SBM Blog

Update: Birtherism And The Limits Of Official Incredulity

This is almost certainly SBM Blog's first and last birther post, inspired by an exceedingly rare display of bureaucratic humor.  In response to the request of the Arizona Secretary of State, Ken Bennett, for proof of Barack Obama's Hawaiian birth, Hawaiian officials have asked Bennett to prove he is who he says he is.  Lowering the Bar has the story.

Hawaii is now apparently satisfied with Arizona's proof. A special assistant to the Hawaii attorney general released this statement:

Regarding the inquiry from the Arizona Secretary of State, Ken Bennett, requesting a verification of birth for President Obama from the State of Hawaii, Department of Health, the matter has been resolved.  We have received information from Secretary Bennett that satisfied our requirements, and have therefore provided his office with a verification of birth for President Obama.

"Corporations Are People, Too"

Richard Epstein blasts Jeffrey Toobin's much-discussed New Yorker piece on Citizens United and the Roberts Court in an essay today in the Hoover Institution Journal.

His cartoonish understanding of Supreme Court history dooms him to a systematic misunderstanding of Citizens United’s critique of McCain-Feingold. The narrow issue in Citizens United was whether Hillary: The Movie, a 90-minute attack documentary, counted as “electioneering communication” that could be banned from running within 30 days of the election. The larger constitutional issues would not disappear if Citizens United only handed down a narrow decision that the McCain-Feingold Act did not apply to that movie. The next case down the road would be sure to raise the same overarching issues. It is therefore incumbent on Toobin to explain why the general guarantee that Congress shall “make no law abridging the freedom of speech” does not apply to political speech in the run up to a national election.

Clearly, it makes no sense to exclude corporations systematically from the First Amendment simply because corporations, whether or not they are persons, are not mentioned in the constitutional text. After all, the First Amendment doesn’t refer to citizens either. But the logic for bringing corporations under its protection parallels those used in connection with the Fourteenth Amendment. Does Toobin really think that the New Yorker, as part of the press, could be somehow prevented from publishing because it is a corporation bereft of any First Amendment protection? No: The magazine did not lose the protections of the First Amendment when its partners decide to incorporate it.

What To Do In The Event Of A Data Breach

Corporate Counsel has the ten steps to take right away.  Oops, the first step is "Develop Your Plan Before the Incident," so get cracking.  The rest of the tips are spot on, especially Step 4:

Continue to Consult with Counsel

It is imperative that the investigation and response be conducted in consultation with and at the direction of counsel (whether in-house or outside counsel). In addition to preserving the privilege of confidential communications, consulting with counsel is important to the myriad legal issues—from notice obligations to coordinating with law enforcement to managing litigation risks—that can arise when investigating and responding to a data security breach.

"Jesus is not a Homophobe" Update

Remember the Ohio school district that told a gay high school student he couldn't wear this shirt to school because it was (take your pick) "disruptive," "too religious," or "indecent and sexual in nature?" Volokh Conspiracy reports that the school district has now settled the lawsuit against it, on these key terms:

• The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….
• Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

COA: State Financial Review Teams Not Subject To FOIA

From the opinion (PDF):

We hold that a financial review team, and therefore the Detroit Financial Review Team, is not a “governing body” and therefore is not a “public body” under the Open Meetings Act and is not statutorily required to comply with the Open Meetings Act. We also conclude that the State Treasurer, whether acting in his executive capacity or as a “one-man” committee of the Detroit Financial Review Team, is not a “public body.”

We further conclude that the trial court’s various rulings and orders in these consolidated cases on their face constituted injunctive relief, and we hold that the trial court abused its discretion when it issued such injunctive relief. We therefore reverse and vacate these rulings and orders in their entirety. Accordingly, as to Docket Nos. 309218 and 309260, we remand to the trial court for entry of judgment in favor of defendants as to the merits of the Open Meetings Act claims brought by Davis and McNeil, respectively. However, in Docket No. 309250, we remand for an evidentiary hearing on Davis’s allegations that various state officials and members of the Detroit Financial Review Team were in contempt of court.

Chilling About Change: That Iceberg May Be A Lifeboat

Here's a generalization that is constantly affirmed in my work as executive director of the State Bar -- lawyers as a rule hate change. The ongoing turmoil in the legal marketplace has thus proven to be the source of acute misery for many of us, even those whose economic well-being has not been directly threatened by the changes underway in the provision of legal services. For those of you who fit the description of change-averse I offer this intriguing and ultimately encouraging reflection from the Harvard Business Review, "Why We Can't See What's Right In Front Of Us":

The most famous cognitive obstacle to innovation is functional fixedness — an idea first articulated in the 1930s by Karl Duncker — in which people tend to fixate on the common use of an object. For example, the people on the Titanic overlooked the possibility that the iceberg could have been their lifeboat. Newspapers from the time estimated the size of the iceberg to be between 50-100 feet high and 200-400 feet long. Titanic was navigable for awhile and could have pulled aside the iceberg. Many people could have climbed aboard it to find flat places to stay out of the water for the four hours before help arrived. Fixated on the fact that icebergs sink ships, people overlooked the size and shape of the iceberg (plus the fact that it would not sink).

Just as some very smart people lost their lives in the Titanic tragedy, some very smart lawyers have  gone down with law firm ships that, just a short while ago, were thought to be unsinkable. The chances for survival go up significantly for those who are not afraid to scan the horizon and think creatively about change.

A survey 792 large law firms by legal consulting firm Altman Weil suggests that law firm leaders are already starting to adjust their thinking. Reporting on the survey in "Law firm leaders expect permanent change to the industry," Inside Counsel says there has been a radical shift in attitudes since 2009, and summarizes the survey results as follows:

• 92 percent of respondents believed that there will be more price competition in the long-term, as opposed to 42 percent in 2009
• 46 percent expect that outsourcing legal work will become a permanent fixture, compared with 12 percent in 2009
• 80 percent anticipate more firms will adopt nonhourly billing, whereas only 28 percent believed that in 2009. (This might not be a bad thing, though. InsideCounsel’s own career expert, Mike Evers, explained in a recent column why nonhourly billing may make for happier lawyers.)
• 68 percent of those surveyed expect there will be fewer equity partners in law firms, as opposed to 2009, when only 23 percent thought that would be the case
• Law firm leaders gave themselves a median rating of 7 out of 10 on their confidence to deal with these upcoming issues
• Respondents felt that in the face of these challenges, sustaining and growing profitability was their biggest concern

On This Day In Legal History

On May 22, 1984 the U.S. Supreme Court decided Hishon v King & Spalding, holding 9-0 that law firms may not discriminate on the basis of gender, race, or religion in making partnership decisions. In November of 2011, the Careerist reported that more women than men (five out of eight) made partner at King & Spalding in its latest partnership class.

Judge James Ryan Makes The Case For Judicial Selection Reform in Michigan

 

On WKAR's Off the Record, former Michigan Supreme Court justice and federal 6th Circuit judge James Ryan responds to questions about the recommendations of the Judicial Selection Task Force, which he co-chaired with Justice Marilyn Kelly. (By clicking on the triangle in the video you can magically transform Michigan Radio's Rick Pluta into Ryan.)  Read the Judicial Selection Task Force Report here.

Objection to Objections

The Lawyerist has a good short post reminding us why it's generally better just to gnash our teeth in trial rather than object. Key problem:

When you object, the jury has no idea why you don’t think they can hear this evidence. Then, they don’t get to hear the discussion of whether the evidence should come in. So, what is the only conclusion they can reach about your objection? You fear the result of the question being answered, so you are attempting to hide the truth.

Every time you object, you lose in one fashion or another. Even if you win, (objection sustained) you lose (you are a sneaky lawyer hiding the truth). And if you lose, (objection over-ruled) you lose three times: 1) sneaky lawyer tries to hide truth; 2) sneaky lawyer fails; 3) this evidence must be really important.)

The jury hates these evidentiary time-outs. They want to get on with it. So, as Josh pointed out, anticipate evidentiary issues in advance and handle them in limine. You should strive to avoid needing to object by knowing in advance what’s in and what’s out. If you do that, you shouldn’t find yourself needing to object as to admissibility during trial very often.

Walk This Way

A bill introduced in the Michigan Senate would name the pedestrian walk between the Capitol and the Hall of Justice the "Frank J. Kelley Promenade." Considering the number of times the former Michigan Attorney General walked between the Legislature and the Supreme Court, metaphorically, in his 37-year tenure, I'd say the Legislature couldn't possibly come up with a better name. And seeing as the bill is sponsored by all 38 Senators, it looks like its chances are good.

HT: The Michigan Lawyer