In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call “the flesh-and-blood defense.” The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government’s side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a “flesh and blood man.”

If that makes no sense, that’s okay; the point seems to be that these African-American guys are using a more or less totally fictional defense made up by white supremacist crazies, which is highly ironic. It’s also highly disruptive; they “succeeded” in getting the prosecution to drop its death-penalty request, although I’m not sure if the defendants intended to do this by making asses of themselves or were just lucky. Something else I noticed is that the prosecution seemed to be stretching RICO pretty thin in that case.

I also wanted to link to this post at The UCL Practitioner, Kimberly Kralowec’s blog about California’s Unfair Competition Law, good ol’ sec. 17200. She is interested in the Fourth District Court of Appeal’s assumption that the UCL’s prohibition against unfair conduct applies to conduct that’s against public policy. That is certainly the interesting legal issue about it, but as a driver, I’m also interested in the underlying case, which is about a red-light camera provider’s contract with municipalities. This contract, as I understand it from the post, entitled the provider to contingency fees from its cameras — the more money the cities made, the more money the provider got. Since this gives the provider an incentive to ensnare people who aren’t really running red lights, which does happen, it does indeed sound on first blush like a provision contrary to public policy. I’m disappointed not to have learned more about this issue directly from the mainstream media.

In lawyer parlance, it looks like what Kramer does could be described as a mix of contract attorney work from her own office and work as a solo practitioner. So while it’s not exactly a new type of work, I like that she’s willing to rethink and fight the labels. Lawyers seem to view contract legal work as a ghetto for new grads who can’t get “real jobs” — low-status. And you know some lawyers looooove status. But as Kramer semi-says in that interview, “real jobs” in the law have some big downsides. If you’re willing to trade job security and status for more control over your working life, this could be a way to avoid those downsides, or at least own them. (This is probably a better choice for older lawyers; I expect younger ones who went straight from undergraduate schools to law school will need a few years to get comfortable in the work marketplace.)

I also liked that she recognizes that industry-wide change in work-life balance issues ain’t gonna happen through law firms:

However, we are not calling on large law firms to change, we are encouraging lawyers themselves to make a change in their own lives and how they work. I believe that the legal profession is more likely to change one lawyer at a time than trying to convince the hierarchy of law firms to change.

True DAT. I wish NAFLP luck.

From past experience, I know that recent, large-sample-size, nonbiased-source statistics on medical mistakes are hard to dig up solely via Google. So while I am not delighted that 100 Californians a month are getting hurt in medical facilities, I am pleased that these numbers are at least available.

PS If you’re not over the Clinton impeachment brouhaha yet — and I suspect most politically aware people over the age of about 26 aren’t — you might be interested in Professor Martin’s analysis of a Ninth Circuit case on what the definition of “is” is.

Well, sorta. As SCOTUS Blog, via Workplace Prof Blog, points out, this is narrowly focused on maritime law and doesn’t touch the Due Process Clause. I have been paid to write about Jones Act and DOHA stuff, but not very often. However, that post goes on to point out that the court seems to want consistency in punitive damages, and that it may use this decision as a guide in future punitives cases. And I don’t doubt that there will be more.

I won’t try to reproduce the man’s analysis, but it’s worth reading if punitives are important to you. I have no problem with setting guidelines aimed at consistency across jurisdictions, but I’d be disappointed if those guidelines effectively foreclose worthy cases.

I’m posting today because I was surprised and pleased to see a pointer at the Workplace Prof Blog to an article in Saturday’s New York Times on USERRA. What’s USERRA? It’s the Uniformed Services Employment and Re-Employment Rights Act. It says people who are part-time servicemembers (reserves, National Guard, even FEMA) should get their civilian jobs or equivalent jobs back if they’re called away from those jobs to serve their country for less than a cumulative five years. There are lots more details out there if you’re curious; the requirements for reporting and so forth get pretty complicated.

When I first encountered this law sometime last year, I was very excited and pitched a story about it. My pitch was rejected, probably correctly, because it didn’t seem like much of an issue at the time. After all, what kind of heartless employer fires someone for serving his/her country? Who’s willing to stand up and essentially say they don’t support the troops when supporting the troops becomes more than a feel-good bumper-sticker slogan? That’s business and social suicide for a small businessperson. (Or anyway it should be.) I dug up only one news story about someone who had to sue under USERRA, a guy from the Pacific Northwest. While I am not pleased as a citizen to see this new one, I’ll admit that I am pleased that my story-idea instincts were on.

The NYT article implies that it’s a growing issue, and whether that’s true or not (phone calls to the Pentagon != legit lawsuits), it’s certainly something that employers will have to keep in mind, especially if there’s a large-scale pullout from Iraq. If I were an employment litigator or a personal injury lawyer with experience in employment rights litigation, I’d be eager to show the world I have the expertise to take on this type of case.

Bush signed GINA. I continue to be pleasantly surprised by the bipartisan support for this bill, which seems like it might cost employers money down the road when they make potentially discriminatory decisions based on employees’ health status. BTW, in case you thought I was exaggerating about workplace penalties for smokers, here’s an article on the subject from Workforce Management. Added bonus: Prickly LA Times owner Sam Zell is mentioned in the context of his pro-smoker changes at the Tribune Company. Posts on GINA from Greg Valenza at What’s New In Employment Law? and Sheppard Mullin’s Labor Employment Law Blog. Workplace Prof Blog adds a post about an EEOC letter discussing when health-condition-related job placement might violate the ADA.

Speaking of Workplace Prof Blog, it goes into some detail about the Ninth Circuit’s “don’t ask, don’t tell” decision. Again, that decision applies the sexual privacy rights found in Lawrence v. Texas to the military’s DADT policy, creating heightened scrutiny for that and possibly other laws relating to private sexual behavior. Prof. Secunda sees it as a potentially groundbreaking decision for employee sexual privacy rights, if they can get over the military-specific nature of the decision. However, a commenter points out that this decision was from an atypically liberal panel of the Ninth, so nobody should be counting any chickens just yet.

Greg May says the Prop. 22 people have filed for rehearing in In re Marriage Cases. I’m not sure I see any motivation for the justices to revisit it, but I am sure the same-sex marriage opponents felt they had to try. In related news, the LA Times found a bare majority in California telling pollsters they’d vote in favor of this fall’s constitutional amendment banning same-sex marriage — but the outcome isn’t clear.

Finally, I didn’t realize until earlier this week that cragistlist and eBay were duking it out in court. They’re suing each other over a stockholder deal gone sour (it’s a little complicated) when eBay launched a site intended to compete with craigslist. I hadn’t heard of this competing site until I read the article, so I doubt it’s making much money right now, but eBay’s behavior as described there fits with some of the aggressive corporate action I learned about when investigating alternatives to PayPal. Kimberly Kralowec at The UCL Practitioner links to apparently detailed but subscription-only articles on the subject from the Recorder and the Daily Journal.

The California Blog of Appeal just caught my eye with a post on a new Ninth Circuit decision on “don’t ask, don’t tell” in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). I shan’t try to repeat his analysis, as I have neither the time nor the expertise, but one interesting bit to me is that the Ninth Circuit applied Lawrence v. Texas to “don’t ask, don’t tell.” In my head, that decision affected state law only, but of course anything affecting constitutional rights should apply across the board. (If that’s the case, though, wouldn’t laws like the Defense of Marriage Act be void?)

This decision is bound to get heavy scrutiny, which I’m sure the court anticipated, so I suspect it’s not as activist as some will surely make it out to be. I do not need a crystal ball to predict en banc rehearing and possible cert.

Immediately, my metaphorical ears perked up. I write a lot of Web pages for trial attorneys, and of course, premises liability is a common subject. But I’ve never heard of online premises liability before. Could my clients, Internet-savvy though they are, be missing a big opportunity to expand their practice areas? Lucky for me, Prof. Goldman linked to a post from about two years ago that explores the issue a bit. On the one hand, there’s an easily foreseeable risk of harm. On the other hand, this would be burdensome and possibly even impossible for sites like MySpace. The only semi-effective way I’ve ever seen to verify a user’s age is to have him or her input a credit card number, and that would cut out thousands or even millions of potential MySpace users. Plus credit card ownership/access is still not a very good proof of age. Whoever invents a better way (could you license driver’s license info from state governments?) will quickly become rich.

In the meantime, caselaw is sparse, at least according to that two-year-old post, but seems to come down on the side of defendants. So perhaps that’s why trial lawyers aren’t big into online premises liability. I’m sure it could succeed in a trial court somewhere, but I suspect most appellate judges would lay a smackdown pretty fast, for the reasons above.

* As someone who’s never been to law school, I’m almost helpless when it comes to citations; I almost always copy and paste them from things written by lawyers. My former workplace, the LA Daily Journal, had a pretty good guide that I now wish I had kept. If anyone can recommend an authoritative guide (meaning not Wikipedia), I’d be happy to spend money on it.

It’s far too late for me to add anything meaningful to the wealth of information on the blogosphere about In Re Marriage Cases, if I ever could have. The LA Times has a short interview with Ron George in today’s paper that goes into his decision-making process a little.