SBM Blog

Don't Mess With The Man. Unless You're Smarter.

This is tangentially a copyright law story, but it's mostly about very smart college students doing what college students do.  And (spoiler alert) about beating the machine. In "Yale Students Tangle With University Over Website" the New York Times reports on two students who built an online blue book, YBB+, that competed with the official college catalog of courses. The college complained that YBB+ was a "big problem" and identified three concerns. The students responded by offering to fix the three things, along with “4. Anything else you want.” The college responded the way colleges do -- they shut the website down. The inevitable outrage ensued. (Examples here and here.) Enter student number three, who quickly figured out how to provide the same blue book information in a way that the university couldn't block. And the university has backed down:

[Q]uestions of who owns data are evolving before our very eyes. Just this weekend, we learned of a tool that replicates YBB+’s efforts without violating Yale’s appropriate-use policy, and that leapfrogs over the hardest questions before us. What we now see is that we need to review our policies and practices.

A Fresh Start: Michigan Bankruptcy Firm Files For Bankruptcy

The Wall Street Journal's "Top Michigan Bankruptcy Law Firm Files for Protection Too" reports on the bankruptcy filing of Frego and Brodsky. James Frego told the WSJ Bankruptcy Beat “The relief is there for everyone ... from the person who is on a fixed income and earns less than $1,000 a month to a company as big as General Motors.”

Life After Disbarment

In a fascinating story, the Louisville Courier-Journal covers how several former Kentucky lawyers are living their lives post-disbarment. (Kentucky is a rare "license death penalty" jurisdiction that does not allow disbarred lawyers to ever apply for reinstatement.) The profiled attorneys include "some of the state’s most successful and brilliant former attorneys." And some of them are doing, well, quite well. Well worth a read.

A Juror Says "No Way" In Child Porn Case -- So Does The Sixth Circuit

What happens when a juror in a criminal case with horrific facts says he can't handle the evidence? A recent child pornography case out of Ohio addressed the issue. After being impanelled but before any evidence was presented a juror sent this message to the courtroom deputy :

I'm a juror that was in the courtroom today for Judge Dowd's case. And I just left there and I don't know how I'm going to be able to do this tomorrow. I'll be honest with you. I'm, like, half sick. I guess they're showing pictures or a video tomorrow.

There is just no way I'm going to be able to view these pictures or video. So I really don't know what to do. I just called in, and they put me to your number. You know, there is just no way I can view any of these pictures or video on this case tomorrow.

In this Jan. 7th opinion, a panel of the 6th circuit found the judge's decision to keep the reluctant juror an abuse of discretion. The panel vacated a 14-year sentence for the defendant and ordered a new trial.  Writing for the panel, Judge Martha Daughtrey showed some sympathy for the judge's dilemma, but emphasized that fairness trumps expediency:

In his memorandum opinion explaining why he did not excuse Juror 29 from the panel, the district judge rationalized that it was not necessary for the juror to observe the pornographic images because neither party disputed that the images and videos should be classified as child pornography. Therefore, the district court concluded, the jury's primary function in this prosecution was to determine only whether Shepard knowingly accessed those images and videos, an exercise that the court apparently thought would not require viewing the visual evidence. On one level, that decision is understandable. The district judge had conducted a lengthy voir dire and had effectively exhausted the available jury pool. By dismissing Juror 29, the court risked providing an opportunity for other jurors to have themselves excused from service because of the nature of the evidence to be presented.

Nevertheless, the role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court. Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency.

In a National Law Journal piece, Cornell law professor Valerie Hans says that although it's tempting to let jurors self-select out, a jury consisting only of people who aren't offended by child pornography wouldn't reflect a community's value. But in this case, Hans says, the juror's lingering doubts after first being persuaded during voir dire that he could be fair and impartial warranted his removal.

"Why Are Lawyers Killing Themselves?"

SBM Blog has gotten a record number of tips to this CNN story on lawyer suicide. The story reports that Centers for Disease Control and Prevention data ranks law as the profession with the fourth highest suicide rate, right behind dentistry, pharmacy, and medicine, and that state bars say the numbers are rising. A Facebook friend asks, "True in Michigan?" The answer is that the State Bar of Michigan does not keep this kind of statistic but we are acutely aware of the toll that depression takes on our profession. Michigan has lost many talented and beloved lawyers, including a former state bar president. We are committed to helping. Our Lawyers and Judges Assistance Program is an excellent resource for lawyers struggling with depression, and for lawyers seeking assistance to help others. This July 2013 Michigan Bar Journal article (PDF) is directly on point.

 

"Counsel, you are not reading this, are you?"

There's really no good answer to the question, "Counsel, you are not reading this, are you?" Which is probably why counsel for Marvin Brandt Revocable Trust stood silent for several seconds when asked the question by Justice Scalia during yesterday's oral argument in Marvin M. Brandt Revocable Trust v. U.S.  It took a compassionate Justice Breyer to break the tension by saying "It's all right."

There are two very good reasons not to read a prepared statement to the Court -- it's against the rules and it's not good advocacy. Legal Times reminds us that Rule 28 says "Oral argument read from a prepared text is not favored," and the court clerk's guide to oral argument says, "Under no circumstances should you read your argument from a prepared script."

As Chief Justice Rehnquist explained in 1987 in The Supreme Court, reading to the Court "is so egregious that it is rarely seen":

The ultimate purpose of oral argument, from the point of view of the advocate, is to work his way into the judge's consciousness and make the judge think about the things that the advocate wishes him to think about. One of the best ways to begin this process is to establish eye contact with as many of the judges as possible, and this simply can't be done while you are reading your presentation.

A post at Above the Law noted that once he abandoned his script the lawyer did a good job. "Scalia just gave him the nudge he needed."

Happy New Year: End Of Pay Freeze Means $25,000 Jump In Pay For Federal Judges

Michigan's state judges have not had a pay increase in over a decade, but all federal court judges, including bankruptcy judges, got a 14% raise on January 1 as a result of a court ruling that found a series of pay freezes dating back to 1995 an unconstitutional diminution in judicial compensation. Late last year Attorney General Eric Holder informed Congress that the Justice Department would no longer contest cases challenging the freeze. Bloomberg News explains.

Chris Christie's Above The Law Endorsement

There's no shortage of stories these days critiquing New Jersey Governor Chris Christie's style and ethics, but here's one that shows the former U.S. Attorney in a kinder/gentler light. ATL's David Lat  worked as an AUSA under Christie before leaving for ATL while indulging his penchant for online writing on the side. When his against-the-rules and snarky blogging about federal judges was exposed, Lat's career was on the line. Lat tendered his resignation but Christie, Lat says, was understanding and forgiving:

Christie responded graciously and with forgiveness, saying that he did not want my resignation. He had mentioned my situation to the Department of Justice powers that be in D.C., who told him that it was his call as to what to do with me, and it was his wish that I remain in the office. He told me that I had been doing very good work as an AUSA and that we should go back to business as usual

Business as usual, of course, did not include further blogging. Lat notes that he did not blog about his own cases. For a recent case on the ethics of blogging about one's cases, see this post on Hunter v. Virginia State Bar (PDF). Andrew Perlman at Legal Ethics Forum thinks the opinion may be ripe for U.S. Supreme Court review.

Bipartisan Tax Reform Could Have Major Implications For Large Law Firm Partners

A National Law Journal story, "Law Firms Wary of Tax Provision," reports that parallel tax reform packages being drafted by Michigan Congressman Dave Camp, chair of the House Ways and Means Committee, and Montana Senator Max Baucus, chair of the Senate Finance committee, would change the way professional service firms pay taxes in a way that could tag law firm partners with major upfront tax costs. The draft legislation would require an accrual method rather than cash method accounting for firms with gross receipts of greater than $10 million. The national assurance leader for PricewaterhouseCoopers' law firm services practice told National Law Journal:

Firms should not be sitting back waiting to see if and when this goes through. They should be setting up work streams to model it out and think about how it's going to impact their organization, and make sure there are no negative consequences.

Acknowledging the inherent uncertainty surrounding such major reform, the ABA's government affairs director nonetheless pointed out that the potential revenue boost that the change provides the government makes it "very tempting to use this regardless of the public policy implications."

USSC Today: Simple Question, "Enormous" Federal Court Implications

In an ABA Journal story, UC Davis Law Dean Erwin Chemerinsky says that the outcome of a bankruptcy case argued today, Executive Benefits Insurance Agency v. Arkison, has huge implications for federal court workload.  In Stern v. Marshall in 2011, a case involving a dispute over the Anna Nicole Smith estate, the Court ruled that bankruptcy courts cannot issue a final judgment over state law claims.  In his dissent in Stern, Justice Breyer worried about the effect of that decision on federal workload, but the impact of Stern has, Chemerinsky says, been mitigated by the "vast majority" of parties consenting to state law claims being decided in federal bankruptcy. Today, the Justices will be considering whether that consent is sufficient to overcome constitutional concerns. If the Court decides it is not, Chemerinsky says, the decision will affect not only bankruptcy court litigation but the power of magistrate judges and arbiters: 

A significant percentage of bankruptcy cases have state law claims and other matters where bankruptcy courts will not be able to issue final judgments. The bankruptcy courts instead will have to make reports and recommendations to the district court. As Justice Breyer feared, cases will ping-pong back and forth between the bankruptcy courts and the district courts.

The implications for the federal judicial system go far beyond that. Federal magistrate judges issue final judgments in civil cases, including holding jury trials, with the consent of the parties. Magistrate judges, like bankruptcy judges, are non-Article III judges who sit for fixed terms. If consent is not sufficient, no longer could they decide state law matters. The workload increase for federal district courts will be significant.

There is a split among the federal courts of appeals on the question. The 9th circuit decision says even implied consent is okay.  But the 5th, 6th, and 7th circuits say otherwise.