Executive Orders

January 5, 2016

There’ll be a hubbub about executive action / orders by the time you’re reading this post. That arrogant, pompous wimp of a POTUS we have right now—does anyone else wonder how President Obama can be, at one and the same time, a king and a dictator and a skinny, wimpy dude who doesn’t have the cojones to stand up to anyone—will issue an Executive Order regarding guns in America later today.

From my perspective the Executive Order—a highlights sheet has already been posted—will do little, and ought to bring forth little controversy. Others will surely disagree. Here, and because it’s Law Day at MRW, I want to focus on the basis for presidential authority to act.

Executive Orders have been

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Law: It Doesn’t Serve Our Interests

December 21, 2015

Law can be viewed from many perspectives. Of late I’ve been working through how laws do (and too often don’t) serve our interests.

Let’s take criminal law. Traditionally, state laws have governed criminal conduct. Not so much anymore. Gary Fields and John Emshwiller wrote As Criminal Laws Proliferate, More Are Ensnared for the Wall Street Journal in July 2011. The article includes some great examples of conduct which should not be criminalized. Most telling is the fact that no one knows how many federal criminal laws exist. A law professor, the Justice Department and the American Bar Association have counted, and get no closer than estimates of 4500, 3000, and “much higher than 3000,” respectively.

Then there is the area

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One-Person/One-Vote. Really?

December 7, 2015

The U.S. Supreme Court hosts One-Person/One-Vote day on December 8. The Court will hear oral arguments in Evenwel v. Abbott, No. 14-940 and Harris v. Arizona Independent Redistricting Commission, No. 14-232. Both cases address the concept that our representatives should be distributed among us with a very high degree of equality.

In 1962, in Baker v. Carr, the Court wandered into the redistricting thicket. It held that legislative districts must be proportional in size, and that states cannot fail to redistrict for some 60 years. (Tennessee, where the case originated, had last done a redistricting in 1901.)

Reynolds v. Sims came two years after Baker v. Carr. It really honed in on the concept of drawing

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Guns and the Second Amendment

November 30, 2015

In almost 21 months at this site, I’ve only written two posts that focused on guns and the Second Amendment. One of them, Guns: Embarrassed and Ashamed!, was posted less than three months ago, and its title tells you everything you need to know about my not saying enough about the problem of guns in America.

The Colorado Springs Planned Parenthood shooting prompted this post. Three dead. Several others will survive. The alleged shooter’s motives are not clear, although some evidence suggests a relationship between his views on abortion and the situs.

President Obama said “enough is enough” after the shooting. He and many others have used the same words, too often, with no evident change in the

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Arbitration

November 10, 2015

The New York Times featured an excellent three-part series on arbitration in the last several days. The pieces were written by Michael Corkery, Robert Gebeloff, and Jessica Silver-Greenberg, and they’re definitely worth an hour or so of your time. (Part I is Arbitration Everywhere, Stacking the Deck. Part II is In Arbitration, a ‘Privatization of the Justice System’. Part III is In Religious Arbitration, Scripture Is the Rule of Law.)

MRW has written twice on the subject of arbitration, in Arbitration. Mediation. Settlement Conference. Huh?—an informational piece—and, briefly, in A Funny Thing Happened On the Way to Arbitration. We’re due, however, for some commentary on this mostly abysmal aspect of the American dispute resolution system.

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Class Action Lawsuits

November 2, 2015

Class action lawsuits are often maligned, with some good reason. So, what are they, why are the maligned, and are their good reasons for trashing them? The issues come to mind because of the Volkswagen situation, which will bring class action litigation front and center for a while.

Class action lawsuits involve many people claiming damages; however, not every suit which involves many people is a class action lawsuit. Rule 23 of the Federal Rules of Civil Procedure—I believe its corollary exists within every state’s civil procedure rules—requires, for a class of claimants to be certified, that: (1) there are too many people to make all of them individual parties; (2) there are common questions of law and fact;

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Covenants, Conditions and Restrictions

October 26, 2015

Covenants, conditions, and restrictions aka CC&Rs are today’s topic. Dry? Yes, about like toast. Important? Only if you care about how you can use the property you own.

CC&Rs are embodied in a document which gets recorded by the County Recorder. CC&Rs will always include a legal description of the land they affect. Once they are recorded they constitute an agreement or contract between the individual parcels which are referenced or embodied in the legal description. If we assume CC&Rs which control 10 acres, it’s as if No. 1 has agreements with Nos. 2-10, No. 2 has agreements with No. 1 and Nos. 3-10, etc.

CC&Rs govern use issues. In a residential subdivision you can expect statements about home size

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Workers’ Compensation and Opt-Out Plans

October 19, 2015

I heard a story on National Public Radio about workers’ compensation on Thursday. I haven’t been able to let it pass.

Workers’ compensation differs from state to state; however, at its root every comp system provides for wage replacement and medical benefits when an employee gets hurt at work, without regard for what happened. (Families also get death benefits when an employee dies as a result of a work-related incident.) The system depends on a basic trade-off: In return for a limitation on payments, injured employees and dead employee’s estates cannot sue the employer or co-workers.

Workers’ compensation developed as a mandatory system in the United States about 100 years ago, in response to industrialization and a realization that the

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More Thoughts on Using Attorneys

October 12, 2015

My friend Robert Fleming is a Tucson elder law attorney. He writes too. His platform is the Legal Issues Newsletter, which he has been writing on a weekly basis for more than 22 years. (Truth be told, he’s only written 857 of the 880 articles.)

Last week and this week Robert wrote When You Need to Talk with a Lawyer and Handling Your Own Legal Work – Without a Lawyer, respectively. They’re fine pieces, and worth your time! I share them here to use them as a jumping off point for some additional thinking about attorneys, time, and fees.

Fees are certainly a major barrier to establishing an attorney-client relationship. Businesses budget for legal services, and wealthy people know

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The U.S. Supreme Court, 2015-16 Term

October 4, 2015

First Monday in October is upon us. Tomorrow, the U. S. Supreme Court begins its 2015-16 Term. Here at Mark Rubin Writes we will follow the Court once again, relying heavily on SCOTUSblog.com and many other resources.

Adam Liptak’s Supreme Court Prepares to Take on Politically Charged Cases for the New York Times, today, provides an excellent overview of the coming Term. I noted in particular his three paragraphs about partisanship, relying on Neal Devins, a law professor at William & Mary. Here they are:

‘This coming term will again put into focus that the court is divided along partisan lines and that the 2016 presidential elections will be hugely consequential in shaping constitutional and other law for perhaps

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