Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, February 26, 2010

Cooley Law School Stadium is a Minor League Ballpark

Thomas E. Brennan, former Michigan Supreme Court Chief Justice, and the founder of Cooley Law School, was in Ann Arbor in October 1982 giving interviews to the Michigan Daily, and the now defunct Ann Arbor News as a Republican candidate for Lieutenant Governor.  It was the early-Regan era and I escorted Mr. Brennan through town as Dick Headlee's campus chairperson.

The former justice was asked by a reporter what he would do if Democrat James Blanchard moved into the Governor's Mansion.  Mr. Brennan paused as though the thought had never occurred to him, then said, "I'll go back to running the law school; we're developing an innovative curriculum at Cooley."

He was true to his vision.  There can be no doubt that Brennan developed the "business model" that is the Cooley Law School.  Cooley has tapped deeply into the American Dream, lawyer style.  As a result, it has enjoyed a healthy balance sheet, boasting one of the largest collections of law books in the country, pioneering the use of satellite "campuses", and swelling the ranks of its students to staggering proportions.

The law school dropped just under $1.5 million this week on it's first baseball park sponsorship; the former Oldsmobile Park inside the Capital Loop in Lansing.  The decision was met with mixed reviews from the law pundits and among the extensive network of Cooley Law Alumni.

Ashby Jones of the Wall Street Journal's law blog interviewed Cooley's dean, Don LeDuc, earlier this week about the sponsorship.  Dean LeDuc explained that the idea for the stadium came from past alumni-student gatherings at Tigers games in Comerica Park.  According to LeDuc, Cooley's stadium now allows them to bring the ball game to Lansing, so their students don't have to go so far.

LeDuc listed the advertising benefits of the sponsorship, sounding more like a marketing director than a law school dean.  In the blog interview, LeDuc admitted his was a revenue-driven operation with a multi-million dollar marketing budget.

The blog, Above the Law, was far less polite, calling out the mamoth law school (3500+ students) as a "diploma mill", and speculating that its graduates will be paying-off student loans with jobs at McDonalds.  The ATL blog critiqued the stadium sponsorship in a post that has attracted more than 150 comments; mostly negative.

A recent Cooley Law alumna admitted to me in confidence when discussing the ballpark sponsorship, "Cooley can't figure out whether it's a law school or a community college..."

The nation's largest law school does seem to attract its share of criticism.  It claims to be "ranked" as high as 12 on its own website, using its own criteria.  Most professionals not affiliated with the school, however, relegate it to "fourth-tier" status all day long.

All this raises the question: "Do we really need some 1200 new lawyers pumped into Michigan's service economy each and every year?"  Oakland County already has nearly 11,000 lawyers to Wayne County's 7000.

Over the past three decades, Thomas Brennan's law school business model has been a fiscal success.  Over those same years, I've come to know many a lawyer from Cooley with outstanding lawyering skills.  Former Michigan Governor John Engler is a Cooley graduate.

These days, however, I just have to wonder how many more lawyers we can take; whether or not they graduated from Cooley.  Brennan's vision of the American Dream has been tapped, but good.

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Sunday, February 21, 2010

No Joke: What's the Difference Between a Divorce and a Tatoo?

This blog post combines two posts from the SBM Blog and is the original content of the State Bar of Michigan.

As Michigan lawyers go about the work of convincing our state legislators that a tax on legal services would be a fundamental and costly mistake, we face the same response again and again:  "if we exempt one service we have to exempt them all."  In Georgia, policymakers are also gearing up for a tax on services, and a recent white paper from Georgia's venerable Tax Foundation asks: "Can anyone really keep a straight face while justifying a tax exemption for legal services, tattoos, haircuts, car repair,health club memberships and other common services?"  Well, we can.  In fact, we wonder how serious policymakers can keep a straight face equating legal services with personal grooming and adornment services.Bottom line: government shouldn't tax behavior that is good for society. We're all better off when people get the legal advice they need to secure justice or comply with the law.  Tatoos, not so much.

The original SBM Blog post, above, referenced a related post on the same subject, which is reproduced here for our readers convenient reference:

Unfair, Unwieldy, Unwise, Unethical, and Unconstitutional

The prospect of a Michigan tax on services that extends beyond the 26 services already taxed to include legal services is a growing threat, with a group of business leaders actively pushing the idea, legislation already introduced, and the Governor endorsing a services tax. The State Bar has successfully lobbied in the past against taxing legal services, arguing that a tax on legal services is unfair, unwieldy, unethical, unconstitutional, and, ultimately, unsuccessful. The constitutional problems with a tax on legal services are magnified when legal services to businesses are excluded, as is the case with several of the current proposals. See HB 55275528, and 5529. If you haven’t expressed concern about a tax on legal services to your legislator, now’s the time.  Here’s how to connect.  Here’s the State Bar’s position.

Here's a quick rundown of the arguments.  A tax on legal services is...

Unfair – Most legal services are rendered in circumstances of crisis, stress, or misfortune. People who seek legal assistance in cases involving child support payments, child custody, divorce, death, domestic abuse, end-of-life decisions, or bankruptcy seek them out of necessity, not choice. For this reason, a tax on legal services is aptly labeled a  "misery tax".  

Unwieldy – Determining what fees and services would be subject to the tax and which records would or could be subject to audit would be an administrative nightmare. Among other reasons, attorneys often don't receive payment promptly from their clients, making it a potential administrative burden to reconcile payment with the tax obligation.  Administrative complications were one reason why the only two large states that have adopted such a tax – Florida and Massachusetts – repealed it shortly after it took effect. 
Unethical – Collection of a sales tax on legal services could compromise client confidentiality, imposing the state’s tax collection apparatus into the attorney-client relationship. Law firms do pay taxes under the Michigan Business Tax. 

Unwise – Individuals and businesses seek legal advice to ensure compliance with the law.  Such behavior should be encouraged, not taxed. Further, the tax could be counter-productive, causing clients to seek legal services outside Michigan for intellectual property, federal tax, estate planning, legal service, and encouraging law firms providing such services to relocate outside Michigan, or perform such services at satellite offices. Like medical services, legal services are not discretionary. Taxing legal services is taxing justice. 
Unconstitutional – In addition to constitutional concerns about attorney-client privilege and the taxation of criminal defense, the proposal to exempt one class of clients (business) from taxation while imposing the tax on another class (individuals) raises serious constitutional issues.

Unsuccessful - Two states, Florida and Massachusetts, enacted sales taxes on services but repealed the measures when they proved to be administratively difficult and unpopular.  In the three small states that are said to have a tax on legal services, two also tax physician services and the thrid reports that the tax is not enforced because it is so difficult to calculate and collect.

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Monday, February 15, 2010

UM Law School Challenges Constitutionality of Felony Child Support Statute

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute.  The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox.  The defendant-appellant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008.  Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County.  The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court.  She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder.  Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration.  The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution.  The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation.  When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history.  Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution.  McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme  Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid.  Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution.  In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore.  Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument.  The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

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Tuesday, February 9, 2010

City of Chicago hires Washington DC Solo Lawyer to Argue Second Amendment Case

Chicago's deputy corporation counsel in charge of appeals, Benna Solomon, has a schedule that is crowded with U.S. Supreme Court arguments.  So much so, she recently went beyond the city's law department to hire Washington DC solo appeals specialist James A. Feldman; a rare engagement, she says.

At stake is the oral argument scheduled before the high court on March 2 in the Second Amendment case of McDonald v City of Chicago.  The case, a subject of a prior Lawblogger post, tests a strict Chicago handgun ordinance in the context of the Second Amendment's applicability to the states via the Due Process clause.

The McDonald case has received much attention.  The Supreme Court's decision will be greatly anticipated by both opponents and proponents of the right to bear arms set forth in the Second Amendment to the United States Constitution.

The reason Chicago's Ms Solomon opted out of arguing the case herself is because she will be appearing in the Supreme Court the week before, to argue another case on behalf of the city.  She therefore looked to Feldman, who had done previous work with the city, and who's reputation as an experienced oral advocate at the highest level apparently preceded him.

Both Solomon and Feldman clerked at the high court for Supreme Court justices; Solomon with Justice Byron White, Feldman with Justice William J. Brennan, Jr.  Feldman also argued cases before the Court during his long tenure with the United States Solicitor General; the litigator for the United States Government.

Arguing on the other side will be Alan Gura, also of Washington DC, who won the District of Columbia vs Heller case on behalf of gun advocates.  Because it arose in the District, Heller involved federal gun laws and the decision striking down the gun ordinance therefore does not apply to the 50-states.  Gura will be sharing the podium, and his precious oral argument time with former U.S. Solicitor General Paul Clement, who will be arguing on behalf of the NRA.

Stay tuned for the decision on this one as it will affect how states can regulate our right to bear arms.

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Thursday, February 4, 2010

"Hillary Movie" the Vehicle for Unbound Corporate Political Ads

Last September, this blog noted that the 9 justices of the U.S. Supreme Court returned from their summer recess early to hear a rare re-argument in Citizens United vs Federal Election Commission; a case involving the limits of corporate spending on political campaigns.

In a 5-4 decision issued on January 21st, the high court ruled that corporations, unions and think tanks can spend as much money as they desire on political advertisements.  The majority in the case have interpreted the First Amendment's "free speech" clause broadly, perhaps dampening the Congressional trend over the past several decades in restricting corporate political donations.

Two days after the Court issued its opinion, President Obama, in his first State-of-the-Union address, blasted the High Court, claiming its Citizens decision would, "open the floodgates...[for corporations] to interfere with elections by running advertisements for or against candidates." The apparent fear is that such [now] unlimited corporate donations will drown out the voice of the common man in most elections.

The case involved federal regulation of the political documentary titled, "Hillary, The Movie", which took a critical look at the character and career of Ms Clinton back in her pre-presidential candidate days. The documentary was produced by a conservative advocacy group; Citizens United. The issue in the case arose when the group was denied permission from the FEC to distribute the short film via "on-demand" cable services.

The chief issue in the case concerned application of the McCain-Feingold law which bans the use of corporate money in elections. Some argue this restriction puts a stake in the heart of free speech; others assert that the ban is necessary to avoid a flood of corporate election funding which would corrupt and pollute our democratic process. The FEC banned the Clinton documentary on the basis it was produced, in part, with corporate profits. Direct corporate-funding of political campaigns has been banned for more than 100-years in America (Tillman Act 1907).

The Court's decision may not be as momentous as the President and other critics fear. First, direct contributions from a corporation to a political campaign are still restricted; complicated administrative regulations turn away some of the corporate ad men. Second, the decision opens the door for Congress to ban foreign firms from making contributions. The Supreme Court's decision also practically invites Congress to toughen rules on full-disclosure for corporate donations.

No doubt, Congress will take the bait, and no doubt, some corporations will eschew such disclosures and refrain from large disclosure-triggering contributions.

The Citizens United case has a Michigan connection in that it overturned a 1990 decision of the High Court, Austin vs Michigan Chamber of Commerce, which upheld restrictions on corporate spending in election campaigns.  Last month's Citizens decision will no doubt play a major role in the upcoming mid-term elections this summer and fall.

Here's an example, from California, of what such advertisments may look like.  I can hardly wait to see a billion dollars worth of political advertisements on my flatscreen, can you?

Update:  In reviewing my blog roll, I recently came across an excellent summary by blogger David Lat of a scholarly conference conducted at the Yale Law School that seemed to conclude that the effect of Citizens United will not be as profound as some, like President Obama, think...

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