Quote of the Day - Presidents come and go, but the Supreme Court goes on forever.
MIPTC's Book Review: Advice and Consent - The Politics Of Judicial Appointments
We've just been through three major rounds of judicial nominations that led to two U.S. Supreme Court appointments, with more federal district and appellate court openings coming our way every day. A relatively new book, Advice and Consent, from Oxford University Press takes a thorough look at the process, politics and presidential aspects of court appointments. Witty yet well-informed, Professors Epstein and Segal give an insight into the whys and wherefores of federal judge appointments.
Congress and Courts share the limelight in this book with the backdrop of Washington politics. If you watched and read about the appointments of Roberts and Alito and the nomination of Miers wondering how it all works, this book explains it quickly and concisely. This book will remain timely as long as we have a Constitution, three branches of government and two main parties in the Senate. You don't have to be a lawyer to read and learn from it.
BlackBerry Nears The Black Screen Of Death
Two million man hours later, your BlackBerry might work, according to RIM lawyers who appeared in Court today in a last-ditch effort to avoid the shutdown of BlackBerry's email service. They reported to the Court that they have a "patch" to avoid violating the patent that the company is still apparently violating, despite an almost four-year-old verdict.
They need time to implement it. Two million man hours.
If you work for the federal government and use a BlackBerry, then you may not have to worry, however. The Justice Department is trying to convince the Court that you fit into an exemption that will allow BlackBerry's email service to continue to work. How RIM could ever distinguish between keeping government employee emails working and shutting down private emails is an open question, however.
Meanwhile, the two companies continue to hurl accusations back and forth, but one freight train appears hurtling down the tracks: RIM will likely get shut down in the near future unless it reaches a settlement with the patent holder, and your BlackBerry's screen will go black for the last time.
Craigslist Becomes Focal Point For Battleground Over Offline Laws In An Online World
Is it freedom of expression on the web or compliance with the Fair Housing Act? Craigslist.org (not affiliated with the Craig that writes this blog) was sued earlier this month by Chicago Lawyers' Committee for Civil Rights Under Law, according to this New York Times article published today.
Newspaper publishers smiled, but are likely reserving judgment at this point. Craigslist has eliminated a lot of classified advertising revenue from newspapers through its online ads for housing space. The web-based service allows some two million users annually to publish ads on its site (and some nine million ads overall since its inception 10 years ago), but it charges for the ads.
Unlike the newspaper ads, which must comply with the Fair Housing Act and screen out discriminatory ads, Craigslist presently does not. According to the NYT article linked above, "[t]he ads the housing group [the Chicago Lawyer's Committee] said it spotted on Craigslist contained language like 'African-Americans and Arabians tend to clash with me' and 'No kids allowed.' Other ads the group flagged gave requirements like 'single occupancy only' or 'no minorities.' " Under the FHA, those ads would be deemed discriminatory.
According to a Stanford Law Review article referenced on the Chicago Lawyers' Committee site, the FHA applies to internet classified ads. We'll wait to see how the court rules.
Coast to Coast Internet Radio Show Covers The Saddam Hussein Trial
Coast to Coast, with my co-host Robert Ambrogi, covers an international news story this week. Chaos is an every day occurrence in the Saddam Hussein trial. The courtroom has seen three different judges, two assassinations, postponements, outbursts, walk-outs and no-shows. It is nothing like what we are accustomed to seeing in the U.S. justice system. On this edition of Coast to Coast we discuss what is really going on with a very special guest, Simone Monasebian, Chief of the United Nations' Office of Drugs and Crime.
Simone has extensive experience in prosecuting and defending accused war criminals, as well as providing media commentary on and teaching war crimes related subjects. Ms. Monasebian is currently tasked with promoting justice globally. She is also CourtTV's Legal Analyst for the Saddam Hussein trial, and an Adjunct Professor of International Criminal Law at Seton Hall Law School’s Cairo program, at the American University. Click on the link below and give us your ear!
Thank You, Dear Reader
The Small Firm Business magazine awarded MIPTC and WLF its Best Practices 2006 award for Best Website. That's quite an honor, and MIPTC is pleased to receive the award. Small Firm Business is owned by American Lawyer Media, Inc., the parent company of Law.com, a sponsor of MIPTC.
The award really goes to you, dear reader, for your continued support of MIPTC and its sister blogs, Sharks In The Water, written by WLF attorney Joe McFaul, and A Criminal Waste Of Space, written by Associate Justice William W. Bedsworth.
Where Is The Lesson In $990,000 Award To Hell's Angels?
Sometimes it pays to settle early (which also means the converse is also true: sometimes it doesn't pay to settle early). In the case of the Hell's Angels Motorcycle Club, however, it did. After losing rounds in the lower courts, the County of Santa Clara appealed to the United States Supreme Court claiming that their sheriffs deputies' actions were immune from liability, but the Court denied certiorari (scroll down to highlighted term), and refused to hear the case.
Overlawyered points out that the City settled for $990,000 to avoid a trial for damages resulting not only from the deputies' actions of shooting and killing several Hell's Angels guard dogs, but also the Fourth Amendment violations of the Hell's Angels rights. That last link generated a lot of comments, mainly in support of the Hell's Angels. But is it the dogs who get the sympathy? Motorcycle gangs have long fought for their rights, and damages awards this size rarely occur when just people are involved.
According to press reports, the Santa Clara officers had a week in advance to prepare for the raid, and while they knew about the existence of the dogs, they did nothing to prepare for a lesser remedy, such as tranquilizer guns. On the other hand, officers are trained about the Fourth Amendment from the very inception of their career, yet violations of those constitutional rights rarely evoke these types of awards.
But the lesson to be learned is not whether people or dogs are involved. It arises in part, from a realistic evaluation of the potential exposure.
According to CNN, "Officers from the cities of Santa Clara and Gilroy also were involved in the raids, and those cities settled their cases several years ago for a total of less than $50,000, the plaintiffs' lawyer told the Chronicle." Then again, hindsight is 20/20.
Making Fairness Opinions Fair For Everyone
For the past 20 years, Wall Street brokers have hired white-shoe Wall Street law firms to render fairness opinions for the boards of directors and shareholders involved with mega-transactions. It all started with a little-known 1985 Delaware Supreme Court opinion, Smith v. Van Gorkom (free registration required), which ruled that a transaction otherwise apparently in the shareholder's best interests, might have been acceptable had a law firm issued an opinion regarding the fairness of the transaction.
Such opinions, commonly referred to as "fairness opinions" are not (yet) required by any Securities and Exchange Commission regulation or an Sarbanes-Oxley statute. They nonetheless are regularly issued, frequently costing around $1.5 million to complete. Those rules are about to change. Proposed Rule 2290 (scroll to top of page 3), which is currently being reviewed by the SEC, will likely require brokers and law firms who issue these opinions to disclose their relationship with the financial deal.
The problem arises from the insider nature of the transaction. It's the broker who hires the law firm. The law firm is then charged to advise the company that the transaction it is about to consummate, and pay a large contingency fee to the broker, and thus pay the law firm, is fair for all parties concerned. It would be hard for any broker to tell the attorneys to issue an opinion saying it's unfair. The law firm, therefore, is charged with advising its client, the brokerage house, that the transaction is fair, and to look for anyway to opine that it is fair.
Delaware may have begun to change its mind, however. In a December 21, 2005 ruling issued by Chancellor William B. Chandler, III, in In re Tele-communications, Inc. Shareholder Litigation, the Chancellor stated, "The contingent compensation of the financial adviser, [Donaldson, Lufkin & Jenrette], of roughly $40 million creates a serious issue of material fact, as to whether DLJ (and DLJ's legal counsel) could provide independent advice." Apart from the grammatical faux paux, the Chancellor may well have gotten it right.
Chandler didn't stop there, however, further criticizing the closeness of the parties. He complained, "[r]ather than retain separate legal and financial advisors, the Special Committee chose to use the advisors [DLJ] already advising TCI."
Brokers and companies involved in such deals would be wise to seek independent counsel from law firms with no relationship with any of the parties.
A $35,000 Marriage Contract Gone Awry?
Matthew Heller blogs about a woman in Pennsylvania sued for accepting a $35,000 engagement ring, who then sold it for $11,000 and donated the proceeds to charity after her suitor jilted her. In response, she claims that the suitor asked her to "consider" what to do with her six other diamond rings (was she married that many times before this proposal?). She contends that she agreed to her suitor's request to give up the other rings, valued at over $20,000. She fulfilled her end of the bargain by giving them to charity, with one family ring given to a niece.
Since she fulfilled her end of the contract, she's now claiming that it is her suitor who breached his contract with her.
Who wins? Matthew opines that the suitor looks like the likely winner under Pennsylvania law, and says, "In 1999, the state Supreme Court said the giving of an engagement ring is conditional on performance of a marriage ceremony, not acceptance of a marriage proposal." The woman, however, cites to a more feminist-leaning Montana law, which ruled that a gift is a gift, and not a bilateral contract that can only be fulfilled through performance.
What's your ruling, dear reader?