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Archive for the ‘Law and Society’ Category

Editorial – A Political Attack on Guantánamo Lawyers – NYTimes.com

Posted by Nat Colley on March 8, 2010

Editorial – A Political Attack on Guantánamo Lawyers – NYTimes.com.

An excellent defense of a beleaguered profession. There are, of course, many things wrong with the legal profession, but that is beside the point here. Those things do not include giving all people their right to a defense. It is precisely because they are unpopular that they need all their rights protected, since the temptation to rush to judgement or use their unpopularity as a weapon to silence or imprison them is strong everywhere and common in many countries. That they may actually be innocent of the crimes charged becomes a minor, if not irrelevant, detail. Attacking lawyers, then, becomes the next best thing; a way to discourage the unpopular from getting competent help, or even worse, found innocent and exposing the corruption that tried to railroad them in the first place. America is nowhere near as bad as many countries when it comes to political trials, but that’s not to say that the right isn’t trying. This is why the founders, hardly left wing radicals but then King George might disagree, put these provisions into the Constitution in the first place, to guard against our own prejudices – or those of the powerful.

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Apple Sues HTC, the Maker of Google’s Nexus One Phone – NYTimes.com

Posted by Nat Colley on March 4, 2010

Apple Sues HTC, the Maker of Google’s Nexus One Phone – NYTimes.com.

It is one thing to actively protect your intellectual property that you invested a lot in and which gives you a competitive advantage. It is another to use the courts as a business strategy to slow down the competition.  The solution to a competitive marketplace should be to be nimble, not to hire lawyers.  Only time will tell what merit, if any, Apple really has going in this litigation, but in light of the Palm prior art, it looks like all they are doing is buying time.

http://bits.blogs.nytimes.com/2010/03/02/what-apple-vs-htc-could-mean/

“So why did Apple sue HTC and not Google? Mr. Zittrain believes Apple is simply going after a less powerful company first, one with much smaller pockets than Google.

“It clearly involves some form of litigation strategy of picking off the weaker members of the herd first,” Mr Zittrain said. “They can always add Google to the suit later on.”

Mr. Von Hippel also said that these lawsuits pointed to a bigger problem with the patent system. “It’s a bad scene right now. The social value of patents was supposed to be to encourage innovation — that’s what society gets out of it,” he said. “The net effect is that they decrease innovation, and in the end, the public loses out.””

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Editorial – If the Lawyer Fails – NYTimes.com

Posted by Nat Colley on March 1, 2010

Editorial – If the Lawyer Fails – NYTimes.com.

The thing is, this happens all the time. It is one of the main reasons lawyers get sued for malpractice. By failing to meet the standard of care, the lawyer has shifted liability from the other side to himself. No one is saying this is the client’s (Mr. Holland) fault. The whole point of hiring any independent third party is so that you can rely on their expertise. When that person fails, and the client loses whatever rights he had against the other party, the law says now he can go after the attorney.

As in every lawsuit, there are two hurdles to overcome: liability, and damages. The damages aren’t hard to figure out here, although putting a price on them might be.  The real problem is liability. Even if Holland’s lawyer had done everything well, the court might still have rejected his habeas petition. And if that’s the case, then Holland hasn’t lost anything.

This is why legal malpractice involves winning, or proving, two cases at once: the one against the lawyer, and the one the lawyer is accused of messing up. If you can’t prove you would have won anyway, the lawyer’s negligence hasn’t cost you anything.

How do you prove that when the original case was being contested in the first place? There were lawyers and evidence and arguments for and against, and it was to be left to a third party, the court, to make the decision: a human decision, a judgement, quite literally, an opinion.

As difficult as all that is in the civil context, then at least it is usually “only”  about money. There is insurance and other ways to reduce risk on all sides.  But let’s be honest: a convicted criminal (beyond a reasonable doubt) is not going to be a sympathetic plaintiff. More than that, there are any number of places where justice could have gone sideways in this case, long before the lawyer blew the habeas petition. And there will always be those who wonder what Holland was doing mixed up in this case, even if he wasn’t guilty as charged.

Besides that, many states require a criminal malpractice plaintiff to prove “actual innocence” ,  not what I would call a walk in the park.

So is it fair, is it just, to leave criminal defendants like Holland with the remedy of suing their lawyers when, even if the lawyer has insurance and the convict wins, he has to stay in jail? Freedom is what’s at issue, here, not money. How much money would you take to sit in prison for 10 or 20 years?

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Editorial – The Torture Lawyers – NYTimes.com

Posted by Nat Colley on February 25, 2010

Editorial – The Torture Lawyers – NYTimes.com.

Beware lawyers that tell you everything you want to hear.

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Op-Ed Contributor – Child Custody Should Be ‘No Fault,’ Too – NYTimes.com

Posted by Nat Colley on February 18, 2010

Op-Ed Contributor – Child Custody Should Be ‘No Fault,’ Too – NYTimes.com.

I could not agree more.

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Editorial Observer – With the Downturn, It’s Time to Rethink the Legal Profession – NYTimes.com

Posted by Nat Colley on April 2, 2009

Editorial Observer – With the Downturn, It’s Time to Rethink the Legal Profession – NYTimes.com.

Perhaps… but will we?

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Lawyers and Doctors on the Same Trend

Posted by Nat Colley on March 16, 2009

http://www.nytimes.com/2009/03/16/health/policy/16mass.html?_r=1&hp

When you read this article, just subsititute business for any reference to government, and lawyer for any reference to doctors.

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Marriage vs Civil Union

Posted by Nat Colley on December 18, 2008

An interesting but not very coherent discussion from the New York Times. It needs either editing or a director, since it seems to assume we know both the speakers and the topic. To clarify, the speakers Balkin and Althouse are law school professors and the idea is that all marriages would be ‘downgraded’ to civil unions. Pre-existing marriages would be grandfathered in. This makes heterosexual and homosexual unions equal under the law. Then those who believe in the sanctity of marriage on religious grounds could have a marriage in their house of worship, which would be the only place where you could get a ‘marriage’. Apparently, it would thus be purely a religious ceremony and have no more legal force than a baptism.

A related, provocative and interesting article suggests government stay out of marriage altogether.

What do you think?

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Religious Mediation

Posted by Nat Colley on December 15, 2008

I wrote recently about the role of values, in addition to expertise, in selecting an attorney. In many cases, an insular religious community will know who its lawyers are. The problem comes in accommodating religious goals with the existing legal system. This has become problematic in Britain and Canada, where the growth of Islam and suspicion about its adherents has led to conflict and in some cases efforts to limit religious mediation even for long tolerated Christian and Jewish sects.

Adding to this difficulty, many religiously based mediators feel that in order to be true to their faith they must be independent of the state, and that includes not registering with or accepting any guidelines from the government. In my mind this is overdoing it. Most Western democracies aren’t interested in getting involved in the fine points of religious law, but they do have a strong interest in the administration of justice, and it is not too much to ask that some minimal uniform standard be applied. Doing so makes the work of the religious mediators more authoritative and effective rather than less, since having an official stamp means people are less likely to go to court if they are unhappy with the result.

Some efforts are underway to bring Islamic principles into greater clarity and utility, and of course there have long been numerous Christian and Jewish sources of mediation. Since the courts are so crowded and sometime lacking in flexible options, these religious outlets can be a good source of peaceful, expeditious, and satisfactory dispute resolution.

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