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January 2008 - Posts
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While "Made in the USA" conjures up patriotic pride, "Made in China" has come to generate sadness, resentment, anger and fear. And with good reason. For not only have cheap Chinese-made goods shredded U.S. manufacturing into the industrial graveyard, they are leaving behind a bloody wake as they chew this country alive.
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Kennedy v. Louisiana, Kennedy claims that the Eighth Amendment forbids the ultimate penalty to be imposed on the perpetrator of a violent crime in which the victim does not die. As a matter of constitutional law, he has a very strong position. But even if the court rules against him, legislators should spurn similar statutes. They represent bad social policy.
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In 2005, Serono Inc. pleaded guilty to federal felony offenses and paid, together with its shareholders, more than $700 million in penalties, yet all of its employees accused of crimes were later acquitted. A prosecution of TAP Pharmaceutical Products yielded similar results. These results are no accident, and what is wrong is of a constitutional dimension. These cases provide a window into what ails corporate criminal dispute resolution: a creeping erosion of any meaningful corporate jury trial right.
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Last year marked the 25th year on the bench for Judge Bruce M. Selya of the 1st Circuit. One of the nation¹s most productive jurists, Selya has authored more than 1,250 opinions. Among practitioners, however, he is best known for his erudite and arcane vocabulary, which has provoked frequent head scratching by counsel. To assist the lawyers who appear before Selya, or who are required to interpret his opinions, here's a compendium of some memorable Selyaisms, selected with input from his former clerks.
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The Mitchell Report's public identification of 85 baseball players as illegal drug users is a dangerous practice. U.S. history is replete with public accusations, often false, of people being witches and communists. While the Mitchell Report may seem to continue this prejudicial behavior, the report would have appeared less credible and received less attention if players hadn't been named.
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The details of the subprime mortgage mess are still hard to trace, but many players are worried. Policymakers should be cautious about relying on government regulators to respond with sufficient speed, sophistication and firmness to the next potential crisis. The single legal change that seems most likely to prevent future fiascos is to make it clear that major financial intermediaries will be strictly liable for basic flaws they should have known about in instruments that they shared in creating or using.
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No other law has done more to debunk the myths of the worn-out worker than the Age Discrimination in Employment Act (ADEA). An offspring of the civil rights era, the ADEA has stood for 40 years as the primary guarantor of the rights of older workers. As a deterrent to crafty employers seeking to downsize, or as a legal defense in the courts, the ADEA has helped chip away at views of older workers as rigid, inadaptable, slow and accident-prone, views that prevent us from seeing them as a valuable resource.
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There is regular discussion in the legal community about the current generation of associates and aspiring lawyers. They are (or will be) objectively better paid than their predecessors. And, at least recently, associates have been employed in a frothy legal market offering multiple career options. Those advantages notwithstanding, the reportedly low level of satisfaction among these "millennials" remains a mystery to many.
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The partisan and remarkably repetitious 5-4 voting pattern that emerged in the 2006-07 Supreme Court term did not encourage respect for the court, and it may not have rung the final bell on any of the contests. The court would more effectively resolve disputes if the justices were less partisan. If they do not change course, then more thought needs to be given to the way we choose new justices. One way to reduce partisanship would be to require a two-thirds vote in the Senate to confirm a justice.
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The Tampa Sports Authority implemented a policy requiring that everyone entering the stadium for Tampa Bay Buccaneers games submit to a pat-down search. Gordon Johnston "verbally objected to the pat-down but allowed it to be conducted so that he could attend the games." After the second home game he filed suit. On these facts, the 11th Circuit found that unfettered relinquishment of known rights that the law terms "consent." By what constitutional alchemy did the court convert Johnston's "no" into a "yes"?
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A friend and I have now celebrated the first anniversary of our Drug and Device Law Blog, and we've learned four lessons. First, blogging about substantive legal issues is hard. Second, blogging is personally satisfying.
Third, law firms are clueless about how to value blogs. Should firms encourage lawyers to write blogs or forbid them? Sponsor blogs (to claim credit) or disavow them (to avoid risk)? We chose not to have our firms be affiliated with our blog. Finally, blogging pays off in several ways.
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A remarkable consensus has emerged concerning certain features of the modern courthouse. This consensus has produced beautiful designs. But is it based on reality, or are there forces at play that threaten to make the features outdated soon? A new model for courthouse design suggests that the primary spaces be devoted to settlement activity and that courtrooms become fewer in number, more varied in size (to reflect their various functions) and, most important, no longer the exclusive domain of one judge.
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