Archive for the ‘Lex scripta’ Category

Hammers in the air

Posted by Ron Coleman on July 31, 2008

Thomas Girardi, of Girardi & Keese, and Walter Lack, of Engstrom Lipscomb & Lack, are among California’s highest-profile plaintiff’s lawyers, often working closely together on litigation . . . Now both men are in a spot of bother with the Ninth Circuit, where a special master, senior circuit judge A. Wallace Tashima, has recommended hundreds of thousands of dollars in sanctions against them and where a three-judge panel (Kozinski, Reinhardt, Berzon) has just moved to appoint a special prosecutor to recommend further discipline in the case.

That’s an intro that has to make you keep reading! It’s so rare that lawyers who break the rules get called out — maybe that’s what the Ninth Circuit is for, after all.

Posted in Lex scripta, O Mores! | Leave a Comment »

Jim Lindgren at Volokh (via Insty) is talking about what Barack Obama’s teaching job at the University of Chicago was and was not. The question on the table seems to be whether, when or if he was offered tenure, and under what conditions. The obvious point:

I have now talked to four members of the University of Chicago law faculty, including at least one of Obama’s campaign donors, and all four of them say that they do not remember voting Barack Obama a tenured or tenure-track offer. …

All thought that a tenure-track offer might well have been approved if it had been brought to the faculty. All expressed doubt whether the faculty would have made a tenured offer; one professor stated emphatically that it never would have happened, which of course is just one person’s opinion. According to those I spoke with, a tenured offer would have been problematic because — despite his intelligence, teaching ability, and success in law school — Barack Obama may not have had any scholarly publications (at least they were not aware of any).

Expressed “doubt”? What on earth is the question? This is the University of Chicago — full tenure for someone with no publications? Selections from the comments:

I would be interested to find out when was the last time that UC made an offer-with-tenure to a candidate who did not already have tenure at another institution.

It’s not unheard of for a dean to make promises to a candidate or potential candidate that he can’t deliver on. But how unusual is it for a dean at this sort of school to promise an offer that includes tenure to a potential candidate with no scholarly publications?

As an academic . . . I regard it as exceptionally unusual for someone without a single publication ten years after completing his degree would be offered a tenured position at a place like Chicago.

I was a UC undergrad, I am married to a UC PhD, and I have been a faculty wife at several institutions, none of which come close to UC levels of intellectual self-importance. Unless UC is a radically different place than when I was there a quarter century ago, a job-with-tenure (as opposed to tenure-track) for someone without any academic publications to his name is simply unthinkable.

Interestingly, in the comments David Bernstein dissents, and insists it would not have been unusual for the editor of the Harvard Law Review to be offered tenure even at U. of C. in 1991, even absent any evidence of what is called scholarship. I find that impossible to believe, though. There is some red-herring discussion about whether he was perhaps the author of an unsigned HLR student Note… which hardly makes a difference in terms of what we’re talking about here.

The point, I think, is that the Obama myth, despite the efforts of some of us to address it on precisely this point, is so inflated that people would actually believe that he would be the subject of a level of unprecedented legitimization of his status as an intellectual based on … nothing. Nothing.

Posted in Lex scripta, Politics and Poker | 2 Comments »

The “litigant-funded” research canard

Posted by Ron Coleman on July 28, 2008

Rick Hasen expresses understandable concern over a footnote in a recent Supreme Court opinion suggesting that a certain set of studies is not worthy of consideration because it was “litigant-funded.” Here’s the footnote:

The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. [Citations to the literature.] Because this research was funded in part by Exxon, we decline to rely on it.

Hasen is understandably concerned…

There will be cases . . . in which there are no extant studies on an empirical question at the heart of a case. At that point, it makes sense for litigants to fund such research. Indeed, when such research appears in an expert report subject to cross-examination, I assume the Court has no problem relying upon the evidence. So why should it be different when a litigant funds the research, particularly if the research has gone through peer review and of course if the funding source is disclosed so that the opposing side may probe for bias?

It’s idiotic, if there is indeed such a rule. We may as well also end expert testimony, considering that their reports, indeed their testimony, are also “funded” by the litigants proffering them. The WSJ Law Blog is less concerned:

Hugh Young of the Product Liability Advisory Council, one of the organizations that cited the study, says the footnote is “peculiar,” but adds, “I wouldn’t take it as a slap in the face. You don’t have to worry about Exxon buying out the Yale Law Journal.”

I wouldn’t either. I think, in fact, that the footnote must have been political prophylaxis by a pretty political justice. As the WSJ blog asks, “Why would Souter go out of his way . . . to disparage research that supported his concern about the unpredictability of jury awards?” Among those casually “dissed” by this footnote were no less a scholar than the eminent Cass Sunstein.

Well, here’s the thing: It’s the Supreme Court. Souter already knows how he is going to come out on this — Souter is writing a majority opinion overturning the $2.5 billion punitive damage award in the Exxon Valdez case. He doesn’t have to “support” his opinion as against appellate review, but he does have to face his friends in Georgetown who may not like his intellectually honest vote against a preferred liberal outcome. Why not distance the court from any accusation that it was taken in and by supposedly bought- and- paid- or studies? It looks as if Souter is essentially saying, “Don’t even start up with us about those studies and who paid for them. We don’t need them to come to this conclusion, and in order to even avoid the accusation of being blind to bias regarding one of the world’s richest companies, we decline to rely on this stuff. Move on, nothing to see here.”

We can live with that … right?

The only problem with this hypothesis is that affirmatively ignoring something is much more compelling when you don’t actually, uh, write about it. Of course that may have been necessary to effect the necessary distancing. How else would you refute the argument that the studies influenced you?

Well, we decline to worry about that.

(Hat tip to Bill Gratsch.)

Cross-posted on LIKELIHOOD OF CONFUSION®.

Posted in Gelt, Lex scripta | 1 Comment »

Soul-balm legislation?

Posted by Ron Coleman on July 27, 2008

Robert Spencer on Muslims and “hate speech” laws:

[T]he unrelenting and unanimous practice among Muslims of labeling any honest discussion of the elements of Islam that jihadists use to teach violence and supremacism as “hate” will bear bitter fruit in this: if it indeed becomes illegal in the U.S. to say something that Muslims deem offensive, it will be impossible for us to speak about the jihad ideology and Islamic supremacism precisely as they are advancing here.

Well, usually “bitter fruit” means it is the person planting who someday will wince at the eating of it. I’m afraid the consumers in this example are the rest of us, unless Bob means that instead of talking about it, non-Muslims in the West will do something worse.

Which is hardly likely.

Cross-posted on Right-Wing News.

Posted in Faith and Works, Lex scripta, Oppression | Leave a Comment »

Obama, the constitutionally unready

Posted by Ron Coleman on July 22, 2008

Heh. A while ago I argued that the Obama concept — as it was being bottled and sold at the time — was intriguing, but that it was not ready for market.

Now Glenn Reynolds links to Steve Calabrisi, who demonstrates how, by the magic of the living, breathing, metastasizing Constitution, he’s not even constitutional!

I hate getting poked by penumbras, don’t you?

Cross-posted on Dean’s World.

UPDATE: No minor irony.

Posted in Jocularity, Lex scripta, Politics and Poker | 2 Comments »

A tale of two Districts

Posted by Ron Coleman on July 17, 2008

It was the best of times, it was the worst of times!

In one city (New York), a judge determines that an Internet retailer’s use of thumbnail product images, even those published by a manufacturer to sell its own products, is permissible “fair use” when used by the Internet retailer to sell that manufacturer’s own products, and hence dismisses a claim for copyright infringement by the manufacturer. In another city (Phoenix), that same fact pattern and the same statute results in a trial for copyright infringement!

In the same city (New York) that dismisses the copyright claim, the same judge rules that a claim for tortious interference with contract can go forward to trial despite the absence of any proof of direct communication or transaction between my client and the allegedly-interfered-with party, or of a coherent damages claim, or specific knowledge of who that party is or what its contrast says. In the other city, a judge says no set of facts could render such a preposterous claim for third-party interference with contract actionable and throws out the identical claim before trial!

Later, in the latter city — Phoenix — the judge throws out all the other side’s damages claims for copyright infringement during the trial — the best of times! — and dismisses their unfair competition claim too on our motion after the close of their evidence. But that same Phoenix judge keeps on an advisory jury on to determine whether my client has committed copyright infringement. The jury comes back and says my client mostly had committed infringement, handing me my first ever jury trial loss — the worst of times!!! (That’s for me, not for my client, though, so he’s happy and it goes back to “best.”)

And I spend four days and nights in Phoenix, an architecturally and ecologically stunning location where everyone is as nice as pie — the best of times! But in July it is THE HOTTEST PLACE I HAVE EVER BEEN IN AND EVERY MINUTE SPENT OUT OF DOORS IS LITTLE MORE THAN A TASTE OF SATAN’S VERY OWN FIERY HELL SUCH AS IS RESERVED FOR THE WORST OF SINNERS …

The worst of times.

I’m going home tonight with a pretty good trial result and leaving all those scorching rays behind me — so it goes back to the best!

Posted in Americana, Lex scripta, Sisyphus | 3 Comments »

Phoenix eve

Posted by Ron Coleman on July 14, 2008

I’m back in Phoenix, picking a jury early tomorrow morning.

I promise you we’re on the side of the angels, so you can pray or “have me in your thoughts” without reservation, and not just because we’re friends.

Posted in Faith and Works, Heart and spirit, Lex scripta | Leave a Comment »

Un-fabulous

Posted by Ron Coleman on July 10, 2008

The thing about the nuts that fall from Obama’s tree, it seems, is you get a good luck* look at the unappetizing meat in ’em when they crack open on the hard ground. Tales from the Unreality-Based Community:

A homosexual man who has a blog on Sen. Barack Obama’s campaign website is suing two major Christian publishers for violating his constitutional rights and causing emotional pain, because the Bible versions they publish refer to homosexuality as a sin. . . .

Fowler alleges both Zondervan and Thomas Nelson, with its King James Bible, manipulated Scripture without informing the public by using the term “homosexuals” in a New Testament passage, 1 Corinthians 6:9.

He told the Grand Rapids TV station in an interview he wants to “compensate for the past 20 years of emotional duress and mental instability.”

Zondervan, he contended, is misinterpreting the Bible.

“These are opinions based on the publishers,” Fowler said. “And they are being embedded in the religious structure as a way of life.” . . .

Fowler, who is representing himself in both lawsuits, says in his complaint against Zondervan that the publisher intended to design a religious, sacred document to reflect an individual opinion or a group’s conclusion to cause “me or anyone who is a homosexual to endure verbal abuse, discrimination, episodes of hate, and physical violence … including murder.”

So much… so very, very much… that is so stupid, so nuts, so God – help – Michigan about this. Where to begin? How to say when?

First… if you want it… I’ve downloaded the insane, hand-written complaint here. Go ahead, you read it. Now, the bullet points: Read the rest of this entry »

Posted in Americana, Faith and Works, Lex scripta, O Mores!, Oppression | 9 Comments »

Martindale and me. Ok, well, mostly me.

Posted by Ron Coleman on July 3, 2008

I only mention this here because we can talk. It’s just a few of us who read the blog, and by now we’re mostly pretty good friends and no one here is going to take this wrong way. I mean, the premise of most blogs, including this one, is some aspect of self-promotion, yeah, but that’s not my point here, right? By now it’s pretty much just us guys and we all know where we stand vis-à-vis each other. The post is pretty self indulgent, though, even for a blog, even for one of my blogs, but if you’re interested in kind of higher-end lawyer marketing thingies you might find it instructive.

A little while ago I kicked up a little lawyer-directory dust by axing the musical question, Why does upstart lawyer – ranking – promotion – and – directory service Avvo.com rank me so super high and all? This was meant as an entirely honest question in light of the fact that I know who the real killers are in this profession and I in all unsimulated modesty I wasn’t so so sure I was one of them.

Fine, I was sufficiently… humbled… on that point.

Now it turns out that (somewhat embattled) Martindale-Hubbell, the definitive (and remarkably costly, to firms) old-line law directory rapidly catching up to the Internet age, is showing me some cyber – law – marketin’ – lovin’ too. Tell me this isn’t kind of cool:

Ronald D. Coleman Lawyer Profile on Martindale.com
Visibility Rankings
#68 out of 53,913 lawyers in New York, New York
#862 out of 892,508 total lawyers Overall

Number 68 out of the whole New York City? Really? I must be very successful!

At something. Like getting people to look me up.

Isn’t attention useful when paying your electric bill? I know in Heaven that is one of the first question they ask at the pearly gates: “Coleman, Ronald, eh? Jewish name, Henech ben Yankiv. Hmmm…. mixed bag here I see but — hey, nice page view stats!”

I suppose 862 out of 892,508 nationwide is cool, too. Top one-tenth of 1%, right? But, er, you know how we New York types are. So, yeah, of course, that’s nice. But 68 out of almost 54,000 is such an incredible achievement….

Of getting looked up. Do I maybe get, I dunno, some coupons or something?

I also like how they’ve integrated LinkedIn.com, which is improving phenomenally as a grownup networking tool, into Martindale, though I don’t quite understand how they did that. I just see that my profile has a LinkedIn icon.

Whoa — ok! I just clicked the icon and it said, hey, you want to connect your LinkedIn profile to Martindale? Of course, natch, that’s the idea, right? Okay, so somehow it knew it was me in both places, but it didn’t know it was me reading the profile. Okay, that I like. So, fine, what happens now when you click the icon is it tells you how, once you’re identifed as a LinkedIn user yourself, how you’re already connected to the profile on Martindale you’re reading. Which in my case was easy, okay, but… wow. Pretty cool.

Another pleasant surprise: My AV rating kind of got upgraded, too. That’s a gooood rating. I actually was “awarded” this rating when I was an associate at the old Pitney Hardin law firm in New Jersey. I haven’t met anyone else who was rated AV as an associate (i.e., means of production) in a big firm, though I am sure there are other such people. But —

Humility break, kind of: That ranking didn’t mean Pitney Hardin even remotely considered me for partnership. In a firm where virtually no one without government service tries cases to juries, I had just tried and won a jury trial, got a “no judgment” verdict where the exposure was in the seven figures, on behalf of a fairly important firm client — Volvo Cars of North America. The firm’s response? They offered to transfer me to the corporate department!! Nice touch.

— my listing in New York always had this kind of asterisk on it next to the AV, because, really, I had “earned” it while practicing out of state. It was a way for Martindale to say, on the New York listing, “this guy is really good! For New Jersey, that is.” Evidently they’ve changed that somewhat; according to their FAQ, it now goes like this:

Martindale-Hubbell Peer Review Ratings are generally transferable within state boundaries. If a lawyer moves to a different state, his or her rating will appear in the Law Directory with the state abbreviation, indicating that it was established in another state or province.

Well, guess what? No abbreviation, dude! Looks like by virtue of the last few years having my mail sent to this side of the river, I is … legitimated!

They like me! They really, really like me!

If I can make it here, I can make it anywhere!

You… you could look it up!

UPDATE: Maybe this is even easier than I thought — Monday, July 7th: