Tuesday, April 30, 2013
(Dobkin v. Univ. of Iowa, Iowa Ct. App. No. 2-1096/12-1012, 2/13/13) is an interesting case. The court held that the lower court properly denied admission of an article from a law journal newspaper written by a witness for the age-protected job applicant who was denied an employment offer at the law school, despite contentions that opinions contained in the article were based on empirical evidence and that the law school “opened [the] door” for the article's admission, where the article was inadmissible hearsay with no applicable exception.
One of these days law schools are going to start to get hit for institutional age discrimination.
Mitchell H. Rubinstein
A supervisor allegedly unzipped his pants and pulled out his testicles during an argument with plaintiff at work. The court concluded that the single incident was sufficiently severe to support the action.
MItchell H. Rubinstein
Saturday, April 27, 2013
Matt Pelletier writes to tell us about Workers Memorial Day which is on April 28, 2013. He published a tribute page which is full of interesting information about OSHA. I did not know anything about Workers Memorial Day. He describes it as follows:
Workers memorial day is a commemoration day that is celebrated in the U.S and abroad each year on April 28th. It is meant to remember those who have been killed or left disabled as a result of an injury suffered at work. It’s an opportunity to recognize the preventable nature of most workplace accidents and bring greater awareness to safety campaigns and legislation.
His web page is certainly worth reading.
Mitchell H. Rubinstein
Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing. From the story:
...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.
The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."
Friday, April 26, 2013
Thank you for the introduction and opportunity, Mitchell. I look forward to participating in this blog and contributing on topics relating to corporate law, mergers & acquisitions and technology deals. These are areas that I teach and also where I practice, so I will aim to look at issues presented in these areas from both points of view.
The Denver University Law Review (Vol. 89, No. 4) has published papers from the 19th Annual Rothgerber Conference - "Toward A Constitutional Right of Access to Justice: Implications and Implementations," with a focus on access to the courts and medical marijuana, among other things.
The April 2013, Harvard Law Review includes " The Problem of Resource Access," by Lee Anne Fennell (Chicago), a book review by David A. Strauss (Chicago) plus student notes and recent cases. The Winter 2013, Harvard Journal of Legislation includes papers by Senator Jeanne Shaheen on fililbuster reform, Senator Olympia J. Snowe on legislative effectiveness in the 112th Congress, and Rep. Louise Slaughter on the Genetic Information Non-Discrimination Act. The edition also includes a short symposium on Government Outsourcing and Privatization.
Alabama Law Review (Vol. 64, No. 3) includes Meador Lecture Series papers by Robert C. Ellickson, "The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown," and Brian Leiter (Chicago), "The Boundaries of the Moral (and Legal) Community." The Nov-Dec. 2012 San Diego Law Review includes the 2012 Editors' Symposium: "The Philosophical Foundations of Intellectual Property."
The March 2013 issue of Law and Contemporary Problems (Duke, faculty edited) includes the symposium, "A Global Perspective on Sentencing Reform." The Winter 2013 issue of the Indiana Law Journal leads with "Procedural Fairness in Election Contests," by Joshua Douglas (Kentucky).
Volume 2013, No. 1, Wisconsin Law Review includes, "colloquium essays address[ing] the role of empirical research in identifying, measuring, and clarifying crucial issues of service delivery, resource allocation, and access to justice in American law and society." Participating essayists are Jane H. Aiken (Georgetown) & Stephen Wizner (Yale), Catherine R. Albiston (Berkeley) & Rebecca L. Sandefur (Illinois), Anthony V. Alfieri (Miami), Jeanne Charn (Harvard) & Jeffrey Selbin (Berkeley), and Scott L. Cummings (UCLA). Meredith J. Ross (Wisconsin) contributed the Introduction to the Colloquium.
The New York Law School Law Review, Volume 57, Number 4, released this week and includes the symposium, "Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination."
Thursday, April 25, 2013
The Atlantic has posted a feature that asks several leading attorneys, journalists, scholars and judges, "What's the Most Important Supreme Court Case No One's Ever Heard Of?" It's an interesting read.
Jan Wolfe, The AmLaw Litigation Daily, reports that U.S. District Judge Otis Wright II, issued a summary judgment order last week bringing to a close litigation initiated a decade ago by the heirs to Superman's co-creator, Jerry Siegel, to reclaim copyright to the iconic (and lucrative) character.
Apprarently, in 1938, Seigel and his co-creator, Joe Schuster, sold the Superman character to Detective Comics for $130. Over the years, the buyer's successors have paid pension and compensation under different agreements, however, in this particular litigation, Siegel's heirs sought to reclaim the copyright under the so-called "termination rights" provision of the Copyright Act. Judge Wright's order brings this effort to a close it appears.
The case is Laura Seigel Larson v. Warner Bros. Entertainment, Inc., Case No. 2:04-cv-08776-ODW(RZx), in the United States District Court for the Central District of California.
Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days. I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here:
- Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
- Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
- Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
- Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
- Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
- Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
- Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
- Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
- Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
- Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).
Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments. As an aside, I predict a healthy increase in law review submissions by professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.
Wednesday, April 24, 2013
Often complex business deals are built upon multiple contract which taken together lead to a single business transaction. When and to what extent may a prevailing party in an American Rule jurisdiction collect attorney's fees from the breaching party when that single business transaction goes wrong and some but not all contracts contributing to the transaction include a provision for recovering attorney's fees? The Supreme Court of Connectucut, in a case of first impression, tackled that very question Tuesday in Total Recycling Services of Conn., Inc. v. Connecticut Oil Recycling Services, LLC., No. 18823, 2013 WL 1500840 (Conn. April 23, 2013).
Total Recycling originates from the sale of an oil recycling business expressed by the parties in three contracts - an equipment contract, a goodwill contract and a noncompete contract. The goodwill and noncompete contracts included a provision entitling the defendant to attorney's fees if the plaintiff breached the agreement -- the equipment contract did not.
Disputes arose between the parties with the plaintiff and defendant filing claims and counterclaims against one another. The plaintiff prevailed on its unjust enrichment claim only while the defendant prevailed on claims that plaintiff breached the contracts, though damages were assessed only as to the equipment contract. The trial court denied defendant's claim for attorney's fees because the contract upon which defendant recovered damages did not include an attorneys fees recovery provision, a reasoning later rejected by the intermediate appellate court.
On remand, the trial court denied the attorney's fees claim because the defendant failed to apportion attorneys fees among the three contracts. The intermediate appellate court affirmed the denial on those grounds. The Supreme Court certified this question: "Did the Appellate Court improperly affirm the judgment of the trial court denying the defendant's motion for contractual attorney's fees?" The Supreme Court answered this question affirmatively and remanded for further proceedings.
The Supreme Court held, "when certain claims provide for a party's recovery of contractual attorney's fees but others do not, a party is nevertheless entitled to a full recovery of reasonable attorney's fees if an apportionment is impractical because the claims arise from a common factual nucleus and are intertwined." The court concluded that defendant should not be required to apportion attorney's fees between the goodwill and noncompete contract claim, for which attorney's fees were recoverable, and the equipment contract, for which attorney's fees were not recoverable, because the claims involved the same transaction, the same parties, the same conduct and the same time frame. Under these circumstances, the court concluded apportioning attorneys fees among and between the contracts was not practicable.
Tuesday, April 23, 2013
On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.
Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife. Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated.
In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online here. This article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.
Hat Tip: Grits For Breakfast
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
Sunday, April 21, 2013
I am delighted to introduced Dimitry Herman, New England Law School Adjunct Law Professor and practicing attorney, as a guest blogger. His bio is as follows:
Dimitry Herman is the founder and managing partner of Herman Law. Dimitry has over 15 years’ experience serving as outside general counsel to growing technology companies and as deal counsel for venture capital investments, corporate M&A, licensing and strategic alliances and other corporate deals. Dimitry’s primary industry focus is on internet, advertising, social media, loyalty and gaming sectors, with a “minor” in clean-tech and automotive technologies. Dimitry is an active member of Boston’s entrepreneurial community, serving as a judge and advisor in business plan competitions at Harvard and MIT and a mentor with the MIT Venture Mentoring Service (VMS). He was a member of the National Venture Capital Association (NVCA) model legal documents drafting committee, which today has become the accepted form of early stage venture capital deal documents for many leading east and west coast venture capital funds. Dimitry is an active member of the Boston Bar Association and served as the Co-Chair of the Mergers and Acquisitions Committee of the BBA in 2009-2010. He is also adjunct professor of law with the New England School of Law located in Boston, where he has taught Corporate Mergers & Acquisitions since 2005.
In 2011, Dimitry was selected as one of the top 20 startup lawyers in Massachusetts in a survey conducted by ChubbyBrain. Prior to founding Herman, Dimitry was a partner at Hinckley Allen, and was associated with Bingham McCutchen and WilmerHale. Dimitry received his law degree from Columbia University Law School and his undergraduate degree from Colgate University. Dimitry is fluent in Russian.
Please join me in welcoming Dimitry.
Mitchell H. Rubinstein
The Northern Kentucky Law Review has issued a call for papers for its February 27-28, 2014, Law & Informatics Symposium: "Cyber Defense Strategies and Responsibilities for Industry." For more information, click here.
Saturday, April 20, 2013
An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case. The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013).
The contempt holding arises from proceedings in a murder prosecution. The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide. Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder.
To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court. The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.
The writ of mandamus, however, turned out not to be the end to the matter. Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter. The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense." The judge went on to add the opinion was 'contrary to law and all notions of justice." The judge then recused himself for a number of reasons. Ultimately, one co-defendant died before trial; the other was acquitted by a jury.
Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts. The counts were:
- Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
- Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
- Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.
The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial. The Special Master recommended Judge Kendall be acquitted on all counts. The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.
Judge Kendall's appeal to the Third Circuit followed.
The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment. In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'" Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."
Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice." Kendall certainly is an interesting case and a recommended read.
Thursday, April 18, 2013
We do not cover FLSA issues much on this blog, but it is an important area of employment law. The 6th Circuit recently issued an intersting decision finding that special investigators for Nationwide Mutual Insurance Co. who weed out fraudulent insurance claims are properly classified as exempt employees. Therefore, they are not entitled to overtime pay. Foster v. Nationwide Mut. Ins. Co., 6th Cir., No. 12-3107, 3/21/13.
Mitchell H. Rubinstein
Tuesday, April 16, 2013
Matter of Mordukhayev (Commissioner of Labor), ____A.D.3d____(3d Dep't. March 14, 2013). As the Court stated:
Where a claimant has had a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be [*2]accorded collateral estoppel effect (see Matter of Redd [Commissioner of Labor], 98 AD3d 791, 791 , lv denied 20 NY3d 857 ; Matter of Bishop [New York City Human Resources Admin.—Commissioner of Labor], 282 AD2d 924, 924 ). It is incumbent upon the Board, however, to make an independent assessment as to whether such conduct constitutes misconduct for purposes of qualifying for unemployment insurance benefits (see Matter of Nwaozor [City of New York—Commissioner of Labor], 82 AD3d 1475, 1475 ; Matter of Eustace [Suffolk County Sheriff's Off.—Commissioner of Labor], 52 AD3d 1140 ). Here, it was established that claimant was represented at the arbitration hearing and had ample opportunity to participate therein. Inasmuch as she had a full and fair opportunity to litigate the conduct providing the basis for her dismissal, the Board properly gave collateral estoppel effect to the arbitrator's factual findings that claimant removed the telephone from the charger in the room and did not disclose to management that she had found it, and further that the telephone left the hotel premises when claimant did and was later located near her home. From this, the Board reasonably inferred that claimant took the telephone without authorization, providing substantial evidence for its determination that claimant was guilty of misconduct, disqualifying her from receiving unemployment insurance benefits (see Matter of Dit [Commissioner of Labor], 98 AD3d 1183, 1183 ; Matter of Zaydman [Roman Roytberg, Inc., P.C.—Commissioner of Labor], 87 AD3d 1192, 1193 ). In view of this, we decline to disturb the Board's decision.
Mitchell H. Rubinstein
Monday, April 15, 2013
The NLRB recently held that a private company that provides teaching staff and educational services to a Chicago charter school is an employer subject to the board's jurisdiction and not a political subdivision of the state of Illinois (Pilsen Wellness Ctr., 359 N.L.R.B. No. 72, 3/8/13 [released 3/11/13]).
Applying the Supreme Court's Hawkins decision, the Board finds that Pilsen's directors are appointed by the private nonprofit's sitting board members rather than public officials, NLRB concludes the company “is not administered by individuals who are responsible to public officials or the general electorate.”
Mitchell H. Rubinstein
Cardozo Law Review's February 2013, issue includes Symposium: Constitutionalism, Ancient and Modern. The Michigan State Law Review's Volume 2012:2 includes a series of articles on the subject of Lawyers as Conservators, with titles such as "Training Young Lawyers to Be Conservators of Legal Institutions & the Rule of Law" and "On the Declining Importance of Legal Institutions."
Volume 29:1 of the Touro Law Review includes exerpts from the Touro College Jacob D. Fuchsberg Law Center Conference in Paris: Persecution Through Prosecution: Alfred Dreyfus, Leo Frank and the Infernal Machine. The Summer 2012 edition of the University of Detroit Mercy Law Review includes Symposium: The Future of Intellectual Property, which clocks in as one of the shortest symposium editions in recent memory at 29 pages.
South Texas Law Review's Fall 2012 issue includes Symposium: Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest. The University of Miami Law Review's Winter 2013, issue includes Symposium: The Future of the Death Penalty in America. William & Mary Law Review's February 2013, issue features the symposium "Law Without a Lawmaker" and features articles on Erie Railroaad Co. v. Tompkins.
The American University International Law Review's Volume 27, No. 4 includes the Center on International Commercial Arbitration Symposium: Salient Issues in International Commercial Arbitration. Volume 39:2 of the William Mitchell Law Review includes a symposium on the U.S.-Dakota War of 1862. Volume 76, Issue 1 of the Albany Law Review includes Symposium: What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech. (New York Univ)
Boston College Law Review's March 2013, issue includes a modified version of Professor Jeremy Waldron's (New York Univ.) Clough Distinguished Lecture in Jurisprudence titled, "Separation of Powers in Thought and Practice." The Fall 2012 issues of Duke Enviornmental Law & Policy Forum includes a special issue on Disaster Law. Harvard Journal of Law & Public Policy's Spring 2013, issue includes Symposium: Privacy, Security, and Human Dignity in the Digital Age. The current issue of the Washington University Journall of Law & Policy includes Symposium: Liddell Is Forty: Commemorating the Desegregation Movement in St. Louis, and A Look at the Future of Urban Education.
The April 2013, Michigan Law Review features its annual Survey of Books, including a Forward by Richard A. Danner (Duke). Finally, the Spring 2013, issue of Southwestern Law Review includes papers presented at the AALS ADR Section's Program titled "The Supreme Court and the Future of Arbitration.
Sunday, April 14, 2013