Ind. Courts - More on: "Lawyer guilty of attack on woman in wheelchair"

Updating this ILB entry from Jan. 27th, Bob Kasarda of the NWI Times reports today:

VALPARAISO | Former Hebron Town Council President Michael Haughee was sentenced Thursday to one year in jail after being found guilty of sexually assaulting a woman who uses a wheelchair.

But the 56-year-old suspended attorney was not taken into custody.

Haughee asked Porter Circuit Court Judge Mary Harper to delay the sentence until his appeal has been decided, which could be a year or more.

Harper agreed to consider the request and said she will decide by 10 a.m. Monday. Haughee is required to turn himself in at the jail by that time if the delay is not granted. * * *

Deputy Prosecutor Cheryl Polarek opposed the delayed sentence, saying Haughee had earlier involvement with police, including accusations 20 years ago of having inappropriate contact with another woman.

Four people testified on Haughee's behalf, including his son, Frank Haughee, who said his father taught him respect for all people.

Harper sentenced Haughee to one year in jail, which can be completed in half that time with good behavior. Upon his release, he is to spend a year on formal probation, register for 10 years as a sex offender and undergo HIV testing, sex offender treatment and a mental health evaluation.

Ind. Courts - More on: Cookie scandal hits Allen County Clerk's office; becomes national story

Updating yesterday's ILB entry, an editorial today in the Fort Wayne Journal Gazette is headlined "Cookiegate a crummy deal." The editorial begins:

Citizens want elected officials to be above reproach and uphold the public's trust. But even to a demanding public, the recent firing of court record clerks over a good-natured joke seems like overkill.

Perhaps Therese Brown, who as Allen County clerk has become the public face of the episode, had good cause to fire two employees in her office and give a written reprimand to a third after they accepted a bag of cookies from a resident. She alleges the employees were using their office for personal gain. But the employees say, and the evidence seems to back them up, that a joke and a misunderstanding were at the root of the incident, not an attempt to use their positions for personal gain.

Ind. Gov't. - Bill to clarify circumstances for awarding education credits by DOC goes to Governor

Updating this ILB entry from Feb. 12th, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today in a story that begins:

A bill championed by a Southern Indiana family that would clarify how education credits can be used to reduce an inmate's prison sentence is now one step from becoming law.

House Bill 1271, which also lengthens sentences for violent sexual predators, won final legislative approval yesterday when the House passed it 94-1. That sends it to Gov. Mitch Daniels to consider whether to sign it, veto it, or allow it to become law without his signature.

Daniels said he had not read the bill and will review it when it reaches his office.

Kathy Gatz of Jeffersonville, whose family publicly questioned whether inmates should get dual credits for the essentially equivalent achievements of earning a GED and a high school diploma, praised the bill's passage.

"We're pleasantly surprised with how quickly it moved through both the House and Senate," Gatz said.

The bill's author, Rep. Steve Stemler, D-Jeffersonville, said he also was pleased.

"I am optimistic that the governor will take expedient action in passing this legislation into law," he said.

Stemler introduced HB 1271 after prison officials erred in determining a release date for Paige Grable. She was sentenced to 2½ years for a 2006 drunken-driving crash that killed Kathy Gatz's son.

Grable earned both her diploma and a GED while in prison and initially received early release credit for both, despite a Department of Correction policy banning it.

State officials corrected the mistake after the Gatz family raised the issue, and Grable's release was delayed until last month.

The family also testified in favor of the bill, which expressly prohibits inmates from receiving credits for both accomplishments.

The bill was nearly tripped up in the House when Republicans offered an amendment that would have required all prison inmates to serve at least 85 percent of their sentences.

Currently prisoners receive one day of early release credit for each day of good behavior. That means the vast majority of inmates serve no more than half of their sentences. Education credits can further shorten those sentences.

The 85 percent provision -- which passed the House easily with bipartisan support -- would have cost the state hundreds of millions of dollars annually for operations and new prisons. House and Senate fiscal leaders said that was too much.

Ind. Courts - Glitch may keep Elkhart Superior Court No. 5 candidate off ballot

John Kline reports today in the Goshen News:

A glitch in the filing process may keep Middlebury attorney Fay Schwartz from getting her name on the ballot for the upcoming primary election.

Schwartz is one of six Republican candidates currently vying for the nomination of Judge of Elkhart Superior Court No. 5, a position currently held by retiring Judge James Rieckhoff.

Also vying for the nomination are attorneys Peter Todd, Bruce Wells and Charles Wicks, Magistrate Thomas Murto and former county commissioner Martin McCloskey.

According to Wendy Hudson, chief deputy clerk for Elkhart County, Schwartz filed paperwork correctly with Elkhart County, however a mix-up down at the state resulted in her not filing her papers properly with the Indiana Election Commission in time for the filing deadline.

"She had to file a statement of economic interest with the State Court Administration, and she had to file her declaration with the Election Commission," Hudson said. "She filed them both on time, but she didn't send a copy of her statement of economic interest with her declaration to the Election Commission.

"She only sent it to the State Court Administration, and apparently it had to be filed at both places, so although she got it in on time, they are trying to decide whether or not to accept it," she said.

Schwartz is not giving up on her chance to run, however, and plans to appeal to general council at the Election Commission in Indianapolis in order to get herself on the ballot.

"I will be down in Indianapolis next Wednesday to talk to them. They have their meeting on (Wednesday)," Schwartz said. "They have an agenda, and I have sent down a request to be put on the agenda.

"I certainly want to use every option I have to get on the ballot. I think that's important," she said.

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

For publication opinions today (2):

In Jerry and Becky French v. State Farm Fire & Casualty Co. and Jane Hodson, a 16-page opinion, Judge Najam writes:

Jerry and Becky French (the "Frenches") appeal from the trial court's order granting summary judgment in favor of Jane Hodson on the Frenches' claim of negligent advice and procurement of insurance. The Frenches raise three issues for our review, which we restate as whether the trial court erred in granting summary judgment in favor of Hodson. We affirm. * * *

Although we have serious misgivings as to whether Hodson exercised reasonable skill, care, and diligence in the procurement of more than $200,000 in homeowner's coverage for a $76,000 manufactured home, we need not address that issue. Assuming Hodson acted negligently, the Frenches have not suffered an injury proximately caused by her purported negligence. * * * Here, if Hodson was negligent, it was because she sold a policy to the Frenches with limits beyond that which they could reasonably expect to recover, thereby rendering the excess coverage illusory. Accordingly, the Frenches were damaged by having to pay a higher premium than they would have paid had Hodson procured the proper policy with the appropriate limits. The measure of the Frenches' damages is the difference between those two premiums.

Further, it cannot be said that the Frenches' costs in rebuilding their home is the appropriate measure of damages here. Before the Frenches began construction on their new home, State Farm informed them that it would only pay the replacement cost of the Manufactured Home, or about $80,000. Nonetheless, the Frenches chose to proceed with the construction of their new home, incurring approximately $185,000 in costs. Thus, the Frenches did not rely on Hodson's conduct when, knowing that there was a coverage dispute, they chose to proceed with construction of the stick-built home. * * *

In sum, again, there are a number of reasons to question whether Hodson took the steps necessary to satisfy her duty to exercise reasonable skill, care, and diligence in the procurement of the Policy for the Frenches. But regardless of the alleged negligence, it cannot be said that such negligence was the proximate cause of an injury to the Frenches. And the Frenches did not rely on Hodson when they decided to proceed with construction of the stick-built home. We express no opinion on the ultimate resolution of the Frenches' claims against State Farm for breach of contract. Rather, we hold only that the trial court did not err in granting summary judgment to Hodson.

In Larry Keesling, Vivian Keesling and Heritage Land Co. v. T.E.K. Partners, LLC., et al., a 9-page opinion, Judge Najam writes:

Larry Keesling and Vivian Keesling ("the Keeslings") and Heritage Land Company ("Heritage Land") appeal from the trial court's in rem judgment in favor of T.E.K. Partners, L.L.C. ("T.E.K.") on T.E.K.'s complaint on a 1999 installment promissory note (the "original note") and to foreclose mortgages against the Keeslings and Heritage Land. The Keeslings and Heritage Land present three issues for our review:
1. Whether the trial court erred when it entered a final in rem judgment in the amount of $181,331.78.
2. Whether the trial court erred when it did not release a thirty-six-acre tract as collateral after the Keeslings and Heritage Land were discharged as sureties from their personal liability on the original note.
3. Whether the trial court erred when it ordered that the thirty-six-acre tract be sold first to satisfy the judgment.
We affirm in part, reverse in part, and remand with instructions.

NFP civil opinions today (2):

In the Matter of H.P., a Child Alleged to be in Need of Services, Nathanial R. & Desiree P. v. Franklin Co. Office of Family and Children (NFP) - "H.P. was adjudged to be a child in need of services by the Franklin Circuit Court. H.P.'s parents appeal the adjudication arguing that it is not supported by sufficient evidence. Concluding that the evidence is insufficient to support the CHINS adjudication, we reverse and remand for proceedings consistent with this opinion."

Invol. Term. of Parent-Child Rel. of B.S.; Dawn Lewis and Joe Smart v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the evidence was sufficient, that termination does not violate the parents' constitutional rights, and that termination was in accordance with the purpose of Title 31, we affirm."

NFP criminal opinions today (0):

Ind. Decisions - More on: Court has denied transfer in Home Place annexation case

Updating yesterday's entry, a story by Francesca Jarosz of the Indianapolis Star reports:

Lawyers for Home Place residents say the Indiana Supreme Court's denying to review their fight against annexation by Carmel mean the city has won half the battle.

The residents hope to win the war by returning the case to Hamilton Superior Court 3 to seek a ruling by Judge William Hughes on whether the community is self-sufficient. * * *

The Supreme Court notified Carmel and Home Place representatives this week that it would not review the case.

But Stephen Buschmann, Home Place's lawyer, said his side has another shot.

While Carmel's ability to afford to annex Home Place has been upheld, he said the city cannot annex Home Place if the area can prove several criteria, including its ability to get services such as fire and police without the city, and that the annexation would have a negative financial impact.

In 1999, the state legislature changed the law, allowing remonstrators to stop annexation by proving their ability to survive without city services. Even if a city's fiscal plan is upheld, it cannot annex an area involuntarily for four years if remonstrators successfully make that case.

Judge Hughes will make those determinations in Home Place using facts presented at the original trial in 2005.

Buschmann said he's optimistic about the outcome based on Hughes' evaluation of those criteria in Carmel's efforts to annex 8.3 square miles in southwest Clay Township.

See also this story today by John Tuohy and Francesca Jarosz, headed "Fishers, Home Place likely heading to court: Failure of anti-annexation legislation could lead to drawn-out battle."

Ind. Courts - More on challenges to St. Joe County's merit selection of judges

Updating this ILB entry from Feb. 28th, much of which dealt with efforts in the past two legislative sessions to change the way judges are selected in St. Joseph County, Pablo Ros has a story today in the South Bend Tribune headed "Judges defend selection by merit: They must be free to make unpopular calls, local judge says." Some quotes:

SOUTH BEND -- In an effort to educate people on an issue he feels strongly about, a St. Joseph Superior Court judge last week tacked a couple of news stories to the bulletin board showing daily court schedules at the courthouse.

Visitors glancing at the calendar of morning hearings may now also read highlighted portions of two media articles that warn against the pitfalls of an elected judiciary. One is an opinion piece by former U.S. Supreme Court Justice Sandra Day O'Connor published in Parade Magazine; the other is a column by New York Times journalist Adam Liptak.

The appearance of the postings on the first floor of the courthouse coincides with the failure last week of an amendment to a bill in the Indiana General Assembly that would have required St. Joseph County's eight Superior Court judges to stand for election. The amendment, supported by county Prosecutor Michael Dvorak, was a source of ill feeling among the judges, who were not consulted on the issue.

Judge Michael P. Scopelitis said Tuesday he posted the articles last week in a modest attempt to inform the public of the complexity of the issue. He also said he favors the county's system of merit selection because it allows judges to be fair and impartial.

"I did it because people in this county have judges who are merit selected," Scopelitis said, "... and merit selection is under attack."

Scopelitis said an elected judiciary may risk losing sight of its constitutional role, strictly to apply the law to the facts of a case to protect the individual against the will of the majority.

"It seems that if you don't like a judge's decision, the first visceral reaction is, 'Let's get rid of the judges,' instead of looking into whether or not the decision is the correct one or was made with the discretion allowed by the law," he said. * * *

Asked if he had been prompted to post those articles in the courthouse because he felt local media coverage had failed to present both sides of the issue, Scopelitis said that he had not.

But in reply to the same question, Chief Judge John M. Marnocha said "because the media deals with whatever issue is hot at the moment," it may fail to give the public "an adequate picture of what's going on."

Marnocha agreed with Scopelitis in opposing an elected judiciary for St. Joseph County.

Though supporters of the amendment that failed last week talked about judges' lack of accountability to the public, Scopelitis said judges are accountable to the public because they are appointed by the governor, who is elected, and because they must be periodically retained by vote.

Scopelitis also said the public may voice its complaints of judges to a commission on judicial qualifications for St. Joseph Superior Court or to the Indiana Supreme Court disciplinary commission.

The Feb. 24th Parade Magazine article by Justice O'Connor is available here; a Jan. 29th NYT column by Adam Liptak headed "Looking Anew at Campaign Cash and Elected Judges" is available here.

Environment - New Energy Corp. apparently protests South Bend's pretreatment permit requirements

Jamie Loo reports today in the South Bend Tribune:

New Energy Corp. has asked a judge for relief from a new, more stringent, city water discharge permit for its ethanol plant.

The company claims the city issued the new permit, which it considers inconsistent and arbitrary, in January without a proper hearing. New Energy asks St. Joseph Circuit Judge Michael Gotsch for a declaratory judgment to find the city's hearing process insufficient and void the permit.

New Energy and the city were negotiating an administrative order last summer, which led to an order New Energy claims it tried to appeal. An administrative order is a pretreatment program that asks an industry to treat a pollutant before discharging it into public waters.

The administrative order requires New Energy to pre-treat its wastewater, and to install meters and other equipment to test its wastewater discharge. It also asks New Energy to submit to a hydrogen sulfide management plan to lessen the alleged impact on the city's pipes downstream and the odors that come from it. Hydrogen sulfide is one of the causes of sewer odor.

The suit filed by New Energy says that after contacting the city to review and appeal the order in early September, the company received no other contact from the city until the water discharge permit was issued. The permit contains all of the elements New Energy objected to in the administrative order.

The organic waste from New Energy discharged into the sewers has been considered one of the causes of the noxious odors.

Ind. Courts - "Tinder joins the big leagues with seat on 7th Circuit"

Maria Kantzavelos has this article in the March 5th Chicago Lawyer. A few quotes from the lengthy article:

After 20 years on the federal bench in Indianapolis, in December [John Daniel] Tinder went from being the next in line for the position of chief judge of the district to becoming the "tail of the dog" as the most junior of the judges on the 7th U.S. Circuit Court of Appeals.

"It's an exciting time for me, personally, to go through this," Tinder said recently from a vacant office in the Dirksen Federal Courthouse. "Here I am at 57, approaching 58. Starting a whole new phase of a career is really energizing. It's something that's hard to stop smiling about.

"There's no particular magic to it, but you can imagine after doing something for 20 years and being very comfortable in doing that and enjoying that, and to walk away from that and do something that might even be more interesting and more enjoyable — it's a great opportunity." * * *

Lawyers familiar with his work describe an expansive body of written opinions and scholarship that is meticulous and thorough. They said practitioners who appear before an appellate panel that includes Tinder can expect respectful, but pertinent questions from him.

"He's not going to bully lawyers at oral arguments," said Kathleen DeLaney, managing partner of the Indianapolis litigation firm DeLaney & DeLaney who tried three cases before Tinder in district court.

She offered this advice to practitioners appearing before him: "Don't run from his questions."

"If he asks a question, he wants to know the answer," DeLaney said. "He won't ask questions for the purpose of interrupting a lawyer's flow or sending him off on a red herring. He will be asking questions designed to illicit [ILB - sic] information he thinks is important for the ultimate decision."

Liar's Poker Revisited

Lest we forget our literary inspirator's first book, the debacle with Roger Clemens and Brian McNamee illustrates key differences between practicing law and attending law school. As the next wave of law graduates approach entry into the market, this case helps to show why practicing law can sometimes be deflating to graduates after the law school experience.

There is No Scholarly Discourse or Fundamental Truth
In law school, we would have a Socratic discussion about defamation law and legal aspects of professional athletes using performance-enhancing drugs. At the end of the discussion we would feel we had reached some fundamental truth of humanity. I believe this is an effective way to learn how to analyze law, and it provides intellectual rewards for the students. However, I also believe students expect to find these same rewards in their practice.

In the actual case, there is no such debate and there is no fundamental truth. One side will eventually prove his story is more credible than the other side's story. The case will be won in the trenches by digging up evidence rather than a creative new application of law. Enough dirt has come out about both men to make them blush; more is sure to follow. The "truth" will be determined by what a 12-member jury believes. The loser will undoubtedly remain committed to his story even if he does so from a jail cell.

One of the Parties is Defiantly Lying
Clemens and McNamee both swore under oath before Congress, and at least one of them defiantly lied. It is hard to tell because they both performed so poorly, but the FBI is now investigating Clemens. We would like to think that people respect the majesty of courts and take sworn oaths seriously, but this sort of lying happens all the time in litigation (Bill Clinton, anyone?). Sometimes you can prove the other side is lying, sometimes you cannot, and sometimes it is your client that does the lying.







What is the Other Side Thinking?
A lot of times the other side will leave you scratching your head. Clemens produced "evidence" in the form of a commissioned study about his career statistics and a taped conversation with McNamee that both seem to confirm he took steroids. His argument before Congress is that the Mitchell Report is accurate about every other named player but contains lies about him. Clemens threw his family and friends under the bus to make his argument.

McNamee, a former cop, produced "evidence" of 8-year old syringes and gauze pads that allegedly have Clemens' DNA. So he had the foresight to keep it but not the foresight to authenticate it? His argument is that he has a history of habitual lying but he is telling the truth about Clemens.

* * *

While you occasionally get to take a novel issue of law to your state supreme court or circuit court of appeals, most cases pan out like this one. After mastering the law, you have to sort through suspect witnesses and suspect evidence to find the best way to generate a favorable outcome for your client. You do not get the opportunity for scholarly discourse or to reveal a fundamental truth, and the case will most often end with little fanfare in a confidential settlement. It can make practicing law deflating for new graduates.

Practicing law is a wonderful profession, and there is nothing else I would rather do. It is rewarding to know that you provided your client with outstanding legal representation in a time when they most needed help. The rewards are simply more different from the law school experience than many new graduates realize.

Good riddance

Herewith an open letter to Michael Stokes Paulsen, Distinguished University Chair and Professor at the University of Saint Thomas School of Law.
Dear Mike,

I just got around to reading your piece, Good Riddance, Jim Chen, You No-Good Lousy So-and-So, 24 Const. Commentary 1 (2007). It's a tribute that only you could have pulled off. You managed the rare feat of making me laugh and cry at the same time. I meant what I've said about you in the blogs: "I don't miss working at 229 19th Avenue South in Minneapolis, but I do miss working with Michael Stokes Paulsen."

It's worth noting the irony. As far as I can tell, Good Riddance was the last thing you wrote before you joined the law faculty at Saint Thomas. I don't have as gaudy a platform as Constitutional Commentary to pay you tribute. So you'll have to accept this online gesture.

Good Riddance, of course, is the real title to a 1997 Green Day song many people call The Time of Your Life. In honor of your love and mastery of music, and of the years we worked together at Constitutional Commentary and its host institution, I offer a video and the lyrics to Good Riddance.

Best wishes,
Jim

Green Day, Good Riddance, Nimrod (1997)

Another turning point, a fork stuck in the road
Time grabs you by the wrist, directs you where to go
So make the best of this test, and don't ask why
It's not a question, but a lesson learned in time

It's something unpredictable, but in the end is right
I hope you had the time of your life

So take the photographs, and still frames in your mind
Hang it on a shelf in good health and good time
Tattoos of memories and dead skin on trial
For what it's worth it was worth all the while

It's something unpredictable, but in the end is right
I hope you had the time of your life

It's something unpredictable, but in the end is right
I hope you had the time of your life

It's something unpredictable, but in the end is right
I hope you had the time of your life

The name on the jersey

University of Louisville Men's Basketball
Senior Class, 2008#43 Terrance Farley#4 David Padgett#3 Juan Palacios
Sunday, March 2, was the home finale for the University of Louisville's men's basketball team. I was privileged to attend. The pregame ceremony honored three seniors who played their final game at Freedom Hall: Terrance Farley, David Padgett, and Juan Palacios. Head coach Rick Pitino, in his tribute to these three seniors, delivered no greater compliment than this:

These players played for the name on the front of the jersey, not the name on the back.

It's a compliment I hope to infuse in a different portion of the University of Louisville.

»  Cross-posted at The Cardinal Lawyer  «

Faking it

Looking back over the years I've served in some form of educational administration, I must confess that this was the single most effective pep talk I've given:

I know you're hurting. For that I'm sorry. But for your sake and the school's as well, you must be cheerful. Act happy. Fake it if you must.

Because this is MoneyLaw, because I know how to embed videos, and because I like the Dixie Chicks, I offer you a song that captures the sentiment of the moment:

Dixie Chicks, Everybody Knows, Taking the Long Way (2006)

Tell me now if you came sneaking up behind
Would you know me and see behind the smile
I can change like colors on a wall
Hoping no one else will find what lies beneath it all
I think I hide it all so well

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows
Standing out so you won't forget my name
That's the way we play this game of life
Everybody knows

Looking through the crowd
I search for something else
But every time I turn around
I run into myself
Here I stand
Consumed with my surroundings
Just another day
Of everybody looking
I swore they'd never see me cry
You'll never see me cry

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows
Standing out so you won't forget my name
That's the way we play this game of life
Everybody knows

You say I'll pay the price
That's the chance that I'll take
Though you may think I'm telling lies
But I just call it getting by

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows

Standing out so you won't forget my name
That's the way we play this game of life

Und jetzt suche ich den Weg zwischen Vorgebung und Ergebung:

In den dunkelsten Ecken meiner Vorstellung fürchte ich mich, daß ich das ganze Leben bereits vergeudet habe, daß ich immer noch ein akademisches sowie persönliches Trauerspiel erlebe:

Habe nun, ach! Biologie
Mathematik und Fremdsprachen
Und leider auch Juristerei
Durchaus studiert mit heißem Bemühn.
Da steh ich nun, ich armer Tor!
Und bin so klug als wie zuvor;
Heiße Magister, heiße Dekan gar
Und ziehe schon an die zehn Jahr'
Herauf, herab und quer und krumm
Meine Schüler an der Nase herum —
Und sehe, daß wir nichts wissen können!

Die Übersetzung dieses von Faust: Der Tragödie, Erster Teil begeisterten Stückes lasse ich als eine Übung für Euch, liebe Leserinnen und Leser. Die wunderschöne Webseite Theologisches Deutsch empfehle ich wohl, falls Ihr etwa Hilfe mit der deutschen Sprache braucht.

A new blog: Commercial Law

The Jurisdynamics Network is pleased to announce a new member of its family of weblogs, Commercial Law. The law of sales, leases, payments, finance, and lending has manifested some of the most dramatic responses by the law to social, economic, and technological change. From lex mercatoria to the Convention on the International Sale of Goods, from the Negotiable Instruments Law to the rapidly evolving field of electronic payments law, commercial law has been and continues to be a fascinating field in which to observe the interaction of law and business. And the venerable Uniform Commercial Code remains fertile ground for the quintessentially jurisdynamic enterprise of statutory interpretation.

We hope you will visit Commercial Law often at http://UCCLaw.blogspot.com.

The Ensemble Factor

Apropos of Jim's post on rookie legal academic talent, an underexplored aspect of talent assessment might be called the ensemble factor. A new hire, even a "best athlete," inescapably fits into an existing faculty ensemble. Some candidates present interesting possibilities to change the ensemble for the better. For example, a rookie might be a catalyst, sparking intellectual curiosity (and elevated performance) of veterans. Or, a rookie might serve as a bridge linking the work of two or more veterans who have become isolated from each other and each other's ideas over the years. Hiring the right rookies together can be a boon to the ensemble. When rookies not only like each other but can pool scholarly expertise for their mutual benefit, they quickly and deeply invest in the team. Their connection to each other lowers the risk of attrition and increases the expected value of the team's investment in them. The ensemble factor is sometimes blurred with "curricular fit," wrongly in my view. Curricular fit is but one narrow aspect of the contribution a new hire can make to the ensemble.

The potential for positive ensemble factor is far more complicated to assess than the negative. A jerk is a jerk — no matter how fast or strong he or she might be.

There's a new sheriff in town--thanks, Green Bag!

Thanks to the Green Bag, there's going to be a new rankings system to compete with the USNWR rankings. Various blogs (including mine, here) have mentioned Green Bag's new Deadwood Report: see Inside Higher Education and Brian Leiter, along with the original article in the Green Bag.

Here's what the Deadwood Report can do: it can focus on what law schools are doing now, rather than on some halo effect from what they did years ago; it can link claims of what schools say that they're doing with proof of what they are actually doing; it can force schools to acknowledge that they're basing claims of excellence on a few top performers rather than on a deep bench of strong players; and it can get us away from the damnable opinion-based rankings to a more transparent system based on verifiable data.

Are there going to be bugs in the system? Sure there are. But, as Dave Van Zandt has said for years, the reason that USNWR is so popular is that consumers crave any data at all. Now there's a competing system, and it's one that may have some teeth behind it. Bravo, Green Bag!

Legal academia's rookie combine

First the Super Bowl, then the NFL combine. Mike Madison imagines how legal academia might emulate the drills by which National Football League scouts evaluate rookie talent:

Passionate followers of professional football know that the National Football League is just now concluding its annual "combine," the camp where would-be draftees get timed, tested, and measured by pro scouts in anticipation of draft day. There are speed tests, jumping tests, "position specific events," measurements, and the famous or infamous Wonderlic intelligence test. . . .

Brady at the combine

One of the goals of the NFL combine is to identify diamonds in the rough, fabulous athletes whose professional potential was obscured by a mediocre college team. Law school faculties, it is well-known, sometimes engage in the related practice of "best athlete" hiring. Schools that undertake "best athlete" searches aren't looking for fill specific substantive needs, but are instead bound — if at all — only by the mandate that they hire raw talent.

In the spirit of this older post about a Fantasy Law School League, what would a law faculty combine look like? I mean the question both in its obvious semi-serious sense, but also in a MoneyLaw sense. . . . [W]hat tests should "best athlete" faculty candidates be made to run, who should run them, and where and when should they take place?

This is a fun parlor game, and there are at least two ways to play. The first is to run drills that emulate law school teaching and legal scholarship. The second is to imagine the types of skills that lead to superlative academic performance (however you choose to define that) and then to imagine tests that would test those skills.

Read the rest of this post . . . .Mike Madison's original post hints at ways to run industry-specific skills. In commentary to Mike's post, fellow Madisonian blogger Frank Pasquale, despite his "dislike [of] anything that makes the enterprise more "game-like," offered these suggestions:

• Construct a syllabus incorporating a new pedagogical technique. (note–interviewers could learn a lot from this, too!)


• From Bowie to Thomas Kuhn: Assess whether your field is in a state of "normal science," or needs to undergo a "paradigm shift." If the former, how do your projects contribute to answering the key questions. If the latter, what new questions need to be asked?


• Write a blog post about some news item from the past thirty days that shows how your work illuminates the issues raised in the news item.

I agree with Frank that "the Kuhn question is the key one because it highlights how different academia is from a game" and with Jeff Lipshaw that "much of life consists not in playing a particular game well, but figuring out what game you're playing."

Frank Pasquale's suggestions drive at the core of what it means to evaluate rookie talent in legal academia. We need people who can organize classes for the benefit of students, identify and perhaps even challenge conventional wisdom, and communicate in a variety of contexts. I confess, though, that my immediate reaction to Mike's original post contemplated an altogether different format for legal academia's rookie combine. I contemplated tests of pure, raw intelligence.

This is where my knowledge of football got in the way. The NFL combine consists of fourteen distinct drills:

1. 40 yard dash
2. Bench press
3. Vertical jump
4. Broad jump
5. 3 cone drill
6. 20 yard shuttle
7. 60 yard shuttle
8. Position specific drills
9. Physical measurements
10. NFL team interviews
11. Wonderlic test (intelligence)
12. Cybex test (flexibility)
13. Injury evaluation
14. Urine test

Relative to baseball's infamous 270-foot dash (yes, the one Billy Beane won the year he entered Major League Baseball's rookie draft), the NFL combine's drills come closer to measuring the skills that matter in that sport. Tests of speed, agility, strength, and intelligence dominate the combine.

Long ago I speculated about ways in which legal academia might assess the multiple intelligences of would-be rookie professors. I had in mind the work of Howard Gardner, author of Frames of Mind (1983) and Intelligence Reframed (1999). Gardner's theory of multiple intelligences identifies eight distinct dimensions of intelligence:

• Linguistic
• Logical-mathematical
• Musical
• Bodily-kinesthetic
• Spatial
• Interpersonal
• Intrapersonal
• Naturalist

At one level, Frank Pasquale's more logical interpretation of legal academia's rookie combine makes more sense. Identify the complex tasks we need to perform — akin, perhaps, to cut-blocking, bull-rushing, or route-running — and design tests that tests the full complex of skills. But Jeff Harrison has lamented, in ways I appreciate, that the usual tests of aptitude seem to yield a large number of legal academics who are neither intellectually interesting (as a static matter) nor intellectually curious enough (as a dynamic matter) to make better teachers and smarter colleagues of themselves.

So, I continue to wonder. When we evaluate rookie talent, should we do so on the basis of the applicants' ability to perform complex tasks approximating what veteran academics are expected to do? Or should we take aim at raw intelligence? In an ideal world, where neither football teams nor their scouts nor workers in less physically exhilarating enterprises are ever "on the clock," I suspect that we'd measure both.

Doing what comes naturally: Learning university administration on the job

The University of Colorado has named Bruce Benson as its president, and Stanley Fish's observations on this appointment are right on the money. A university "which dismissed controversial professor Ward Churchill because of doubts about his academic qualifications, has appointed a president who doesn't have any."

Benson is an accomplished oilman and an active Republican. But "his highest degree is a B.A., and he has never been a member of a faculty or engaged in research or published papers in a learned journal." This avowed nonacademic is poised to take the helm of "a state university ranked 11th among public universities and 34th among universities overall."

Fish correctly observes that "the political and financial profile of an administrative candidate are . . . relevant because what you want him or her to do is not produce scholarship or teach inspiring classes . . . but interact successfully with a number of external constituencies including regents, legislators, governors, the press and donors." Academic administration isn't purely academic, and searches to fill presidencies and deanships shouldn't be purely academic.

Read the rest of this post . . . .Fish is right to criticize those who would stress either academia or administration to the exclusion of the other. Those who emphasize only teaching and scholarship "forget[] that executive leadership requires skills most faculty members neither possess nor appreciate."

By the same token, "those who dismiss the importance of academic skills" mistakenly assume that managerial acumen is freely transferable from business to academia, that "[s]omeone who can manage an oil company will be able to manage the enterprise of a university." As Fish observes, "in the academy there is no product except knowledge," and concepts such as market share, efficiency, and inventory yield in favor of "endless deliberations, explorations that may go nowhere, problems that only five people in the world even understand, lifetime employment that is not taken away even when nothing is achieved, expensively labor-intensive practices and no bottom line."

Nonacademic law school deans are hardly an anomaly. I work at a school that was led, not that long ago and for nearly a decade, by a judge with no prior academic experience, and a law firm partner to whom I once answered currently sits as dean of another law school. I wonder whether it's easier for a judge, a law firm partner, or a prosecutor to learn the arcane ways of academia or, by contrast, for a professor to set aside academic tools and norms for the dark art of management. Others can speak about the transition from the bench or the corner office to the dean's suite. I do know that it is challenging but exhilarating to infuse managerial and (most of all) entrepreneurial responsibilities into the strictly academic calling of a law school professor. There is a portmanteau expression for this blend of management, law, and the intellectual life: MoneyLaw.

All that is fodder for future posts. In the meanwhile, let's complete our brief examination of Bruce Benson's designation as president of the University of Colorado. Michael Carrigan, one of the three CU regents who voted against Benson, squarely identified the greatest weakness in Colorado's choice: "I can't believe that there are no candidates out there with both business acumen and academic credentials." Fish's endorsement of Carrigan's observation rings true: "Those candidates were out there and they still are. Perhaps the next university tempted to go this route will take the trouble to look for them."

Advice for New Assistant Professors

This may come from a sociology academic blog (Scatterplot), but I think the tips offered by "Olderwoman" are very instructive for new professors of any discipline. I am excerpting the ledes from the first five tips, but do go to the link above for the entire post--and the very good comments:

1) Don't take anything personally, especially not at first. People will probably treat you as insignificant, not because they think ill of you, but because they are socially inept.

2) Help integrate yourself. Even if you are normally more productive writing at home, work in the office a lot during the first year. Make a point of loitering in the hall when it is near lunch time, so people will notice you and think of asking you along to lunch.

3) Your best friends are likely to be the other assistant professors, but do not avoid the senior people. Treat them with friendly respect.

4) Do NOT attempt to reform ANYTHING for at least a year, preferably two. No matter how stupid the curriculum or other things seem, leave them alone until you have been there long enough to know why they are there and whose interests are at stake. Similarly, try to avoid being drawn into factional disputes.

5) Make sure you understand as soon as possible what kind of institution you are at and what it takes to get tenure. At a research university, remember that it is publishing that will get you tenure.

Job opportunities at the University of Louisville

The University of Louisville School of Law anticipates hiring visiting professors, both entry-level and experienced, for the 2008-09 academic year. We also anticipate hiring one or more visiting professors of legal writing; again, entry-level and experienced professors are invited to apply. Finally, we invite applications for the Petrilli Distinguished Visiting Professorship for the 2008-09 academic year. Our curricular needs include (but are not limited to) civil procedure, legal writing, commercial law, intellectual property law, environmental law, and other subjects.

Inquiries and applications should be directed to:

Timothy S. Hall
Associate Dean for Academic Affairs
University of Louisville
Louis D. Brandeis School of Law
2301 South Third Street
Louisville, KY 40292

(502) 852-6361
hallt@louisville.edu

Word, ugh. What is it good for?

Betsy McKenzie has provided the world of legal blogging a fantastic service: she has compiled a definitive list of websites trashing Microsoft Word. Bill Gates's word processor probably delivers more anger in our verbally intense profession than any other computer application. Once upon a time I named the now-extinct Ms. Dewey "Microsoft's worst product ever." Check that. Ms. Dewey is dead; Word lingers on.

Practical tip: If you simply must compose blog pieces in Word, even though Blogger, TypePad, and WordPress all provide workable WYSIWYG composing environments, then do your readership a huge favor by flushing your content through Notepad.exe (Microsoft's only decent product). (1) Cut your entire post out of Word, (2) paste it in Notepad, (3) copy out of Notepad, (4) then paste in your blogging software. Complicated? Yes. That's why you should compose with your blogging software in the first place.

We bloggers have additional reason to hate Word. Blog posts or (God forbid) key snippets of HTML or Javascript used to enhance blog posts and templates, if composed or filtered through Microsoft Word, will acquire all sorts of deviant code. It looks vaguely like [o:p] — I dare not render it precisely, even by way of demonstration, because of this five-character string's potential to wreak technological havoc. If you're lucky, the Word-contaminated post won't render in your blogging platform's preview function, and you know better than to mash the "publish" button. If you're unlucky, it looks good enough on your screen, and your decision to publish then destroys a bunch of RSS feeds and XML scripts that power other people's blogs and websites.

XML, by the way, is to HTML as messenger RNA is to DNA. The engine beneath the beautiful world of Web 2.0, extensible markup language is our friend. Microsoft Word is not. Deviant coding turns Word into the Natasha Henstridge of software. Who is Natasha Henstridge? You can be forgiven for forgetting her appearance in the 1995 film, Species:


That's right. Microsoft Word looks pretty from a distance. When you get close to her, you find out that she carries alien-corrupted DNA. Too late! She's already drilling a hole in your skull with her tongue.

Now that I have subjected you to old science fiction cinema that is as gory as it is bad, I owe you a MoneyLaw payoff. Here it is:

Microsoft Word, for all its horrors, prevails throughout the world of computing solely by virtue of its ubiquity. We use it because everyone else does. And even though it's bad, we keep using it because it would cost us too much to switch to smarter software, both in terms of having to buy the new stuff and in terms of losing touch with the people who stuck with Word.

To make the same point in fancy jargon of the sort that makes law review editors swoon: Nearly universal adoption of Microsoft Word confers upon this admittedly defective product a powerful network externality. The marketplace recognizes the defect, but switching costs obstruct the triumph of consumer choice. As a result, a technological lock-in secures Word's dominant market share, and any power that Microsoft enjoys over the power for word processing software arguably should be vulnerable to attack under, say, section 2 of the Sherman Antitrust Act.

The world is filled with lock-ins of this sort. It isn't just technology. China clings to the horrifically misnamed Simplified Chinese writing system, and Japanese orthography still relies predominantly on kanji, even though both languages have homegrown phonetic writing systems. Some variant of the bopomofo phonetic alphabet can handle just about every Sino-Tibetan language; Hmong and Vietnamese got a little help from religiously inclined outsiders who adapted the Roman alphabet. Japanese has not one but two complete syllabaries: hiragana and katakana. At some point the Koreans overthrew the tyranny of Chinese-influenced ideograms once and for all, and as a result, to see a Korean word is to know instantly how to pronounce it.

Are there similar lock-ins in legal education? As Jeff Harrison has just discussed, perhaps teaching methods masquerading as "Socratic" number among them. Better yet, are there ways to defeat the truly debilitating lock-ins?

The example of Korean orthography is both instructive and inspiring. Lock-in is probably the way of the world; look at the number of people condemned for the foreseeable future to writing ideograms while perfectly workable phonetic alphabets and syllabaries are waiting in the wings. But the Hermit Kingdom did something truly transformative over the course of its linguistic history and adopted an ingenious, fully phonetic writing system not because of, but in spite of, the elite prestige that had accumulated in mastery of the old Chinese-influenced system of ideograms.

And that is why MoneyLaw, if it ever does decide to adopt an official east Asian language, will bypass Mandarin and Japanese in favor of Korean.

Law Firms Opening Up to the Idea of Attorney Re-Entry

Via Law.com comes this article: Law Firms Opening Up to the Idea of Attorney Re-Entry.  It's nice to hear, but it's a bit depressing that a) it's taken this long and b) it's news.

From the article:

By and large, however, women who want to take off more than one year often sacrifice whatever job security they have to do so. When they want to return, they face a host of formidable challenges, say industry observers.

The most significant is simply convincing a law firm to hire them even though they veered off the conventional linear law firm up-or-out path. In addition, many who left before the technological revolution worry about their computer skills. Further, re-entering lawyers also must come to grips with psycho-social factors, most significantly the fact that they're older than their fellow associates while their contemporaries are their bosses.

The ranks of women seeking to re-enter the practice of law have grown large enough that law schools and other groups are now addressing the issue. Pace Law School and University of California, Hastings College of the Law, have started programs aimed at helping attorneys return to practice after lengthy absences. Additionally, the New York City Bar recently kicked off a re-entry initiative aimed at assisting people who left the profession and are considering returning.

For firms looking to increase the ranks of women partners, reaching out to former employees is seen as one way of potentially recruiting experienced female lawyers. Some law firms have been mulling programs aimed at connecting with ex-employees since at least 2005, when a Harvard Business Review article about women in the workplace suggested that companies should maintain ties with off-ramped employees through alumni programs...

Marks also tells women to reach out to their contacts and tell as many as possible what they're looking for. "People want to help other people," Marks says. "People love to feel that they made a difference in somebody's lives."

She also advises women who want to work at specific law firms to propose working as an independent contractor on a short-term basis. "Once they get to know you, they feel comfortable hiring you," she says...

Whether they're gone for months or years, women lawyers say that maintaining contact with colleagues is crucial. "Even if it's just on an informal basis, you need to keep in touch with people," says Janice Mac Avoy, who took off five months from her position as a partner in the litigation department of Fried, Frank, Harris, Shriver & Jacobson after her second child was born in 2001. "They don't mean to, but they could forget about you.

Medication Mistakes And Pharmacy Errors Continue To Be A Large Problem

Prescription Drugs Wrongly Prescribed Or Improperly Dispensed Are Preventable Adverse Events Which Need To Be Reduced In Number -- And This Can Be Done

(Posted by Tom Lamb at DrugInjuryWatch.com)

In a February 14, 2008 article, "1 in 10 patients gets drug error", Boston Globe reporter Patricia Wen presented some disturbing data from a study which examined adverse events involving prescription errors that occurred in six undisclosed Massachusetts community hospitals:

One in every 10 patients admitted to six Massachusetts community hospitals suffered serious and avoidable medication mistakes, according to a report being released today by two nonprofit groups that are urging all hospitals in the state to install a computerized prescription ordering system.

The report is the first large-scale study of preventable prescription errors in community hospitals, and its author, Dr. David Bates of Brigham and Women's Hospital in Boston, said he was surprised that these mistakes were so frequent in these community hospitals....

The researchers reviewed a total of 4,200 randomly selected patient medical charts at the six community hospitals, covering stays from January 2005 to August 2006. An average of 10.4 percent of patients suffered a preventable "adverse drug event" - defined as a case in which the patient was given a drug even though the medical records noted that the medication could trigger a drug allergy or that the dose given would exacerbate a medical condition. Medication errors were counted only when patients suffered serious reactions, including going into shock or suffering kidney failure. In nearly every instance, the patients remained in the hospital longer to recover from the mistake. Nobody died from any of the mistakes, researchers said.

This February 14 article in the Globe goes on to describe how the computerized prescription ordering system mentioned above works, as well as what types of results its use can produce:

[T]e computerized physician order entry system, which requires doctors to type into a central database every medical order, including prescriptions, diagnostic tests, and blood work. The doctors' orders are matched against the patient's medical history, triggering red flags to prevent problems related to drug allergies, overdoses, and dangerous interactions with other drugs.

Bates said that after this system was put in place at Brigham and Women's Hospital in 1995, preventable medication errors declined by 55 percent over the next two years....

Ms. Wen includes in her article various discussions about how medical insurers, government officials, and healthcare providers, all, would benefit from the computerized system being used at more hospitals in Massachusetts and across the nation.

Turning to another aspect of medication errors, on February 12, 2008 the Indianapolis Star published a lengthy USA Today article, "Too many prescriptions, too few pharmacies", which reported the results of an investigation that USA Today conducted:

The investigation reviewed policies and alleged errors at rivals Walgreens and CVS, the nation's two largest drugstore chains, which fill nearly one-third of all retail prescriptions nationwide. It included a review of scores of lawsuits, as well as pharmacy board disciplinary actions in 10 states and interviews with pharmacists, drug-error victims, their families and attorneys. Some common factors emerged:

• Too many prescriptions, too few pharmacists....
• An emphasis on speed....
• A reliance on technicians....
• Pharmacist incentive awards....
• Counseling gaps....

We learned from this February 2008 USA Today article about prescriptions being improperly filled by pharmacists that, remarkably, the North Carolina Board of Pharmacy is the only state board that requires all major drug errors to be reported to the agency.

The online version of this USA Today article has an interactive graphic component, "How prescriptions are filled and where errors can occur", which gives one a better idea about what goes on behind the counter at your typical chain-store pharmacy.

For anyone interested in the causes and effects of medication errors, both of these February 2008 news reports are well worth your time.

Judge to decide whether to accept Lakin plea agreement this morning

Tom Lakin (left) and Scott Rosenblum


BENTON, Ill. -- A federal judge will decide during a hearing at 11 a.m. today whether to accept a binding plea agreement that would eliminate all sex charges against high profile Metro-East lawyer Tom Lakin in return for guilty pleas on drug charges.

U.S. District Judge J. Phil Gilbert rejected Lakin's plea proposal last Thursday in federal court in Benton.

The deal proposed last week also would have required Lakin to pay $180,000 in restitution to a Missouri-based advocacy group despite the fact that all crimes he is accused of occurred across the Mississippi in Illinois.

Gilbert expressed concern that the recipient of Lakin's $180,000 would be a St. Louis victim's advocacy center rather than anything connected to the victims or the state of Illinois. He also asked why victims in the case were not receiving any of the restitution.

In addition, Lakin would be required to forfeit a $325,000 cash bond he used instead of losing a home and pay a $20,000 fine and serve six years in a federal prison.

The government had been seeking forfeiture of Lakin's East Alton home arguing that drug activity took place there. However, Lakin sold the home so he had to place a $325,000 cash bond instead.

Lakin earlier had pleaded not guilty to 18 sex and drug charges related to cocaine possession and transporting a minor across state lines for sexual purposes.

A plea deal wiping out the sex charges could offer Lakin, who faces a possible life sentence, the possibility of a better prison placement.

"There's something wrong with that picture and I'm not buying into that provision," Gilbert said last week of the offer.

Gilbert also expressed concern over whether Lakin would be able to afford to pay such an amount because he had not seen Lakin's Presentence Investigation Report (PSR) which would disclose Lakin's financial situation.

Gilbert also noted that Lakin's plea change would be a binding plea agreement, adding it was the first time in 15 years on the bench he'd been requested to decide on such an arrangement.

Gilbert said the only other time he has even heard of a stipulated plea is when James Gibson agreed to a stipulated plea that called for him to serve 17 years in federal prison.

The judge said Gibson later appealed the sentence arguing the maximum he could have been sentenced for the crimes he pleaded guilty to was 10 years, the court of appeals agreed, vacated the agreement and Gibson stood trial where he was found guilty and was ironically sentenced to a much longer sentence than the stipulated plea called for.

Gilbert also noted that a six-year prison sentence is a "departure" from a normal government recommendation in similar circumstances, speculating that Lakin could be helping the government in other cases or because the evidence in the case is mostly circumstantial.

"This court is not privy to the facts surrounding the negotiated plea agreement, nor can it be, but it does raise a concern with the court whether to accept and bind itself to this agreement," Gilbert said.

Gilbert also said there were typographical errors in the agreement that would need to be fixed. He also questioned the validity of the second superseding indictment because it was signed by Randy Massey, whose appointment as interim U.S. Attorney had expired at the time the indictment was signed.

He said it should have been signed by A. Courtney Cox, who was asked by the Justice Department to recuse himself from all criminal matters until the FBI conducted a criminal background check first.

Gilbert said the law calls for a government lawyer to sign indictments but questioned which lawyer could actually do it.

"Can Patrick Fitzgerald come down from Chicago and sign an indictment for the Southern District of Illinois?" Gilbert asked.

Cox passed his background check in February and since has signed all indictments that his office has secured.

Assistant U.S. Attorney Stephen Clark told Gilbert that he believed the government and Lakin could make the changes needed to get Gilbert's blessing.

Clark said because he did not know "the ins and the outs" of the law that calls for the U.S. Attorney to sign indictments, he most likely would dismiss the indictments and charge Lakin by information.

Lakin's attorney, Scott Rosenblum of St. Louis, told Gilbert that he and Clark have become accustomed to working over the weekend and assured the judge they would be ready for the hearing scheduled today.

Attorney client privilege, so what?!

From public defender blogger Ipse Dixit:

I was in an interview room with my client, you know, having a private conversation about his criminal case in which he is entitled to counsel and is protected by the attorney client privilege. No biggie.

The door swings open and the dumbest f*ing deputy WALKS INTO THE BOOTH:
Deputy Dumbshit (DD from here on out): “I couldn’t help but overhearing that you -”
Me: “I’m sorry, WHAT??”
DD: “I just wanted to tell you about the cite out policy you were talking about.”
Me: “You mean the cite out policy I was discussing with my CLIENT during a privileged conversation????” (Death stare in full mf*ing effect)
DD: :Er…um…I um…er…
Me: (long silence accompanied by death stare) Get out.

Read the entire post

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