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December 2004
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February 2005

fedLabs 101: local schmocal

One very good thing about our "let a thousand labs operate" federalist system is that we get to see what works in other places and take advantage of the experience.   One very strange part of the system, however, is that we never seem to learn from the mistakes that happen elsewhere.   And, one very weak part of the system is that the labs are operated by local governments.

Some political theorists and ideologues wax rhapsodic about decisions being made and problems being solved at the level closest to the people.   But, when I think "local government" I tend to think -- based mostly on the seven or eight cities of various sizes I've lived in over the past half century -- "un-professional," "sinecures," "patronage," "pay-back," and "party hacks."  I do not think "knowledgeable people likely to solve complicated problems."  [of course, see my Implied Disclaimers]

That was an admittedly lengthy introduction to the topic of this post: Economic Development Authorities and the failure of local pols to learn from their own mistakes and those of others. [subplot: consultants who'll gladly give you a rosy scenario.]  Earlier this month The Brookings Institution released "Space Available: The Realities of Convention Centers as Economic Development Strategy" (Jan. 2005), by Heywood Sanders.   In its Executive Summary, the author notes:

[click here for the rest of this post, which seems to have overwhelmed Typepad.]

Law School Exams

Law Professor Orin Kerr has an informative post (with terrific comments) on law school exams and law school grades.  Professors Heller and Yin also provide personal-knowledge based insight into law school exam writing and grading.

My 1L grades were horrible.  However, I figured out the Law School Exam Writing Game, and obtained wonderful results, earning numerous "A's" and the highest scores in four extremely competitive classes.

My advice is to use the "Law in a Flash" flashcards for each class. (I also found the Examples and Explanation series helpful).  As you work through the cards, type out your answer in IRAC format.  The reason the cards and the examples questions are so helpful is because each presents a single issue and thus every card challenges you to write a minature IRAC-based exam answer.

You should also cross off every sentence in the law school exam question as you use it.  Almost every sentence in a law school exam raises some issue.  Thus, you should use every sentence from the exam in your answer.  Crossing off as you go along helps ensure that you use everything.

You should also use headings.

Below the fold is my answer to the Fall 2003 Con Law exam, which incorporates all of my suggestions.  Because I typed my law school exams, I simply copied and pasted my answer, which is reproduced exactly as submitted. (It was a three-hour exam).  To find the questions I had to answer, click here, then select "Kmiec" and "Constitutional Law - Federal and State Power Relations."  Click the button in the middle of the page that says "Find Exams."  Select the "Fall 2003" exam, which is the first one that appears on the page.  Then click the "View Exam" button.

Continue reading "Law School Exams" »

A Call for Sources

More and more people are reaching Crime & Federalism after googling overcriminalization.  Overcriminalization is becoming a popular topic, and I'd like to provide the best information available.

Thus, Overcriminalization.  At Overcriminalization I want to provide links to the best law review articles, op-eds, news stories, and verifiable anecdotes on the tendency of the government to criminalize everything.  Under this broad heading would include schools' "zero tolerance" policies.

Overcriminalization is not going to be a blog as such: It will be much less ambitious.  Mainly, I want to link to the best materials on overcriminalization.  It will be much more like Ashcroft v. Raich, where you can see that my goal is primarily to provide the reader with case information.

Please e-mail me (or leave in the comment section to this post) your suggestions.

School is Prison

I always felt that elementary and high schools were like prisons.  Turns out, my perception was right:

Two boys, ages 9 and 10, were charged with felonies and taken away from school in handcuffs, accused of making violent drawings of stick figures.

Here is the picture that prompted school and law enforcement officials to arrest two small children:

Kids_draw_picture_with_knivesBut hey, as long as they do not arrest your kids, who cares, right?

Never Again

This is the type of article that makes my day:

Passengers jumped in to help restrain an unruly traveler on a flight from Philadelphia to West Palm Beach before the plane landed, authorities said.

A flight attendant on Southwest flight 2161 asked passenger Christopher Egyed, 37, to quiet down because he was disturbing other passengers, said Palm Beach County Sheriff's spokesman Paul Miller.

The man later made threats and headed toward the pilot's cabin, and after a flight attendant tried to stop him in the aisle, a group of passengers helped detain him, Miller said.

None of the people who detained this idiot were government officials.  None of them needed to surrender liberty for safety.  Instead, the passengers vigilantly protected and defended their liberty by stopping someone from harming them.

To protect and defend ourselves on airplanes (and elsewhere), it is unnecessary for us to give up liberty.  Rather, we need more liberty, namely we need to exercise our freedom to kick the asses of people who get out of line.  That's what the passengers here did.

fed. court averts fee crime

It may not be a crime to ask for $609 million dollars in legal fees for one class action lawsuit, but at times I wish it were.  Nonetheless, as I've been known to carp about courts accepting contingent legal fees that are too high, I want to go on record praising the 5th Circuit panel (judges Cabranes and Wesley), who rejected the $609 million request by class counsel in the Visa/MasterCard Debit-Card Antitrust suit. (decision, Wal-mart v. Visa, Jan. 4, 2005; New York Sun article, Jan. 18, 2005; Overlawyered post).

Lloyd Constantine, who heads class counsel Constantine & Partners, was featured in a guest post here a month ago.  Acknowledged as a premiere antitrust attorney, Constantine is quoted in the NY Sun article saying "If you’re just asking the question in a vacuum ‘Is $609 million too much for a bunch of lawyers to be compensated for doing a case?’ I’d say absolutely, that’s a ridiculous amount of money.”  I believe the lower and appeals courts were correct to find the amount ridiculous in context, too -- including his assertion that a sliding scale fee percentage is inappropriate.   Brooklyn Judge John Gleeson was not as polite as the appellate jurists, when he ruled on the fees (per the Sun):

  “Lead counsel’s request to be paid almost 10 times their hourly rate is absurd,” Judge Gleeson wrote. “It is fundamentally unreasonable and wholly out of character for a group of counsel whose commitment to the corner store merchants they represent has, until now, been admirable and unflagging.”

    Judge Gleeson ridiculed the suggestion that the $220 million fee he awarded would be insufficient to motivate other lawyers to bring meritorious but risky cases. “If it amounts to punishment,I am confident there will be many attempts to self-inflict similar punishment in future cases,” the judge wrote.

Those readers who like a little irony can join me in smiling at this quote from the Constantine law firm Profile:

"The firm's billing rates and total fees are typically significantly less than those charged by larger firms."

Thumbs Down, are deserved, I submit, for the three professors hired by Constantine to bless his fee request.  As the Sun reported:

   To make their case for $609 million in fees, the plaintiffs’ lawyers retained several renowned law professors as experts: Arthur Miller of Harvard, John Coffee Jr. of Columbia, and Harry First of New York University. All filed declarations saying the plaintiffs’ lawyers should be awarded a substantial percentage of the settlement, even in so-called megafund cases,to preserve their incentive to press for the largest possible fund for the class.

It's interesting that none of the professors even mentioned the dollar figure requested by class counsel in their submissions.  I join in the opinion of Prof. Lester Brickman:

“This is a round-up of the usual suspects. These are some of the most prominent lawyers who are law professors, who are frequently hired to bless the fee. Their blessing comes at a commensurate price, but their blessings are certainly worth the price they charge.”

Like the district court, the 5th Circuit correctly sought "to compensate plaintiffs’ counsel handsomely, and at the same time limit the percentage of the award so that plaintiffs’ counsel would not receive a windfall detrimental to the class.”   Any lawyers who need a larger incentive to pursue cases of similar risk and complexity are in the wrong profession, and should find a line of business that does not involve fiduciary duties and ethical limitations on fees.   

Ethics and the Criminal Defense Attorney

A common question posed to criminal defense lawyers is, "How can you represent those people?" The standard response is that our Constitution provides that every person has the right to a competent defense, that people are presumed innocent until proved guilty, and that zealous advocacy to uphold the rights of the accused is an essential part of our system of justice. But this is not a context where everybody will agree on what is ethical, or what is right.

Situation 1: You are hired to represent a sixteen-year-old who is accused of sexually abusing a young child. Your client has confessed to you, and you believe that the confession is truthful. Yet the police investigation, and the conduct of the victim's mother, have so tainted the child's account that even the local police chief is skeptical of the charge, and there is a substantial chance that you could bring a successful motion to exclude the victim's statements (and thereby defeat the charge).

Situation 2: You are the defense attorney in "Anatomy of a Murder", and your client is faced with a homicide charge. Without letting your client tell you what happened, you explain the state of the law, and the defenses which are available to him. You then say that you'll come by the next morning to get his version of what happened. When you come back, his story is consistent with one of the defenses you detailed the night before.

Situation 3: You have hired an expert witness to assist with your defense. Your state's rules of discovery require that you provide to the prosecutor a copy of any report prepared by your expert in relation to the incident. Version (a): You ask that your expert not prepare a report, so that the discovery rule is not implicated. Version (b): You ask that your expert stamp any report as "draft", as you believe it is implicit in the rule that you would only have to provide a final report. Version (c): The expert prepares a report on his own initiative, perhaps despite your instruction. You ask the expert to reclassify the report as a "draft" until you have a chance to review it (but with the intention of transforming the report into a document which you believe will not subject to the discovery rules).

Situation 4: You have an item of evidence which you do not intend to produce at trial, unless the prosecutor raises specific issues during the course of trial. You rationalize that as you do not intend to produce the item at trial, you do not have to disclose its existence on your exhibit list. The prosecutor raises the issues, and you petition the court to allow you to introduce the previously undisclosed evidence. Version (a): The possibility of the prosecutor raising the issues at trial was remote. Version (b): The possibility of the prosecutor raising the issues at trial was substantial.

In criminal practice, situations can arise when your legal duties conflict with your personal sense of right and wrong, in which case it may be "unethical" (in a legal sense) to do what you personally believe to be the right thing. Situations can arise where your conduct, or that of the prosecutor, is technically "ethical", but is designed to circumvent rules which require notice or discovery. There may be situations where what you do is both moral and ethical, but will be nonetheless be deplored by the prosecutor. There may be situations where an ethical lapse (or series of lapses) by a prosecutor makes you wonder why you work so hard to stay within the bounds of professional ethics. And there may be situations where you bend the rules so much that, by the end, even you wonder if your own actions were ethical - and even if you don't ever personally bend the rules to the point of breaking, given enough time you will see that occur in the practice of other lawyers. And there will always be some lawyers who simply choose to ignore or break the rules.

There can also be a real price to ethical practice for an individual client, where bending or breaking the rules may in fact increase the client's chances of acquittal. At the same time, a single ethical breach detected (or suspected) by the prosecutor may worsen the position of your future clients. But then, I suspect that most of those attorneys who are inclined to breach the rules of ethics for an individual client's gain are not particularly concerned with the longer-term.

Many attorneys take a skeptical view of ethics. The presentation of my ethics class in law school often seemed to take the form of "This is the rule, and this is how you ethically and lawfully circumvent it." And sometimes it seems that attorneys pay little to no price, and perhaps profit quite handsomely, from their ethical breaches. The sleaziest lawyer I ever met managed to practice into his eighties, before he was finally disbarred for (of all things) looting his own brother's estate.

When you describe the benefits of an ethical practice, the description sometimes sounds like a series of platitudes. Yes, it's great to have the trust and respect of your peers, to have the judges take you at your word (and perhaps say "hello" when they encounter you in public, rather than averting their eyes or scowling). But what about "that attorney" in town who breaks all of the rules, is hated by the judges, distrusted by his peers, and nonetheless makes ten times as much money as you do? The benefits of ethical behavior are often long-term benefits, and if you are in the practice of law to chase dollars it may sometimes appear that unethical practice is more profitable, or that you will "lose money" by acting ethically.

If following the ethical path was also usually the easiest path to success, or usually the fastest path to profits, the need for codes of professional conduct, and sanctions for violations of those codes, would be sharply diminished. At the same time, few attorneys would dispute that if all lawyers acted in a manner consistent with the rules of ethical practice, legal practice would on the whole be both easier and more enjoyable.

So what type of lawyer do you want to be, and what type of culture of law do you wish to foster? (You don't answer that question in words - you answer it with your conduct.)

- Aaron Larson

John Ashcroft is Evil?

Monday was John Ashcroft's last day as Attorney General, and the liberals are cheering.  Like all Republicans, General Ashcroft hated civil liberties, and he used his position as Attorney General to kill American citizens.  Thus:

  • When a sniper shot Vicki Weaver in the head (as Mrs. Weaver clutched her baby to her bosom), Department of Justice officials under his command failed to prosecute her murderer.
  • He ordered armed federal agents to attack women and children at Waco, Texas.
  • He sent armed federal agents to forcefully take custody of Elian Gonzales so that young Elian could be returned to a communist country.

Counting the massacre at Kent State University, in our post-Jim Crow era there were four appalling civil rights violations in the United States.  Three examples of the worst civil rights violations in modern United States history occurred under President WIlliam Jefferson Clinton and Attorney General Janet Reno.

That's something to think about before criticizing John Ashcroft.

UPDATE: Yeah -- I realize that Bush I was President during the Ruby Ridge massacre.  But he left before the internal DOJ investigation was completed.  Reno was AG when the report was finished.  Not only Reno refuse to file charges, but she also gave the sniper - at taxpayer's expense - a first-class defense, even sending the Solicitor General to defend him before an appeals court.  I consider Reno culpable for not pursuing - and indeed, actively thwarting - justice.

You can read Tim Lynch's nice summary of Ruby Ridge here.

Pragmatism v. Rights

When parole was abolished in Virginia there was an estimate that the prison population would rise to 49,000; it has only risen to 35,000+. Now, Virginia still had to build 8 new prisons and it is a population increase of 8,000+. Still, it's an interesting fact. One of the reasons given for the lesser growth?

“It’s worked well because it was based on a fairly simple premise: Most serious crimes are committed by people between the ages of 18 and 32. If you make the penalties so harsh for a first offense for violent crime that they get taken out of circulation, by the time they get out they are older and less likely to commit a new crime.”

And I think that is a fairly accurate statement. Common experience tells us all that males tend to mellow with age. Very few men will do the stupid things they did when they were 18 once they hit 30+. Energy and aggressiveness fades over time.

The question then becomes, should prison time be keyed to age and gender? More importantly, can prison time be keyed to age and gender under the constitution? On the one hand, if age and gender determine length of sentence we move beyond punishing a crime and punish status. On the other hand, if an 18 year old male charged with an assault is 5 times as likely to offend multiple times in the next 5 years than a 35 year old woman charged with assault, is it just to ignore their statuses? (stati?)

I look forward to your comments