Category: Legal Issues

This from the Law Blog at WSJ.com:

A fancy 28-page study released yesterday by something called the Indiana University Center for Postsecondary Research makes a breathtaking discovery: the first two years of law school are more demanding than the third.

Among the survey’s chapters: The First Year: “They Scare You to Death”; the Second Year: “They Work You to Death”; The Last Year: “They Bore You to Death.” Some 28,000 law student participated in the survey, which reported that law students, on average, emerge from law school saddled with more than $77,000 in debt from student loans.

While our headline jests, we here at law blog think the IUCPR raises an important issue: the third year of law school benefits university balance sheets, and that’s pretty much it.

ASTORIA, Ore. — A federal judge says the name “Sambuck’s” above a hole-in-the-wall coffee shop is too similar to coffee giant Starbucks and must be changed.

Owner Sam Buck opened the shop in 2000, naming it after herself.

She said today that she had few details of a ruling by U.S. District Judge Ancer Haggerty of Portland. She faces hundreds of thousands of dollars in lawyers’ fees.

“The judge said I willfully infringed on (Starbucks’) trademark, that I diluted their trademark,” she said.

She was faced with erasing all traces of the name, from coffee cups to the sign outside to business cards.

AP via The Seattle Times

Starbucks offered Ms. Buck $500 to give up the shop’s name; she refused and Starbucks sued.

Were they wrong?

Michael Froomkin begins to answer the 25 Constitutional law questions he (and NewMexiKen) posted the other day. First, Why the Air Force Is Not Unconstitutional.

Law professor Michael Froomkin says, “Read The US Constitution, and the Amendments then take the quiz…” of 25 questions.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don’t have answers, or at least not answers that everyone agrees to.

Unless you are a Constituional scholar, NewMexiKen does think it is necessary to read the documents before tackling the questions in any serious manner.

Some timely background from Colorado Luis:

But as those days come back to haunt us now, it is important to remember that Clinton’s best defense wasn’t that he was lying about a blow job, or even that the lawsuit against him was funded by right wing nuts specifically for the purpose of bringing him down, it was that what he said was Not Perjury.

Luis explains.

Joshua Marshall on Karl Rove’s attorney:

Yep, you heard that right. Luskin got paid more than $500,000 of his attorney’s fees in gold bars from his client who was trying to appeal his conviction on charges that he laundered drug money through precious metals dealers. Who woulda thought that was drug money?

Luskin insisted that he “never have, and never would, knowingly accept a fee that was the proceeds of illegal activities.”

But when federal prosecutors finally got a chance to depose Luskin and Saccoccia’s other lawyers, they found that their lawyers’ fees had come in forms “such as gold bars, cash that was dropped off at hotels and trunks of cars, and money transfers from Swiss bank accounts.”

Eventually, in 1998, Luskin came to a settlement with the government in which he agreed to cough up $245,000 of the money he’d gotten from Saccoccia.

Talking Points Memo

Judge Whittemore’s Order [pdf file].

“[T]his court is constrained to apply the law to the issues before it.”

According to news reports, only three U.S. Senators were present when the Schiavo bill was passed by a voice vote Sunday night.

Three is a quorum?

U.S. Constitution, Article I, Section 5: “Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business… [emphasis added].”

The Wall Street Journal has information about living wills and access to forms for each state, etc.

Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn’t like the result in a particular case, it could swoop in and call a “do-over,” which is essentially what this legislation represents.

Attorney Andrew Cohen for CBS News

The best and most objective summary NewMexiKen has seen is The Terri Schiavo Information Page. Here’s the essence of the situation, but the page and the home web site, Abstract Appeal, deserve your attention.

You’re left with a woman who suffered a heart attack 15 years ago, who essentially died but was resuscitated, though not entirely. Her brain had suffered enormous damage from the heart attack. As time passed, her brain further deteriorated — to the point where much if not most of her cerebral cortex (the portion of the brain that controls conscious thought, among other things) was literally gone, replaced by spinal fluid. Doctors hired by Terri’s husband say the deterioration of Terri’s brain left her without thoughts or feelings, that the damage is irreversible, and that Terri’s life-like appearance is merely the result of brain stem activity — basically involuntary reflexes we all have. An independent doctor hired by the court reached the same conclusions. Doctors hired by Terri’s parents did not dispute the physical damage done to Terri, but they claim there are new therapies that could improve her condition. In two separate trials, the trial court found such claims of potential improvement to be without merit. Terri’s body continues to function without her cerebral cortex. She is sustained by a feeding tube surgically inserted into her stomach. She cannot eat through her mouth without a strong likelihood of choking to death.

You’re left with a husband who lived with his in-laws following Terri’s heart attack, who apparently provided care and therapy for years but who later came to believe Terri would never recover. He believes she would not have wanted to be kept alive in this brain-degenerated condition by a surgically implanted tube. He is apparently willing to continue his fight to achieve what he believes Terri would want despite ridicule, hatred, expense, and threats.

You’re left with parents who were once allied with Terri’s husband in an effort to care for Terri and restore her but, unlike Terri’s husband, they never lost hope. They believe Terri reacts to them and has conscious thoughts. They believe Terri would not want, and does not want, her feeding tube removed, and that some cognitive function could be restored through new therapies. Terri’s parents are willing to continue their fight to achieve what they believe Terri would want despite ridicule, hatred, expense, and threats.

You’re left with judges who have been placed in the utterly thankless position of applying Florida law to this impassioned situation. Florida law calls for the trial court to determine what Terri would chose to do in this situation, and after a trial hard fought by Terri’s husband and her family, where each side was given the opportunity to present its best case about what Terri would do, the court determined the evidence was clear and convincing that Terri would chose not to continue living by the affirmative intervention of modern medicine — that she would chose to have her feeding tube disconnected. In a second trial, brought about by Terri’s family’s claims new therapies could restore her and that the existence of such a therapy would make her “change her mind,” the trial court again heard evidence from all sides and determined that no new therapy presented any reasonable chance of restoring Terri’s brain function. The propriety of these decisions — from the sufficiency of the evidence to the appropriateness of the procedures used — has been unanimously upheld on appeal each time.

You’re left with a public that is much confused. Some see video clips of Terri moving, appearing to make eye contact, and making sounds, and they assume such are the product of conscious thought — that Terri’s “in there.” Some believe Terri’s husband has been motivated by money. Some believe that no heart attack occurred — instead, Terri’s husband beat her nearly to death and has been trying to end her life ever since. Some believe he is a bad person because he has taken up with another woman and has children with her. Some believe Florida’s judiciary is corrupt or inept, to the point where death threats have been made against the trial judge. Some are sad that families would fight like this. Some believe that removing Terri’s feeding tube would cause her pain and is inhumane (I’m no doctor, but the medical information I’ve seen on this subject uniformly says the opposite.) Some are disappointed that the law does not allow someone in Terri’s condition to be kept alive perpetually if a family member is willing to care for him or her. Some believe no life should be permitted to reach an unnecessary end unless irrefutable proof, or at least written proof, shows the person wanted things that way.

Via The New York Times:

CHICAGO (AP) — A man who says his former lover deceived him by getting pregnant using semen obtained through oral sex can sue for emotional distress — but not theft, an appeals court has ruled.

Dr. Richard O. Phillips accuses Dr. Sharon Irons of a “calculated, profound personal betrayal” six years ago, but she says they had the baby through sexual intercourse.

The Illinois Appeals Court said Wednesday that Phillips can press a claim for emotional distress after alleging Irons had used his sperm to have a baby, but agreed that however the baby was conceived, Irons didn’t steal the sperm.

“She asserts that when plaintiff ‘delivered’ his sperm, it was a gift,” the decision said. “There was no agreement that the original deposit would be returned upon request.”

Jack Balkin finds Justices Scalia and Thomas in an inconsistency. Racial categorization is bad for college admissions but acceptable at prisons.

NewMexiKen excerpted Mark Twain on juries a year ago. It’s from Roughing It and worth reading again for its continued timeliness. An excerpt from the excerpt:

The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago. In this age, when a gentleman of high social standing, intelligence and probity, swears that testimony given under solemn oath will outweigh, with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity, and justice would be far safer in his hands than in theirs.

Meet Dudley Hiibel. He’s a 59 year old cowboy who owns a small ranch outside of Winnemucca, Nevada. He lives a simple life, but he’s his own man. You probably never would have heard of Dudley Hiibel if it weren’t for his belief in the U.S. Constitution.

One balmy May evening back in 2000, Dudley was standing around minding his own business when all of a sudden, a policeman pulled-up and demanded that Dudley produce his ID. Dudley, having done nothing wrong, declined. He was arrested and charged with “failure to cooperate” for refusing to show ID on demand. And it’s all on video.

On the 22nd of March 2004, the U.S. Supreme Court will decide whether Dudley and the rest of us live in a free society, or in a country where we must show “the papers” whenever a cop demands them.

Read Dudley Hiibel: The Facts and watch the police video of the incident.

Link via Eschaton.

From the Los Angeles Times, columnist Steve Lopez:

Maria Suarez called me from a jail in San Pedro and said Tuesday she could see harbor boats through the window. After roughly two-thirds of her life in captivity, freedom was close enough to raise her hopes and break her heart at the same time.

Suarez, now 43, legally entered the United States from Mexico at the age of 16, only to be raped and beaten as the teenage sex slave of a man 55 years her elder. She was convicted of killing the monster, despite her claims of innocence, and finally won her parole last month after battling for years.

Now she sits in another prison, awaiting a deportation hearing scheduled for today. Suarez is a permanent legal resident, but not a U.S. citizen, and immigration law says that, with an aggravated felony on her record, she is to be deported.

“Justice,” Suarez said, “is so hard to understand.”

Read the rest of her story.

From the Los Angeles Times

Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana just three weeks after the court agreed to take up the vice president’s appeal in lawsuits over his handling of the administration’s energy task force….

But Scalia rejected that concern Friday, saying, “I do not think my impartiality could reasonably be questioned.”…

Stephen Gillers, a New York University law professor, said Scalia should have skipped going hunting with Cheney this year.

“A judge may have a friendship with a lawyer, and that’s fine. But if the lawyer has a case before the judge, they don’t socialize until it’s over. That shows a proper respect for maintaining the public’s confidence in the integrity of the process,” said Gillers, who is an expert on legal ethics. “I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days.”

The pair arrived Jan. 5 on Gulfstream jets and were guests of Wallace Carline, the owner of Diamond Services Corp., an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.

Easterblogg has a negative assessment of the McCain-Feingold Act and the Supreme Court decision this week upholding it.

Meanwhile the Court has created what feels like a very dangerous new limitation on free speech. The majority opinion holds that spending for free speech can be restricted if the spending creates “the appearance of undue influence.” The appearance! Free speech protection may now be overridden if judges feel it appears to offend a very vague sensibility. The bulwark of the First Amendment is the idea that speech you don’t like must be protected; only by granting privilege to all forms of political and artistic expression can society be assured that government censors will not pick and choose the kinds of speech that suit those in power. Now the Supreme Court has declared it fine for Congress to pick and choose among permissible forms of speech, and to do so only on the flighty grounds of the appearance of that which is “undue,” whatever “undue” may mean. This is a major diminution of the First Amendment–and done in the name of exempting members of Congress from criticism!