The Legal Avalanche of America

Italian Judge Nails Google, Threatens Publishers. Motives?

2010-02-25T17:29:00.002-07:00

A Prosecutor in Milan, Italy indicted 4 Google Executives: David Drummond (senior VP and chief legal officer), Arvind Desikan (London-based marketing manager), Peter Fleischer(global privacy counsel), and George Reyes (ex-CFO)--- all on charges of criminal defamation and violation of Italian privacy laws. All but Arvind were convicted.

The case arises from an incident in 2006 where Italian high school students from Turin, Italy taunted and bullied an autistic classmate, and then uploaded the video to "Google Videos".

Is this ridiculous or is it just me? Google did not create this content. Nor do they edit, recreate, or modify the user's content. They are simply a publisher. To create criminal liability for a company that publishers over 20 hours of videos a minute just doesn't make sense. Does Italy expect publishers to edit this content? To hold these guys liable even for defamation is outlandish, never mind criminal defamation.

In the United States this case would likely never have made it anywhere thanks to certain immunities granted by Congress through the Communications Decency Act, Section 230. Under the Act, immunity is granted to providers of "interactive computer services" -- defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server". Courts have interpreted this to include blogs, forums, hosting services, listservs, and related web based publishers. In short, the Act distinguishes internet publishers from print and traditional media publishers. Distributors bear to responsibility to edit content compared to traditional publishers, and thus traditionally, "publishing" behavior creates liability because of the power to control the (wrongful or illegal) content displayed. In its absence, online information providers would face increased risks of liability for trying to edit and remove defamatory third-party content than if they sat silent.

Many argue that Italy's policy's should reflect those of the United States and European Union laws regarding a provider's liability for third-party content. Defamation claims against providers under Section 230 are generally barred. Immunity also generally extends to claims for invasion of privacy, misappropriation and even negligent age verification procedures (Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007).

However, even U.S. law may not provide sufficient protection for the specific allegations made against the Google Execs. Noteworthy, Section 230 immunizes web publishers engaged in tradition editorial functions, but expressly excludes criminal claims, communications privacy, and intellectual property claims. Thus, under U.S. laws, the criminal defamation claim would likely survive the Act. Believe it or not, criminal defamation is still on the books in many states, and is a statutory crime. However, criminal defamation requires actual malice, an element that would likely remain unmet against Google.

What's peculiar about the Italian Judge and the lead Prosecutor's decision, is that Google pulled the video within hours and also helped to nab the 4 students from video. Moreover, this decision comes down just as Italy issued a decree to make ALL video content on the web subject to Government control. And to add just a little more spice to this recipe for disaster: Italy's Prime Minister Silvio Berlusconi is the owner of the largest private TV conglomerate in all of Italy; the PM's company is also seeking around $800 million from Google for copyright infringement.

Hmmm...this is all starting to make a lot more sense. The issue is not based in Italian principles of human rights or respect. It's about money. If your private media conglomerate is threatened by free web-based media content, that means your ad receipts are going to drop. Do you want to be the one to compete with Google? Or would you rather use your PM power to channel media business down your pipe?

Noteworthy, the charges were sought by an advocacy group for people with Down Syndrome but the boy does not have the Down Syndrome.

Matt Sucherman - VP and Deputy General Counsel of Google - personal blog: http://googleblog.blogspot.com/2010/02/serious-threat-to-web-in-italy.html

The Art of the Smoke Screen

2010-02-19T19:38:00.005-07:00

The Securities and Exchange Commission along with frustrated and defrauded shareholders of Bank Of America (past and present) await a Federal Court's ruling on a $150 million consent judgment stemming from an investigation of B of A's multi-billion dollar losses and bonuses cover-up. The single issue being litigated: concealment. That's right. Despite heavy handed SEC regulations and the plethora of alleged "safeguards" in place, the B of A's of the financial world somehow forget to disclose material information to shareholders. What's material? How about $15 billion in losses. Marginal. Right?

But you see, one must understand the sophisticated circuitry of a publicly traded company's financial smokescreen (e.g. magic - now you see it, now you don't).
If B of A didn't:
1. hide $15 billion in losses,
2. fire their former general counsel Timothy Mayopoulos for advising against the Merrill merger,
3. hide 7-figure bonus checks, and
4. ask, beg, and steal for $20 billion palm-grease in bailout funds in January 2009 to mitigate losses from the Merrill transaction...
...how could they have possibly successfully dooped shareholders into voting for the merger??

You see, the smokescreen was all necessary, because $50 billion is a lot of money to pay for a failing publicly traded investment bank, never mind paying $50 Bils for the additional 1 -4 above. After all, that's $50 Billion in OUR money that subsidized a FAILED merger. :)

So what's the remedy? Independent disclosure counsel? Independent compensation counsel? I thought Sarbanes Oxley took care of that? I thought it already costs $3-5 million to setup compliance measures, and several million a year after that to maintain safeguards.

But I suppose justice will be served --B of A may actually have to pay [drum roll] $150 million to shareholders and the big bad SEC. This is a beautiful microcosm of a much larger grand deception. Now, who's in for some insider trading? Anybody?

SEC Complaint filed against Bank of America Corp.: http://www.nylj.com/nylawyer/adgifs/decisions/011310sec_complaint2.pdf

NY Attorney General Andrew Cuomo's Complaint filed against Bank of America for Concealment: http://www.nylj.com/nylawyer/adgifs/decisions/020510complaint.pdf

Cold-Blooded Killer Defends a Fetus?

2010-01-10T16:50:00.003-07:00

Scott Roeder from Wichita, Kansas, walks into a church and shoots an abortion doctor, Dr. George Tiller, in the head, killing him. His defense: protecting the unborn; or as he proffers, "Defense of Others". Defense of Others is a principle within criminal statutes that allows a person to justifiably use force upon an unreasonable but honest belief that circumstances existed that justify deadly force.

Defense of Others generally allows one to use that amount of force which one sincerely and reasonably believes is necessary to help another in danger. However, Kansas's Defense of Others Statute parallels Self-Defense principles. This means that under Kansas law, even if you acted wrongfully in defending the other, your belief that force was required must have been reasonable. Reasonbleness is determined by the facts surrounding the situation.

Ex: If Bob pulled the trigger on Barney the purple dinosaur and raised the defense of another flag, Bob better have reasonably believed that Barney had his finger on the trigger of a loaded glock with the safety off, pointed directly at the head of his dancing child co-star. Death of another was imminent, therefore, using deadly force to defend another was justifiable. But in reality, Bob had no idea that on this episode of Barney and Friends, Barney was taking his clan to Scottsdale Gun Club for practice shooting, and was actually just demonstrating proper shooting form. But as long as Bob can convince the jury that his belief of imminent death upon the child co-star seemed reasonable, Bob may be able to dodge a 1st Degree Murder conviction and receive Voluntary Manslaughter(this is significantly simplified).

Scott Roeder killed Dr. George Tiller and is on trial on charges of 1st Degree Murder. Looking at Mr. Abortion Doctor Killer's (a.k.a. Scott Roeder's) defense, one would posit, that an abortion doctor in church is not a serious imminent threat justifying a shot in the head. But I don't know...maybe after the sermon this church had some interesting worship rituals, who knows. But on the facts, no serious imminent threat was present. However, Sedgwick County District Judge Warren Wilbert is going to allow the defense to present evidence of Defense of Others, i.e., that Scott had the unreasonable but honest belief that circumstances existed justifying deadly force against Dr. Tiller because Dr. Tiller imminently going to kill another. In quite technical terms, that's wack! There are serious issues there.

In Scott's trial, this creates an opportunity for jurors to find him guilty of voluntary manslaughter instead of 1st Degree Murder. This could be the difference between 5 years in prison and a mandatory life sentence. That's huge. Not to mention the high profile abortion issue.

Under Kansas law, and in many states, 1st Degree Murder is the intentional and premeditated killing of another human being (yes dogs are excluded). Whereas, voluntary manslaughter is the intentional killing without premeditation, under circumstances of adequate provocation or other circumstances justifying deadly force. For example, a circumstance where a husband walks in on his wife "co-mingling" with the UPS man, upon which husband smashes a ceramic bedroom lamp on UPS man's head killing him instantly.

So was Scott Roeder's killing intentional and premeditated, or was it reasonably justified by provocation or some other justification?

Scott Roeder vigorously opposed Dr. Tiller's abortions for quite some time. Perhaps his subscription to "Prayer and Action News" magazine which advocates
"justifiable homicide" may say otherwise(?) Or better yet, Scott's participation in the Operation Rescue website, featuring "Tiller Watch". Hmmmm, clearly he never premeditated this one, right?

Would a reasonable person believe this was a premeditated abortion-doctor killing, or that Dr. Tiller was about to kill an innocent fetus and Scott had no choice but to take him out because he was an imminent threat to "another". Maybe there's some case law out there saying that a fetus qualifies as "another", and that attending church is an imminent threat justifying death.

The irony in all of this: Scott's get-away car was sporting a "Jesus fish".
Let's hope Kansas's judicial system comes out with the right result.

[THIS IS NOT A PERSPECTIVE ON ABORTION, BUT RATHER, A PERSPECTIVE ON THE KANSAS CRIMINAL COURTS AND THE TRIAL OF SCOTT ROEDER.]

http://online.wsj.com/article/SB126299947435522493.html?mod=WSJ_WSJ_US_News_5#articleTabs%3Darticle

http://www.time.com/time/nation/article/0,8599,1899143,00.html

http://www.kansascity.com/105/story/1673642.html

Cultural Insensitivity At Its Finest

2009-11-19T21:34:00.004-07:00

A person that comprehends and respects another's culture, is a person that will gain the respect and understanding from the other. It's that simple. But this discussion warrants additional context. Showing such respect is particularly important when you are the leader of a country, namely, the President of the U.S.A. Additionally, cultural awareness is particularly important when you are the President of a country that is internationally notorious for being uncultured. How about this war we are in? And not to belabor the point, but we are also under a new era of presidency; a presidency that is charged with undoing many international blunders of a forsaken previous hegemony; a country that is viewed internationally as hypocritical for its treatment of detainees, ego-centric, and quickly losing ground as a super-power.

Given the context, it is not only reasonable, but applaudable for our President to show respect and understanding to another global leader. Cultural affinity and sophistication are two good reasons why President Barak Obama chose to bow to the Japanese Emperor Akihito. Yet, to the world's dismay and unsurprisingly so, certain neo-conservtatives could not stomach such tolerance to an important American ally. So they had to ruin it by vomiting their vile political pus all over it.

Let's take, for example, comments from an obviously intelligent neo-con, Mr. William Kristol, a leader and founder of many neo-con think-tanks. As a frequent commentator on radioactive Fox News, he stated on air: "I don't know why President Obama thought that was appropriate. Maybe he thought it would play well in Japan. But it's not appropriate for an American president to bow to a foreign one."

There you have it--Plain and simple. Obama didn't bow in prostration or put brown, er, more brown on his nose. He bowed out of respect and affinity. A gesture so common and expected in most Asian cultures that even martial arts opponents bow to each other just prior to beating the other into submission. And who else to speak such ignorance than Mr. Kristol, a leader of the neo-con political movement.

Let's review some of his more intelligent and memorable epitaphs:
1. "There is no health care crisis."
2. A war in Iraq "could have terrifically good effects throughout the Middle East."
3. Saddam was "past the finish line" in developing nuclear weapons. "He's got weapons of mass destruction." [anecdote - there were no WMD].

Think-tank? I can't square this dichotomy...it requires thinking, doesn't it?? I suppose in their minds, our President shouldn't be bowing. He should be turned around and bending over.

Here are 2 Yahoo articles on this discussion:

http://news.yahoo.com/s/afp/20091116/pl_afp/japanusdiplomacyasiaobama

http://news.yahoo.com/s/afp/20091120/pl_afp/usjapandiplomacyroyalscustoms_20091120005649

Objective Reporting via Editorials, the New Source of News

2009-11-07T17:42:00.007-07:00

The recent tragedy that has befallen on Ft. Hood soldiers and America is unfortunate and shocking. But it does provide a unique opportunity for Americans to think critically of media "news reporting". Are news reports supposed to be informative, or instead be spoon-feeding readers digested and regurgitated vomit? We rely on reporting as the primary means of informing ourselves, yet we read blindly. Please think for yourself, and don't allow others to think for you. Compare reports on this event from major national and local news bureaus and note the bias and subtleties within.

Here's is a sample I pulled, and as Levar Burton would say “but you don’t have to take my word for it…” [-ta dan tun-] The objective reports will be obvious, compared to the articles laden with obvious political, religious, and social distortions. Keep in mind the primary goal for news reporting (should be) is to inform, not to convince. BTW, this only takes a few minutes, yet drives home an important principle: the need for objective reporting. TIP: depending on your browser, you may be able to right click each link and select "open in new tab". This will make panning between articles for comparison much easier.

Sample reports:

1. http://www.examiner.com/x-21184-Homeland-Security-Examiner~y2009m11d6-Army-Islamic-radical-kills-13-and-wounds-30

2. http://www.guardian.co.uk/world/2009/nov/06/nidal-malik-hasan-fort-hood-shooting1

3. http://www.washingtonpost.com/wp-dyn/content/article/2009/11/06/AR2009110601978.html

4. http://online.wsj.com/article/SB125755853525335343.html?mod=WSJ_hpp_MIDDLETopStories#articleTabs%3Darticle%26mg%3Dcom-wsj

5. http://www.star-telegram.com/texas/story/1743689.html

6. http://news.bbc.co.uk/2/hi/americas/8347501.stm

Legal Secretary Req's: "...required to perform sexually for us."

2009-10-31T22:36:00.009-07:00

As the market for legal jobs (other than bankruptcy of course) continues to gloom, lawyers are busy contemplating creative solutions to increase their practice's profitability. Many firms are restructuring their compensation schedules for associate's pay and partner distributions. Some are trying to figure out if they still want those entry-level associates that were deferred and are receiving a stipend.

But some despondent lawyers are simply trying to take advantage of the increasing supply of legal "talent". Tightening legal job market = sweeping layoffs = large demand for legal employment + large supply of candidates = cheap fun for some leveraged lawyers. In particular, an Illinois immigration attorney in need an extra hand and perhaps other body parts, placed a classy advertisement on Craigslist to find exactly what he was looking for. He was quite candid about his desires. Most legal job seekers would not be searching for a job in the "Adult Gigs" section of Craigslist, but that's precisely where this lawyer placed the ad. Most legal job seekers also would stop in their tracks after reading peculiar language in an ad such as this: (But then again, it was the adult gig section, so maybe most job seekers browsing this section would apply-- like this candidate did).

"Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you." [emphasis added]

I struggle to understand the logic-- adult gig as a legal sec or legal sec looking for adult gig?

I suppose there's nothing wrong with this advertisement. Attractive lawyers and secretaries can be found (and are often desired) in the most prominent law firms throughout the country. That is certainly not an astounding revelation. But asking for a description of your physical features and measurements---really? This is where I ask: "Are you kidding me?"

But why should he stop there? After all, this lawyer was looking for real talent, and talented legal secretaries must be comfortable handling various positions. Thus, he did what any talent recruiter would do, and followed up with an email to the responding candidate. In addition to the photo and measurements requirements, his job description email to the candidate required the candidate to perform sexually for the attorney. Because as he put it, prior secs were "unable to handle the sexual aspects of the job". What aspects? How about this rather concise checklist: "required to have sexual interaction with me and my partner, sometimes together sometimes separate". We all know he meant recording the partner meeting minutes with a smile.

The lawyer initially denied his involvement with the ad, stating that someone maliciously placed the ad. He later admitted to the ad and the email followup--both of which were traced back to his pc at his office. The job candidate complained, which resulted in a smack in face for "Conduct prejudicial to the Administration of Justice and Misrepresentation to the ARDC
in the Course of a Disciplinary Investigation". Nice.

Not exactly the kind of genius recruiting strategy you would want to explain to the disciplinary committee. At least he'll be able to find himself a strong defense within the Professional Code: candor to the tribunal.

Read the complaint filed with the Illinois Disciplinary Commission; Count III.
The https://www.iardc.org/09CH0053CM.html

As an aside, apparently some legal secretaries are also unemployed Adult Giggers.

Texas traffice violation: $204 for not speaking English!

2009-10-23T23:01:00.002-07:00

Leaving a car door open too long (Oregon), leaving a sheep in the cab of your truck without a chaperone (Montana), shooting live game from a moving automobile (Tennessee), failure to stop on a dime, failure to tap the breaks at least 5 times consecutively prior to making a right turn, ah what the heck, you Hispanic people don't speak English so here's one for that too. Seriously, a $204 civil traffic citation for not speaking English. Its happened in Dallas, TX to at least 39 drivers. This may come as a surprise to you, but not speaking English while driving is actually not an offense in Dallas. But nevertheless, some officers handed out the citation despite the presence of their more experience supervisors. This was only uncovered after a formal complaint and investigation took place. Needless to say, the complainant is retaining counsel--small lady.

A police chief in Dallas when questioned about the incident responded: "I was surprised and stunned that that would happen, particularly in the city of Dallas,"
Oh really? Why? Because TX is not red-neck enough or because it's only about 19 miles from the Mexico border? (ok, more like 22 miles).

What's next, driving-while-brown? Wait we have that now, thanks to the Federal Statute under U.S. Immigration Custom Enforcement's (I.C.E.) section 287(g) that allows civil traffic stops to turn traffic stops into visa interviews. Awesome!

Read the story: http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/DN-citations_23met.ART.State.Edition2.4bac015.html?nTar=OPUR

Scalia thinks lawyers aren't a productive part of society.

2009-10-13T16:14:00.005-07:00

"Why isn’t she out inventing the automobile or, you know, doing something productive for this society?...I mean lawyers, after all, don’t produce anything."

What do you expect from a judge that is a literalist? Think of the most traditional lawyering job you can think of, may I suggest a prosecutor. What does a prosecutor do? Bring charges on behalf of the people (the feds, a state, city, county, or other municipality), and facilitate the application of a penal code against the alleged wrong doer. In a nutshell, prosecutors stand in the shoes of the people they represent, and facilitate the adversarial process to reach a just conclusion (obviously this is an ideal, often tainted by political pressures inherent in our public adjudicatory process). Is this not productive for society? Even the most primitive and ancient societies had some concept of a penal system through which charges were brought against the accused, a fact finding process would take place, and ultimately the guilty would pay the price. Perhaps not in the Salem witch trial. But you see my point. Even in this iconic traditional lawyering job, a prosecutor is arguably doing something quite productive for society.

How about lawyers in other areas of legal practice: accident injury, and medical malpractice ; real estate; securities; mergers and acquisitions; civil rights; trust and estate planning; patent, copyright, trademark, trade secrets; etc. What do these guys do? Of course each area of legal practice may be bifurcated into two discrete categories of practice, transactional and litigation, which can generally cross all areas of law. Transactional and litigation practices can be found within all areas of legal practice. Here, Scalia points directly to litigation and states that it offers no semblance of productivity to society. So let's address that directly. We can easily supplant the example of the prosecutor from above with any of the listed practice areas with litigation components, again, that includes almost all areas of practice. At the most rudimentary level, the job of a prosecutor and most litigators is essentially the same. So if you can buy into the view that prosecutors facilitate critical elements of society (e.g. the penal system), then similarly, all litigators facilitate the adjudication and settlement of some essential component of society found in each area of legal practice--- the injured receive compensation; buyers can buy in full confidence; businesses can raise capital and investors can mitigate risk; etc.

Examining the productivity of transactional lawyers is even easier. Transactional lawyers simply facilitate the exchange of bargains and mitigate risks in each area of legal practice. Let's just keep it that simple. Assuming this is true, the wheels of a productive society would slow if not completely halt if people could neither make proper bargains nor live free from risks. Take for example, primacy of contract.

Scalia's remark is quite awkward and damaging to our profession, and even himself (hello--he is a judge!) The only difference between building a car and being a lawyer is that our airbags are built to resist financial impact.

Article: http://blogs.wsj.com/law/2009/10/01/scalia-we-are-devoting-too-many-of-our-best-minds-to-lawyering/

ABA's Answer to Shoddy Legal Job Market: "Architecture"

2009-09-28T19:20:00.004-07:00

As a national association representing the legal profession, the ABA should provide objective views and rationale answers to obvious and known contemporaneous issues in the profession--namely, the job slump. That's really not a hard premise to swallow. Having accepted that statement, I find it deceptive and even unethical for the ABA to assert that "As Traditional Legal Jobs Dry Up, Students Can Mold Unique Careers" (BTW that is actually the name of the article...no I am not joking). Knowing that reporters and writers for journals often desire a certain mood in their writing, I expected this to be sarcasm. But after re-reading the title and completing the 12 line article, I could not have been more wrong, the ABA was SERIOUS.

Read this excerpt from the article --"Meg Reuter, assistant dean for career planning at New York Law School, is among those who see the bright side. 'American law schools now produce more graduates than there are traditional lawyering positions,' Reuter told the National Law Journal. 'There is more opportunity to secure an alternative legal job, which often can be better renumerated.'"--
I wonder if Meg knows that "renumeration" is defined as "compensation for services rendered", and if so, does she know that "alternative legal job" hardly EVER means better pay. Like most recent law grads, whenever I hear the words "alternative" and "job", I see an image of a flame-thrower and my law school diploma. Also, choosing "opportunities" for alternative legal jobs is a decision that many make before coming to law school. Often the decision to take on an alternative legal job in a downward sloping job market is not an opportunity at all, but instead a cost.

As an aside, I noticed that NYLS is not exactly a highly acclaimed law school (T4?), and considering that they exist in perhaps the most highly competitive legal environments in the US (Manhattan, NY) Meg's career planning office must be entirely about alternative legal jobs. Just a thought.

Perhaps the cherry of the entire article is Meg's insightful and highly analytical framework for recent law grads in the job market, QUOTE: --"Said Reuter, 'When you decide what type of lawyer you want to be, you will be more attractive to the employers at the kind of jobs you want.'"-- Type of lawyer? How about an employed lawyer?

Article: http://www.abajournal.com/news/a_traditional_legal_jobs_dry_up_students_can_mold_unique_careers

Create Your Own Intelligence: Bush-era Techniques Were Super Good.

2009-09-23T00:03:00.003-07:00

So apparently the CIA's much criticized interrogation techniques do in fact yield really good information. Of course they do---they produce the intelligence required for Bush's henchmen to walk the beaten path of governance by self-interest and subterfuge (i.e. WD-40, I mean, WMD?).

You see, hindsight is 20-20, and formerly classified CIA reports are golden for this reason. We can get a glimpse of the raw, mostly unedited, pathetic and hypocritical governance that we sometimes call a democratic republic. Absolute control over the dissemination of information (information is really a good euphemism here for intelligence) becomes a ruling party's most powerful weapon against its own people. How else can the public's perspective and the political thought-process be manipulated to conform with self-interested rulers? After all, information brought us the War in Iraq.

Enough sentiments, here's an interesting thought: What IF a thorough psychoanalysis of detainees revealed that our CIA's interrogation techniques are actually counterproductive? A scientific paper published in Trends in Cognitive Sciences details the enhanced techniques our agents use in producing...creating...extrapolating information from detainees.

The conclusion is simple: CIA techniques are damaging to the truth. But who's looking for the truth? It's information we are after, and if we can essentially plant the information we want--it doesn't get much better than that.

Yahoo Article: http://news.yahoo.com/s/ap/20090921/ap_on_go_ca_st_pe/us_cia_interrogation_study

Gilbert, AZ Parents "Fear" Exposure to Obama's Message!!!

2009-09-04T01:10:00.005-07:00

Parents of Gilbert, AZ public high schoolers fear exposure to Obama's education address will corrupt their children. I couldn't help this blog...I think you know what's coming.
Are you kidding me? The main concern seems to be fear of exposure to partisan politics, because the speech might be perceived as political speech, and it may "coach" students into favoring a particular political flavor.

Let's address the issue directly, and just assume Obama's education reform speech WILL be 100% political. And the problem is...? Exposure to politics and the political process is precisely what the young adult demographic needs. Unfortunately, teens are not exposed to the political process early enough to gain an interest or relate the PROCESS to their lives. As a result, this demographic is slow in developing a taste for politics, and is silent on many issues that directly affect them or will affect them.

Parents that fear their children may form a biased political opinion need to understand what their children in public schools are already being exposed to. Perhaps they would then realize that political speech should be the least of their concern. High school is a social institution, where students develop a taste for an array of social influences. Does politics exist in a vacuum independent of this social institution? Besides, most high schoolers are capable of developing their own interests and opinions on political issues, regardless of the slant being portrayed. But the initial spark must occur during formal education for young adults to comprehend and appreciate the political process. It's a this point in their education that they should gain an appreciation for how this country functions.

Besides, Obama's address is about EDUCATION, maybe that's why it seems so out of place in Arizona (we are one of the lowest ranked states in education). I think parents are afraid kids may learn something from Obama. Just imagine if they heard such a speech one year ago, they would have learned that "nuclear" is pronounced "new-cle-er" and not "nuke-Q-ler" [just listen to this http://www.youtube.com/watch?v=hORaebYWDwk]

So when precisely should young-adults be exposed to politics?? Wait, wait... I know...when they impregnate or become pregnant from their first sexual experience they can wait a few years until they are old enough to vote on abortion issues. At least then political issues will become relevant.

Here's the article. http://www.azcentral.com/community/gilbert/articles/2009/09/03/20090903gr-obama0905.html

Here's a sample of what Obama is most likely to say: http://www.whitehouse.gov/blog/09/03/10/Taking-on-Education/

Advising Start-Ups, and Creating Opportunities

2009-09-02T16:02:00.003-07:00

Start-ups have a lot on their plate. Troubleshooting each and every issue, from technical to market feasibility to legal, presents an issue too profound to address alone. It's no wonder that nearly 90% fail in their first year of existence, and nearly 75-80% fail in year 2 or 3.

The Technology Ventures Services Group is one of the only academic and practical providers of business, legal, and technical consulting, all under one roof that's not going to cost clients FAT coin (sometime is FREE!).

You can read more about what the TVSG does and how you can get involved here.
The link is also a shameless plug about my experiences and accomplishments with the TVSG. Yes, that's my pic in the link. Just read it.

http://www.law.asu.edu/?id=1938

The "Clear and Convincing" Fraud by Lawyers

2009-08-20T16:53:00.002-07:00

High-dollar law suits magnetize the devil in some lawyers. I suppose the $39 billion plaintiffs sought from Dole was no exception. US lawyers, mostly from Texas and California flocked to Nicaragua to recruit injured plaintiffs, associate with local lawyers, and setup in-house sperm labs. Seriously, in-house sperm labs.

The claims centered around Dole's use of the pesticide DBCP and the sterility it may have caused to thousands of banana crop workers. Although many, of the claims were legitimate, outright fraud undermined many of the plaintiff's claims. What kind of fraud? Well, ask Juan J. Dominguez, a personal-injury lawyer from now under criminal investigation for his actions. He paid "captains" to find plaintiffs, setup a sterility lab in his law office, and was even awarded damages for people that were later determined to have never been employed at the plantation. A recent Superior Court of California case dismissed a series of DBCP claims based on clear and convincing evidence of fraud by plaintiffs and their lawyers.

Because lawyers jeopardized the integrity of so many claims, many legitimate claims were dismissed. Sterile workers could have had some recovery but for greedy lawyers. What happened to the Professional Code of Conduct that these lawyers swear to? Lawyers are constantly confronted with ethical dilemmas, which is why the bar in each state has a separate set of rules regulating the practice of law. Prohibitions on soliciting clients, collecting fees for referrals, frivolous law suits, tampering with evidence, etc. etc. are all specifically addressed.
But the professional code is nothing for some lawyers who will do anything to collect a hefty fee. Unfortunately, such events taint the integrity of our profession. The impact such impropriety has on the public's perspective of our profession is devastating. Would all lawyers behave in this manner if given the chance? Is fraud in litigation the way cases of this magnitude are won? Do lawyers represent causes, or their own financial interests? The Dole DBCP fraud cases make these questions hard to answer.

To the legal professional, these conflicts are an inherent part of providing legal services--similar to those conflicts that arise in other professions. To the lay person, this IS the profession.

Read the article in WSJ: http://online.wsj.com/article/SB125061508138340501.html

Case opinion: http://online.wsj.com/public/resources/documents/WSJ-Dole_Chaney_ruling.pdf

So Sue Me for Blogging (?)

2009-05-22T19:32:00.003-07:00

It's nothing new: what you say can hurt you. But it seems that the prevalence of social media is sparking more litigation now than ever. According to a recent WSJ article, there were 106 civil lawsuits against blog-type users, resulting in $17.5 M in damages against them. Social media makes being sued almost too easy. Think about the most obvious legal feet you can trip over: copyright infringement, trademark infringement, defamation, and libel. Posting someone else's videos on YouTube, uploading copied pics on Facebook, making rash comments on Twitter, these online activities have become ubiquitous.

What most social media participants tend to neglect are the very thin protections (if any) they have. If you post a video or image that's infringing, at least you may be afforded an opportunity to take it down before a suit or injunction occurs. But, making comments that you would only otherwise make on a bathroom stall which can now be made on a public forum reaching thousands in an instance can be dangerous stuff. It's pretty hard to unring a bell, don't you think?

ASU's OBAMA Commencement

2009-05-16T03:51:00.002-07:00

Here's a highlight of our commencement with the President Obama:

Commencement 2009 from ASUF Admin on Vimeo.

You can read a transcript of his quite captivating commencement speech here:
http://www.asuchallenges.com/commencement2009/obama.asp

Who Regulates the Regulators?

2009-05-16T02:13:00.005-07:00

"The mission of the U.S. Securities and Exchange Commission is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation."

That's a direct quote from the SEC's "How the SEC protects Investors" webpage. Arguably, the single most important element for sustaining this mission is fairness. How does the SEC sustain fairness? By maintaining market efficiency and transparency through public-disclosure. The dissemination of market information is critical to fair dealing and fraud protection in any market. But it's of particular importance in the securities market because this information is often the sole factor for the public to rely upon. For example, I can't exactly call up management at Google, AIG, Citibank, or GM and say "hey guys, so tell me, is there anything that could go wrong this quarter or any long-term debt obligations you guys wanna tell me about? I got about a mil riding on you?" The SEC mandated Form 10-K easily disposes of such matters, allowing investors a fair chance to invest w/o blind reliance. Undisclosed risks would pollute the essential risk-return relationship trading markets are known for.

Ask yourself, if there are measures in place to check disclosure, protect investors, maintain fairness, and efficiency, why does the public get dooped so frequently??? Is it the analysts? Let's not forget, Enron was mysteriously rated as a top pick by analysts across the board only weeks prior to their earnings recalculation announcement, when their shares fell from $90 to .50 cents. When do the turds actually start hitting the fan?

Let me sprinkle some more pepper on this well done issue: Today's WSJ reports "Insider Trading Probe at SEC". Ok so a few guys that were supposed to be our watchdogs ate the steak. What's that got to do with you and me. How about regulators using information for personal profit, not public protection. Even worse, how about the public relying on a false sense of protection? Partial protection is like having breaks that work once in while-- would you feel comfortable doing 65 mph knowing you could "sometimes" rely on your breaks?

Quote from WSJ: The SEC has "'essentially no compliance system' to detect potential insider trading. It said the agency didn't conduct spot checks on trading and the various offices that received trading reports didn't share information."

Additionally: "Any trades employees make have to be reported to the agency's director of personnel within five business days. The report said the SEC doesn't have someone in that position but that there is an associate executive director in Human Resources. It said several SEC employees were unfamiliar with the rules or misunderstood them."

My point is this: How can we rely on financial policing by persons who act in self-interest and don't even have the means to protect us? That's not to say the SEC is to blame for every financial fallout, but then again...

http://online.wsj.com/article/SB124241028545124563.html#mod=testMod

3L Tells Dean to Back-Down the Shananigans, and Refund his Tuition

2009-04-23T22:56:00.003-07:00

The job market, yeah it's pretty bad out there. And if you are a graduating 3L, who are you kidding, there are plenty of jobs out there: Radio Shack, McDonald's, Taco Bell. Heck, there is a Wal-Mart not too far from my house. I am sure you can make partnership there.

My sentiments are shared far and wide. In all honestly though, we are not entitled to special treatment. These are tough times, and resilience will be rewarded. But some 3Ls have gone a little too far. Below are a few snippets from an actual letter a Loyola University Chicago School of Law wrote to his Dean:

"After yesterday's disaster of a panel discussion on the financial crisis of the nation, I am so angry, I can't even sleep.

I am officially giving notice that I will refuse to answer any exam question that goes beyond the bounds of the course description and I fully expect to graduate 5 days later. I will be encouraging my fellow 3L's to do the same. Should this letter or my course of action be answered by any negative action that would affect my graduating law school, I will send an open letter the the entire Chicago legal community explaining to the potential employers of future Loyola Law grads that professors at Loyola School of Law are given free reign to teach whatever they want despite the school's official course catalog and descriptions."

Now I know I am not the only one. But this is really going out on a limb. There's more:

"Please read the following:

282 - Accounting for Lawyers (3). This course is intended to provide an understanding of basic accounting principles and their practical application in connection with the practice of law. There are no prerequisites and no requirement of a business background. Topics covered include fundamental principles of accounting for business enterprises; how to analyze and understand an income statement, balance sheet, and statement of cash flow; basic concepts of revenue recognition; conventions for capitalization versus expenses; and how to recognize possible manipulation of financial and accounting statements. Recent high profile accounting scandals such as Enron and WorldCom will also be explored.

I chose my classes very carefully this semester such that nearly every class I am taking was directly, and practically, applicable to my job after graduation, including Accounting for Lawyers. Because I don't have a degree in business, economics, or accounting, and because I have never taken an accounting class, I, like many of my fellow classmates, took this class for its practical nature. In light most favorable to Prof. [REDACTED], we spent perhaps two class periods discussing the above basics. He actually pointed us to some website and basically told us to teach ourselves basic accounting. If that what we wanted to do, we wouldn't have signed up for this class."

Now here's his pitch, get ready for this:

"I feel that Loyola and Professor [REDACTED] completely defrauded the students in this class and misrepresented this class by offering the above course description and as a result, I have wasted the proportionate amount of my tuition dollars (approx $3000) taking this class. Prof. [REDACTED] has repeatedly, and I do mean repeatedly, announced to our class his extreme displeasure in the Federal Government's propping up the recently filed financial institutions, at a great cost and little benefit to the average American citizen. It his strong opinion that CEO's who promise shareholders one thing but do another to line their own pockets should not be so greatly compensated.

I challenge Prof. [REDACTED] to live up to his own words. Because he completely failed to meet the objectives of this course as described and sold to us, that Loyola refund each student in this class the proportionate amount of tuition paid. As compensation for the complete waste of our time in taking a class we did not want when instead we could have enrolled in another more practical class, I urge Loyola to make sure that everyone in this class gets FULL CREDIT for the course, and a grade that reflects the student's understanding of topics that are limited to those described in the course description. And considering what little was taught to us, it should be a short exam."

I share his sentiments about some professors creating class substance while using the bathroom right before class. But this is really out there.

Cheers to an awesome profession.

Indian-Democratic Response to Bad Politics!

2009-04-17T16:07:00.000-07:00

Solution: Relax the Standards, Coverup Losses?

2009-04-02T23:28:00.002-07:00

Does it make sense for the Financial Accounting Standards Board to reduce the standards required for what is ultimately a benchmark for valuating assets (mark-to-market rules)? I thought that when standards fall, expectations do also, and the garbage-in-garbage-out model perpetuates?

Is this another example of bowing to the bankers?
http://online.wsj.com/article/SB123867739560682309.html#mod=testMod

True Spirit of American Innovation: CORRUPTION

2009-03-14T02:53:00.004-07:00

President Obama's appointee as Chief Information Officer for the White House is being investigated by the FBI for corruption. Please, humor me and act surprised. WOW!

The CIO of the White House is in charge of federal technology spending and strategic IT planning. This position is supposed to keep a lock-down on things like information privacy + security.

What happened? President Obama appointed Vivek Kundra, previously D.C.'s CTO responsible for technology operations and strategy for 86 agencies, to be CIO of the White House. This was officially executed on March 5 according to official White House press release. BAM! About a week later, FBI storms Kundra's office after getting wind of a fraud scheme. The FBI has arrested Yusuf Acar who worked in the DC information security office and Sushil Bansil, another Indian dude that worked in technology (no surprises on that one!). Both were under Kundra's office.

Court documents state Acar was accused of conspiring to commit bribery, fraud, money laundering and conflict-of-interest violations. Bansal was accused of conspiring to commit bribery and money laundering. Of course, Kundra is on "leave". Sounds pretty good.

Obama stated in a March 5th press release that his appointed Kundra "to ensure that we are using the spirit of American innovation and the power of technology to improve performance and lower the cost of government operations." Hey no problem. It would be nice if next time we knew he meant corruption. Jeez. All we ask for is a little transparency in governance. But then again, overall, things are fairly predictable. Don't you think?

reference:
http://www.whitehouse.gov/the_press_office/President-Obama-Names-Vivek-Kundra-Chief-Information-Officer/
http://online.wsj.com/article/SB123687217235808365.html

Latham & Watkins drops 190 lawyers in a "one shot deal"

2009-02-27T20:06:00.006-07:00

Latham & Watkins, the nations 2nd highest grossing law firm (2nd to Skadden Arps) booted 440 employees! A total of 190 lawyers and 250 supporting staff were dropped in what Chairman Robert Dell calls a "one shot deal". That's not good news. Especially considering Latham grossed $2 Billion in 2007.

Does this mean they didn't maintain enough padding for this hard of a hit? Or do their shareholders just love lacing their pockets as much as possible? After all, firms do have 2 options: retain earnings, or pay out shareholder salaries and bonuses. So if earnings fall, all else equal, associate salaries gotta go.

Boy am I glad my undergrad was in paper clip manufacturing. Then again, if law firms are slowing down that means less senseless paper work. Less senseless paper work means less legal secretaries. As secretaries decrease, office supply theft will decrease. Which equates to greater inventories of paper clips. Which means demand for paper clips will decline significantly. Now that really sucks.

reference: http://online.wsj.com/article/SB123575323300395661.html#mod=testMod

White Collar Black Market: Allen Stanford's $8B Fraud Scheme

2009-02-24T16:42:00.006-07:00

If you haven't heard about this yet, it's likely you are still trying to figure out Mr. Madoff's grand scheme. That guy was a former NASDAQ Chairman, and another "trusted" member of our financial society. The new "Sir" is Allen Stanford. He's from the Bush homeland of TX, where the frauds are always bigger and better. Stanford is the Chairman of Stanford Financial and has managed to support the Mexican drug cartel, launder money through off-shore accounts, create false certificates of deposits, etc... BTW, Stanford has mysteriously disappeared. Just in time for a nice investigation. The irony.

These guys are well connected. Remarkably, Vice Prez's Joe Biden's son managed some interesting hedge funds marketed by Stanford's firm. Some of Stanford's directors held prominant positions. Two were financial regulators: Fredrick Fram and Lena Stinson. They were both at FINRA! [I wonder if they are also related to Madoff's FINRA family members? Like the ones he used to cover up his $50B ponzi scheme.]

So it's bad enough these guys continue to perpetuate fraud with innocent money. But even worse is the fact that people at the top of these schemes are politicians/elected officials/regulators that are supposed to protect our interests, right?. Wait, you mean centralized unchecked power yields corruption?

DO YOUR OWN RESEARCH AND SEE WHAT'S REALLY GOING ON.

References:
http://www.stanfordfinancial.com/sir_allen
http://www.huffingtonpost.com/2009/02/24/allen-stanford-had-links-_n_169361.html
http://www.reuters.com/article/allenStanford/idUSTRE51N5RO20090224

Law Schools with FREE TUITION!!!!

2009-02-13T00:18:00.004-07:00

Yes. There are eight law schools that do NOT charge a dime for law school, or room and board!! Okay, for some you might need to work in the school's cafeteria, or perhaps live 45 minutes from the nearest hospital, i.e. Deep Springs Law in CA. Even still. What luxuries do most law students really have? Most are not spoiled (like living 20 mins from campus in a rent free 6 bedroom w/ a dive pool, jacuzzi and 7 cars). So the opportunity cost to attend 3 years tuition free, assuming bar passage, is really not high at all. Most law students would go head over heels for such an opportunity. Take the new tuition-free UC Irvine Law. Dean Erwin Cherminsky is a notable Constitutional Law scholar. If he's dean, the school likely has stellar credentials. UC Irvine's first admitted this fall class size = 60. And apparently they will be ranked in the top 20. Sounds like a good deal.

Reference: http://blogs.static.mentalfloss.com/blogs/archives/22573.html

Agency Heads + Bribes?

2009-02-06T01:12:00.007-07:00

It's no coincidence that Leon Panetta, nominee to head the CIA, happened to collect over $700,000 in bribes (a.k.a. consulting fees?).

Why do that? This is a position that empowers him to decide which government contractors get our tax money to perform "national security work." So wait, you mean to say contractors that have material pecuniary interests in government's contracts can pay "fees" to get contracts? That's interesting. In legal ethics that's called a CONFLICT OF INTEREST . A conflict so material and substantial to the interests of representation that every state bar would sanction. The ethical rules that apply to the regulation of lawyers is a great analogy because like Federal civil servants, we represent people. Ask yourself why we have the Office of Government Ethics and also the General Accounting Office. Might it be possible (and highly probable) that positions of power yield self-interested results?

Federal civil servants take an oath. Remember that oath? Read below (pay attention to the bold words) :

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Good 'ole fashion American corrupt-capitalism permeates democracy. Let's just admit it. Browse the real headlines and do your own research.

Reference: http://online.wsj.com/article/SB123378062602049003.html
http://www.opm.gov/constitution_initiative/oath.asp

American Bar Association Spots New Law-Grad's Unemployment...YES it's BAD!

2009-02-03T23:46:00.005-07:00

http://www.abajournal.com/news/unable_to_find_a_job_law_grads_hang_out_a_shingle

Note: "shingle" is a reference to a sign that is typically displaced outside a small office. It's synonymous to "opening up shop". It's not the "shingle" of the STD type. (Yes, someone asked me.)

Five Unanimous Decisions handed down by U.S. Supreme Court

2009-01-27T16:41:00.005-07:00

5 decisions with no dissenting opinions is rare, especially in this short span of time. Justice Roberts, Jr. is moving the bench towards his goal of a buddy club.

http://www.abajournal.com/news/supreme_court_unanimous_in_10_out_of_15_signed_opinions_this_term/#When:07:07:56Z

The subject matter for each of the five include:
1. Title VII Discrimination
2. Uranium Anti-Dumping in international trade
3. Distribution of pension benefit upon divorce (very murky area of community property law)
4. Official actions with prosecutorial immunity.
5. Fourth Amendment pat-downs without reasonable suspicion.

Links to each of the cases can be found below.
http://www.law.com/jsp/article.jsp?id=1202427754738&rss=newswire

Some New Art

2009-01-19T01:43:00.002-07:00

This is a rose that I am presently working on. Thus far, it's pencil on cardboard. I will be adding layers of color using oil pastel and brush techniques to create a softer glow. I'll post more pics as I progress. Let me know what you think.

Who said law school had to be dull ALL the time?

2008-12-22T03:17:00.012-07:00

I couldn't pass up the chance to jam at the law school with Professor Charles Calleros, my International Contract professor. Lawyers rocking out? No...ALL are not boring.

That is a $3000 Taylor Electric Acoustic and it plays like butter--sounds even better coming out of a P.A. system.
We ended up playing an impromptu jazz riff which turned out okay. He's a good percussionist and plays drums in a band of all lawyers.

Surveillance Technologies and The Law: Big Sister Beats Up Big Brother.

2008-12-22T02:20:00.007-07:00

Fears of privacy intrusion today are compounded by the advent of new technologies. Private data can be gathered, stored, and analyzed with increasing ease. As surveillance technologies progress so have privacy concerns. But modern concerns with the ease of government data gathering using surveillance technologies are not novel. Judicial oversight has kept a formidable eye on this trend.

Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet...The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.

If the late Justice Brandeis knew today’s means of catching what is “whispered in the closet” he would turn over in his grave. His words are prophetic. His dissent in Olmstead quoted above was in response to a conviction that used wiretap evidence to produce 775 pages of private conversations in typewritten transcripts for trial. The defendants were convicted of conspiracy to violate the National Prohibition Act of 1919 by unlawfully possessing, transporting and importing intoxicating liquors. The crime was expansive. Seventy two others were indicted in the conspiracy. Annual sales of the illegal liquor were estimated to be $2,000,000. But did the intelligence means justify the conspiracy conviction ends? Justice Brandeis obviously didn’t think so.

To the extent that technology advancements in 1928 created fear of privacy invasions, today’s technological capabilities are unfathomable. As predicted succinctly by Justice Brandeis, today’s technology advancements provide a means of peering into unexpressed beliefs, thoughts and emotions, all for unclear ends (e.g. “national security”, “War on Terror”, “security threat”).

The Government’s data gathering and analysis methodology can be quite unorthodox. A simple contrast is exemplary. Generally, analysts attempt to predict future events as do financial analysts on Wall Street, by gathering large amounts of data and using historical models to forecast results. However, Wall Street forecasts end where private enterprise and undisclosed financial data begin. Unlike such analysts, government surveillance analysts may begin their research where ostensibly private conduct and undisclosed data begins.

Our post-9/11 society perceives the trade-offs between civil liberties and crime control in a new light. But the precise extent to which the government uses surveillance technology is unclear; thus the trade-offs cannot be assessed properly. State and private entities often make concerted surveillance efforts blurring the line between public and private conduct. These identities are often undisclosed and their apparent surveillance purposes remain ambiguous. Additionally, federal and state laws dictate boundaries for permissible government conduct. However, without knowing who and for what purposes surveillance is occurring, oversight becomes impractical. Oversight is particularly impractical when the mechanisms to proscribe conduct, namely legislative, are inept to parallel the dynamic pace of technology.

The introduction above provides context for further discussions of government sponsored surveillance technologies and their domestic use. This paper discusses these issues and considers the legal and policy questions that remain unanswered. The following section provides an overview of the latest and most popular surveillance technologies available to the public, followed by the Government’s use of surveillance technologies led by agencies such as the CIA and DARPA. The conclusion discusses public accessibility to surveillance technologies and the legal implications on 4^th Amendment search and seizure, and expectations of privacy.

Miranda: A Few Steps Shorts of a Walk

2007-10-31T09:51:00.000-07:00

Miranda v. Arizona, decided in 1966 was a landmark case, and in a sense, was also a land mine for for official misconduct. But, the real compelling question, is whether this case was even necessary. Justice Warren's apprehensions with creating a more clear standard against compelled statements and against throwing out psychological coercion was in fact futile. The underlying policy behind Miranda was to allow a suspect in custody the chance to realize their rights as to confessions in order to provide a bright-line for confessions. Retrospectively speaking, issues that are often raised as legitimate questions to the Supreme Court for review should be answered in their entirety prior to resorting to the old 'reverse and remand' kick-back.

Is that what happened here in Miranda? Was Miranda even needed?

Why did Justice Warren, a defense-liberal proponent, not incorporate the attention given to psychological coercion into the Miranda Rule?
Without question, at the time of the opinion and ever since, the concern with psychological manipulation/coercion of suspects during interrogations was and has been a focal point in assessing the Constitutionality of these measures to extract confessions. In fact, this concern is voiced throughout the majority opinion. However, this concern was not addressed within the narrow holding of Miranda which creates a bright-line standard required by all law enforcement officials to recite particular rights to criminal suspects taken into custody prior to asking questions regarding the commission of a crime.

Miranda Rights read: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.

Oh yeah, but government sponsored psychological coercion, "It's the truth serum."

2007-09-24T00:12:00.000-07:00

The essence of this blog is to scrutinize a purview of the prospective legal landscape across a broad spectrum of issues.