Archive for February, 2011
House Vote: On Passage – House – H.R. 394 Federal Courts Jurisdiction and Venue Clarification Act – Under Suspension of the Rules
Passed 402-0, 30 not voting (2/3 required). Bipartisan support.
Go to Bill Status : H.R. 394: Federal Courts Jurisdiction and Venue Clarification Act of 2011
Weigh In on POPVOX : POPVOX is GovTrack’s new sister-site to let you weigh in on legislation.
[This event matched these trackers: Congressional Votes ]
Rapper Juvenile, best known for his hit song, “Back That Thang Up,” may have backed his own thang right into jail.
Rapper Juvenile was arrested in Louisiana for possession of marijuana and released after posting $750 cash bond according to Associated Press.
The rapper, whose real name is Terius Gray, was charged with possession of marijuana and driving on a suspended license after being clocked doing 75 mph in a 65 mph zone and passing in the right lane, which is illegal in New Orleans.
Possession of marijuana and driving on a suspended driving license are both misdemeanors.
Juvenile’s court date is set for April 1, April Fool’s Day. Seems appropriate! Why would anybody speed and pass cars illegally when they have weed in their possession? Seems like a foolish choice.
This is not Juvenile’s first brush with the law. According to the AP, a few of the rapper’s greatest hits include:
- arrested for failure to pay child support
- arrested for resisting an officer at a Florida Mall
- arrested for assaulting a man with a champagne bottle
- arrested at least once before on drug charges
Some of these charges were dismissed.
Juvenile was criticized for not attending his 4-year-old daughter’s funeral. She and her mother were killed by the mother’s son in 2008.
“You don’t get over things like that. That’s something that goes with you for the rest of your life. I’m not even comfortable talking about it. I stayed away from the press, everybody had a million questions,” Juvenile said in a 2009 interview.
Sterling police Sgt. Jacob Greer notes that Juvenile was very courteous and respectful. “He asked me if I recognized him, and I said `No. Now if you were George Strait I’ll probably have recognized you,’” Greer said. Too bad Juvenile doesn’t do country music, he may have gotten a bit of a break.
- Juvenile Posted for Pot Possession (Again) ( E online)
- Juvenile Arrested for Marijuana Possession in Louisiana (MTV)
- Rapper Juvenile Arrested for Drug Possession and Driving Violations (Music Mix)
- Drug Possession (Findlaw.com)
Only a third of lawyers use a case, matter or practice management system — just a slight increase from a decade ago, when a quarter of all lawyers used such a system. Among lawyers who have not adopted a case management system, the most common reason they give is that their “current method works and is not worth changing.”
These are among the findings of an illuminating new survey of lawyers’ use of technology, Case, Matter & Practice Management System Study, conducted by Andrew Z. Adkins III, director of the Legal Technology Institute at the University of Florida Levin College of Law.
While the overarching purpose of the survey was to study lawyers’ use of case, matter and practice management systems, the survey asks about a wide range of technology issues, from word processing to Software as a Service, all with the goal of documenting the current technology environment within the legal profession.
Surveys were mailed to 27,500 lawyers using randomly selected mailing lists provided by the American Bar Association and other bar groups. Adkins received 341 completed surveys, enough to produce a 95 percent confidence level in the results.
In the executive summary, Adkins describes the results from the survey that most surprised him. Among them:
- While lawyers have been reluctant to upgrade from Microsoft XP to Microsoft Vista, a large number — 61 percent — had upgraded from Microsoft Word 2003 to Microsoft Word 2007. (It would be interesting to see an update to these numbers now that the more-stable Windows 7 and Office 2010 are out.)
- More than half of respondents do not use a document management system. Not surprisingly, larger firms and legal departments are more likely to use such a system than smaller firms.
- Only about half of lawyers use metadata cleanup software. Among lawyers in smaller firms, fewer than 40 percent use such software.
- Nearly half of lawyers use technology for paperless routing of workflow and notifications, and some 38 percent say that half or more of their practice is paperless.
In the not-so-surprising category, Adkins cites these findings:
- Microsoft dominates the legal industry with its operating system, office applications and Outlook e-mail. Even so, the one-time favorite of the legal profession, WordPerfect, maintains a foothold within 14 percent of law firms and legal departments.
- While there has been some talk of increased use of Macintosh computers among lawyers, only 8 percent of lawyers use them, the survey found.
- Lawyers talk a lot about confidentiality and security, but only 25 percent of them use encryption when sending client e-mails.
With regard to lawyers’ use of Software as a Service and cloud-based applications, only 14 percent of law firms and legal departments say that they currently host software and data online. Another 5 percent said they are actively considering it. Forty-two percent said it is unlikely they ever would. Use of SaaS is most predominant among large firms, with 26 percent saying they currently use SaaS applications and another 40 percent saying they are very or moderately interested in using SaaS.
The full survey report is a 312-page PDF. If you are a member of TechnoLawyer, you can download a copy from its library. If you are not a member, it costs nothing to sign up, and then you can download a copy. Information on how to obtain it is available here.
2011 – 2012 Arizona Journal of Environmental Law & Policy Editorial Board Announced…read the article
Summary: The Arizona Journal of Environmental Law & Policy Editorial Board for 2011 – 2012 has been announced. The new Editor-in-Chief is Patrick B. Hall. The Masthead with the new Board can be found here .
Part XXVIII: Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model
This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. The Ruminations Series in 2009 produced a series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. Ruminations continue to be produced form time to time. For 2010, this site introduced a new series–Business and Human Rights. The series took as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum.
For 2011, this site introduces a new series of integrated essays–Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model. The object of this series to to consider the work of the Ethics Council of the Norwegian Sovereign Wealth Fund. The thesis of this series is this: The Norwegian Sovereign Wealth Fund (NSWF ) investment program is grounded in the application of a set of Ethical Guidelines adopted by the Storting (the Norwegian Legislature) and enforced through an Ethics Council charged with determining whether a company should be excluded from investment by the NSWF. The work of the Ethics Council has produced the beginnings of a coherent jurisprudence of ethics for corporate investment. That jurisprudence may contribute significantly both to the development of transnational social norm standards and affect the way domestic corporate law is understood. This is Part XXVIII of the series.
Although the Norwegian fund is largely based in oil and gas, it is likely to expand into property and green energy. Photograph: Robert Garvey/Corbis, From Gwladys Fouché, Norway’s sovereign wealth fund: £259bn and growing, Guardian UK, Sept. 20, 2009.
Sovereign investing has become an important new element in emerging patterns of governance in this century. It represents efforts by states to manage their authority, and to project it, in accordance with changing realities of power and governance forms in a world defined by the logic of economic globalization. Sovereign investing takes a number of forms. Two fo the most innovative and dynamic are those of the People’s Republic of China and of the Kingdom of Norway.
This month long project has sought to consider in some detail a critical aspect of the organization of the sovereign investing project of Norway. Undertaken through its sovereign wealth fund, Norway is seeking not merely to project public wealth into private global markets. Norway appears to be attempting the construction of a complex rule-of-law centered framework that blends the imperatives of a state based public policy with a rules based governance system that incorporates domestic and international norms. To this Norway adds a policy oriented use of traditional shareholder power to affect the behavior and governance of companies in which the Fund has invested. The object is not merely to maximize the welfare of the funds ultimate investors, the people of Norway (through its state apparatus), but also to use the fund to advance Norwegian public policy in the international sphere and within the domestic legal systems of other states to achieve a measure of horizontal harmonization of corporate governance. Norway has developed a tool box to effectuate its policy centered investment strategy consisting of both the traditional forms of regulatory governance, and a policy centered invocation of shareholder power, both within the corporation and, as a large investor, as an advocate for change within those foreign states where those companies are domiciled. In effect, Norway acknowledges three intertwined but autonomous governance realms. The first is the traditional territorially based law-state. The second is the governance sphere of the corporation–affecting not only relationships within its operations but also the rules that reflect the choices it makes about how it deals with others. The third is the international governance sphere,where common traditions are developed that have a direct and indirect effect on both domestic legal orders and corporate behavior choices. Norway has sought to operate within and between these three governance realms, and to some extent affect their content, through the investment strategies of the NSWF.
The Ethics Council plays a critical role in this complex governance machinery. It is the primary vehicle for applying and elaborating the substantive standards of investment that are at the heart of the Norwegian regulatory effort. It operates in the form of a court, in part to enhance the legitimacy of its pronouncement. The Ethics Council is meant to operationalize the substantive provisions of the Ethics Guidelines by serving as a more formally constituted vehicle for applying its provisions to individual companies under unique sets of facts and circumstances. At the same time it also serves as a tool of Norwegian public policy, both long term general policy, and short term political objectives. These are effected through the interaction between the Ethics Council and the Ministry of Finance. It is also served through the interplay between the exclusion determinations of the Ethics Council and the Norges Bank’s active shareholder engagement program.
These essays served as a first attempt to organize more systematically my thinking about this framework and to provide a more organized basis for theorizing its construction, operation and effect. Ultimately the object will be to consider whether the system can be generalized and adopted elsewhere and also whether the framework represents a new form of public-private transnational enterprise that will help reshape the fabric of governance for this century. I started with an introduction of the series theme and thesis. I then considered the structure and operation of the Norwegian sovereign wealth fund. The Ethics Guidelines were then introduced and considered. This provided the context for a consideration of the structure of the Ethics Council itself. The bulk of the essays then considered the exclusion determinations themselves. After an overview, the essays considered the cases. These were divided along the lines suggested by the Ethics Guidelines themselves, first exclusions based on products and then the cases based on conduct. The essays then looked to aggregate the case determinations. What emerged from those aggregations was both the impact of the decisions and their scarcity. The Ethics Council has not issued a large number of determinations–though the investment universe of the NSWF might have suggested otherwise. Each of the cases appeared to be chosen to maximize its leveraging effect–leveraging media interest and impact through wide dissemination of the “rule” extractable from the exclusion determination. But the cases also suggested the large number of potential determinations that might be made in the future. It was not clear, however, whether those determinations would be systematically undertaken. Nonetheless, a sufficient number of determinations had been made to provide at least a partial picture of what the characteristics of the excluded universe. The cases do more than that. They also begin to define a jurisprudence with its own standards and rules that not merely deepen the rule of law legitimacy of the Ethics Council process but also expand the scope of the standards in the Ethics Guidelines. The essays than turned back to the context in which the Ethics Council operates–considering again, and now in more depth, the relationship between the Ethics Council’s role and that of the Norges Bank and its active shareholder program. That consideration is used as a basis for re considering the implications of the Norwegian responsible investment project. The essays end with a consideration of work that is left to be done. This is considered in two respects, first with respect to gaps in information available, and second with respect to the comprehensiveness and cohesion of the responsible investment policy (in general) and the Ethics Council’s role (in particular).
Michel Foucault, looking at the transformation of the ideology of the state and the forms of resistance to its construction before the 20th century, explained: “History is no longer the State talking about itself; it is something else talking about itself, and the something else that speaks in history and takes itself as the object of its own historical narrative is a sort of new entity known as the nation.” (Michel Foucault, “Society Must be Defended”: Lectures at the Collège de France 1975-1976 (David Macey, trans., New York: St. Martin’s Press (Picador), 2003), 18 February 1976, at 142). Substitute the idea of “nation” broadly conceived, with that of community (economic, social, cultural. etc.) and the dynamic of this century emerges more clearly. Whatever the final form of the Norwegian effort, what clearly emerges in a new form of governance in which the state seeks to harmonize autonomous governance frameworks while attempting to contribute to the development of each of them. It is not the only one, of course.
Part IV: Operationalizing the Ethics Guidelines–The Structure and Functions of the NSWF Council on Ethics.
Part V: Responsible Investment Through the Ethics Guidelines–Overview of the Exclusion Determinations.
Miranda rights are a topic that come up frequently on television, as well as here at FindLaw. Miranda rights are part of the constitutional protections that you are entitled to when dealing with police or government investigators.
Due to the decision in Berghuis v. Thompkins it is now clear that when arrested, one must unequivocally invoke their rights under Miranda. As we have discussed before, Miranda rights were articulated in the landmark U.S. Supreme Court case, Miranda v. Arizona.
Since Miranda was decided, police officers across the nation have been required, prior to beginning a custodial interrogation to say something like: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”
So what does that mean for you? It means that every person who resides in the United States should be aware of the method by which they can invoke their constitutional right to remain silent and have an attorney present. You may hope or believe that you will never be in that situation, but it’s always best to be prepared.
Miranda v. Arizona and the Fifth Amendment to the U.S. Constitution provides suspects with a number of significant rights when being questioned by law enforcement officers. For more information on Miranda rights and the Fifth Amendment, check out the related resources.
- 14 Days: Supreme Court Sets Miranda Deadline (FindLaw’s Decided)
- Berghuis v. Thompkins Explained (FindLaw’s LawBrain)
- Miranda v. Arizona Explained (FindLaw’s LawBrain)
Owner of the hottest 900 phone number in the early nineties.
Purveyor of the Thunder Mixer.
He who knows best.
When Hulk Hogan sues, he sues big. Nothing less should ever be expected from a man who proudly claims these three accomplishments. Or a man who proudly wears his Fu Manchu ‘stache way past its expiration date.
In fact, that identifying mustache is such a big moneymaker, that it can be partially blamed for Hulk Hogan’s recent campaign in the courts.
Hogan recently sued Post Foods, alleging that they stole his likeness to help sell a couple million boxes of Cocoa Pebbles, reports The Hollywood Reporter. The “Cocoa Smashdown” commercial featured a Hulk Hogan lookalike defeating Fred and Barney, only to be ambushed and taken down by little Bam-Bam. This blogger thinks he just couldn’t take the ego hit of being beaten by a toddler.
And now who is Hulk Hogan suing for encroaching on his carefully crafted image?
Southland Imports and Suntrup Automotive Group of Florida. The car dealership has reportedly been running a commercial that, according to The Hollywood Reporter, mimics some of Hulk Hogan’s catchphrases. Inviting customers “tired of wrestling for a good deal,” the commercial mimics Hogan’s voice, overuses the word “brother,” and shows someone pointing to his own muscles and referring to them as “guns.”
Behind these lawsuits is what is known as the right of publicity. Many states grant a trademark-esque right to individuals allowing them complete control over their likeness. In other words, individuals have final say over use of their image, which cannot be used for commercial purposes without permission. Post Foods and the car dealership, by mimicking Hulk Hogan’s look, voice and catchphrases, arguably violated this right.
But, dear readers, there’s something even odder about this story. A normal person would have let it be and slowly slithered away in an attempt to disassociate himself from these atrocities. But not Hulk Hogan. It’s become clear that someone needs to get the Hulkster out of the nineties.
- TNA News: Hulk Hogan sues car dealership for gimmick infringement (TNA News)
- Wrestler Hulk Hogan Sues over Cocoa Pebbles Commercial (FindLaw’s Celebrity Justice)
- Posting Celebrity Videos on a Website (FindLaw)
The Law Library Reading Room is being remodeled in the near future. In connection with this project, several collections currently located in the Reading Room will be permanently relocated to other areas of the Law Library and Library of Congress shelving areas.
The Library’s online catalog records will be updated as materials are relocated. Researchers are encouraged to consult the online catalog and then to contact the Law Library Reading Room at (202) 707-5079 concerning any unanswered questions about the location of materials.
15 U.S.C. no. 2702 : US Code – Section 2702: Definitions Section 2702
As used in this chapter, the term -(1) “advanced automobile propulsion system” means an energyconversion system, including engine and drive train, whichutilizes advanced technology and is suitable for use in anadvanced automobile;(2) “developer” means any person engaged in whole or in part inresearch or other efforts directed toward the development ofadvanced automobile technology;(3) “fuel” means any energy source capable of propelling anautomobile;(4) “fuel economy” refers to the average distance traveled inrepresentative driving conditions by an automobile per unit offuel consumed, as determined by the Administrator of theEnvironmental Protection Agency in accordance with testprocedures which shall be established by rule and shall requirethat fuel economy tests be conducted in conjunction with theexhaust emissions tests mandated by section 7525 of title 42;(5) “intermodal adaptability” refers to any characteristics ofan automobile which enable it to be operated or carried, or whichfacilitate its operation or carriage, by or on an alternativemode or other system of transportation;(6) “reliability” refers to (A) the average time and distanceover which normal automobile operation can be expected withoutsignificant repair or replacement of parts, and (B) the ease ofdiagnosis and repair of an automobile, its systems, and parts inthe event of failure during use or damage from an accident;(7) “safety” refers to the performance of an automobilepropulsion system or equipment in such a manner that the publicis protected against unreasonable risk of accident and againstunreasonable risk of death or bodily injury in case of accident;(8) “State” means any State, the District of Columbia, theCommonwealth of Puerto Rico, the Virgin Islands, Guam, AmericanSamoa, or any other territory or possession of the United States.
(Pub. L. 95-238, title III, Sec. 303, Feb. 25, 1978, 92 Stat. 79.)REFERENCES IN TEXTSection 7525 of title 42, referred to in par. (4), was in theoriginal “section 206 of the Clean Air Act (42 U.S.C. 1857f-5)”,meaning act July 14, 1955, ch. 360, Sec. 206, as added Dec. 31,1970, Pub. L. 91-604, Sec. 8(a), 84 Stat. 1694, which was formerlyclassified to section 1857f-5 of Title 42, The Public Health andWelfare, and which is classified to section 7525 of Title 42pursuant to the general revision of the Clean Air Act by Pub. L. 95-95, Aug. 7, 1977, 91 Stat. 685.
Amusement parks and carnivals are a fun attraction, especially for children. The rides, the games, the shows – all are developed to entertain and amaze. However, these places for fun and revelry can also pose serious dangers.
In Illinois, all amusement parks and rides that are open to the public must be inspected and obtain a permit before the first operation, and every year thereafter.
The Illinois Department of Labor (IDOL) is responsible for these inspections, and inspects about 5,000 rides every year. The fine for operating an amusement ride that is open to the public without a current Illinois permit is guilty of a Class A misdemeanor with fines up to $2500. Facilities that require inspection include:
- Carnival rides
- Ride simulators
- Ski lifts
- Rope tows
- Mechanical bulls
- Go-kart tracks
- Haunted houses.
The Illinois Carnival and Amusement Ride Safety Act sets out the rules, requirements, and penalties for amusement ride safety. The Illinois Department of Labor released a May 2010 press release on safety guidelines for amusement ride customers and parents:
- Check for a current IDOL permit sticker
- Read and obey safety rules about height, weight, and age
- Listen to the ride operator and follow instructions
- Do not run around the rides
- Always use safety equipment
- Watch extremities – arms and legs inside ride
- Talk to your children about the ride so they know what to expect
- Never force a child to go on a ride
- Stay seated until instructed
- Immediately report unsafe conditions or rides without a current IDOL permit to police and IDOL at 217.782.9347
The safest way for a child to ride an amusement park ride is in a seated position with feet on floor, butt on seat, and holding on with both hands. If your child is too small to reach all of these bracing points, they should not ride.
Amusement rides are exciting and fun with the high speeds, climbing hills, and breath-catching drops, but they can also result in dangerous and sometimes deadly accidents. Children are particularly susceptible to injuries at amusement parks. Half of all amusement ride accidents and three-quarters of accidents where a rider is ejected or falls from a ride involve toddlers, preschoolers, and elementary school-age children. The U.S. Consumer Product Safety Commission (CPSC) reports that 2/3 of all ride-related injuries involve children.
Action is required by amusement ride designers, ride operators and parents. Designers should design in additional safety precautions especially on rides that are geared towards young children, taking into account their size and whether they should be allowed to ride alone.
Ride operators should ensure that children have proper supervision and should not run the ride if they cannot maintain safe behavior. And, parents need to provide better supervision, follow safety instructions, and decide which rides their children should ride. It can be helpful to watch the ride with your children before they ride so they know what to expect and can better decide if they want to ride and whether you are comfortable with them riding. When teaching your child how to be a safe rider, remember the 3 R’s of ride safety – Rides, Rules, and Rewards.
- Rides – teach your children how rides work and what to expect, and how to follow the safety procedures
- Rules – teach your children the rules they have to follow on every ride and how to sit
- Rewards – it is important to reinforce good behavior through praise, point systems, and earning the privilege to try new rides.
It is important to reinforce good behavior and correct unsafe behavior. Amusement parks should be a fun experience, but not at the detriment to your children’s safety.
Most amusement parks offer rides that are safe most of the time, but rides can present additional dangers for small children. Therefore, parents need to be aware of the safety requirements and pay attention so as to make decisions on which rides are safe for their children to ride. It is important to remember that children can become excited or even scared on amusement rides and may not always act responsibly. Therefore, it is important to teach your children how to be safe riders and provide supervision.
Thank you to Health Keil, J.D. for her assistance with this Child Injury Laws entry.
Don’t mess with Texas: That’s advice Texas lawyers and their clients must take seriously regarding the possibility of criminal environmental prosecution. Marla Poirot and Tom Hagemann list some points Lone Star State lawyers need to know about keeping their clients out of trouble with the law. They write that environmental investigations typically begin with a complaint from a disgruntled employee or a neighbor or a simple drive-by ? a criminal investigator, police officer or prosecutor happens to drive by a client’s facility and notices something that doesn’t look quite right.
Lawyers should vote in favor of the proposed revisions to the Texas Disciplinary Rules of Professional Conduct because those responsible put a tremendous amount of thought into the proposed revisions, writes Lillian B. Hardwick. Groups working on the proposed rules have engaged in the kind of study, discussion and investigation any responsible rule-making authority would undertake when drafting proposed rules, she says. That great range of lawyers tested every proposed provision in light of every conceivable practice situation. This process resulted in standards that will improve the practice of law in Texas for lawyers and clients, she concludes.
U.S. Supreme Court Chief Justice John G. Roberts Jr., one of the nation’s top appellate advocates before he went on the bench, has said there are three oral arguments: the one a lawyer prepares, the one he gives and the one he wishes he had given. Each case is different, so what a lawyer argues will depend on the particular strengths and weaknesses of the client’s case, writes Allyson N. Ho. She offers some practical suggestions for how to prepare for oral argument.