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Law Day 2017 Panel Discussion

Posted By Administration, 10 hours ago

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April 26 Digest

Posted By Administration, Wednesday, April 26, 2017

In First, 4th Circuit to Livestream Travel Ban Hearing


Lawyers who cheered the U.S. Court of Appeals for the Ninth Circuit’s live broadcast of oral arguments in President Donald Trump’s first travel ban case now have another show to look forward to after the Fourth Circuit said it will live livestream oral arguments in its case next month.

In an order issued Wednesday, the court granted a request from CSPAN to broadcast the audio, acknowledging “heightened public interest” in the case. The Fourth Circuit will skip the usual three-judge panel and hear the case en banc.

It’s an important move for the Fourth Circuit. The Richmond, Virginia-based court typically posts audio of arguments a day or two after they occur, but has never allowed a live broadcast. The court has been mulling the choice, weighing the technological needs and whether it could have any undue effect on the legal process.

Trump Tweets About Judges Become Fodder in 6th Circuit Confirmation

Hours after President Donald Trump criticized a California judge for blocking his executive order on sanctuary cities, the president's first nominee for a circuit court of appeals judgeship told senators those swipes, even coming from a president, wouldn't influence his decisions.

Amul Thapar, currently a judge on the U.S. District Court for the Eastern District of Kentucky, was nominated to fill a spot on the U.S. Court of Appeals for the Sixth Circuit. He testified Wednesday before the Senate Judiciary Committee, where Democratic senators showed up to prod the nominee on his legal views and pressed Thapar to address the president's recent criticism of judges.

"We've been criticized from the beginning of this great country," said Thapar, whose name made then-candidate Trump's list of possible nominees to the U.S. Supreme Court. "What I will say about me and my colleagues is … it doesn't matter to us."

Rosenstein Pegged to Bring Experience, Stability to DOJ

Rod Rosenstein has his work cut out for him now that he’s officially U.S. Attorney General Jeff Sessions’ right-hand man.

Attorneys are looking to Rosenstein, a lifelong public servant, to bring a dose of stability to the U.S. Department of Justice after the U.S. Senate confirmed him 94-6 as the deputy attorney general Tuesday. President Donald Trump’s Justice Department has already hit a series of speed bumps during its first few months, including the sudden firing of 46 President Barack Obama-era U.S. attorneys, failed attempts to defend the president’s immigration executive orders and Sessions' recusal from an investigation into possible ties between the Trump campaign and Russia.

Lawyers who’ve worked with Rosenstein, including superiors, subordinates and defense attorneys, say his no-nonsense leadership style and distaste for politics will help steer the Justice Department through the transition period. The U.S. Attorney’s Office in Maryland did not reply to requests for comment, but in interviews with nearly a dozen former colleagues and defense attorneys, Rosenstein, 52, comes across as a lawyer-manager who prioritizes efficiency, wants cases resolved expediently, values detail-oriented work and listens to opposing viewpoints.

Gorsuch's 'Burping Boy' Dissent Arrives at the Supreme Court

Justice Neil Gorsuch may face his first recusal when the justices in May take up a petition that involves—and features prominently—one of his most famous dissents: the case of the burping 13-year-old student.

Gorsuch, formerly a judge on the U.S. Court of Appeals for the Tenth Circuit, in July wrote a dissent in A.M. v. Holmes. His colleagues in that case voted in support of immunity over the arrest of a student in New Mexico for allegedly disrupting a physical education class.

Gorsuch notably borrowed from a Charles Dickens line in “Oliver Twist.” The law, he said then, quoting Dickens, can be “a ass—a idiot.” But Gorsuch did not think, he said in the student’s case, that the law was as much of an “ass” as his two colleagues seemed to believe.

Federal Circuit Rejects 5th Amendment Plea in Driverless Car Feud

The U.S. Court of Appeals for the Federal Circuit has dissolved its stay of discovery in the Google-Uber autonomous car intellectual property case.

A three-judge panel ruled that U.S. District Judge William Alsup of the Northern District of California did not err by rejecting Uber Technologies Inc.'s and Anthony Levandowski's request to assert his Fifth Amendment right against self-incrimination.

Levandowski is the former manager of Google's driverless car division, known as Waymo, who now holds a similar position at Uber. Waymo accuses Levandowski of downloading 14,000 files from the company before leaving last year to start a new company that he quickly sold to Uber for $680 million. Waymo says Uber is now powering its own driverless car program using that allegedly stolen technology.

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Trump Dining With the Justices? Not Yet

Posted By Administration, Tuesday, April 25, 2017

On a relatively quiet Sunday morning, the news exploded across social media: The U.S. Supreme Court would be dining with President Donald Trump at the White House on Thursday, according to the White House weekly outlook.

By Monday morning, the dinner was off.

What happened? The White House blamed scheduling conflicts. “I think we've moved some things around on the president's schedule this week, but we hope to have something at some point,” Sean Spicer, Trump’s press secretary, told reporters on Monday. The dinner would be moved to a later date.

It doesn’t take much to get social media, uh, all a twitter. Mix Trump with Supreme Court in the current partisan climate and tweeters run wild. A debate unfolded on Twitter rooted in ethical questions about the dinner.

Read the whole story at The National Law Journal

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Santa Clara County Forensic Psychologist Receives 2017 Distinguished Contribution to Psychology Award For The State of California

Posted By Administration, Tuesday, April 25, 2017

The California Psychological Association (CPA) selected Dr. Michael Kerner, Ph.D. as the recipient of the 2017 Distinguished Contribution to Psychology award.  This annual award honors a psychologist who has improved the image of psychology by increasing the public’s understanding of the discipline and the profession of psychology in a significant way.  The award was presented to Dr. Kerner at the 2017 CPA Convention at the San Francisco Airport Marriot Waterfront hotel on April 7, 2017.  Upon accepting the award, Dr. Kerner spoke to the crowd of approximately 500 California psychologists on the importance of serving the community.

Dr. Kerner has practiced as a psychologist in Santa Clara County for the past 31 years with a focus on custody evaluations, co-parent counseling, psychotherapy, and expert work for the court.  He serves on the Board of Directors for Palo Alto University and is the Educational Director and lead lecturer for the Association of Advanced Training in the Behavioral Sciences.  In the past, Dr. Kerner has served as an adjunct professor at both Santa Clara University and Palo Alto University. 

Dr. Kerner consults with the San Jose and Salinas police departments, screening officers involved in fatal shootings to assess their fitness for duty.  In his free time, Dr. Kerner volunteers as a sitting member on the Domestic Violence Death Review Team in Santa Clara County, consults with the Crisis Intervention Team with the San Jose Police Department and is on the Peer Support Team of the Morgan Hill Police Department. 

In addition to receiving the 2017 Distinguished Contribution to Psychology Award, Dr. Kerner has previously been awarded the Kantor Medal for Professional Community Service by Palo Alto University (2004), Distinguished Alumni of the Year by Palo Alto University (2013) and Forensic Psychologist of the Year for Santa Clara County by the Santa Clara County Psychological Association (2014).  

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April 21 Digest

Posted By Administration, Friday, April 21, 2017

Law school transfers grow, taking overachieving 1Ls to higher-ranked schools

Law school transfers are increasingly common, say higher education consultants, and it’s become a seller’s market for first-year students at the top of their class: They can easily move to a higher-ranked school, or stay put and get bigger tuition discounts.

Law schools have a few incentives to keep or attract 1Ls with good grades—people who do well their first year generally pass bar exams on their first attempt, and transfer students traditionally pay full tuition.

Some deans complain that transfers hurt their bar passage rates, but it’s not likely that the council of the ABA Section of Legal Education and Admissions to the Bar would create accreditation rules restricting transfers. Doing that could stand in the way of student opportunities, says Jerome Organ, a professor at Minneapolis’ University of St. Thomas School of Law whose work focuses on transparency in financial aspects of the decision to attend law school. In terms of ABA accreditation standards and transfer regulation, schools must disclose transfers in 509 reports, and there are some rules about accepting credits from other schools.

Law Firm Security Step 2: Strengthen Your Passwords

Your network, PC, email, and many applications have one critical element in common: they are only as secure as the passwords you created for them. Security researchers have consistently found (and data dumps from breaches have documented) that a majority of people re-use the same password for many, if not most, applications. A single insecure website that exposes your password in a data breach could be all an attacker needs to gain access to many accounts critical to your practice and/or your personal life.

How can you protect yourself? Start with a trusted password manager application, such as 1Password or Keychain on Mac OS. A password manager provides a secure way to store and find all your passwords and only requires you to remember a master passphrase to gain access. Basic password managers work with a single computer, encrypting passwords on your hard drive; more sophisticated versions allow you to securely share your passwords between multiple computers and devices, including mobile phones and tablets.

When you first set up your password manager, you will need to choose a strong but memorable passphrase. A passphrase is basically a stronger, more complicated password. Strong passphrases have the following characteristics:

Ask Daliah: It's OK to start as a generalist, then choose a practice

Dear Daliah: How did you choose your practice area? Is it better to start out a generalist or a specialist?
(Culled from online questions)

Dear Questioners: There are two philosophies when it comes to hanging your own shingle: Take anything that walks in the door, or focus on a specific area or areas.

When you first start out, it may be tempting to take the first route. Why turn down potential clients because of self-imposed restrictions? But the problem with being a jack-of-all-trades, as the old adage goes, is that you are master of none.

California Judges Are Told to Stay Away from Pot Businesses

SACRAMENTO—California judges and their spouses should not hold a financial interest in marijuana enterprises, even though medical and recreational cannabis use is legal in California, a state Supreme Court ethics committee said in a formal opinion Wednesday.

Marijuana remains illegal under federal law, the opinion said, and a judge who has a stake in a related business or nonprofit risks violating canons that require compliance with all laws and avoidance of the appearance of impropriety. Financial ties to marijuana, even indirect ones, may also cast doubt on a judge’s ability to act impartially, the committee said.

The ethics opinion “advises that judges have an ongoing responsibility to discover if their investments involve a marijuana business," San Diego County Superior Court Judge Kenneth So, a committee member, said in a statement that accompanied the publication of the advisory.

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April 20 Digest

Posted By Administration, Thursday, April 20, 2017

A Supreme Court First-Timer Scores on the Money

Stuart Banner is a legal historian who has written books on the history of baseball’s antitrust exemption, the struggle to control airspace and how American Indians lost their land. On Wednesday, Banner achieved a new distinction: He won his first U.S. Supreme Court argument.

Banner, a law professor at the University of California, Los Angeles, and a former clerk to Justice Sandra Day O’Connor, won in the high court in Nelson v. Colorado. The justices, in a 7-1 opinion by Justice Ruth Bader Ginsburg, held that Colorado’s Exoneration Act—the exclusive scheme for refunds of costs, fees and restitution paid by exonerated defendants—violated the Fourteenth Amendment’s guarantee of due process.

The Colorado Supreme Court had held that the Exoneration Act, which requires a defendant seeking a refund to show innocence by clear and convincing evidence, was the only state authority for refunds. Neither of the two petitioners, Shannon Nelson and Louis Alonzo Madden, had filed a claim under that act.

Law Profs Say Gun Makers Should Be Liable for Sandy Hook Shooting

Thirteen law professors who specialize in common-law torts have thrown their weight behind a negligent entrustment appeal lodged against the makers of the AR-15 rifle used in the Sandy Hook school shooting.

Their 35-page amicus brief filed with the Connecticut Supreme Court Monday focuses on how negligent entrustment should apply to Remington and Bushmaster Firearms, the makers of the AR-15 rifle used in the massacre. The brief was submitted in an appeal to the state Supreme Court filed by attorneys representing some of the families of students and educators killed.

The professors are tort law experts from such universities as Stanford, Yale, Brooklyn Law School and the University of Connecticut School of Law.

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April 19 Digest

Posted By Administration, Wednesday, April 19, 2017

Trump Business Competitors Allege Unfair Impact in Emoluments Suit

Restaurants and hotels in which President Donald Trump has financial interests are unfairly siphoning business away from competitors in New York and Washington, D.C., the new plaintiffs in a watchdog group's emoluments suit against Trump allege.

The new plaintiffs may help Citizens for Responsibility and Ethics in Washington (CREW), which filed an amended complaint on Tuesday adding Restaurant Opportunities Centers United and a woman who books embassy events for two Washington hotels, bolster its case for standing in the suit.

Deepak Gupta of Gupta Wessler, a member of CREW's legal team, said the new plaintiffs make the plaintiffs' standing in the case "irrefutable."

Will Law Schools' LL.M Programs Suffer from Trump's 'America First' Stance?

Law school administrators say concerns are growing from foreign students about how the myriad immigration and travel policies emerging from Washington could impact their plans to obtain LL.M degrees in the United States.

The advanced law degree programs bring in about $350 million annually to the more than 100 U.S. law schools that offer them, with around 10,000 foreign students coming here each year to pursue an LL.M.

LL.M faculty are worried that those lucrative programs could lose their luster should the United States gain a reputation as unwelcoming to foreigners, and they say some LL.M applicants are grappling with whether they want to come to such a place.

Supreme Court May Clip SEC's Enforcement Power

A key U.S. Securities and Exchange Commission enforcement tool may soon be reined in by the U.S. Supreme Court, or so it seemed after the justices heard arguments Tuesday in the case of a New Mexico investment adviser convicted of fraud over more than two decades.

Before the court was Kokesh v. SEC, which zeroes in on the SEC's use of "disgorgement"—ordering fraudsters to cough up their ill-gotten gains. The government has raked in billions of dollars through disgorgement—$2.8 billion in 2016 alone—with a portion going to the victims.

At issue is whether disgorgement actually counts as a penalty, a forfeiture, or neither—an important question because federal law requires that penalties or forfeitures be imposed within a five-year statute of limitations.


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Berkeley Law, Ex-Dean Settle Suits Over Alleged Sexual Harassment

Posted By Administration, Tuesday, April 18, 2017

SAN FRANCISCO — UC Berkeley has reached a settlement with ousted law school dean Sujit Choudhry, ending a tumultuous saga that erupted last year after his former executive assistant sued him for sexual harassment.

The settlement terminates the university’s ongoing disciplinary action against Choudhry, and resolves the civil lawsuit brought by his former assistant, Tyann Sorrell.

The former law dean will pay $50,000 to Sorrell’s attorneys and another $50,000 to a charity of Sorrell’s choice under the terms of the deal. He will also be allowed to remain a tenured professor while on sabbatical until spring 2018, at which point he will resign.

”It was important that the world understand that he [is] a tenured professor in good standing,” Choudhry’s lawyer, William Taylor of Zuckerman Spaeder, told The Recorder Friday evening.

Read the whole story at The National Law Journal

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April 14 Digest

Posted By Administration, Friday, April 14, 2017

Multistate bar exam scores drop to lowest point ever; is there a link to low-end LSAT scores?

The average score on the multistate bar exam in February 2017 dropped by another point, reaching the lowest level since the exam was first administered in 1972.

Erica Moeser, president of the National Conference of Bar Examiners, confirms that the average score was 134.1, compared to an average score of 135 in February 2016.

The decline likely portends another drop in overall bar passage rates, according to the blog Excess of Democracy, which broke the news after finding the information in statistics released by the state of Pennsylvania. Above the Law and TaxProf Blog note the blog post.

Justice Kennedy is said to be mulling retirement; will Roberts be the swing vote?

The U.S. Supreme Court’s swing voter, 80-year-old Justice Anthony M. Kennedy, is reportedly mulling retirement.

According to CNN, former law clerks and others close to Kennedy say he is privately vowing to step down in the next few years. “The centrist conservative is the court’s most vacillating, agonizing, justice,” CNN reports, “and he is likely balancing his oft-voiced sense of judicial mission with the realities of age.”

If Kennedy leaves, Chief Justice John G. Roberts Jr. could be the court’s swing vote, according to a Los Angeles Times op-ed by University of California at Irvine law professor Richard Hasen. 

NY Judge's Suspected Suicide Shines Light on Silent Struggle

Austin lawyer Seana Willing remembers looking forward to her meeting with Mack Kidd, a well-regarded Texas appellate court judge who had arranged to meet with her on a Monday morning in 2005.

But Willing, the former head of the State Commission on Judicial Conduct who often met with judges who wanted to discuss ethical dilemmas, would never find out why Kidd wanted to meet. He took his own life the previous day.

“The odd thing was ... I didn’t know how he died until his ceremony,” said Willing, who considered Kidd, a justice on Austin’s Third Court of Appeals, a friend. “Then I saw all of these people speak about him and it became apparent that he had taken his own life. That shocked me to the core.”

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April 13 Digest

Posted By Administration, Thursday, April 13, 2017

Melania Trump Nets Millions, Apology in Daily Mail Settlement

Melania Trump will take home millions of dollars in damages, an apology and a retraction from Britain's Daily Mail in a settlement that ends a pair of libel lawsuits she brought against the tabloid on both sides of the Atlantic.

"The first lady Melania Trump is very pleased that she has resolved this matter favorably with the Daily Mail, which has issued a full and complete retraction and apology for its false statements about her," said Los Angeles litigator Charles Harder in a statement Wednesday.

Harder is Trump's attorney and a frequent lawyer to Hollywood stars, Harder also said the companies overseeing the Daily Mail and its associated website, Mail Online, will fully reimburse the first lady for her legal costs and pay out "millions of dollars in damages."

Appeals Court Reverses SUNY Student's Expulsion in Sex Case

ALBANY - The expulsion of a male student from a State University of New York campus after he had a sexual encounter with a female student that may have been consensual was too harsh, a divided state appeals court ruled Thursday.

The 3-2 majority of the Appellate Division, Third Department, panel said in Haug v. State University of New York at Potsdam, 522632, that many aspects of the disciplinary process at SUNY-Potsdam as it was applied to Benjamin Haug "give us pause," beginning with the fact that the female student's account of the encounter as presented at campus disciplinary proceedings was hearsay.

While she initially reported the incident as a sexual assault to campus police within a few hours after it happened on Sept. 7, 2014, Justice Eugene Devine noted that the woman acknowledged that she had not declined to engage in sex with the male student nor provide any "gesture saying that [the encounter] wasn't welcome."

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Attorney's Fees and Sanctions in 2017

Third Annual Law Day Mixer and Third Whiskey and War Stories Mixer

Labor and Employment: Wage & Hour Workshop

Recent Recognitions
Richard KondaProfessional Lawyer of the Year 2015
Nora V. Frimann2016 Professional Lawyer of the Year

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