October 31 roundup

  • “Government Is the Biggest Threat to Innovation, Say Silicon Valley Insiders” [Tuccille, Reason]
  • Acrimonious split between Overlawyered favorite Geoffrey Fieger and long-time law partner Ven Johnson [L.L. Brasier, Detroit Free Press]
  • Case against deference: “Now More Than Ever, Courts Should Police Administrative Agencies” [Ilya Shapiro on Perez v. Mortgage Bankers Association; boundary between "interpretive" and "legislative" agency rules]
  • “The Canary in the Law School Coal Mine?” [George Leef, Minding the Campus] Ideological diversity at law schools [Prof. Bainbridge and followup]
  • Familiar (to economists) but needed case against state auto dealership protection laws [Matt Yglesias, Vox; our tag]
  • Trial lawyers dump millions into attempt to defeat Illinois high court justice Lloyd Karmeier [Chamber-backed Madison County Record, Southern Illinoisan]
  • A genuinely liberal regime would leave accreditation room for small Massachusetts college that expects students to obey Biblical conduct standards [Andrew Sullivan, more]

Tags: administrative law, auto dealership protection laws, Geoffrey Fieger, Illinois, judicial elections, law schools, technology

October 31 roundup is a post from Overlawyered – Chronicling the high cost of our legal system

Read more here: http://overlawyered.com/2014/10/october-31-roundup-3/


“NY State blesses ‘incest’ marriage between uncle, niece”

“NY State blesses ‘incest’ marriage between uncle, niece”: The New York Post has an article that begins, “The state’s highest court has toppled a cultural taboo — legalizing a degree of incest, at least between an uncle and niece — in a unanimous ruling.”

You can access Tuesday’s ruling of the Court of Appeals of New York — that state’s highest court — on certified question from the U.S. Court of Appeals for the Second Circuit at this link.

Read more here: http://howappealing.abovethelaw.com/103014.html#058766


Cheech and Chong Join The FDIC

There was some rather surprising news this week via the American Banker (paid subscription required) regarding banking: the FDIC is following FinCEN’s lead in telling banks in Colorado (and elsewhere) to “smoke ‘em if you’ve got ‘em.”

The Federal Deposit Insurance Corp. has quietly aligned itself with guidelines from the Financial Crimes Enforcement Network that are meant to assuage bankers’ fears about the burgeoning marijuana industry, American Banker has learned.


Back in February, when Fincen released its guidance, the FDIC declined to comment on the document. But on Monday, FDIC spokesman Greg Hernandez confirmed that the agency is currently using the Fincen guidance.

The FDIC’s decision to use the guidance is significant because federal banking agencies had previously refused to say whether they’d align themselves with the document, which is part of a broader Obama administration push to foster state-level experiments with marijuana legalization.


During one recent bank examination, an FDIC official told the bank’s directors that the agency is in alignment with Fincen’s marijuana guidance, according to Lance Ott, a consultant to the bank who heard the discussion. At the same time, the FDIC employee made clear that the agency is neither encouraging nor discouraging banks from serving pot merchants, Ott said.

The FDIC official told the bank that marijuana is a higher-risk business because of its dependence on cash and the increased chance of robbery, but that pot businesses do not hold a reputational risk for banks in states such as Colorado and Washington that have legalized the drug, Ott recalled.

One commenter to that article put one ironic aspect of this recent news very well.

Lemme see if I understand this. Two federal agencies, the FDIC and FinCEN, are knocking themselves out to have banks provide services to pot businesses which are legal in only a handful of states, while being illegal under federal law. Yet the FDIC, until just recently, actively participated in overt (Operation Chokepoint) and still participates in covert efforts to pressure banks to discontinue providing services to so-called alternative financial service providers, such as check cashers, money remitters and payday advance companies, that are legal in most states and are registered (legal) with FinCEN as Money Service Businesses. Where is the logic??

Logic? You want logic? Silly boy!

At the same time that the FDIC is inhaling deeply, its counterpart in the credit union arena is apparently blowing cold.

A New Mexico credit union closed its marijuana business accounts after a negative reaction by a NCUA field examiner, according to Paul Stull, president/CEO of the Credit Union Association of New Mexico in Albuquerque.

“From what I was told, the field examiner’s reaction was quite over the top,” said Stull, who declined to name the specific credit union involved in the alleged incident. “The examiner said there was no way this could be done legally.”

The credit union closed the accounts after an examiner threatened to issue a letter of understanding and agreement if it didn’t do so, Stull said. To his knowledge, there are no credit unions currently offering banking services to New Mexico’s licensed medical marijuana businesses.

I spoke with the chief compliance officer of a Colorado Fed-member state bank that a Federal Reserve examiner made comments to her bank to the effect “You know, other banks in Colorado are banking marijuana businesses,” but when she tasked if that meant that the Fed was taking the position that as long as the bank complied with the FinCEN guidance, the Fed would not object, the examiner backed off and said that he didn’t mean to imply that such activity was OK or not OK, but that each bank needed to make an individual risk decision. Whatever the hell that means.

In other words, the federal regulators are all over the board on this issue.

The head of the Washington Bankers Association spoke for all but a tiny minority of banks in both Colorado and Washington (and elsewhere).

James Pishue, president of the Washington Bankers Association, said that the vast majority of banks are still staying away from marijuana because the drug remains illegal under federal law. “There really needs to be a federal solution to this,” he said.

Yes, here’s the basic risk for a bank that knowingly provides banking services to a marijuana business: The…Bank…Is…Violating…Federal…Criminal…Laws. The bank has to depend on the forbearance of federal government regulators and prosecutors to continue to get away with that law-breaking activity. If that’s how you want to roll, go for it. You’ll look great in pinstripes once John Ashcroft’s doppelganger takes over as Attorney General in January 2017.

On the other hand, you are going to need to smoke dope to comprehend the current regulatory landscape of banking dope.

Read more here: http://feedproxy.google.com/~r/typepad/banklawyer3/3_bank_lawyers/~3/2-smozvCS6s/cheech-and-chong-join-the-fdic.html


Unlike U.S. Pro Se Litigants, England’s Litigants In Person Not Faring Well

Both in the U.S. and in England, more users of family court are representing themselves. There, the similarity ends.

Talk to lawyers in the U.S. and a number of them concede that pro se litigants in family court are doing a relatively good job in self-representation. They research the case. They talk with others who have stood before a certain judge. And courts are geared to assist the pro se litigant.

When they hit a wall, then they approach a professional lawyer, requesting a la carte services. Increasingly, lawyers are accommodating that.

In England, reports The Economist, those representing themelves – called “litigants in person” – are not doing a good job of it. Often they have no choice but to go it alone since legal aid is being cut. And barristers may charge more than they can afford.

According to The Economist, “The proportion of family law cases in which neither party was represented grew from 17% to 29% between March 2011 and December 2013.” One major problem is having one party in family court being cross-examined by the raging other party. Another obstacle is that they cannot afford expert testimony or tests for paternity.

This negative pattern will probably continue since England seems determined to keep down legal aid appropriations in order to reduce its budget deficit.

Read more here: http://lawandmore.typepad.com/law_and_more/2014/10/unlike-us-pro-se-litigants-englands-litigants-in-person-not-faring-well.html


“Appeals Court Revives Junk Fax Class Action Against Pomano Dentist”

“Appeals Court Revives Junk Fax Class Action Against Pomano Dentist”: Daily Business Review has this report on the ruling that a partially divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued today.

You can freely access the full text of the article via Google.

Read more here: http://howappealing.abovethelaw.com/103014.html#058763


“Challenges to the Affordable Care Act: Panelists talked about court cases challenging the Internal Revenue Service’s interpretation of the Affordable Care Act.”

“Challenges to the Affordable Care Act: Panelists talked about court cases challenging the Internal Revenue Service’s interpretation of the Affordable Care Act.” C-SPAN has posted online at this link the video of an event that the Cato Institute hosted today.

Read more here: http://howappealing.abovethelaw.com/103014.html#058762


“Artists Win Circuit Rehearing of Calif Royalty Law”

“Artists Win Circuit Rehearing of Calif Royalty Law”: Pamela A. MacLean has this post at her “Trial Insider” blog about an order granting rehearing en banc that the U.S. Court of Appeals for the Ninth Circuit issued today.

Read more here: http://howappealing.abovethelaw.com/103014.html#058761


“Court: Strippers were club employees, could be owed millions.”

“Court: Strippers were club employees, could be owed millions.” The Las Vegas Sun has this news update.

And The Associated Press reports that “Nevada court says Strip club dancers are employees.”

You can access today’s ruling of the Supreme Court of Nevada at this link.

Read more here: http://howappealing.abovethelaw.com/103014.html#058760


“U.S. lawsuit vs Hartford police who fatally shot dog is revived”

“U.S. lawsuit vs Hartford police who fatally shot dog is revived”: Jonathan Stempel of Reuters has this report.

And The Associated Press has a report headlined “Court: Illegal police search led to dog death.”

You can access today’s ruling of the U.S. Court of Appeals for the Second Circuit at this link.

Read more here: http://howappealing.abovethelaw.com/103014.html#058759


"Opayemi v. Milford Public Schools" – The Kid Gets Back In Class

In America The Litigious, Ebola issues quickly become legal ones. Because the family had traveled to Nigeria, the Milford powers that be barred the daughter from attending the elementary school until the quarantine period was over. The father Stephen Opayemi filed a lawsuit.

In Bloomberg, Joel Rosenblatt reports the daughter has been allowed back to school as part of the agreement settling the lawsuit.

Read more here: http://lawandmore.typepad.com/law_and_more/2014/10/opayemi-v-milford-public-schools-the-kid-gets-back-in-class.html


Dog Bite Injuries: Do You Have a Case?

Getting bitten by a dog is never a particularly pleasant experience.

But not every dog bit incident will necessarily make for a successful dog bite injury lawsuit. From the extent of any possible injuries, to the circumstances surrounding the incident, there are many factors that a personal injury attorney will use in determining the potential merits of a lawsuit.

What makes for a good dog bite injury claim? Here are a few questions that you will likely be asked:

  • How serious were your injuries? The degree of your injuries may determine the amount of your potential recovery in a dog bite case. In addition to physical injuries, you may also be able to recover for lost wages and emotional distress caused by the incident.
  • Do you know who owns the dog? Any legal claim must be brought against the dog’s owner. If you were bitten by a stray dog or a dog whose owner can’t be found, you may not be able to bring a lawsuit.
  • Where did the incident occur? The laws for dog bite injury suits vary by state. In states with strict liability dog bite laws, you may only have to prove that you were bitten by a dog owned by another person without provocation.
  • Does the dog have vicious propensities? In states that don’t have strict liability dog bite laws, you may have to prove that the animal had “vicious propensities” and that the owner knew or should have known that the animal was predisposed to bite.
  • Were you bitten while at work? If you were bitten by a dog while performing your job duties, in addition to a lawsuit against the owner you may also be eligible for worker’s compensation.

Find out more about personal injury lawsuits involving dog bites and other animal-inflicted injuries at FindLaw’s Learn About the Law section on Dog Bites and Animal Attacks.

Related Resources:

Read more here: http://feeds.findlaw.com/~r/Injured/~3/0xgMLNTzJj4/dog-bite-injuries-do-you-have-a-case.html


Broken Windows at Your Business: What Are Your Legal Options?

Depending on the size and location of your business, you may have a few windows on the front of your building or hundreds of windows looking out on all sides.

In either case, broken windows at your business can require costly repairs and will likely need to be boarded up in the meantime — not exactly the look most business owners are going for. Some business owners on Virginia’s Eastern Shore are learning this first-hand after the catastrophic explosion of a NASA rocket shattered the windows of several businesses, reports the Richmond Times-Dispatch.

Whether it’s a sudden explosion or criminal vandalism that shattered your windows, what legal options do business owners have to make repairs? Here are a few you may want to consider:

  • File an insurance claim. The most common method for dealing with property damage is through an insurance claim. Property owners can purchase general property insurance to cover potential damage to their property. Business owners can also purchase glass insurance policies, specifically to repair or replace their business’ windows.
  • Call the police. If the windows were broken by an act of vandalism, business owners will probably want to report the damage to police. Beyond bringing those responsible to justice, business owners may also seek restitution from a person convicted of vandalism. Restitution is a payment made by the perpetrator of a crime to the victim or victims of that crime. In the case of broken windows, a vandal may be ordered to pay restitution in the amount required to repair or replace windows that he or she may have damaged.
  • File a lawsuit. When another person’s intentional or negligent conduct leads to broken windows at a business, business owners may also pursue a civil lawsuit against the person or persons responsible. In cases such as the Virginia rocket explosion, a legal doctrine called res ipsa loquitur may be applicable. Res ipsa loquitur presumes negligence in cases where an event does not normally occur without someone’s negligence (like an explosion), and that the harm was caused by something in that person’s exclusive control.

For more legal tips that small business owners can use, head over to FindLaw’s section on Small Business Law.

Follow FindLaw for Consumers on Google+.

Related Resources:

Read more here: http://feeds.findlaw.com/~r/FreeEnterprise/~3/BvrsxkKtsgA/broken-windows-at-your-business-what-are-your-legal-options.html