April 9, 2014

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Recognize those 27 words? Yes, you just read the Second Amendment to the U.S. Constitution.

The goofy far Right people dominate the comments from the pro-gun side. That’s Mike Huckabee, Ann Coulter, Rep. Louis Goemert, etc. Intermingled with that crowd, though, we get sage wisdom from the water carriers for American business and the Establishment. They tell us why gun control doesn’t work, and why freedom and the Constitution must be respected. And, and this is the one that really drives me nuts, they tell us we can’t overreact.

We can’t overreact? Why

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McCutcheon et al. v. Federal Election Commission

April 3, 2014

Nearly 40 years ago in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), this Court considered the constitutionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candidates, political parties, and committees taken together. The Court held that those limits did not violate the Constitution. Id., at 38; accord, McConnell v. Federal Election Comm’n, 540 U. S. 93, 138, n. 40, 152–153, n. 48 (2003) (citing with approval Buckley’s aggregate limits holding). The Buckley Court focused upon the same problem that concerns the Court today, and it wrote:

“The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate

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March 31, 2014

From time to time people erupt about the Ninth Circuit, formally the United States Court of Appeals for the Ninth Circuit. It hasn’t happened often lately, but like the swallows of San Capistrano and General MacArthur, it will return!

The entire country is divided into 12 federal judicial circuits. Eleven encompass all of the states and territories, and there is the D.C. Circuit in Washington. The appellate courts for these 12 circuits handle all federal court appeals, with limited exceptions.

The Ninth Circuit is the largest circuit, by area and population. The circuit includes Arizona, Nevada, Idaho, Montana, Washington, Oregon, California, Alaska, Hawaii, Guam, and the Northern Mariana Islands. Eleven states and territories, a huge landmass, and lots and lots

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Hobby Lobby, Redux

March 26, 2014

On Thursdays, Mark Rubin Writes usually focuses on general legal issues. Because I think Sebelius v. Hobby Lobby Stores, Inc. matters greatly, however, you’re getting a follow-up, after oral argument on Tuesday before the United States Supreme Court.

Here are some random thoughts. I have not read or listened to the transcript. I work—and was in trial for two days—and simply haven’t had the time. That said, I have heard and read several reports.

Justice Antonin Scalia wrote the majority opinion in Employers Division, Department of Human Resources of Oregon v. Smith in 1990. The case involved the religious use of peyote. There, he wrote:

If the “compelling interest” test is to be applied at all, then, it must

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Hobby Lobby and the Pill

March 24, 2014

On Tuesday—today, unless you’re reading this blog post on Monday evening—the United State Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., No. 13-354. This case involves a corporation’s right to ignore certain parts of the Patient Protection and Affordable Care Act aka the ACA and Ombamacare. Basically, David Green and his family—owners of the Hobby Lobby chain of craft stores—want to avoid the obligation in the ACA to include contraceptive coverage in all qualifying health insurance plans. More precisely, the issue before the Court is:

Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless

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Licensed Fiduciaries

March 23, 2014

Licensed Fiduciaries—I’m one—are individuals and business entities who hold a license, issued by a division of the Arizona Supreme Court. (My law firm is also a Licensed Fiduciary, and I am the responsible party under its license.) We provide services to people in need of assistance with personal and financial matters, and administer estates.

Courts appoint guardians, conservators, and personal representatives. A court will appoint as a guardian a person named in a will, and will also appoint as a personal representative someone named in a will. These individuals can charge a fee for their services, so long as they have been identified in the will. So, nothing about having Licensed Fiduciaries interferes with an individual’s wishes, most of the

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Law Lessons From Abraham Lincoln

March 19, 2014

The 150th anniversary of the Civil War passed three years ago. It brought to mind another “Attic-Moment” involving Abraham Lincoln. Notes for a Law Lecture, written by Abraham Lincoln, are dated July 1, 1850, making them, now, more than 160 years old.

Age aside, the Notes are worthy of attention for attorneys and non-attorneys, for Mr. Lincoln focuses on four major, timeless themes:  Diligence; Litigiousness; Fees; and Honesty. He also offers a quick digression on the limited value of the silver tongue.

Mr. Lincoln calls diligence “the leading rule” for lawyers. Arizona attorney discipline reports bear out this opinion, as many modern-day discipline problems relate to a lack of diligence.[1] Mr. Lincoln offers several

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Should Justice Ruth Bader Ginsburg Retire?

March 17, 2014

Erwin Chemerinsky. Founding dean at the University of California, Irvine School of Law. Taught at Duke and USC. Wrote The Conservative Assault on the Constitution, which offers non-constitutional scholars lucid lessons about federal court actions over the past several years, and how they have further the Right Wing agenda. (Has also written many law books for law students.) Spoke at the Tucson Festival of Books in 2011 or 2012. (Losing track of years means nothing more than “losing track of years.”)

Yesterday, the Los Angeles Times published an op-ed by Dean Chemerinsky titled Much Depends on Ginsburg. In the piece, he argues strongly that Justice Ruth Bader Ginsburg needs to resign at the end of the Supreme

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March 17, 2014

Trusts. Lots of varieties, and lots of mystery. Here’s some basic information.

Trusts exist for many reasons, most of them bound up in estate planning. Trusts vary in terms of their purposes and terms, but they all have about them a core concept:  they are tri-party agreements that involve fiduciary duties.

A tri-party agreement involves three parties. A trust always has at least one settler/trust, at least one trustee, and at least one beneficiary. The settlor—trustor is a synonymous term here—creates a trust by depositing now, or promising to deposit sometime in the future, often at death—money or other assets. The settlor is also almost always the person who has the trust agreement drafted.

Every trust has at least

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Jersey and the Fifth Amendment

March 13, 2014

The Fifth Amendment to the U.S. Constitution states:  “No person … shall be compelled in any criminal case to be a witness against himself.” In New Jersey, a battle has developed over a legislative committee’s demand for emails from Governor Chris Christie’s people in connection with the Bridgegate investigation. (Alas, 40+ years after Watergate, we finally have another water-related “gate.”)

Absent a grant of immunity, no one can be forced to testify about matters if the testimony may be self-incriminating. But what about emails and other records, created long before the investigation?

I have had one case in my 32+ year career that involved Fifth Amendment claims, and it revolved around a waiver of those claims. So, I’m no

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