Law Archives - Page 11 of 24

Retention Elections at the Supreme Court

September 21, 2015

The United States Supreme Court is comprised of nine justices. Presently, their age span is 82 to 55, with four justices—Ginsburg, Scalia, Kennedy, and Breyer—between 77 and 82. On January 20, 2017, those four justices will be 83, 80, 80, and 78, respectively. They will also have been serving for 23, 30, 28, and 22 years, respectively.

My point? The 2016 election may be about only one thing which really matters: the composition of the U.S. Supreme Court.

Many people holler about the Supreme Court. Some people are genuinely concerned about a group of people who come from remarkably similar professional backgrounds. Read Is the Court We Have the Court We Want?, which I wrote in May 2014, for

Justice Louis Brandeis, merit selection, Senator Ted Cruz, U.S. Supreme Court

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The Kim Davis Story: More Thoughts

September 14, 2015

Mark Rubin

Like a moth which cannot ignore the flame, I’m finding it hard to walk away from the Kim Davis story. She has clearly arrived, as I have linked to her Wikipedia page. Do you have a Wikipedia page?

You know the basics. Kimberly Jean Bailey Davis does not believe in same sex marriage. The law interferes with her beliefs, so she thinks she’s entitled to an accommodation. That position has gotten her a contempt citation and jail, courtesy of U.S. District Judge David Bunning. Now she’s out, back at work, and planning to sue Kentucky Gov. Steve Beshear (D).* (Details are reported by Caitlin MacNeal for TPM, in Kim Davis’ Lawyers to File New Lawsuit against Kentucky Governor.)

kim davis, nepotism

Law, The Rest of Everything

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Omission – A Legal Writing Guide

September 12, 2015

Mark Rubin

I often call myself a “technical writer.” In fact, most everything I do as an attorney involves “it matters” writing. To lay people attorneys are on their feet, back and forth. In almost every instance, however, the battle of wits follows written submissions on the facts and law. Even in trials, where the jury relies on the evidence it sees and hears, writing plays a role in determining what the jury sees and hears.

Omission, written by John McPhee for the September 14 issue of the New Yorker, is an essay about writing, and a most gentle cri de Coeur for less is more. Unintentionally, it’s also a legal writing manual.

Before I get to legal writing I

Ernest Hemingway, John McPhee, legal writing, New Yorker, Omission

Law, The Rest of Everything

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United States Supreme Court 2015-16 Preview

September 7, 2015

Mark Rubin

October 5 is four weeks away. So what? Well, in 2015 October 5 happens to be the First Monday in October, and that means we’ll have a chance to watch the United States Supreme Court in action again. (In fact, although the Court is at recess from July through September, the justices deal with many administrative matters during the recess, and also address some substantive issues, like rejecting County Clerk Kim Davis’ attempt to draw the Court into her petty drama in Kentucky.)

So what can we expect in 2015-16? Plenty, of course. Scotusblog.com has listed the 30+ cases the Court has already accepted for review. From among them, here are a few which we likely here much about:

Hurst

one person-one vote, U.S. Supreme Court, united state supreme court

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Legal Malpractice

August 31, 2015

Mark Rubin

Today’s subject is legal malpractice. ‘Tis true; attorneys make mistakes. Really!

Malpractice is a term synonymous with professional negligence. One sounds ugly, and the other doesn’t. Still,, they have the same meaning. And that meaning? Per The Free Dictionary

Malpractice refers to negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet the standard of care … that is recognized by a profession reaches the level of malpractice when a client or patient is damaged because of error.

Some appellate court opinions—and yours truly—nibble at the edges of this definition. For our purposes, it suffices.

So, if I make a mistake I’ve committed malpractice? No. First, there is

legal malpractice, professional negligence

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Lay Witnesses and Expert Witnesses

July 27, 2015

Mark Rubin

Witnesses come in two varieties: Lay witnesses and expert witnesses. Lay witnesses testify only when they have personal knowledge about the matter about which they have been offered as a witness. And, generally, they testify about facts, i.e., what they have seen, heard, or read. Lay witnesses can only offer opinions only when they are “rationally based on their perceptions” or “helpful to clearly understand the witness’s testimony or determine a fact in issue.” Lay witness testimony cannot rely on scientific, technical, or other specialized knowledge.

Expert witnesses, on the other hand, rarely have first-hand knowledge about the facts associated with a case. Instead, they rely on what they are told, and on what they read. They use their

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The Trust Account

July 21, 2015

Mark Rubin

On April 14 I wrote Attorney Fees, a piece about the several types of fee arrangements between clients and their attorneys. I did not, however, discuss the trust account, an essential part of the fee relationship.

In many businesses service providers and sellers of goods receive deposits. Take, for example, a custom furniture manufacturer. You want a dining room table and chairs. You select the style, wood, and finish. You place your order. You’ll probably have to send a 50% deposit, with the balance due on delivery. What happens to your money? To the bank it goes, where it’s comingled with rest of the money the business takes in. Fire at the plant? No insurance? Pennies on the dollar

trust account

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Same Sex Marriage; The Battle Continues

July 13, 2015

Mark Rubin

GOP Texas Judge Will Only Marry Same-Sex Couples If They Sign a Form Saying He’d Rather Not is the headline from a short report by Caitlin Cruz for Talking Points Memo. Denton County Judge James DePiazza told a television station

It’s my personal belief that individuals who want to conduct a marriage ceremony understand my convictions. If it was me, I would prefer to have someone who was in agreement with me.

I’m suspect Judge DePiazza’s religious beliefs form the basis for his position. I’ll allow for the possibility that he just wants a defense against someone who runs to his Religious Right in the next election, claiming he’s a bad man for marrying “those people.” One way or another,

Ken Paxton, Roy Moore, same sex marriage

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The First Amendment (and Donald Trump)

July 6, 2015

Mark Rubin

The First Amendment to the United States Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Today’s lesson involves “abridging the freedom of speech” and nothing else.

The text of the First Amendment only refers to Congress making no law. However, the Fourteenth Amendment bars states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States,” and also precludes any deprivation of “life, liberty, or property without due process of law.” Bottom line?

Donald Trump, First Amendment

Law, The Rest of Everything

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It’s a Wrap at the U.S. Supreme Court

June 29, 2015

Mark Rubin

It’s a Wrap at the U.S. Supreme Court – 6/29/2015

It’s a wrap! The U.S. Supreme Court issued its last three opinions for the 2014-15 Term this morning. (Links are to SCOTUSblog pages, which have links to the Court opinions and other material.)

In Glossip v. Gross, No. 14-7955, the lethal injection/cruel and unusual punishment case, a 5-4 majority ruled against death row inmates on a claim about the use of midazolam, a part of the three-drug protocol for lethal injections. The inmates claimed using midazolam—used because states cannot purchase other drugs,. because manufacturers will not sell them for use in the execution process—may cause them to suffer unreasonable harm when the other two drugs are administered. According to

EPA, Independent Redistricting Commission, U.S. Supreme Court

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