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Archive for the ‘Lex scripta’ Category

Underwriting by untermenschen

Posted by Ron Coleman on April 1, 2007

Chubb recently refused to insure a New Jersey law firm because it has a blog.

This is not surprising. What’s largely going on, I can tell you from experience, is that small law firms are just plain finding it impossible to get malpractice coverage. It was the straw that broke the camel’s back for my old law firm. Despite being admitted since 1989 and never having a claim, plus, of course, all my marvelous professional qualities — a longstanding AV rating, top schools, a grip like a plumber — I could not get more than one quote for malpractice insurance for my five-lawyer shop, even though once a year half a dozen prospective insurers would bombard me with faxes and mailings seeking my business. To legal malpractice underwriters, intellectual property — and they stupidly see trademark, copyright and patents are all the same thing — is a dirty word. The one policy I could get was for an annual premium of $25,000. If you’re smaller than being able to afford that, and do anything remotely interesting, they don’t want your business.

In this case the blog was really just an excuse, but is certainly is a troubling precedent.

Chubb, of course, would not return calls to the reporter from the New Jersey Law Journal who was inquiring about its idiotic decision. All it would say to the law firm was, “this is not a risk [we] are interested in undertaking.”

This level of discourse typifies the arrogance of insurance companies who, I must admit, I spent a significant part of my career suing on behalf of insureds. Now, Chubb and other insurance companies don’t owe coverage to anyone. On the other hand, the market for professional malpractice insurance is not even remotely comparable to free enterprise. It is mandated for most firms, and, of course, being insurance carriers, basically the entire way they do business is regulated.

The result is the erection of barriers to entry, or to remaining in the field, for newcomers and small players. Blogs make an easy target, especially for people who don’t have them or don’t get them. Hat tip to Bizzy Blog.

Posted in Gelt, Lex scripta | Leave a Comment »

Megalaw firm shuts down

Posted by Ron Coleman on March 30, 2007

Dallas-based Jenkins & Gilchrist is winding down operations. That’s a firm that employed 600 lawyers at its height. Unfortunately they employed a large number of them at creating illegal tax shelters.

Posted in Americana, Gelt, Lex scripta | Leave a Comment »

Malignant delusions

Posted by Ron Coleman on March 29, 2007

Instapundit.com:

OVER AT OPINIO JURIS, an interesting online symposium on challenges to public international law.

One challenge, it seems to me, is the prevalence of double standards.

An odd objection indeed. Glenn, that is not a “challenge.” If the standards are not consistent, it is simply not a regime of law, is it? It is a fig leaf for something completely different and, inevitably, something far less benign.

Which is, probably unfortunately, what all “international law” ever was, and in all probability ever will be.

Posted in Lex scripta, Politics and Poker | 10 Comments »

Drink to me only with thine eyes

Posted by Ron Coleman on March 27, 2007

A week or chagall.jpgso ago it was the sad story of Jimi Hendrix on the bottle. Now the TTABlog, which reports on decisions of the Trademark Trial and Appeal Board, reports on another famous – dead – guy – as – booze – trademark case:

Applicant Anatoliy Bondarchuk failed to fend off a petition for cancellation of his registration of the mark MARC CHAGALL for vodka. The Board not surprisingly found that the mark creates a false suggestion of a connection with the painter Marc Chagall, in violation of Section 2(a) of the Lanham Act, and it therefore sustained the petition.

chagall2.jpg

The irony is that Chagall’s paintings always struck me as the kind of thing you would, indeed, find at the bottom of a bottle of vodka. Animals and people getting just a little too close… fowl showing up in the most inappropriate places … lots of questionable aloofness — flying around in the air, that is.

I always thought these paintings looked as if Chagall had stayed for one l’chaim too many. Or that he had a very odd family, indeed. Maybe so — but it’s not for Anatoliy Bondarchuk to profit from it, and so too says the TTAB.

Posted in Ars Longa, Lex scripta | 2 Comments »

Jail bait

Posted by Ron Coleman on March 25, 2007

Sometimes the cops get ahead of the bad guys for at least a little while. If you’ve ever lived outside the New York area and had a car stolen (if you have lived in New York area there’s no “if”) you will enjoy this story on NPR about “bait” cars set out, juicy and plump, for car thieves. They’re not only apprehended with the help of GPS and a remote kill switch, but hidden cameras and microphones inside the cars “offer a glimpse into the lives of thieves at moments of both giddiness and defeat.”

The NPR reporter asks whether there’s an entrapment issue, which of course there is not. But don’t worry: There will be an appeal at some point, and probably a conviction reversed — and probably in the Ninth Circuit. Nah, not entrapment. Think the inalienable constitutional right to privacy. Or maybe the thieves will be members of a “protected class” such as illegal aliens undocumented immigrants.

But I know where I’m putting my money. After all:

“They’re not the smartest folks in the world, though, because the emergency [brake] is actually pulled.” Dengeles says, describing the video of the two giggling thieves . . . “So they spend about a good two to three minutes trying to figure out how to get the car to move.”

“Not the smartest folks in the world” — now there‘s a protected class!

You guessed it: The next conviction for car theft using a bait car will be reversed … under the Americans with Disabilities Act!

Posted in Americana, Lex scripta | 3 Comments »

Frontier justice

Posted by Ron Coleman on March 21, 2007

Or is it “frothing” justice? Kim du Toit says, “We don’t need no stinkin’ judges!” Or actually, Kim says the following on the subject of the Second Amendment — Kim’s favorite topic:

The law is what we say it is, not what some unelected jurist thinks.

That’s either a very abstract concept of “the law” or a very scary one. And I’m entirely sympathetic with Kim on gun rights as such. But it’s an odd thing to say you’re defending the Constitution but don’t care what anyone but “we” thinks the Constitution means. What kind of constitution, what kind of rule of law, is that? Kim explains:

Unlike liberals and lawyers who need to have every jot jotted and tittle tittled, we know that the Second Amendment enumerates an individual right, and we know exactly what “shall not be infringed” means, because we’ve taken the time to study what the Founding Fathers wrote at the time, in both their public and their private letters.

Well I think some lawyers, and maybe even some liberals, have taken the time, too. And after all, Kim, it is going our way!

I don’t have a bit problem with originalism; I’m a lifelong Federalist. But when you go waving that thing and shouting that “the law is what we say it is” — that’s when I reach for my revolver.

As soon as someone teaches me which side the bullets go in.

Posted in Americana, Lex scripta | 1 Comment »

Shark attack!

Posted by Ron Coleman on March 19, 2007

Attorneys' waiting room, Second Department

Sedate scenes like the one above (the attorneys’ waiting room at New York’s Second Department Appellate Division in Brooklyn) are what you’re supposed to think of when you think of attorneys and their well-known constructive effect on the building and stabilization of civil society.

Who coughed?!

Okay, well, it’s bad enough that we’re always being overlawyered. Now my briefcase-toting brethren are posing a physical threat to public order — in Pakistan:

Lawyers have boycotted courts across Pakistan in protest at President Musharraf’s suspension of the country’s top judge for alleged misuse of office.In Lahore, more than 20 lawyers were injured in clashes with police. Hundreds of lawyers wearing black suits rallied in other cities.

Colin Samuels writes, “I’ve not seen anything like this since an ill-advised practical skills session at a police brutality law CLE.”

Comment on Dean’s World, where I cross-posted this.

Posted in Lex scripta, Orient | Leave a Comment »

The Golden Rule

Posted by Ron Coleman on March 18, 2007

Upper East Side“The best way to make sure that the defamatory or scurrilous or offensive content that brought you to my office is repeated and gets as much attention as possible is to file a lawsuit about it.”

UPDATE: And then some!

Posted in Americana, Lex scripta | Leave a Comment »

Asymmetric personal warfare

Posted by Ron Coleman on March 16, 2007

Have you ever heard of AutoAdmit? It’s the next level in the institutionalization of online slander.

I wrote last year about something I called asymmetric cultural warfare, to wit:

In the old days, cranks and complainers and scandalmongers of this ilk used to peddle such wares via stolen reams of photocopy paper or purple mimeograph printouts. Mailed anonymously or pinned up on storefronts they were easily enough recognized as the rantings of marginal people; once pulled down and crumpled up, they were gone forever, and usually rightfully so.

Now we know not to believe everything we read in a blog, of course. No one thinks any more that if it’s on the Internet, “there must be something to it.” But slander has a way of sticking, especially when it is directed to those whose stations or dignity do not make response appropriate or practical. And the virtual eternity of anonymous defamation makes it more insidious than anything that preceded it. Potential employers, spouses or in-laws, business partners — anyone who can work Google can forever gain access to and read the rankest falsehood on the Internet.

The cost to the anonymous hit-blogger, or commenter: Free. The effect on people, institutions, communities: Unfathomable.

They say that a cynic is someone who knows the price of everything and the value of nothing. I have argued that this is true of libertarianism, as well, which I consider the animating political spirit of the Internet. Traditional economists argue for government or collectivist intervention in economies where “externalities” — costs borne by others not a direct party to economic decision-making — are not “properly” incorporated into cost decisions made by the market. Libertarians reject this by insisting on a proper allocation of property rights and responsibilities.

How do you do this in the new world of asymmetrical cultural or information warfare? How can property rights and penalties for their violation be properly allocated and enforced in a world of anonymity and where there are zero costs to instantly uttering thoughts, accusations and claims that can be consumed by millions, capable of destroying lives? And is there no value to the virtues of civilized discourse, of accountability for what one says in all the senses of the word?

This (AutoAdmit and its ilk) is the problem I described in action, affecting real lives. Not in a good way. What are we going to do about it? I suggest we roll back the law of defamation so that it is once again a viable cause of action*, and perhaps reconsider the application of the American rule to defamation litigation (which would discourage meritless claims). It will not solve the problem of anonymity, but it will at least place some cost on wrongdoers.

Via Ann Althouse at Instapundit.

—

* Uh, don’t mention that I suggested this to anyone at Overlawyered. They always take these ideas the wrong way.

UPDATE:  The latest.

Posted in Lex scripta, Medialites | 10 Comments »

Not so gay Paree

Posted by Ron Coleman on March 14, 2007

France’s highest court Tuesday rejected as unlawful the first marriage by a gay couple in France, annulling the union of the two men.

Stephane Charpin and Bertrand Charpentier were married in a civil ceremony on June 5, 2004, in Begles, a town in the southwest Bordeaux region. The government immediately said the union was outside the law, and a series of court decisions unfavorable to the couple followed.

In the latest decision, the court ruled that “under French law, marriage is a union between a man and a woman,” backing a 2005 decision by an appeals court in Bordeau.

Now, that’s not supposed to happen, is it? I don’t think so.

I find this particularly interesting in juxtaposition to the “outrage” and “demands for resignation” regarding the comments by General Peter Pace, Chairman of the Joint Chiefs of Staff, calling lesbian and gay personnel “immoral.” Here’s why:

Read the rest of this entry »

Posted in Lex scripta, O Mores! | 27 Comments »