Quote of the Day - The creation of a thousand forests is in one acorn.
What Is A Live Tree? The Ninth Circuit Finally Decides
At first, the definition was deceptively simple: a tree that's "not dead."
It took four environmental groups to sue the U.S. Forest Service, numerous attorneys on both sides, one federal district court judge and three judges on the Ninth Circuit Court of Appeal to come up with that one.
And we wonder what happens to our tax dollars.
Let me explain. In August 2005, the School Fire burned approximately 51,000 acres in southeastern Washington, including 28,000 acres of the Umatilla National Forest. Within the National Forest, the Forest Service authorized the logging of trees on nearly 10,000 acres to recover about $1.5 million for the federal government.
That's actually what happens with some of those tax dollars.
The Forest Service reasoned that nearly-dead trees were more valuable to loggers than dead trees, and would fetch a higher price. For once, our government was acting like private industry. Although the opinion doesn't make it clear why, the environmental organizations, The Lands Council, Oregon Wild, Hells Canyon Preservation Council, and Sierra Club, challenged this decision on numerous grounds, from the definition of "live trees" all the way to the soil studies used by the Forest Service.
Presumably, they were trying to save trees.
The arguments have been up and down the courts, and in the last opinion, the Ninth Circuit came up with the gem in the first line because, believe it or not, "Congress has expressed no view on the definition of 'live trees.' No statute or precedent of which we (the Ninth Circuit) are aware suggests that a previously undefined technical term in a forest plan can never be clarified through amendment simply because the technical definition conflicts with the dictionary definition."
There you have it.
Then the Forest Service defined a live tree as, "trees rated to have a high probability of surviving the effects of fire .... Dead trees are defined as trees rated to have a low probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling indicates that more than 50 percent of their basal cambium is dead."
Under that definition, I'm dead because I'm 51, and I expect to live to 100. But you and I are quite different than live trees. So what did the environmentalists do? They came up with their own definition of live and dead, predictably more liberal than the one adopted by the Forest Service. It didn't fly with the court, however, and didn't go well.
Let me turn to a baseball analogy. Here's George Steinbrenner (figuratively) and Billy Martin literally kicking dirt onto an ump's shoes. "In other words, Plaintiffs dispute the 'silvicultural practice and interpretation' of the Forest Service and prefer their experts' interpretation over the Forest Service experts' interpretation. We are unmoved."
You have to love the simplicity of that last statement. The ump stands there, takes it and then points a finger into the sky. "Yer outta here."
There are some other twists and turns in the opinion and provisions dealing with several other aspects of the case, but the most interesting part of the decision deals with life and death.
It's a good thing no one tried applying this standard to human life.
I like to look at the glass as half full, even though I've already had more than half of it.
What happened, you say? Oh right. The logging companies cleared the burned trees and paid the Forest Service along with their employees for the privilege. The Forest Service realized $1.5 million in revenue after a fire. Millworkers got employed. Truckers got to deliver wood and carpenters built houses. The forest was replanted and began to grow back. Animals and birds repopulated the forest and the environmentalists sent out paper mailers asking for donations to prevent a similar travesty in the future.
Unexpected Fallout From The Subprime Mortgage Crises: The Deficiency Judgment
You May Get To Pay All Over Again
In California (if you live elsewhere, then you'll have to check your local listings), we have an anti-deficiency rule. It means that if you default on your home loan and your mortgage company forecloses and sells your home for less than you owe, then it can't collect the shortfall from you. But the rule only applies to "purchase money" mortgages, which means only your first mortgage. The protection does not apply to home equity loans or second (or later) mortgages, either.
If you refinanced your home after buying it, then the anti-deficiency rule doesn't apply. In the instance cited above, your mortgage company can sue you and obtain a judgment against you for the difference between the foreclosure sale price and the amount of your outstanding mortgage.
It's happening to a lot of people, who claim not to understand why. They somewhat learned about the anti-deficiency rule somewhere along the line, and kind of know that the mortgage company can't sue them, but express great shock when it happens.
Even if you refinanced your property, then you still have the protection of the one-action rule, which requires your mortgage company to foreclose on the real property before it tries to recover from you, except where the property has become worthless as a practical matter or the mortgage has been extinguished by a prior foreclosure of a senior mortgage. Small consolation, however, where you're upside down in your property, which appears to be the case for many people, and some who are quite prominent.
So, what's the takeaway? Don't refinance your property or take out a home equity loan. If you did, however, and it's too late now, then figure out how to pay your mortgage, or be prepared for a lawsuit and an ultimate judgment for the shortfall. On the other hand, you can try to work it out with your lender.
You can try a credit counseling company (which by the way are financed by the credit card companies and banks), or call a lawyer. We can usually do a workout with your lender and save you both a lot of money.
One thing you should steer away from? Those quick, fly-by-night hucksters who promise to save your house from foreclosure. If it sounds too good to be true, it is.
ALM's Legal Tech West Conference Storms Los Angeles
Takeaway: No More Spam?
American Lawyer Media brought its Legal Tech West trade show to Los Angeles yesterday and today, and MIPTC scouted it out for you. As regular readers know, I'm a tech geek, but stop just short of carrying a pocket protector. Disclosure here: MIPTC is a member of Law.com's legal blog network, and Law.com is an ALM company. With that out of the way, let's get to the show.
The great majority of the vendors at the show present various forms of eDiscovery, from gathering and processing large amounts of electronic data to summarizing and reviewing it. Surprisingly, there are two big accounting firms offering their services and a number of very small providers. Perhaps not surprising, there are an equal number of copy service companies offering their services. You can see the list here.
Monica Bay, the editor of ALM's Legal Technology News, hosted a great blogger's breakfast that included the likes of fellow Law.com blogger and author Carolyn Elefant who writes My Shingle to comparatively new blogger, Cary Calderone of Sand Hill Law, who publishes the long-winded title of Document Retention and Electronic Discovery Hot Topics. During the breakfast, I signed my new How to Get Sued books for the attendees.
But there's one hopeful takeaway from the conference: no more spam. There's a hardware product out of Irvine, California in Orange County, just down the road from the conference by a guy who got frustrated with spam in his inbox and decided to do something about it. The result is a piece of hardware called Sendio, and it guarantees 100% no spam, no phishing, no viruses and no malware.
Now before you get too excited, stay tuned. MIPTC is going to test drive this product over the next thirty days, and give you a report as the trial progresses. Sendio is going to send and install the product on our firm's email Exchange server and we'll see if it blocks what they say it does. I will say now that I get from 30-60 junk emails a day.
You'll get a full report. What will happen?
Supreme Court Ends Its Term With A Bang, And The Constitution Still Intact
So here's where it started over 200 years ago: the Second Amendment, which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Seems pretty straightforward, huh? But hold on thar, Nellie, it's not as easy as it looks.
The murder rate in Washington, D.C. was, at one time, one of the highest in the nation. Notice I didn't say states. That's because the District of Columbia isn't a state. It's ... well, a District. The governing body is Congress (even though DC doesn't have a Senator or Congressional Representative) and the Court system largely consists of the Supreme Court (of the United States, go figure).
So, pause here for a moment and think about the significance of D.C.'s payment of federal taxes, especially in light of the Supreme Court's ruling in District of Columbia v. Heller.
I mean the taxation without representation part. Almost sounds like a constitutional issue, doesn't it? But I'm getting off track. I meant to talk about the Second Amendment to that same document.
The United States Supreme Court directly interpreted what that Amendment means when compared to Washington, D.C.'s handgun ban, the first time in its history that a Court had to decided what it meant. There have been other decisions dealing with it, but none directly interpreting it.
But think about 492 deaths in 1990, second only to New Orleans at the time, and in a much smaller area. That's why the District enacted a handgun ban. Since then, the "murder capital of the United States," as it was known, deaths have dropped. Some have argued there's a direct correlation to the number of people living (or not dying) and the ban.
But the Supreme Court - which sits in Washington, D.C. by the way and has to live with the apparent danger they've created by their decision - overturned the handgun ban as unconstitutional, banned by the Second Amendment, which trumps any "state" law. The justices who made up the 5-4 majority didn't base their decision on safety, however.
"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."
And extinct it is not, even after lying on the table in the National Archives for more than 200 years.
There's still life in that thar document.
Coming Soon: How to Get Sued To Be Available On Amazon's Kindle
Kaplan Publishing just signed the contract with Amazon to convert my just-launched book, How to Get Sued, to an eBook and publish it on Amazon's Kindle. Now you'll soon be able to download and read How to Get Sued on the Kindle. Stay tuned - MIPTC will announce when it's available.
May It Please The Court has also signed up to become available on your Kindle, so our blog's RSS feed should beam directly to your Kindle in the coming days. With a few minor modifications, we hope to add our companion blog, A Criminal Waste of Space, shortly. We'll keep you informed.
Lawyer 2 Lawyer Internet Radio Gets Educated on Gitmo
In a 5-4 decision, the Supreme Court ruled in Boumediene v. Bush that suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court. Please join me as I welcomes experts Aziz Huq, Deputy Director from The Brennan Center for Justice at NYU School of Law and Attorney Edward Lazarus, partner at the firm, Akin Gump Strauss Hauer & Feld LLP and author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court to explore this significant ruling.
We discuss habeas corpus rights of Guantanamo detainees and others, the effect on the war on terrorism and what this means for detainees. Click on the link below and give a listen to this half-hour show.
Does Orange County, California Need Brunch Aid?
Foreclosures in tony Orange County have topped 1,000 in May according to the Orange County Register. With foreclosures running along at 78 a day, the Register headlines "The Real Foreclosures of Orange County." The OC, as it has been popularized on a television show with a similar name to the headline, is one of the wealthiest in the country, with more dollars per square foot than just about anywhere else.
So it is time for brunch aid?
After all, if you don't want to take the Foreclosure Bus for a three-hour tour to view properties to buy, you can scan the photos. You might be able to find a bargain or two for just over a million, or just under $100,000, depending on your taste.
Reporter Eugene Garcia slogged through a three-hour long auction and did some digging to find the results of one particular sale: A house at 515 W. Camile in Santa Ana (3 bed, 2 bath, 894 sq. ft. and covered in graffiti) went for $175,000 cash. In March of 2006, the house sold for $585,000 and then again in April of 2007 it went for $515,198.
Now where did all that money go?
Keystone Klutz Kauses Kozinski Kerfuffle
The heart of legal reasoning is set out in the IRAC mnemonic: Issue, Rule, Analysis and Conclusion, as evidenced by two well-presented reviews. Professor Lawrence Lessig's also gives us the facts and tags the whole dispute as nothing more than a "Kerfuffle," which I borrowed to use in the headline. Professor Eugene Volokh amplifies in his post Lessig's solid legal reasoning. Let me humbly add a practicing lawyer's perspective. While I'll focus on the practical aspects of the situation, I highly recommend reading those two posts first.
First a disclaimer. Like Professor Volokh, I count myself among one of Judge Kozinski's friends, although obviously not as close. Judge Kozinski graciously attended one of our firm's Fall Harvest Open Houses and wowed our guests with his intellect and legal reasoning. I've argued an appellate case in front of him, we occasionally correspond by email, go to lunch once or so each year and he wrote the foreword to my new book, How to Get Sued. I read his opinions with relish because I enjoy his writing - it's a refreshing change from the typically dry legal opinion we regularly see from our appellate courts. There are too few legal writers like Judge Kozinski.
That said, let's look at the central issue here: has Judge Kozinski done anything wrong, let alone illegal? The two professors look at all the options, and conclude no rule has been violated. Instead, they point to a disgruntled gadfly and the mainstream media as the culprits. I couldn't agree more. I couldn't come up with any breach of contract, breach of duty or violation of judicial canon of ethics. Perhaps some would argue that Canon 1 applies, which requires judges to "maintain high standards of conduct, among other things.
Let's see. Judge Kozinski's family maintained files on a home computer he thought was private, not available to or indexed by the internet search engines or the general public, where he and other family members kept files that are readily available elsewhere on the internet on his home computer.
Many who don't understand computers and the internet claim that Judge Kozinski's home computer is a website. It isn't, as we generally understand websites. If it was, then every computer that's connected to the internet is a website. If you have any doubt that your computer is "available" on the internet, then go to http://www.whatismyip.com/ and see what it reports (it will inspect your computer's URL). The number that you get is the internet address of your home computer. Send it to a hacker, and they'll get right in.
If you don't have a hardware or software firewall up, or if either has ports open, then anyone can access your computer and find out what files you have on it. Judge Kozinski opened up a port on his home computer and made it accessible to certain people through a more conventional URL address (alexkozinski.com), but not to the general public, since hypertext code on the computer specified it wasn't to be indexed. If you didn't know it existed, then you would likely never have found it. But some did, and found files stored on the computer.
Some would consider those files distasteful, but certainly everyone's entitled to their opinion. Lessig described the computer within Judge Kozinski's private home. What we keep in our private homes, is, to be sure, private.
On the other hand, let's look at the gadfly who poked around Judge Kozinski's family computer. He could be charged with invasion of privacy and trespass, at the very least. There's a big difference between the two behaviors. Judge Kozinski thought his material was private, and the gadfly went where he was not invited, not much better than the Keystone Kops.
The mainstream media pounced on the disgruntled gadfly's ill-gotten materials like a desperate beggar grabbing at change tossed by a passerby. As Don Henley said, "We can do the innuendo; We can dance and sing; When its said and done we haven't told you a thing; We all know that crap is king..." Sex sells newspapers, but that's about all it does.
There's a reason I don't by tabloids.
As Marci J. Tiffany, Esq. Judge Kozinski's wife of thirty years, points out, the original Los Angeles Times story "authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of "website" to which he posted pornographic material ... The "server" is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely." Even judges are entitled to have private lives and ask the rest of us to respect the sanctity of their homes.
One of our hallowed protections in the Constitution is our right to privacy, and here Judge Kozinski's privacy in his home was not only violated, but exploited by unprincipled hucksters. We recognize what it is, however, and can choose to disregard it, which this writer recommends.