Mark Rubin

The U.S. Constitution: Meeting Our Needs?

May 23, 2015
Mark Rubin

In the United States of America we venerate our Constitution. Most people know little about what it says or means. Slam it, however, and you’re a traitor or worse!

Few people, relative to all of us, take an oath to support or defend the Constitution of the United States. (The few include attorneys, government employees and office holders, and naturalized citizens; 300,000,000+ others need not say or do anything.) For reasons I can’t quite explain, having taken an oath to support the Constitution, I think I have right to questions its relevancy and validity some 225+ years after it was ratified.

There’s something downright nervy and arrogant about a suggestion that a document written so long ago serves our

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Venerating Legislatures and Bashing Courts

May 11, 2015
Mark Rubin

Many people venerate legislatures, at the expense of courts. Most recently, Dr. Ben Carson, a candidate for the Republican nomination for President of the United States, said:

We have to understand how the Constitution works. The president is required to, you know, carry out the law of the land. The laws of the land come from the legislative branch. So if the legislative branch creates a law, or changes the law, the executive branch has responsibility to carry that out. It does not say they have a responsibility to carry out a judicial law. And that is something we need to talk about.

(If you think a doctor doesn’t know because, you know, blood and all that, read Huckabee A

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The Appellate Process

May 5, 2015
Mark Rubin

“I’m taking this case to the Supreme Court” are words I hear every once in a while, although I have not yet had a case which got to that august place. Regardless, understanding the appellate process helps anyone who is involved with a lawsuit.

Appeals come when a case is over, mostly. (Interlocutory appeals, which are called special action petitions in the Arizona state system, exist. However, they only succeed when the appealing party can demonstrate that bad things will happen if the appellate court does not straighten out the trial court before the case ends.) The case may end after a trial, or by way of a motion of one sort or another. Regardless, the appeal comes when the

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Same-Sex Marriage Oral Argument Report*

April 29, 2015
Mark Rubin

Obergefell v. Hodges, No. 14-556 is now at issue, which means the Court has before it all of the written and oral arguments it will read and see. There’s a lots of post-argument writing out there. Here’s some of what I read which resonated.

Amy Howe blogs In Plain English for SCOTUSblog. Her piece, No Clear Answers on Same Sex Marriage, written within hours of the oral argument, lays out the issues and alignments very well. Also from SCOTUSblog is A view from the Courtroom, Same-Sex Marriage Edition by Mark Walsh. Mr. Walsh writes in the present tense, from soon before the oral argument until Chief Justice Roberts states: “The case is submitted.” Not a ton of

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Same-Sex Marriage, Re-revisited

April 27, 2015
Mark Rubin

Oral argument in Obergefell v. Hodges, No. 14-556 (and related cases) happens on Tuesday, April 28, 2015. Obergefell is one of the parties in the Sixth Circuit cases which created the circuit split on same-sex marriage, providing the Supreme Court with a reason to take up the subject. (I wrote about this subject on November 17—Same Sex Marriage in Michigan, Ohio, Kentucky, and Tennessee: An Analysis of DeBoer v. Snyder—and again in DeBoer v. Snyder: An Update on January 19, 2015.)*

The Court will consider whether: (1) the Fourteenth Amendment require a state to license a marriage between two people of the same sex; and (2) the Fourteenth Amendment require a state to recognize a marriage between

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Stupid Lawsuits

April 20, 2015
Mark Rubin

Stupid lawsuits are sometimes just causes with which some people disagree. So, for example, there was Stella Liebeck v. McDonalds, the hot coffee/third degree burn case from 1992. The mainstream media thought a $2.9 million damage/punitive damage award for spilled coffee was absurd, while others—notably, plaintiffs’ personal injury associations—provided another perspective.

National Federation of Independent Business v. Sebelius and King v. Burwell seemed like marginal cases when they were filed. Both ended up in the U.S. Supreme Court; the first almost destroyed the Affordable Care Act, and the second may do so still. So, with a healthy respect for how cases can turn out, I’m aware of three stupid lawsuits in the federal courts right now, wasting taxpayer

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Attorney Fees

April 14, 2015
Mark Rubin

Attorney Fees – 4/14/2015

We’re going to discuss attorney fees today, because I heard Big Bills: A Hidden Side Effect Of Cancer Treatment by Sarah Jane Tribble on NPR this morning. The story relates to cancer treatment and cost, and focuses in part on the lack of meaningful discussion between doctors and patients about cost.

So what does the doctor-patient conversation about fees have to do with attorney fees? It’s not “pick on doctors week” hear at MRW, although in too many instances I have not seen a meaningful appreciation for cost in the doctor-patient relationship. Instead, the story prompted me to think about the attorney-client discussion.

Generally, I think the legal profession does a good job of disclosing fees

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Cake and Cosmology

April 9, 2015
Mark Rubin

Woody Woods, my friend and law professor back in the day, shared Cake and Cosmology earlier in the week. Rod Dreher, who wrote the piece for The American Conservative, has serious conservative credentials. Cake and Cosmology further developed my thinking about the obligation to do business with people with whom we disagree, and I’m betting it’ll have you thinking more about this issue, too.

Mr. Dreher posits a situation in which you’re a Christian baker, sharing a neighborly relationship with a gay couple. Should you: (a) bake a birthday cake for one of the neighbors; (b) bake a cake for a wake when one of the neighbors dies; and (c) bake a wedding cake, after the neighbors tie

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The Practice of Law – It’s a No Whiner Zone

April 6, 2015
Mark Rubin

If you haven’t heard me whining about the practice of law it’s only because I don’t know you well enough to burden you. (You who are nodding? I know who you are!) Attorneys tend to see people in the most difficult settings, often after an opportunity to avoid a problem has passed. We’re expected to assume our clients’ side, good or bad, 24/7. We’re expensive; at the same time, however, economic forces have changed practice models, making it harder to make money. Blah, blah, blah!

Honestly, though, I can’t imagine—as in, I really can’t imagine—any other occupation for myself.* I do work indoors, people show me a level of respect I don’t think I deserve, and there’s no heavy lifting.

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Yates v. U.S. Update; Spiderman, Too!

March 30, 2015
Mark Rubin

The Fish Case aka Grouper-Gate aka Yates v. U.S., No. 13-7451, appeared here on December 1, 2014. The case posed for the Supreme Court this question: Whether Mr. Yates was deprived of fair notice that the destruction of fish violated provisions in the Sarbanes-Oxley Act, which makes criminal “knowingly alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object,” intending to impede or obstruct an investigation.

The case involved claims by the government that commercial fisherman John Yates destroyed under-sized fish to avoid prosecution. (I’m not going to dwell on the facts, as I heard from fisherwife after the first post, and it was clear after reading her

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