Govenment: Members of Congress Trade in Companies While Making Laws That Affect Those Same Firms

One-hundred-thirty members of Congress or their families have traded stocks collectively worth hundreds of millions of dollars in companies lobbying on bills that came before their committees, a practice that is permitted under current ethics rules, a Washington Post analysis has found.

Almost one in every eight trades —- 5,531 —- intersected with legislation. The 130 lawmakers traded stocks or bonds in companies as bills passed through their committees or while Congress was still considering the legislation. The party affiliation of the lawmakers was almost evenly split between Democrats and Republicans, 68 to 62.

Congress forbids top administration officials, for instance, from trading stocks in industries they oversee and can influence. The lawmakers, by contrast, can still invest in firms even as they create laws that can affect the bottom line of the companies.

For more, see Members of Congress Trade in Companies While Making Laws That Affect Those Same Firms by Dan Keating, David S. Fallis, Kimberly Kindy and Scott Higham, June 23, 2012 at The Washington Post.

Law: House OKs Indefinite Definition of Terror Suspects

The House has backed indefinite detention without trial of terrorist suspects, even for U.S. citizens seized on American soil.

For more, see House OKs Indefinite Definition of Terror Suspects, May 18, 2012 at NYTimes.com.

Healthcare: First the Mandate, Then All Tax Incentives

Martin Sullivan wrote in Tax Notes and on Tax.com Monday:

The only difference between the mandate and your common tax incentive is that Congress framed the incentive as a tax penalty instead of a tax break. I recognize there might be a legal difference between the two approaches that is beyond my comprehension. But the court, Congress, and the public should understand that economically the two approaches are exactly the same. Any tax penalty can easily be redesigned as a tax incentive. So, for example, a $1,000 tax penalty for not doing X could be replaced by a tax policy whereby all individuals' taxes are raised by $1,000 and then they are given a tax credit of $1,000 for doing X. ...

For more, see First the Mandate, Then All Tax Incentives by Catherine Rampell, April 2, 2012 at Economix.

Law: Michigan Judge Jails Lawyer for Doing His Job

Wow.

In early December, Attorney Scott G. Millard was held in contempt and jailed by 58th District Court Judge Kenneth Post for insisting that his client not answer questions about any prior drug use for fear of self-incrimination.

Millard's client, who was charged with a minor in possession of alcohol, was asked repeatedly by the judge if he would pass a drug test. Millard politely asserted his client's right to remain silent; however, Judge Post continued to press the issue and instructed Millard to sit down and be quiet. When Millard asserted his client's constitutional rights again in response to further questions, the judge held him in contempt and sent him to jail.

For more, see Michigan Judge Jails Lawyer for Doing His Job by Ed Brayton, December 23, 2011 at Dispatches from the Culture Wars.

Education: Law Schools

The debate about legal education has focused on tuition costs in the stratospheric layers of the law-school world. But what of the ground floor? Duncan hopes to draw students from economically distressed parts of the country, including the Appalachian Mountains of Tennessee, and sincere efforts have been made to keep overhead to a minimum.

But tuition here is still $28,664 a year. With living expenses and various fees, the student handbook warns, the total price tag for a year runs $50,000.

The reason, according to Pete DeBusk, a retired businessman and the school's main benefactor, is the A.B.A. standards. Without them, he says, Duncan could have cut its tuition in half, maybe by two-thirds.

... the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities. This year, the World Justice Project put the United States dead last among 11 high-income countries in providing access to civil justice.

Nashville School of Law [is] a night school that started as the Nashville Y.M.C.A. Night Law School in 1911. Nashville's graduates are not recruited by large corporate firms. Most will remain in Tennessee, because only a few states deem a diploma from a school that lacks A.B.A. accreditation as a ticket to practice.

But tuition costs $21,000 — in total, for all four years it takes to complete the degree. The reasons? Nobody has tenure. There are no full-time professors. The library costs $65,000 a year.

Our mission from Day 1, says Virginia M. Townzen, associate dean, was to provide a quality, affordable education to those who might not otherwise be able to attend law school.

The graduates get high marks from local judges, including Lawrence H. Puckett of the 10th Judicial District of Tennessee. Some of our more outstanding practitioners have come through the Nashville School, he said. Many of the teachers are judges that I know, and I'm sure they are excellent instructors. But I think it's also the quality of students. They persevere while also holding down a job. That speaks highly of their character.

For more, see The Price to Play Its Way by David Segal, December 17, 2011 at NYTimes.com.

Mind: The Brain on Trial

After Charles Whitman shot 45 people from the top of the University of Texas Tower, ...

[his] body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman's brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman's intuition about himself—that something in his brain was changing his behavior—was spot-on.

When your biology changes, so can your decision-making and your desires. The drives you take for granted (I'm a heterosexual/homosexual, I'm attracted to children/adults, I'm aggressive/not aggressive, and so on) depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption.

Many of us like to believe that all adults possess the same capacity to make sound choices. It's a charitable idea, but demonstrably wrong. People's brains are vastly different.

Who you even have the possibility to be starts at conception. If you think genes don't affect how people behave, consider this fact: if you are a carrier of a particular set of genes, the probability that you will commit a violent crime is four times as high as it would be if you lacked those genes. You're three times as likely to commit robbery, five times as likely to commit aggravated assault, eight times as likely to be arrested for murder, and 13 times as likely to be arrested for a sexual offense. The overwhelming majority of prisoners carry these genes; 98.1% of death-row inmates do. These statistics alone indicate that we cannot presume that everyone is coming to the table equally equipped in terms of drives and behaviors.

Free will may exist (it may simply be beyond our current science), but one thing seems clear: if free will does exist, it has little room in which to operate. It can at best be a small factor riding on top of vast neural networks shaped by genes and environment. In fact, free will may end up being so small that we eventually think about bad decision-making in the same way we think about any physical process, such as diabetes or lung disease.

For much more about how the law should be changed due to this, see The Brain on Trial by David Eagleman, July, 2011 at The Atlantic.

Health: Motorcyclist Protesting Helmet Laws Dies

A man riding bareheaded on one of about 550 motorcycles in an anti-helmet law rally lost control of his cycle, went over his handlebars, hit his head on the pavement and died, police said Sunday.

The motorcyclist, 55-year-old Philip A. Contos, likely would have survived the accident if he'd been wearing a helmet, state troopers said.

For more, see NY Motorcyclist Protesting Helmet Laws Flips over His Handlebars, Hits Head on Pavement, Dies, July 3, 2011 at The Washington Post.

Law: Justices Reject Ban on Violent Video Games for Children

Ugh ...

The Supreme Court on Monday struck down on First Amendment grounds a California law that barred the sale of violent video games to children.

The California law would have imposed $1,000 fines on stores that sold violent video games to people under 18. It defined violent games as those in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being in a way that was patently offensive, appeals to minors' deviant or morbid interests and lacked serious literary, artistic, political or scientific value.

Those definitions tracked language from court decisions upholding laws regulating sexual content. In 1968, in Ginsberg v. New York, the court allowed limits on the distribution to minors of sexual materials like what it called girlie magazines that fell well short of obscenity, which is unprotected by the First Amendment.

For more, see Justices Reject Ban on Violent Video Games for Children by Adam Liptak, June 27, 2011 at NYTimes.com.

Great Recession: Paul Allen, Ex-Mortgage CEO, Sentenced to Prison for $3B Fraud

They got one of them ...

The CEO of what had been one of the nation's largest privately held mortgage lenders was sentenced Tuesday to more than three years in prison for his role in a $3 billion scheme that officials called one of the biggest corporate frauds in U.S. history.

The 40-month sentence for Paul R. Allen, 55, of Oakton, Va., is slightly less than the six-year term sought by federal prosecutors.

For more, see Paul Allen, Ex-Mortgage CEO, Sentenced to Prison for $3B Fraud by Matthew Barakat, June 21, 2011 at The Huffington Post.

Law: 7 Experts to Be Tried over 2009 Italy Quake

Seven scientists and other experts were indicted on manslaughter charges Wednesday for allegedly failing to sufficiently warn residents before a devastating earthquake that killed more than 300 people in central Italy in 2009.

Defense lawyers condemned the charges, saying it's impossible to predict earthquakes. Seismologists have long concurred, saying the technology doesn't exist to predict a quake and that no major temblor has ever been foretold.

Judge Giuseppe Romano Gargarella ordered the members of the national government's Great Risks commission, which evaluates potential for natural disasters, to go on trial in L'Aquila on Sept. 20.

Italian media quoted the judge as saying the defendants "gave inexact, incomplete and contradictory information" about whether smaller tremors felt by L'Aquila residents in the six months before the April 6, 2009 quake should have constituted grounds for a quake warning.

For more, see 7 Experts to Be Tried over 2009 Italy Quake by AP, May 29, 2011 at Google.

Law: Doctors Say They Own Reviews You Post

Sign here, here, here, and here—that's the first thing your doctor's office asks you to do. Chances are, you're not reading the forms too closely. But tucked in there might be a little clause that goes something like this: all your online reviews are belong to us. And if you refuse to sign it, they'll refuse to see you.

Doctors and dentists have started including this language, provided by an organization called Medical Justice, in their releases in an effort to keep negative online reviews from going up on sites like Yelp. But, as Ars Technica found, there are about a million different ways that this is both silly and pointless.

For more, see Doctors Say They Own Your Reviews—A Prescription for Legal High Jinks by Veronique Greenwood, May 24, 2011 at DISCOVER's Gene Suppression.

Law: Birthers and Birth Rights

Contributed by Bruce B., March 29, 2011 ...

There is too much legal mumbo jumbo on this birther business.

To clarify things, we should all agree that there are two (and only two) kinds of American Citizens: Natural born American Citizens and Naturalized Americans.

That's it.  Two flavors only.

A natural born citizen enters the world an American citizen.  A naturalized American citizen enters the world with some other citizenship, and then goes through a naturalization process to become an American citizen.  Feel free to read this paragraph a second time, because it is essential to understanding things. 

Most natural born American citizens are born in the United States.  However, not all are born in the United States.

I offer as exhibits A and B my two children, both born on Italian soil.  Their parents (my wife and I) are natural born American citizens born in California and Connecticut, respectively.  Work took us to Italy, where our children were born.  (We are now back in the United States, where they have lived the bulk of their lives). 

When each child was born, we took our passports and the child's local birth certificate down to the United States Consulate in Milan, Italy, and obtained a Consular Report of Birth Abroad and a U.S. passport for our new bundle of joy. Automatically.  Based on our citizenship.

No questions.  No lengthy process.  No naturalization.  I repeat: no naturalization.  Since we are American citizens, they are American citizens.  At birth.  I.e. "natural-born American citizens".  For those who like Latin legal terms, we are talking jus sanguinis (citizenship through the law of bloodline, or lineage).  That's the law and  our children are living proof.  Both are eligible to be President. 

Being born on American soil has importance only in situations where the parents are not American citizens.    

Exhibit C could be Mitt Romney's father, George Romney.  George was born of American parents in Mexico.  His family returned to the United States where he became the CEO of American Motors (remember the old Ramblers?) and governor of the State of Michigan.  He ran for the Republican nomination for President in 1968.  He didn't get the nomination in the end, but that had nothing to do with where he was born. 

Exhibit D could be Arizona Senator and 2008 Republican Presidential candidate John McCain, who was born in the Panama Canal Zone, while his father was serving there in the U.S. armed forces.  This situation is more nuanced, since, at the time, the U.S. controlled the Canal Zone.  This did not stop some people from saying this American hero should have been excluded from running for President.  They were wrong.

Think about it.  Why on earth would we want to exclude the offspring of Americans who are serving abroad in the United States Armed Forces, or the U.S. Diplomatic Corps, or studying or working abroad?  If an American couple from Buffalo happens to be visiting friends in Ontario and the pregnant wife goes into early labor and delivers in Toronto, should the child be excluded from the Presidency because he or she was accidentally born in Canada?  Of course not.

So let's pause here a moment and agree that the children of American citizens are natural born citizens of the United States and therefore eligible to serve as President, due to the operation of jus sanguinis under U.S. law. 

I note as well that only one parent needs to be a U.S. Citizen for all of this to work under the law.  Witness my sister who is married to an Englishman and whose two sons, born in the United Kingdom, are natural born American citizens with Consular Reports of Birth Abroad and U.S. passports.

Now, what of the case of Barack Obama?  This media controversy revolved around citizenship based on place of birth, or jus soli, for those legal Latin lovers.  Was he born in Hawaii or not?  But this misses the point of jus sanguinis, though the media has not picked up on this in any well-reasoned way.  His mother was an American citizen.  That is enough to make him "natural-born American" regardless of where he was born, unless there is a specific disqualifying factor; e.g. if he exclusively took, or was given, the citizenship of his father (who was a British subject colonial citizen) and not the citizenship of his mother.  Or that the place of his birth conferred on him automatic and exclusive citizenship, which he embraced (jus soli).  Nothing like this pertains in his case.

Let me add that someone can be born with two citizenships and still be a natural born American citizen.  Certain countries may confer non-exclusive citizenship on babies born on their soil; others may confer citizenship on the children and even grandchildren of their emigrants.  Hey, that's their business.  It is a separate matter and has no effect on the operation of U.S. law, nor should it.  A natural born American under U.S. law is a natural born U.S. citizen.   Period.

Arguments that try to tease out exceptions to natural born status under either jus soli or jus sanguinis end up sounding ridiculous.  The binary approach is the only one that makes any sense.

The law should be clear and simple on citizens:  natural born or naturalized.  One or the other. 

Let's get this clarity into the media, not just for Barack Obama, but for the sake of children of our loyal service men and women and others who were naturally born as U.S. citizens abroad.  They are fully eligible to become President of our great country.   

Law: Corporations Are Not Entirely Persons

The Supreme Court decided today that AT&T can't keep embarrassing corporate information that it submits to the government out of public view; personal privacy rights do not apply to corporations. We trust that AT&T will not take it personally concluded the ruling.

AT&T insisted that this personal privacy exemption applied even to corporations—after all, corporations are considered legal persons in the US. AT&T won this argument at a federal appeals court, convincing judges there that its submissions to the government should remain private.

But the Supreme Court was having none of it, with every justice except Elena Kagan (she recused herself) agreeing that FOIA was not written simply to prevent corporate embarrassment. After lengthy discussions of grammar, including commentary about the relationship between nouns and adjectives, the court concluded that personal in this case referred to individuals and to private life, not to corporate dealings and business decisions.

For more, see Supreme Court: At&T Can't Keep Bad Behavior a Secret by Nate Anderson, March 2, 2011 at ars technica.

Law: Campaign Cash Mirrors a High Court's Rulings

Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O'Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

Three recent cases, two in Illinois and one in West Virginia, have put the complaints in sharp focus. Elected justices there recently refused to disqualify themselves from hearing suits in which tens or hundreds of millions of dollars were at stake. The defendants were insurance, tobacco and coal companies whose supporters had spent millions of dollars to help elect the justices.

After a series of big-money judicial contests around the nation, the balance of power in several state high courts has tipped in recent years in favor of corporations and insurance companies.

For much more, see Campaign Cash Mirrors a High Court's Rulings by Adam Liptak and Janet Roberts, October 1, 2006 at The New York Times.

Law: Loose Legal Concept Gives Goldman Sachs Grounds to Argue

An article about "materiality" ...

Financial firms selling securities are required to disclose all the information about their products that is “material” to an investor’s decision to invest.

“The legal concept of materiality provides the dividing line between what information companies must disclose—and disclose correctly—and everything else,” explained former SEC official Richard Sauer in a 2007 issue of The Business Lawyer. “Materiality, however, is a highly judgmental standard, often colored by a variety of factual presumptions.” It’s also “inherently situational,” according to Sauer.

See Loose Legal Concept Gives Goldman Sachs Grounds to Argue by Marian Wang, Propublica, April 19, 2010.

Law: False Confessions

In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

See False Confessions by the Innocence Project.