Published By: Maxwell S. Kennerly, Esquire

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Two days ago, State Representative Mike Turzai, one of the top Republicans in Pennsylvania, made a big mistake: he told the truth about Pennsylvania’s new voter identification law.

At a state Republican Party meeting in Harrisburg Saturday, House Majority Leader Mike Turzai of Allegheny County listed legislative victories since Republicans regained control of both chambers and the governor’s office. Among them, he said: requiring voters, starting in November, to show an acceptable form of identification at the polls.

Turzai then framed the effort in the context of November’s presidential election. “Voter ID, which is going to allow Gov. Romney to win the state of Pennsylvania – done,” Turzai told the crowd, which promptly broke into applause.

We already knew that was the real reason behind the Voter ID law, of course, because we already knew that in-person voter fraud virtually never happens in Pennsylvania (or anywhere else), and because we knew that the Voter ID law’s provisions were targeted at denying senior citizens, college students, and the impoverished their right to vote.

But we didn’t know that one of the bill’s primary supporters would be so foolish as to admit it in public.

On one level, the admission of the malicious and undemocratic intent behind the new law — note the “broke into applause” part in the story above — is just an embarrassment, a “gaffe” that will subject Representative Turzai to criticisms in the press and on the Internet but probably won’t seriously hinder his chances at reelection in Pennsylvania’s heavily gerrymandered districts.

On another level, though, the admission may have very real consequences.
Continue Reading “Winning” Is Not A Constitutional Basis For Pennsylvania’s Voter ID Law

There are innumerable ways to set up government, but the Framers of the United States Constitution agreed that our country should be governed by a series of checks and balances: the legislature drafts the laws, the executive enforces the laws, and then both are ignored while five Justices of the United States Supreme Court draft and execute the real laws by deciding in their sole discretion which laws count, which don’t, and what additional laws they would like, based on whatever “facts” some court clerk found googling around to support a Justice’s preference.

What, you didn’t learn it that way in high school civics class, college, or law school? Well, I hate to break it to you, but that’s how things work.

I’m sure someone told you along the way that the Constitution was “the supreme law of the land,” and that the federal courts were restricted in their power to interpreting “cases or controversies.” If you went to law school, then you were told that the effect of these two clauses was to limit the power of federal courts to deciding only the narrowest legal issue that will resolve the case. The Supreme Court has no power under the Constitution to create policy or issue advisory opinions or anything of the sort; it can only operate when two parties come to it asking it to resolve a dispute, which it does by applying federal or state law, often interpreting the federal Constitution to ensure that neither federal nor state laws violate it. (It’s also supposed to accept state courts’ interpretations of their own laws, but that bedrock principle was defenestrated by Bush v. Gore.)

As two recent articles, one in The New Yorker and one in the Virginia Law Review, demonstrate, however, the current Court feels not the slightest hesitation to go beyond the cases actually in front of it, and to issue decisions that go far beyond of the facts of the cases they’re deciding, and which often rely on “facts” that aren’t anywhere in the court record, “facts” that are never questioned or considered before they become the law for us all, regardless of their truth or validity. 
Continue Reading Checking The Supreme Court

Sometimes, a legal blogger has to hunt for topics to write about. And sometimes they’re delivered through the philly.com RSS news feed:

Q: I am an attorney. Several years ago I had a case in which my “adversary” was a nice, very attractive woman. … At present I have several cases with her and we have spoken on the phone a couple of times. Although we only talk business, from my perspective we get along well.

I would like to ask her out, but there is a twofold problem.

The first is whether she is in a relationship. And the second is that if she doesn’t want to go out with me, it could make for a very uncomfortable situation going forward professionally.

How can I ask her out, or even speak with her in a nonbusiness setting to see if she has any interest?

I’m not in the business of giving out relationship advice, but I can give a handful of pointers relating to protocol in the legal world. I’d recommend against asking her out in the time before or after a deposition or a hearing — many lawyers in courtroom situations are at work and cannot easily shift gears — but other than that you can stick to the basics: call her and ask her out to lunch or dinner at a nice sit-down restaurant. Consume, at most, just under two drinks. Then be yourself, just like mom always said.

But Steve and Mia, the Daily News advice columnists, skipped over the relationship advice and went right to legal ethics:

Steve: The ask-out part is easy; the legal issues are not. Case law and ethics require you to disclose to your client and the court any relationship you might have with opposing counsel. Might be best to avoid that mess until all your cases with her are completed. Then, simply ask her out for coffee and find out her relationship status. If she’s interested in you, she’ll let you know.

Mia: Steve’s right. Don’t make a move until your legal dealings are finished. Until then, lay off the Facebook stalking, or you’ll end up at the top of her friends list, which is a big giveaway that you’ve been creeping on her page.

Shucks; depending on the type of work, if they have “several cases” together that could take years before the “legal dealings are finished.” Said The Bard of Avon, “the course of true love never did run smooth.”

No worries, young man, we’re going to work through this one together.

There’s no professional responsibility rule or case law that says whether you can or can’t go on a date with opposing counsel, and no rule or case that tells you at what point you need to disclose the relationship to the client. The comments to ABA Model Rule 1.7, includes this distinguishable passage:

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.

Notice that it generally refers to “the existence and implications of the relationship between the lawyers,” which would seem to speak broadly, but then limits itself with a description limited to close family members. Indeed, as far as I’ve seen, the rule is construed narrowly, at least in terms of whether or not an ethical violation is found, but it is construed a bit more broadly in terms of whether the client is entitled to post-trial relief for undisclosed relationships. See, e.g., State v. Sheika, 766 A. 2d 1151, 1161-1162 (N.J. App. Div. 2001)(finding no violation where criminal defense lawyer’s daughter was an assistant prosecutor in the office that prosecuted defendant but played no role in prosecution, but also remanding for findings on claims of ineffective assistance of counsel). 
Continue Reading The Legal Ethics Of Going On A Date With Opposing Counsel

[Update: the Petition to Intervene was rightfully denied.]

If you’ve been following the press on Pennsylvania’s new voter identification law, then you’ve likely already heard about the plaintiffs. Joyce Block, an 89-year-old woman, who committed the ‘crime’ of getting a marriage license in Hebrew and then registering to vote in her married name; 84-year-old Nadine Marsh, born near Pittsburgh and has lived her whole life in Pennsylvania, but whose birth certificate can’t be found; and, the worst of the worst, the ringleader, 93-year-old Viviette Applewhite, who worked as a welder in World War II, who marched with Martin Luther King, and who has 18 grandchildren, great-grandchildren, and great-great grandchildren, and who for no good reason has been denied photo identification by the Commonwealth of Pennsylvania.

These are some of the people on whose behalf a group of public interest organizations, including the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), and the Advancement Project, and the Washington, D.C. based law firm Arnold & Porter have filed a lawsuit in the Commonwealth Court of Pennsylvania seeking to have Pennsylvania’s Photo ID voting law voided. The law, one of Governor Tom Corbett’s signature bills, is one of the strictest “voter ID” laws in the country, forbidding all kinds of identification — from utility bills, to Veteran IDs, to student IDs without an expiration date, out of state driver’s licenses — in favor of only a very limited list of acceptable identification, including driver’s licenses, state issued photo identification, student IDs issued by Pennsylvania schools with expiration dates (only a handful of schools have them) and passports. The Committee of Seventy has some details on what works. Expired passports, military dependent, or government employment IDs? They’re all obviously you, expired or not, but none of them work under PA’s new voter ID law.

Supporters of the law, which will cause havoc at the polls for legitimate voters by adding several steps to the voting process, haven’t been able to provide any examples of anyone actually voting more than once (or voting under the wrong name) in Pennsylvania, but the General Assembly and Governor Corbett figure the confusion created by the law and its onerous requirements would deny the vote to college students, the impoverished, and the elderly, so they fought hard for it while slashing funding for Child Care Works, the T.E.A.C.H, scholarship program, Pennsylvania Pre-K Counts and the Head Start Supplemental Assistance Program.

But it’s a truism of American politics that, for every bad idea, there’s a half dozen people who want to take it even further, and the dishonor this time falls to state Rep. Thomas Killion (R., Chester) and several other individuals who, represented by Buchanan, Ingersoll & Rooney, filed a petition in Commonwealth Court to intervene in support of the new law. 
Continue Reading The Embarrassing Attempt To Intervene In The PA Voter ID Lawsuit

The point of having law schools, as I’ve written before, is to “lay the foundation for graduates who are capable of learning and developing technical skills and of exercising sophisticated and mature judgment in the face of uncertainty.”

These schools exist to prepare students to take the bar and then practice as competent lawyers. We can reasonably presume, then, that every word, clause, sentence or paragraph in a law school’s brochure or on their website is aimed towards describing the school’s sound program of legal education, towards showing how the school prepares its students for passing the bar and then being effective and responsible legal practitioners. When a law school brochure says “classes,” they mean classes on legal issues, typically on the law itself. “Professors” are people with some pretense to being learned in the law. “Exams” assess the student’s understanding of the law and their ability to apply it.

But when they say “employed,” they mean making frappuccinos, or delivering pizza, or receiving a temporary stipend from the law school that’s granted to students for the sole purpose of manipulating U.S. News ranking. At least that’s what a trial judge in New York ruled yesterday. Above The Law had the scoop. 
Continue Reading Baristas Count As Barristers: Law School Marketing Fraud Lawsuit Dismissed

Back when I took Evidence at the Beasley School of Law at Temple University, Professor JoAnne Epps (now Dean Epps) told us that, of all the movies about the law and about trials, there was only one movie we had to watch: My Cousin Vinny.

I’ve always thought To Kill A Mockingbird is a better movie. 12 Angry Men is a better drama. Paul Newman was more compelling in The Verdict. Anatomy of a Murder has more evocative twists and turns. And I have a soft corner for A Civil Action and Erin Brockovich (and I’m sure I’d think the same of Puncture), even if they’re not truly great movies, because they’re sympathetic to my line of work.

But there’s a reason Dean Epps mentioned it in our Evidence class: nothing compares to My Cousin Vinny when it comes to portraying the reality of trial. So, when I heard Abnormal Use was hosting a 20th anniversary celebration of the film, I had to join in.

My Cousin Vinny is a farce but, as New York Times film critic Vincent Canby noted, “the film has a secure and sophisticated sense of what makes farce so delicious.” That “secure and sophisticated sense” allows it to take the reality of trials — the reality of limited budgets, limited preparation, impatient judges, hostile experts, ruined dress suits, hopelessly mangled questions, completely fruitless arguments, and of real life constantly intruding — and mold it into a comedy.

The movie is close to reality even in its details. Part of why the film has such staying power among lawyers is because, unlike, say, A Few Good Men, everything that happens in the movie could happen — and often does happen — at trial. Every trial lawyer winces when they hear the Sheriff read back deadpan the police narrative where Bill inadvertently confesses “I shot the clerk,” without a hint of Bill’s actual intonation and surprise: “I shot the clerk?!”

Every trial lawyer also swells with pride watching the “magic grits” cross examination, recalling their own times when they set up a key witness for the other side to admit indisputable facts, concluding the cross-examination with an unrelenting demand that the witness admit to the court that they’re no longer confident about their testimony. And, like with the “magic grits,” for many trial lawyers their best ideas for cross-examinations only occur to them while eating breakfast that very morning.Continue Reading Every Young Trial Lawyer Needs To Watch My Cousin Vinny

Today the Supreme Court will hear oral arguments in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, that raise a simple question: whether the Alien Tort Statute applies to corporations.

The Constitution granted Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” Article 1, Section 8, Clause 10, and Congress responded in the Judiciary Act of 1789 by passing the Alien Tort Statute (ATS), which ensured “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS is, literally, one of the first laws ever passed in the United States. It was obviously intentionally broad: an alien may bring a tort suit for any “violation of the law of nations or a treaty of the United States.“

SCOTUSBlog has an extensive preview of the argument that details, inter alia, the rise of ATS litigation following the Second Circuit’s 1980 opinion in Filártiga v. Peña-Irala, and the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain.

There’s plenty of commentary at SCOTUSBlog about the issues at hand and the various arguments. For recent developments in the courts, Professor Alberto Bernabe has been following ATS litigation for some time. I don’t want to recount the details of the ATS, but rather want to focus on a very particular issue: the analytical sleight-of-hand that Justices Scalia and Thomas, and presumably Justices Roberts, Alito, and Kennedy, will likely use to deny victims of human rights abuse a right to civil redress granted to them at the very beginning of our nation.

I’m certainly not the first to point out the dishonesty of Justice Scalia’s “originalism” — which vanishes the moment it conflicts with his preferred political outcome — and other conservative judicial activism. (It’s a bit dense, but I still like David Zlotnick’s Justice Scalia & His Critics: An Exploration of Justice Scalia’s Fidelity to His Constitutional Methodology, 48 Emory Law Journal 101 (1999)).

But the ATS presents a special case to bring to light the deceptive way in which “originalists” expand or contract the concept of “original meaning” to fit their purposes. Consider Justice Scalia’s argument in his concurrence (joined by Justice Thomas) to Sosa v. Alvarez-Machain that the ATS cannot be used to enforce any norms of international law not in place as of the Judiciary Act of 1789:

Despite the avulsive change of Erie, the Framers who included reference to “the Law of Nations” in Article I, § 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the “discretion” endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates.

As Justice Scalia continues, “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty … could be judicially nullified because of the disapproving views of foreigners.”

Recall the actual language at issue in the ATS. As Scalia argues, even though the Framers gave Congress the power in the Constitution “To define and punish … Offences against the Law of Nations,” and Congress responded with the ATS ensuring “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations …,” Congress hadn’t a clue that “law of nations” could be an expansive, shifting concept, and what they really meant to do was to freeze the meaning of that Constitutional provision and the Judiciary Act in 1789.

If you know anything about the Supreme Court, you know where this is going: Heller and Citizens United.
Continue Reading Originalism and Corporate Personhood Meet The Alien Tort Statute

[Update, February 3, 2012: The Komen Foundation reversed its decision. That’s of course the right decision; the question now is if they will publicly explain how they came to make such an obvious mistake, and why they dishonestly denied the influence of politics in making the decision.]

If by chance you read this blog but live under a rock, earlier this week the Susan G. Komen Breast Cancer Foundation, Inc., cut all grant funding for Planned Parenthood Federation of America, Inc. For some reason the Susan G. Komen Foundation claims the decision wasn’t political even though, of course, it was. This isn’t even an abortion issue, because Planned Parenthood spends the vast majority of its funds providing non-abortion services, like the 750,000 breast cancer screenings they provide every year, including at steeply discounted rates for lower income women.

It was politics, pure and simple, and the astonishing part is that the Susan G. Komen folks seemed totally unprepared for the backlash. Just search Twitter for what people are writing to @komenforthecure. The whole scene is reminiscent of the March of Dimes / KV Pharmaceuticals / Makena fiasco from March of 2011, in which another well-respected charitable organization lost its way, got involved with the wrong sort of people, and ended up making a wildly irresponsible choice diametrically opposed to the claimed mission of the organization.

It’s the second big debacle for Susan G. Komen Foundation in this young decade — in late 2010 and early 2011, the Foundation came under fire for its aggressive stance in protecting its trademarked phrase “race for the cure” (listed in the US Trademark database as “organizing and conducting foot races to raise money for breast cancer research and local community breast health awareness programs”) against small groups like, for example, “kites for a cure,” which flew kites to raise money to treat lung cancer. Komen hasn’t sued them, exactly, but it has filed oppositions with the U.S. Patent and Trademark office, which all the same compels the smaller organization to hire lawyers and deal with the issue. As Luke MacDowall wrote in an extensive law journal note on the trademark issues involved, “[t]his case presents the perfect example of a situation where one probably has a responsibility not to enforce one’s rights” because enforcement of Komen’s trademark does little to reduce confusion among the public while causing substantial damage to other organizations with worthy and compatible missions.

The Komen Foundation eventually backed down — as they should have in the first place given how, as best I can tell, they lost the only fight they ever continued to its conclusion, with the American Cancer Society prevailing on its use of “cars for a cure,” 2001 TTAB LEXIS 455 (Trademark Trial & App. Bd. June 13, 2001) — but the core problem remained.


Continue Reading Susan G. Komen, March of Dimes, and Corruption by Branding

[Update, February 9, 2012: Erwin Chemerinsky has an article at the ABA Journal explaining how Minneci and another case this term, Ryburn v. Huff, have made it far harder for civil rights plaintiffs to prevail.]

Yesterday, the Supreme Court issued its first two opinions this term* in civil cases, Minneci v. Pollard, a lawsuit brought by a prisoner who was denied medical care at a federal prison run by a private company, and CompuCredit v. Greenwood, a proposed class action on behalf consumers deceived into signing up for a credit card that claimed it would help “rebuild poor credit” but actually instantly filled its $300 limit with $257 in fees.

If you own a prison management company or fake credit repair company, yesterday was a good day for you. If you don’t, not so much.

The court’s reasoning behind the opinions is as poor as we’ve become accustomed to seeing from the Supreme Court lately (see, e.g., PLIVA v. Mensing, which used a statute that didn’t exist to tell the FDA an irreconcilable conflict existed between federal law and state law even if the FDA didn’t think there was a conflict at all). In Minneci, the Court held that a prisoner sentenced to serve time in a federal prison loses his constitutional rights the moment the jailhouse door slams shut if that prison happens to be run by a private company. In CompuCredit, Congress told consumers “You have a right to sue a credit repair organization that violates the [Credit Repair Organizations Act],” 15 U.S.C. §1679c(a), but the Court held that Congress didn’t really mean it, but instead meant, you don’t have the right to file a class action, you don’t have the right to file an individual lawsuit, but you do have the right to pay a couple thousand dollars for an arbitrator to hear your claim for $257.

I suppose I should give the Roberts’ Court some credit for consistency. Like with Citizens United and the Wal-Mart v. Dukes and AT&T v. Concepcion cases, the Court yesterday reaffirmed its primary theory of constitutional law and statutory interpretation: might makes right. Thrasymachus from Plato’s Republic would be impressed.
Continue Reading Supreme Court Sets The Tone For 2012 Term: Might Makes Right

It’s holiday season again, time for the giving of gifts. In the blawgosphere (a word I despise but have been unable to replace), we give and receive gifts in the form of pies. Yes, pies — see my post here, and Scott Greenfield here.

The new pie-giver in town, LexisNexis, has added a “Top 25 Tort Law Blogs” listing, including your humble author, for whom you should go vote as the top tort blog (and not any of these other tort blogs I’m about to mention). Unfortunately, as Eric Turkewitz says in his post comparing the LexisNexis list unfavorably to the ABA Journal’s Blawg 100:

[T]here are some good blogs in there. But there are also some real barkers, like  two faux-blogs from the Illinois firm of Levin & Perconti that are little more than thinly disguised ads for the firm. LexisNexis apparently wasn’t too concerned about quality, as those aren’t the only ads posing as blogs.

I concur in part and dissent in part.

The ABA Journal has been giving out pies for five years now in the form of their Blawg 100, which they describe as the websites “the Journal staff finds the posts useful in terms of tipping us off to news or generating posts we consider worthy of coverage.” Consequently, it’s not really a list of legal blogs per se — all seven “News” websites on their list, for example, are professional media outlets with full-time employees — but it’s as good a place to start for legal content online as you’ll get. The “Torts” blogs include Overlawyered, Drug and Device Law, Abnormal Use, and New York Personal Injury Law Blog, all great blogs which have linked to me in the past year. LexBlog has put together a curated publication of all those law blogs posts’ together, for easier reading.
Continue Reading Tis The Season For Law Blog Lists