weird. An Alabama law firm is repudiating a now-viral video (above) purportedly advertising the firm's services. The firm is demanding that the video's producer, Definitive Television, take down the video and is threatening to sue. A Definitive Television vice president, Jim DeBerry, told ABA Journal that an intermediary claiming to work for the firm hired Definitive Television and that Definitive Television has no intention of removing the video from the company’s YouTube account.
Above The Law first posted about the ad's “racist imagery [and] production values of a public access program.” Judge for yourself. Jim DeBerry, defending the ad as "satire comedy" is threatening to sue ATL for calling the ad racist. All of this is too much for Los Angeles lawyer Ken White, who not only finds the ad "breathtakingly racist" but finds DeBerry's first amendment-based threat a "masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats." If you enjoy a full-throated, slightly raunchy First Amendment rant, look no farther than White's post at Popehat.
Russell Baugh, of Clark Lake, died November 23, at the age of 82. He was a graduate of the Detroit College of Law and served as a Jackson County Friend of the Court clerk and investigator, assistant prosecuting attorney, probate judge, and circuit court administrator, before becoming State Court Administrator. He is survived by his wife of 37 years, Jann Ryan Baugh, children Russell and Tammy, grandchildren and great grandchildren, brother-in-law James Ryan, and caregiver Angelina Day. Memorial contributions may be made to Disability Connections 409 Linden Ave. Jackson, Michigan 49203.
BAUGH, JACKSON-RUSSELL LEROY Jackson-Russell Leroy Baugh, 82, died peacefully in his sleep with his wife at his side on November 23, 2013. Russ was born in Kalamazoo, Michigan on May 2, 1931 to the late Russell Bernard Baugh and Rozelle Winslow Baugh. Russ began his working career in 1948 as a steam locomotive fireman for the New York Central Railroad and became Michigan's youngest locomotive engineer. At age 25 he was severely injured in a private plane crash and his left arm was amputated. Determined to rebuild his life, Russ attended Jackson Community College, Michigan State University, and Detroit College of Law. In 1964 he entered private practice. He served Jackson County as a Friend of the Court clerk and investigator, assistant prosecuting attorney, probate judge, and circuit court administrator. From 1973 to 1984 he was the deputy and state court administrator. He was an instructor at the National Judicial College in Reno, NV and traveled throughout the US with a team of judges reorganizing major urban courts. Russ was a US Navy veteran for his service in the Michigan National Guard, serving during the Korean Conflict. Russ's passions included driving race cars and hydroplanes, flying, scuba diving and handicapping horses. He loved his lakeside home and spent many winters in the dry, sunny climates of Las Vegas, Nevada and Mesa, Arizona. Russ's integrity, sense of humor and warm demeanor gained the trust, love and respect of those whose lives he touched. His life and efforts to improve the lives of children are reflected in the words of Ralph Waldo Emerson, "The purpose of life…is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well." Russ is survived by his wife of 37 years, Jann Ryan Baugh; his caregiver Angelina Day; his children Russell (Marcia) and Tammy; their children and grandchildren; and his brother-in-law James Ryan. Pursuant to Russ's request following a family service, he was buried with the late John and Ida Ryan, his parents-in-law, at Pine Plains Cemetery in Big Rapids, Michigan. Memorial contributions may be made to Disability Connections 409 Linden Ave. Jackson, Michigan 49203. - See more at: http://obits.mlive.com/obituaries/Jackson/obituary.aspx?n=Jackson-Russell-Baugh&pid=168286928#sthash.tfxCSEG5.dpuf
The enactment of broad structural changes to Michigan's Court of Claims in a veritable blink of a legislative eye left some very big questions unanswered, including what the effect of the new law is on the availability of jury trials in cases before the court. The governor himself pointed to the need for a "trailer bill" clarifying the right to jury trial at the same time that he was signing the changes into law. So where do things stand now? The trailer bill, HB 5156, has been introduced and is expected to move quickly through the legislature. The State Bar of Michigan supports the bill along with additional clarifying changes. The bill is scheduled for a hearing today in the House Government Operations Committee, Room 308, House Office Building, in Lansing. The State Bar and SBM Blog will provide continual updates.
I’m currently writing a paper that imagines the “MIT School of Law” as a thought-experiment. Because people are always talking about how they’re going to reorganize law schools entirely around practical training. I think this is a bad idea and will not be successful. They need to realize that there’s already a better model out there — it’s called polytechnic. No one is going to accuse MIT of not being a world-class school. No one is going to accuse them of being insufficiently theoretical. They’ve just built a model where you spend your time asking, “What theories are relevant for what I’m trying to do in my profession?”
The Governor has filled vacancies in three trial court positions. Eric R. Janes has been appointed to the Isabella district court, Gerald “Scott” Pierangeli to the Kalamazoo Probate Court, and Jeffrey J. Dufon to the Van Buren County Circuit Court. All must seek election in November 2014.
The U.S. Supreme Court hears oral argument today in Michigan v. Bay Mills Indian Community. At SCOTUSblog, Markham Erickson says that the case involves "fascinating" questions of jurisdiction and the doctrine of sovereign immunity for federally recognized Indian governments. Erickson believes the case may have a big impact on the scope of an Indian tribe's sovereignty and could -- and possibly should -- have been resolved before reaching the U.S. Supreme Court, a circumstance that he says is not uncommon in Indian law. MSU Law's Matthew Fletcher, writing in the Yale Law Journal Online, agrees, calling attention to a study that concluded that "even convicted criminals have a better win rate in the Supreme Court than tribal interests." He explains what's at stake:
Indian law scholars such as Frank Pommersheim have been warning tribal leaders and counsel for decades that if they do not solve the no-forum conundrum, someone else will—either Congress or the federal courts.17 Although Congress has remained steadfastly committed to tribal sovereign immunity, it appears the Supreme Court, to the horror of Indian Country and tribal interests, might now resolve this question with a broad stroke. Both the National Congress of American Indians (NCAI) and the Native American Rights Fund, collectively representing hundreds of Indian tribes nationally, have expressed deep concern about the potential for the Supreme Court to undermine tribal sovereign immunity for all Indian tribes, not only the Bay Mills Indian Community.18 NCAI has even taken the unusual step of asking the National Indian Gaming Commission to assert jurisdiction over the matter in hopes of mooting the Supreme Court proceedings.19
Per the Blog of the Legal Times, Senators Roy Blunt (R-Mo.) and Angus King (I-Maine) have sponsored The Common Sense Nutrition Disclosure Act to exempt retailers who get less than half their revenue from food meant for immediate consumption from proposed FDA regulations requiring food retailers with at least 20 locations to reveal the number of calories in their products. Their bill would let pizzerias use an average or range in posting calorie information. Let the consumer figure out the difference between a marinara veggie pizza and a super-meat-lovers special with double cheese?
The legal question is whether the Uniform Child Custody Jurisdiction and Enforcement Act gives courts authority to determine the custody, or jurisdiction of custody cases, based on the location of the pregnant mother. The tabloid question is who gets to raise baby Samuel Bode Miller-McKenna -- son of Olympic downhill ski legend Bode Miller and a former Marine he met through a "high-end" match-making service -- and where. The New York Times covers the story in "Custody Battle Raises Questions About the Rights of Women."
The child's mother, Sara McKenna, moved from California to New York City while pregnant to enroll at Columbia University. After the baby was born last February she filed in New York courts for temporary custody and was denied by a referee who said that while McKenna had not engaged in abduction, “her appropriation of the child while in utero was irresponsible, reprehensible.” An appeals court panel reversed the decision this month, writing that “putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”
Conglomerate Blog's Christine Hurt and her daughter are in the college search phase of life, which has brought Hurt into contact with the ACT "World of Work" map. While acknowledging the value of legal practice to people in general, she questions the decision to locate the practice of law entirely within the "working with people" wedge of the wheel:
Of course, the practice of law is a helping profession, but if your instincts tell you that you would like to work closely with individuals to help them, then law school is a pretty expensive way to do that. Yes, some lawyers do work one-on-one with individual clients to solve daily problems, and there is great satisfaction in those jobs. And, lawyers have the tools to help in ways that social workers can't. But if you go to law school to do that, you may find yourself in a job very far removed from that in order to recoup your investment.
I think she's exactly right. One advantage of a law degree is that legal practice accommodates many combinations and variations of aptitudes,inclinations, satisfactions. The work of an appellate lawyer, a transactional lawyer, a criminal defense lawyer, and a commercial litigator, for example, should each be located in different locations on the map. Nice try, ACT. But try again.
SCOTUSBlog has an 8-part interview with 4th Circuit federal judge J. Harvie Wilkinson, III, who has established a sturdy reputation as a "conservative" judge, but nails what the mindset of a judge needs to be:
I think when judges sit on the bench — this applies at all levels — we don’t really think about ourselves as ‘conservative’ or ‘liberal.’ Those are labels that people apply to us. And . . . I understand why they do because you have to use short-hand. But, the interesting thing is, I don’t think most judges conceive of themselves as conservative or liberal. We think of ourselves as judges first and foremost and that the judicial calling is such an honorable calling. And when we get on the bench, you know, you’re just so focused on that one case. I mean, you don’t think, ‘Is this a conservative result?’ or ‘Is this a liberal result’ or ‘Which way is the law as a whole moving?’ You’re just thinking about those people before you and how much the case means to them. And our mindset when we go on the bench is, ‘this case is a universe unto itself.’
Amen. But another Wilkinson observation strikes me as puzzling. He says that the core of judging is "the sense of independence and the sense to express your own convictions." My own observation from my experience as an appellate law clerk is that some cases require judges, admirably, to subordinate their personal convictions to the requirements of the law. Perhaps I misapprehend Judge Wilkinson's meaning.
From the Blog of Legal Times, the U.S. Supreme Court has just hired a new legal counsel, replacing the old legal counsel who had served for 11 years until he was appointed the new clerk of the court on September 1. The position of legal counsel was created by Chief Justice Warren Burger 40 years ago. The duties include helping justices with circuit duties, original jurisdiction cases and emergency applications, working with the Department of Justice on lawsuits filed against the court and serving as a consultant on ethics questions.
Here is the language from Apple's closing argument to the jury that Samsung's lawyer said was "a direct appeal to racial bias":
When I was young, I used to watch television on televisions that were made in the United States. (He then named several U.S. manufacturers.) But they didn’t protect their intellectual property. There are no American TV manufacturers today.
In arguing for a mistrial, Samsung's lawyer said “we all thought the same thing” about the remark -- that it was a warning that Apple could lose to Asian competitors. Judge Lucy Koh denied the motion. "Actually, I’m Asian and I didn’t think the same thing." She did, however, call the jury back to reread the instruction that they must not be influenced by prejudices or sympathy.
A highly respected conservative constitutional scholar, MSU grad Michael McConnell, says in a newly published piece in the Yale Law Journal that the Supreme Court got to the right result in Citizens United but used the wrong clause of the First Amendment. He says a better analysis would have treated Citizens United as a free press case, not a free speech case. Read it here.