It’s hard for us not to be compelled by the Sharon Keller story. An impeachment trial for Keller, the presiding judge of the Texas Court of Criminal Appeals, is slated to start on August 17. At issue: whether and to what degree Keller erred one day back in 2007 when she closed the courthouse doors at 5 p.m., barring a death-row inmate from filing an appeal. The defendant was executed later in the day. According to a recent story in the Austin American-Statesman, Keller and her lawyers have previewed what one of their arguments might be.

But before we get to that, let’s bring you up to speed. Keller is the presiding judge of the Texas Court of Criminal Appeals, which is the equivalent to a state supreme court, but for criminal matters. As such, she’s the senior-most criminal judge in Texas.

On September 25, 2007, the U.S. Supreme Court decided to consider the constitutionality of lethal injection. In response, a Texas death-row inmate named Michael Richard sought to appeal his death sentence to the Texas Court of Criminal Appeals. But Keller refused to keep the court open after 5:00 pm to allow Richard’s counsel to have the time to prepare the appeal. Richard was executed later that day.

“It’s one thing for a banker to close shop at 5 o’clock sharp,” said Texas state legislator Lou Burnam, back in February. “But a public official who stands between a human being and the death chamber must be held to a higher standard.”

For her part, Keller has said that she was just following the court’s long-standing practice to close on time. But that’s reportedly only part of what Keller will argue during her impeachment trial. According to the American-Statesman, Keller will also argue that that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.

The American-Statesman writes that the attack, “seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computer breakdowns experienced by his lawyers.”

In response, Neal Manne, a lawyer representing the Texas Defender Service, a nonprofit legal agency that represented Richard, told the paper that questions about computer problems are “a legally irrelevant sideshow.”

Manne admitted to the American-Statesman that they “might have been a few minutes late even if there were no e-mail problems at all. But the question is: What did (Keller) do and was it appropriate? It’s a classic legal defense to create a credibility contest over something that doesn’t matter anyway.”

LBers, we’ve blogged about this in the past, but we’d love to get your take on it again. On the one hand, Keller might argue formalism: rules are rules. The courthouse closes at 5; if the timing doesn’t work out for you, tough. She might also gain some traction with a slippery-slope argument: if we allow certain exceptions, where do we draw the line at other exceptions?

On the other hand, Richard’s supporters might argue of course, that you draw the line here: when a prisoner is slated to be executed barring an exception; in other words, when life is at stake. Where do you come down?

That’s the question asked in so many words this morning by WSJ reporter Evan Perez, who reports that Obama administration officials are holding discussions that could result in the White House counsel leaving his post. Click here for the story.

The issue, it seems, has to do with Craig’s management of several national-security issues that were once seen as popular, but have since become political liabilities for Obama. These include the closure of the prison at Guantanamo Bay, the release of Bush administration-era national-security documents, and efforts to find legal ways to indefinitely hold some detainees who can’t be put on trial.

The decision to close the Guantanamo facility became a political problem for Mr. Obama when concerns arose that some of the detainees would be released into the U.S. and the public soured on the move.

Sen. Lindsey Graham (R., S.C.), one of the administration’s allies on the Guantanamo closure, faulted the White House handling of Guantanamo. “Announcing the closure without a plan has put in jeopardy the ability to close Guantanamo. Now public opinion has turned,” Graham said Monday.

Officials also cite an internal dustup concerning whether to release Justice Department memorandums detailing the Bush administration’s policies on terrorism detainees. Craig and Attorney General Eric Holder won the fight to release the memorandums, with minimal redactions, but the White House had to move quickly to limit political damage. Former Vice President Dick Cheney sharpened criticism of Obama during a televised speech that followed Obama’s own address intended to explain his national-security vision.

Craig didn’t respond to the WSJ’s request for comment.

The people familiar with the matter said a final decision hasn’t been made. But in a statement, White House Deputy Chief of Staff Jim Messina said: “We’ve addressed these rumors before. They are nothing more than typical Washington parlor games. It’s disappointing that while we are focused on reviving the economy and fighting two wars, others spend their time pointing fingers in an attempt to promote their own status.”

Were Craig, 64, shown the door, he’d likely have a seat waiting for him at his old law firm, Williams & Connolly, where he served as a partner before joining the Obama campaign.

Will it be long before we see outside ownership of law firms in the U.K.? Perhaps just a couple of years, reports Bloomberg, in a story out today.

In 2007, the U.K. changed its rules on law-firm ownership. Starting in 2011, when the new rules go into effect, firms will be allowed to accept outside investments. According to Bloomberg, three private equity funds — Fleming Family & Partners Ltd., Phoenix Equity Partners Ltd. and Lyceum Capital Partners LLP — are considering investing in U.K. law firms.

The very notion of outside ownership of law firms strikes us as a bit wacky, only because it’s so foreign — and so rare. We’re only aware of one firm, Australia’s Slater & Gordon, that has embraced the idea. The plaintiffs’ firm started taking public investment in 2007. The firm trades on Sydney’s stock exchange under the symbol SGH. Click here for an American Lawyer story on the firm’s first year or so under the publicly-traded regime.

But more could be on the way, reports Bloomberg. For starters, at some firms, getting hands on cash for expansions, capital projects and the like has never been harder: the global recession has made it much harder for firms to get new loans and lines of credit.

Furthermore, law firms are viewed by many as potentially lucrative places to put one’s money. “Law firms are pretty attractive investments as they have stable cash flows, long track records of business operations and increasingly are much better run,” said John Llewellyn-Lloyd, executive director of Noble Group Ltd., a London-based investment bank.

If and when it does happen, expect to see mid-sized firms the first to be among the early adopters. Don’t expect to see the so-called “Magic Circle” firms — a group that includes Clifford Chance, Slaughter & May, Linklaters, Freshfields and Allen & Overy — jump in headlong. Such firms have scoffed at the idea in the past, saying they don’t need the money.

“We looked into it, but decided it wasn’t right for us,” said Wim Dejonghe, the managing partner of Allen & Overy. “Why would we need the money?”

In the U.S., outside ownership of law firms is prohibited.

Wow, that was quick. Just as soon as we started seeing CNBC headlines earlier today on the SEC’s suit against Bank of America, the headlines switched, revealing that the parties had settled, with the bank agreeing to pay $33 million to scratch the suit from its to-do list. The lawsuit, filed in Manhattan federal court, alleged that the bank failed to disclose to investors that it had agreed to pay $5 billion in bonuses at the time of its takeover of Merrill Lynch, last fall. Click here for the WSJ story; here for the complaint.

The SEC alleged that Bank of America told investors in proxy documents on the Merrill acquisition that Merrill agreed it would not pay bonuses or other compensation to executives before the takeover deal was closed without Bank of America’s consent. In truth, according to the SEC, Bank of America had already “contractually authorized” Merrill to pay $5.8 billion in bonuses.

Companies are required to disclose any market-moving information to investors. Robert Khuzami, director of the SEC’s Division of Enforcement, said in a statement: “Failing to disclose that a struggling company will pay out billions of dollars in performance bonuses obviously violates that duty and warrants the significant financial penalty imposed by today’s settlement.”

The SEC said, however, without elaboration, that its investigation is continuing. One’s also ongoing for the office of New York AG Andrew Cuomo, which referred the pay case to the SEC in February.

My oh my, how fortunes have changed for Joe Nacchio. Last month, the Supreme Court punted on a decision on whether or not to hear his case — leading folks to wonder think maybe, just maybe, the court was inclined to grant cert on the case and take a fresh look at his insider-trading conviction.

Now this news: the Tenth Circuit has ordered a shorter sentence for the ex-Qwest CEO, saying his six-year term for insider trading was too long. Nacchio’s sentence could be cut to less than three and-a-half years.

But wait, there’s more. The court also ruled that the lower-court judge, Edward Nottingham, had erred in ordering the former executive to forfeit $52 million, the gross proceeds from selling his Qwest stock. The appellate judges ordered a new trial judge to redetermine the correct amount of proceeds from his insider trading that Nacchio will have to forfeit to the government.

Click here and here for stories from the Denver Post, respectively. Click here for the 10th Circuit opinion.

Nacchio and his lawyers argued in his appeal that he should have received a sentence ranging from 41 months to 51 months because his actual gain on the illegal insider trades was $1.8 million. The district court based its initial sentence on a gain of $28 million.

Nacchio began serving his 72-month sentence in April.

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

U.S. Constitution, Article II, Sec. 1

The above portion of the great document has gotten a lot of airplay in recent months and weeks, what with the 1) speculation from some that President Obama is not a “natural born citizen” and 2) the countermovement against that speculation, which led to the invention of the derisive “birthers” neologism about three weeks ago.



Rather than delve into the heart of the controversy, we’d prefer to ask a broader question: has the “natural born Citizen” requirement for president outlived its usefulness? Should it be repealed?

A law professor at Temple, Peter Spiro, argues in the Philadelphia Inquirer on Thursday that the answer should be yes.

For starters, writes Spiro, the requirement is outdated:

The natural-born provision is an artifact of a time when one’s birthplace was fraught with consequences. In the feudal conception of natural law, one was born into the protection of a territory’s sovereign, for which one was thought to owe an indissoluble duty of allegiance. . . .

Today, birthplace is hardly so meaningful. Many more individuals are being born outside the United States to U.S. citizen parents (often with dual citizenship), and others are naturalizing at an early age and maturing as Americans in every sense. Notions of perpetual allegiance dissipated long ago.

Furthermore, writes Spiro, the requirement draws distinctions that are largely arbitrary:

Foreign-born adopted children are extended citizenship automatically upon admission into the United States with their new parents. Can any of the thousands who have moved here as infants from China, Korea, Guatemala, or Romania grow up to be president? . . .

And then there are the more than 15 million naturalized Americans who more clearly fall short of being natural-born citizens - among whom Obama might have been counted if the details of his mother’s life were a little different. For them, the presidential eligibility clause represents sanctified discrimination, a kind of asterisk next to the principle that they enjoy equality with other citizens.

Constitutional amendments ain’t easy to pass. But, writes Spiro, a natural-born killer movement would be likely to garner at least some bi-partisan support. After all, efforts to repeal the requirement were earlier this decade initiated by Republicans enticed by the prospect of an Arnold Schwarzenegger presidency. Utah Republican Orrin Hatch introduced the “Equal Opportunity to Govern Amendment” in 2003, and it enjoyed bipartisan support, including that of Michigan’s Canadian-born Democratic governor, Jennifer Granholm.

LB Readers, let’s hear your thoughts on this.

Note to self: When the time comes to commission a wax statue in our own likeness, do it with our own hard-earned money (and, of course, when it’s complete, keep it away from open flame.) Use someone else’s money for such a tribute, and you just might wind up in a lawsuit over it.

Alleged Example A: Barbara McKinzie, the international president of Alpha Kappa Alpha, the country’s oldest black sorority. Members of the sorority are suing to remove McKinzie (pictured, left), alleging she spent hundreds of thousands on the group’s money on herself, some of it to pay for a wax statue of herself (pictured, right). Click here for the story, from the Chicago Tribune.

In the suit, filed in Washington, D.C., the Alpha Kappa Alpha members also alleged that McKinzie bought designer clothing, jewelry and lingerie with the sorority credit card. “This is extraordinarily shocking if not illegal conduct,” Edward W. Gray Jr., an attorney representing the plaintiffs suing the Chicago-based sorority, told the Trib.

McKinzie reportedly denied what she called the lawsuit’s “malicious allegations,” saying they were “based on mischaracterizations and fabrications … not befitting our ideals of sisterhood, ethics and service,” according to a statement issued this week by the sorority.

Fine, fine. But can we get back to the wax statue? In the sorority statement, McKinzie said the sorority’s board approved the money to “help defray overall expenses for our 2010 convention.” She said a total of $45,000 was spent on a wax figure of her and the sorority’s first international president, the late Nellie Quander. McKinzie also said the expenses were “consistent with furthering AKA’s mission” and did not violate any of the group’s bylaws.

The lawsuit says $900,000 was spent on the McKinzie wax statue, but Gray said he has since learned the amount was for the two statues. The statues reportedly are to be displayed in the National Great Blacks in Wax Museum in Baltimore, Md., he said.

Senate Committee on Commerce, Science and Transportation Full Business Meeting Tuesday 7/21/09, 10:00am, Russell 253 Summary This markup session was convened primarily to deal with transit funding reauthorization measures, and a number of other matters were dispensed with in the meantime. Almost all of the details at hand were worked out beforehand and behind the scenes, except for one [...]

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Game-time. Gut-check time. It’s getting down to that time for former Rep. William Jefferson, who, for the past six weeks has been on criminal trial down in Alexandria, Va. Closing arguments wrapped up on Wednesday. The judge in the case, T.S. Ellis III, is likely to send the case to the jury Thursday morning. Click here for the story from the New Orleans Times-Picayune; here for earlier LB posts on the Jefferson trial.

The quick refresher on the case. In 2007, Jefferson, a former Democrat from New Orleans, was charged on 16 counts of bribery, racketeering, and violations of the Foreign Corrupt Practices Act. The government alleged that Jefferson used his congressional office to help promote business projects in western Africa in return for payments for his family. The most vivid evidence put on display: that feds found in Jefferson’s freezer $90,000 stuffed in Boca Burger and pie-crust boxes.

During closings, government lawyer Rebeca Bellows said: “It’s time, at long last, to bring Congressman Jefferson to justice . . . He was always looking for a payday. He not only sold his office he wanted to make sure he got top dollar for it.”

According to reporting from the WSJ’s Dionne Searcey, defense attorney Robert Trout countered that Jefferson’s behavior was perhaps unethical and even stupid but not criminal. “To make something that isn’t criminal into a crime, ladies and gentleman, that is power,” Trout told jurors.

But before Trout took the stand, according to Searcey, prosecutors on Wednesday outlined a number of schemes Jefferson crafted to use his political office to create business opportunities for his family. The most notorious: an alleged plot to give at least $100,000 in cash to the vice president of Nigeria, Atiku Abubakar, in exchange for permission for a company that had family ties to Jefferson to offer telecom services there. Much of that cash — $90,000 in marked bills — was found in Jefferson’s freezer.

During Wednesday’s hearing prosecutors played video and audio tapes of Jefferson in meetings with the informant, Virginia businesswoman Lori Mody, at s****y Washington-area hotel restaurants. Searcey describes one snippet in which he camera focuses squarely on a white coffee mug while in the background Jefferson waves his hands as he talks about an alleged bribe, saying it’ll be doled out “to make sure the hook is in there.” Over dinner at the Mandarin Oriental he chides Mody for referring to what prosecutors say is a bribe to the vice president of Nigeria as a “goodwill present.”

Mody delivered $100,000 to Jefferson in the parking lot of the Ritz Carlton. Jefferson allegedly intended to give the cash to Abubakar during a visit to Washington D.C. but he left town before it could be delivered, prosecutors said.

Trout conceded that Mr. Jefferson agreed to the bribe but did so only to please Ms. Mody and that he never intended to deliver it. He hid the cash in his freezer for safe-keeping, Trout said.

We’ll the jury buy it? We’ll soon know.

Ever since Bernie Madoff’s guilty plea back in March, life seemed to be finally settling down for Bernie’s wife, Ruth. Last month, she agreed to give up her potential claim to more than $80 million of assets, but, in an agreement with federal prosecutors, was allowed to keep $2.5 million in cash. Then, earlier this month, federal investigators concluded they didn’t have enough evidence to charge her criminally.

But things took a turn for the worse for Ruth earlier today when Irv Picard, the trustee for Bernie’s collapsed firm, filed civil suit against Ruth, seeking to recover some $44 million from her. Click here for the complaint, filed in Manhattan bankruptcy court.

So why, if Ruth seemingly wasn’t a co-conspirator in Bernie’s operation, gives the trustee the right to go after her? Picard explains in the complaint:

For decades, Mrs. Madoff lived a life of splendor using the money of BLMIS’s customers. Regardless of whether or not Mrs. Madoff knew of the fraud her husband perpetrated at BLMIS, during the past two- and six-year statutory periods, she received tens of millions of dollars from BLMIS for which BLMIS received no corresponding benefit or value and to which Mrs. Madoff had no good faith basis to believe she was entitled. The purpose of this action is to recover that money to the extent possible for the benefit of BLMIS and its defrauded customers.

And will the $2.5 million be part of what Picard goes after? Apparently so:

The United States government agreed not to contest Mrs. Madoff’s claim to $2.5 million and to make a payment to her in that amount following forfeiture of the Madoffs’ assets. The forfeiture Stipulation And Order . . . expressly provides that the $2.5 million payment to Mrs. Madoff “does not in any way preclude . . . Irving H. Picard, Esq. as trustee for the liquidation of the business of defendant Bernard L. Madoff Investment Securities LLC . . . from seeking to recover the Funds from Ruth Madoff.” While Madoff’s crimes have left many investors impoverished and some charities decimated, Mrs. Madoff remains a person of substantial means. The inequity between Mrs. Madoff’s continuing financial advantages and the economic distress of Madoff’s customers compels the Trustee to bring this action.

Peter Chavkin, a lawyer for Ruth, had this to say: “What makes this complaint particularly perplexing and totally unjustified . . . is the fact that Ruth already forfeited to the United States Attorney’s Office almost all of the assets named in this complaint,” assets that prosecutors will distribute to victims of the fraud. “We believe the Trustee’s action is wrong as a matter of law and fairness.”

LBers, we really want to hear from you on this one. Given all you know about Ruth, should she be allowed to hang onto her $2.5 million?

There should be a television game show, we think, in which contestants vie to see who can defame someone an audience member in fewer words. (”I can defame that man in seven words, Alex!”) We had this silly thought after getting word of a lawsuit out of Cook County, Ill., in which a management company filed a $50,000 lawsuit over a tenant’s “malicious and defamatory” Twitter tweet. Such tweets, as of course you know, LBers, have a maximum length of 140 characters. And yes, apparently they can lead to defamation lawsuits.

The tweet was made by the tenant, Amanda Bonnen, in reference to the state of her apartment to her 20 followers. “You should just come anyway,” it read. “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s OK.”

Click here for the story, from Chicago Bar-Tender (hat tip: ABA Journal). The complaint notes that because Bonnen’s account was public, “anybody in the world can view the account holder’s tweets.” The complaint says that because the “statement damaged the plaintiff’s reputation in its business, the statement is liable per se.”

We’re not defamation experts, but we think that Marian Wang, the author of the item at Chicago Bar-Tender, asks some good questions. Writes Wang:

It begs this question: What IS a tweet anyway? Is it really considered publishing? Is it a conversation between friends in a public forum, like the electronic version of a coffeeshop, where you can gripe privately but have your gripes overheard? No one considers that defamation. And for that matter, does anyone actually claim that one-liners on Twitter are truth? After all, when you tweet, you type into a text box that asks, “What are you doing?” So what does an assertion on Twitter count for, anyway? Isn’t it just an opinion? Isn’t it stream of consciousness? Isn’t it called a Twitter “stream” for a reason?

Our question would primarily concern damages. How might a plaintiff go about proving damages in such a case, where only 20 people were likely to see the tweet (although, yes, because Bonnen’s tweets were public, many more may have seen them)?

Any thoughts, LBers?

Texas, the death penalty capital of the country, seems to be looking to change its ways.

The state has passed legislation creating a capital defense office next year, which will handle appeals for death row inmates, according to this article from the Houston Chronicle.

The appellate office will have a staff of nine and a budget of about $1 million.

Texas has gotten roundly criticized over the years for its handling of capital murder cases. There have been strange capital murder tales coming out of the Lone Star state in recent years, including a capital murder defendant represented by a sleeping lawyer; a defendant sentenced to death by a judge who allegedly was having a secret affair with the prosecutor in the case; and a defendant who was executed after he was barred from filing an appeal after the 5:00 pm closing time of the state’s highest criminal appellate court. That later case prompted a move to impeach Sharon Keller, a judge on the state’s court of criminal appeals.

The Chron reports that the legislation creating the capital defense office was inspired by stories of Texas inmates who lost appeals because their lawyers missed deadlines or filed “skeletal” writs, which contained only scant information often copied from other cases.

“The status quo has been an international embarrassment,” state senator Rodney Ellis, who sponsored the legislation, told the Chron.

Oh LBers, just when we know you’re ready for a healthy does of good news on the employment front, comes news of a veritable meltdown in yet another area of legal practice: Hollywood dealmaking.

Reports the National Law Journal:

The economic recession has hit the most escapist of industries as deals for actors, musicians, directors and other talent in the entertainment sector have plummeted, according to attorneys who structure transactions. Fees and other compensation have declined as studios clamp down on costs, they report.

It’s not news that’s likely to cause shockwaves through whole classes of law-school second years — Hollywood boutiques often only hire lawyers with dealmaking apprenticeships from elsewhere. But it’s not good news for New York and LA lawyers who were hoping to make a full-fledged jump into entertainment law.

“Every entertainment lawyer will tell you the same thing about new deals: They have to do twice as many to stay afloat, which means working twice as hard, because the deals have been cut in half,” said Doug Mark, a partner at Mark Music & Media Law in Los Angeles who worked for several years at the boutique firm Morris Yorn Barnes & Levine.

According to the NLJ, the downturn could lead to a rash of mergers within the industry.

“I do think that in the next 24 months you are going to see more consolidation of law firms, whether it’s in the form of boutiques getting together or individuals from boutiques joining larger firms,” said Craig Emanuel, chairman of Loeb & Loeb’s Los Angeles entertainment department and talent practice group. “Like in any business in a depressed time, finding a way to share overhead with somebody else becomes a critical factor.”

This settles it: We’ve gotta get to Little League baseball games more often.

Earlier this week, in a post about an Establishment Clause case, we referred to an experience we had last week, in which, at a Little League all-star game in Long Beach, Calif., the audience was asked, along with the game’s announcer, to say the Pledge of Allegiance.

Well, at the same game, about five minutes after the Pledge request, the same incredibly well-meaning announcer alerted the crowd that if any visually impaired fans needed assistance, the staff would provide a more detailed play-by-play report on what was going on. Hearing impaired fans, meanwhile, could have the player announcements and the like conveyed in sign-language. (You go, Long Beach Little League!)

We were reminded of this latter incident today when we came across a lawsuit filed by a hearing-impaired Ohio State football fan, arguing that the university should offer captioning on the scoreboard and stadium televisions because he can’t hear the announcers.

”When I go to a game, I’m never able to follow the game,” said Vincent Sabino. ”It takes away from being a fan. It’s a game experience thing.” Click here for the report, from the Akron Beacon Journal; here for the complaint.

The suit says the university is violating the Americans With Disabilities Act by not providing captioning at all its venues, including Ohio Stadium, Schottenstein Center and St. John Arena.

Ohio State spokesman Jim Lynch said the university is working with Sabino’s attorney and understands its legal obligations under the ADA.

”We’re hopeful we can reach an acceptable resolution for both parties that will cause the lawsuit to be dismissed,” he said. ”We are considering a host of options including captioning on the scoreboards.”

So what kinds of captioning would Sabino like to see? Captioning, it turns out, for everything from referee calls to song lyrics. He also seeks an unspecified amount of compensatory damages.

‘I hope this will work out,” said Sabino to the Beacon-Journal. ”In my mind, it’s very easy and it’s an accommodation for everybody. If you get closed captioning, everybody can see it. Hopefully, they will see it that way.”

Lastly, in other strange Ohio State news, check out this story, brought to our attention from Above the Law. In March, Kirk Herbstreit the once-passable-Buckeye-quarterback-turned-brilliant-ESPN-commentator sued the IRS for rejecting a $330,000 tax deduction he and his wife, Allison, took for donating their house to the Upper Arlington, Ohio, Fire Division. The Herbstreits say they paid the tax, but are suing to get a portion of what they paid returned. The Fire Department burned down the house in a training exercise; the Herbstreits later rebuilt.

ADR — or alternative dispute resolution — is often thought of as being comprised of two spokes: arbitration and mediation. While arbitration has taken a bit of a beating in recent days (click here), mediation has been lauded for its potential, namely as a possible solution to the controversy involving noted Harvard professor Henry Louis Gates and the Cambridge, Mass., police department (and, as of Wednesday, President Obama, who criticized the actions of the police officer who arrested Gates.)

As of now, no lawsuits have been filed in the situation — a widely publicized dustup that happened last week after Cambridge police responded to a call from a neighbor of Gates’s who saw “two black men” trying to force their way into Gates’s house. But the possibility of civil suits hovers close to the situation, it seems, with the demands of apologies from either side, and a threat, made earlier today, by the lawyer for the cop at the center of the storm, Sgt. James Crowley, that a libel or defamation lawsuit could soon land on Gates’s doorstep.

But might the expense, frustration and subsequent media fallout that would naturally occur following a lawsuit (of course, we’d unapologetically be part of that media horde following the case), be avoided with a well administered dose of mediation?

In an interview published in Friday’s Boston Globe, Harvard law professor Robert Mnookin, the chair of Harvard’s Program on Negotiation, says it might be worth a shot.

Asks the Globe:

Pride seems like an insurmountable obstacle sometimes. On one hand, you have a black man who has withstood taunts from other blacks for working with The Man and achieving success in mainstream society. On the other hand, you’ve got an officer who is sworn to uphold civil society, dealing with, in his mind, someone who is being decidedly uncivil. How do you get both sides to admit they maybe went too far?

Responds Mnookin:

I would ask each is if they would find it valuable to have an opportunity to really explain to the other person their perspective, to really make it clear what their perspective is, and as part of that, would they be willing to take in the perspective of the other. . . I certainly think there is hope that professor Gates and this officer could sit down together and have a constructive conversation where they each came to understand better the perspective of the other — and themselves.

It seems to us that for either side to agree to such a meeting, each has to acknowledge — at least a little — that he understands why the other side did what we did during the encounter. We weren’t there, of course, and can’t speak to what really happened or what each man’s motivations were at the time. But we certainly can see both sides of the situation and we feel that either side might benefit from reading a thoughtful piece by Mark Willen at Kiplinger.com, called “In this Race Dispute, Everyone Is Right.” One thing we like about the piece, it avoids the predictable liberal/conservative dichotomy that many others have embraced.

Writes Willen:

I think the behavior of the two men involved — Gates and Crowley — was influenced both by a past history that is hard to shake and conditions today that are difficult for both police and minorities. That is understandable on both sides.

Just for a moment, let’s try to put ourselves in their shoes. If you’re a civilian, imagine what it’s like to be a police officer investigating a report of trouble. It may be totally erroneous or you may be about to confront a desperate armed killer. When Crowley arrived on the scene, he didn’t know what to expect, but cops in general know that their routine — which may involve hours of boredom — can suddenly turn into a life-and-death threat without warning.

Those of us who are white, on the other hand, can’t begin to imagine what it’s like for a black person to be confronted by the police. Blacks and Hispanics are regularly suspected just because of the color of their skin. Do we react the same when approached on the street by a stranger regardless of the person’s color? Or is there a little more hesitation when the stranger is black?

Is there any doubt that racial profiling exists? One colleague in my office tells of a black friend who is afraid to drive in certain parts of the Washington metropolitan area just because he knows that a routine traffic stop would leave him powerless and at the mercy of police officers who may assume the worst about him because he’s black.

Given this background, I can’t help but wonder if both Gates and Crowley were right in how they reacted and behaved — right, at least in the sense, that one can easily sympathize with the pressures they were under.

If Crowley’s right in asserting that both Gates and Crowley were “right,” isn’t it safe to assume that a well-moderated sit-down might be just the trick here? LB readers, what do you think? Are we onto something or are we being hopelessly naieve? Let us know (we know you will!).

On the topic of digitizing books, University of Illinois law professor Larry Ribstein weighs in this morning on his Ideoblog about the threat the paper-to-pixels move in publishing poses to law professors.

Ribstein’s post was prompted by a separate post by UCLA’s Stephen Bainbridge, who recently wrote on the topic of Amazon’s eBook reader, the Kindle. Wrote Bainbridge:

[T]he used book market takes a huge chunk out of my annual royalties. The drop off from the first year of a new edition to the second can be as high as 30%, for example. I can’t imagine the hit my royalties would take if e-books of my texts were available without strong [digital rights management]. But it seems safe to assume that anything remotely resembling an e-book Napster would be a disaster from my perspective. My assumption is that it would make the hit we currently take from the used book market look like chicken feed. The enormous amount of time and effort put into writing and updating the books simply would no longer be worth it. . . . Contra Lessig, I worry that Kindle and its forthcoming ilk don’t give copyright holders enough control.

In response, Ribstein draws an analogy to the music business. To his surprise, when the digital era hit, prices for music fell, but the cost of attending many live concert performances went up. Why was this? Ribstein muses:

Maybe because the shows are getting better because they’re more important to artists’ careers. So that may be why the troubadour is returning. Will we see this effect in other areas — a resurgence of live theatre? The big-time lecture tour, like the ones Dickens and Wilde used to do? I sure hope it doesn’t mean that everybody in the intellectual property business will suddenly have to work for a living.

Well, maybe we’re all rock stars now. I can’t wait to see Prof [Bainbridge] in a sequined vest.

Ribstein’s post made us laugh, but it also raised a handful of interesting questions in our minds: to what degree do law professors rely on casebook royalties to buttress their salaries? And to what degree will they fight for strong copyright protection once their casebooks find their way to Kindles, eReaders and the like? Following from this, to what degree will any sort of laissez-faire academic attitudes about DRM change within the legal ivory tower if and when professors start feeling a hit to the pocketbook? It’ll be interesting to see how it all unfolds.

We spent all the live-long day on Thursday really on just one story — the Rabbi/Kidney/New Jersey Mayorgate story. As a result, we got some catching up to do. For that reason, we’re going to bestow upon you one of our quick-hittin’ roundups, so you don’t go home in a big bag of vaporous cluelessness about all things legal.

Iqbal Forcing Congress’s Hand? We and others have written about the Supreme Court’s Iqbal decision from earlier this year, which helped raise the standard that plaintiffs must meet to avoid having their cases quickly dismissed.

Turns out, Congress might not like what the case portends; defendants have already cited the case over 500 times in court papers, according to Adam Liptak’s NYT story. The BLT Blog reports today that Sen. Arlen Specter (D-PA) filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the court handed down its Bell Atlantic v. Twombly decision, a sort of precursor to Iqbal. (BLT)

Souter to Speak at ABA: Also from the BLT blog, we learned that outgoing Supreme Court justice David Souter, not exactly a publicity hound, has agreed to address the American Bar Association at its annual meeting in Chicago on Aug 1. According to the BLT blog, Souter will speak at a program following up on the project sponsored by fellow retired justice Sandra Day O’Connor at Georgetown University Law Center, aimed at increasing public awareness of the federal judiciary.

DePaul Profs File Protest With ABA Over Dean Move: Sixteen tenured professors at DePaul University College of Law have filed a complaint about last month’s replacement of Dean Glen Weissenberger with the American Bar Association. Click here for the Chicago Tribune story; here for an earlier LB post on the DePaul kerfuffle.

We blogged earlier this morning on the situation unfolding out in New Jersey, where dozens of people were being arrested as part of a federal investigation into public corruption and a high-volume, international money-laundering conspiracy.

We know a good deal more now, following the unveiling of some 30 criminal complaints and a press release led by New Jersey’s acting U.S. attorney, Ralph Mara. Click here for the WSJ story.

The arrests and summonses made today were made pursuant to a two-tracked investigation that had gone on for 10 years. One track: a public-corruption probe which led to the arrest and summons of 29 politicians and a money-laundering probe allegedly involving 15 others, including 5 rabbis. The list of those arrested (click here) include the 32 year-old Hoboken mayor, Peter Cammarano, a Democrat (pictured, left); Secaucus mayor Dennis Elwell (pictured, right), also a Democrat; state Assemblyman Daniel Van Pelt, a Republican; and Democrat Leona Beldini, the deputy mayor of Jersey City. The money-laundering scheme allegedly involved Saul Kassin, the Coney Island-based U.S. head of a large Syrian-Jewish congregation.

Politicians “willingly put themselves up for sale,” for “hundreds of thousands of dollars,” said Mara during the press conference, saying they took advantage of “huge loopholes” in the state’s anticorruption laws. “The victims here are average citizens; they don’t have a chance in this culture of corruption,” he added. Through a sting operation involving a single cooperating witness, Mara says the government effectively laundered $3 million and paid about $650,000 in bribes to politicians.

The probe also involves the trafficking of body parts. According to Mara, Levy-Izhak Rosenbaum was allegedly engaged in a scheme in which he purchased kidneys from live donors for $10,000 each, then would turn around and sell them for $160,000.

Some snippets from the complaints:

From the Cammarano complaint:

Defendant Cammarano assured the CW [cooperating witness] that “[y]ou can put your faith in me.” Cammarano assured the CW that “I promise you . . . you’re gonna be, you’re gonna be treated like a friend.” [I]f the CW was to “come over here, you know, and I wanna do, eh, I need a zone change, I need something, I wanna make sure that I, you know, you, you’re my man.

From the complaint naming Guy Catrillo, a Jersey City politician:

On or about April 27, 2009, at approximately 5:46 p.m., FBI agents intercepted an incoming call from defendant CATRILLO to the Consultant’s cell phone. During the conversation, the Consultant asked defendant CATRILLO, “Did you get the money from [the CW] when we saw him the other day [April 23rd]?” Defendant CATRILLO replied, “Yeah, I, I took care of that. Yeah.” The Consultant responded, “Okay, good. Then I won’t push to get it.” Defendant CATRILLO then indicated that he had already put the cash to use, noting that “[y]eah, so, you know, that’s, that’s going out to, uh, you know, to the streets.”

From the complaint naming Mariano Vega, a Jersey City councilman:

On or about March 5, 2009, at a restaurant in Jersey City, defendant Vega met with JC Official 2 and the CW. Before defendant Vega arrived, JC Official 2 advised the CW that the CW could discuss with defendant Vega the development projects that the CW purportedly was interested in doing in Jersey City. The CW inquired of JC Official 2 if defendant Vega would accept cash for his official assistance, to which JC Official 2 responded that the CW could probably give defendant Vega a check (for a political contribution) and that defendant Vega would be “on
board” with that.

From the complaint naming Rosenbaum (kidney trafficking):

The CW then inquired about the price for purchasing a kidney from a paid donor to which defendant ROSENBAUM responded “[t]he price with what we are asking here is a hundred fifty thousand dollars.” When the CW reminded defendant ROSENBAUM that an earlier recipient known to the CW (“Recipient 1″) had been charged only one hundred forty-thousand dollars, defendant ROSENBAUM laughed, and quipped “I knew it’s coming.” Defendant ROSENBAUM also indicated that half of the total price would have to be paid up front while “the rest of it is–-when I get the donor in the hospital, check them out. . . .”

From the complaint naming Kassin (money laundering):

On or about June 27, 2007, Coconspirator Nahum met with the CW in Coconspirator Nahum’s office in Deal. During the ensuing conversation, Coconspirator Nahum provided the CW with a check in the amount of $9,000 drawn upon the account of defendant KASSIN’s Charitable Organization and made out, per the CW’s request, to COE, a charitable organization operated by Ben Haim. After Coconspirator Nahum indicated that defendant KASSIN was “big,” the CW asked “so if I have like, uh, you know, fifty thousand a month for the next three months, he can handle it, no problem?” Coconspirator Nahum responded that defendant KASSIN would be able to do so. The CW then asked Coconspirator Nahum “[i]f I give it to you, he’ll do it right away?” Coconspirator Nahum replied “[y]eah, sure.” The CW then asked, by way of clarification, “[t]hat’s what he does?” Coconspirator Nahum responded simply, “[y]eah, that’s what he does.” Coconspirator Nahum also confirmed that defendant KASSIN charged a percentage for each of these deals.

Other complaints can be found by clicking on each individual’s name: Moshe Altman; Charlie Ammon; Leona Beldini, Edward Cheatham and Jack Shaw; Joseph Cardwell; Joseph Castagna, Michael J. Manzo, Denis Jaslow; Itzak Friedlander; Richard Greene and L. Harvey Smith; John Guarini; Shimon Haber; Maher A. Khalil; James P. King; Louis and Ronald Manzo; Anthony Suarez and Vincent Tabbachino; Daniel Van Pelt; Lavern Webb-Washington; Jeffrey Williamson; Eliahu Ben Haim; Schmulik Cohen; Levi Deutch and Binyomin Spira; Yeshayahu Ehrental; Mordechai Fish, Lavel Schwartz and Yolie Gertner; Edmund Nahum; Abe ******* and Naftoly Weber; Arye Weiss.

We’ll hopefully know more about this story in a few hours, it seems, but for now, let’s give you at least the basics. The AP has reported (no link available) that FBI agents are sweeping across northern New Jersey on Thursday, making arrests in what reportedly is described as a major corruption probe.

WNBC-TV in New York reported and showed images of the mayors of Hoboken and Secaucus being taken into FBI headquarters in Newark. The station also showed rabbis being taken into custody. The sweeps are reportedly taking place in Hudson, Bergen, Monmouth and Ocean counties.

TV and radio stations say the probe centers on money-laundering and political bid rigging. FBI spokeswoman Myrna Williams tells The Associated Press the arrests will go on till noon, at which point we’re hoping to have more information. According to the Newark Star Ledger, A total of 30 people have been taken into custody, officials said.

The Star-Ledger reports that the arrests are the result of a two-year FBI and IRS probe that began with an investigation of money transfers by members of the Syrian-Jewish communities in New Jersey and Brooklyn. Those arrested this morning include key religious leaders in the tight-knit, wealthy communities.

No indictments have yet been handed down, but some might come later today, the Star-Ledger reports.

Below is some video of a litany of people being led away in cuffs, from NBC New York.


View more news videos at: http://www.nbcnewyork.com/video.

It’s been a rough three months for the NCAA, at least for the lawyers who handle the organization’s licensing and intellectual-property work.

First came the class-action suit in May, filed by former Arizona State and Nebraska quarterback Sam Keller, that accused the association of making money off athletes’ likenesses without paying them for it. Then in June, a pair of former football playersmade the same claim and filed a separate suit.

And we’ve recently learned that the NCAA is on the receiving end of another class-action suit. This one also alleges that thousands of former college basketball and football players have been exploited because their images or likenesses were used in things like video games, rebroadcasts of “classic” games and jersey sales. Ed O’Bannon (pictured), a former basketball star at UCLA, is the class representative on the suit. Click here to read today’s NYT story on the suit; here for the complaint, filed by lawyers at Hausfeld LLP.

Though the class-action suits both appear to be complaining about the exploitation of both former and current players, the one filed yesterday seems a bit broader than the first, which focuses more heavily on the video-game likeness issue. Click here to read a previous Law Blog post on the first lawsuit.

The NCAA declined comment on the latest lawsuit, telling the NYT it hadn’t yet reviewed the case. But an NCAA spokesman did tell the paper, “The NCAA categorically denies any infringement on former or current student-athlete likeness rights.”

The idea of former players suing for this reason isn’t unprecedented. A group of retired NFL players won a case last November after successfully arguing that the retirees’ union allowed Electronic Arts to use their images without being compensated. The group of about 2,000 players, led by Hall of Fame running back Jim Brown, ended up receiving about $26 million as a result.

Former sports marketing executive Sonny Vaccaro, who convinced O’Bannon to be the class representative on the suit, said he feels this suit differs from the one involving the NFL retirees. “I think the players in this suit were more egregiously harmed,” said Vaccaro, probably best known for inking Michael Jordan to his first shoe deal with Nike. “At least with the NFL retirees, they had a union and a contract. These college players had no rights at all, so I don’t think you can compare the lawsuits.”