A fascinating article in the Washington Post explores new uses for DNA tests in the legal system. (We mentioned it yesterday in passing, but thought we'd say a bit more.)

Everything that's written on genetics has an obligatory section on eugenics. But after getting that out of the way, the piece turns to the more interesting possibilities for DNA. One is as a predictor of criminal behavior:

Rather than simply proving, for example, that the blood on a suspect's clothes does or does not match that of a murder victim, these "second generation" DNA tests seek to shed light on the biological traits and psychological states of the accused. In effect, they allow genes to "testify" in ways never before possible, in some cases resolving long-standing legal tangles but in others raising new ones.

Already, chemical companies facing "toxic tort" claims have persuaded courts to order DNA tests on the people suing them, part of an attempt to show that the plaintiffs' own genes made them sick -- not the companies' products.

In other cases, defense attorneys are asking judges to admit test results suggesting that their clients have a genetic predisposition for violent or impulsive behavior, adding a potential "DNA defense" to a legal system that until now has held virtually everyone accountable for their actions except the insane or mentally retarded.

For example, researchers have identified a genetic mutation in a brain enzyme that causes increased violent behavior. Could genetic predisposition towards violence one day be a possible defense by excuse?

As Vanderbilt's Nita Farahany -- an expert in behavioral genetics and the law, who has previously appeared in these pages (second photo) -- rightly points out, finding the cause for a behavior does not excuse a crime. But it could influence sentencing. [FN1]

Another possibility for DNA test applications is measuring life span, to determine awards in civil cases:

Many genes contribute to longevity; just last month, researchers announced the discovery of more than a dozen genes newly suspected of helping determine a person's life span. Even if all of them were known, they could at best provide a probabilistic estimate. But as those estimates become more accurate, said Hoffmann, the Maryland associate dean, they will force judges and jurors to think hard about a question that has long dogged legal scholars: Should damage awards be linked to projected life span at all?

"If it's for compensation, then yes, that means you'd want to fine-tune it to the details of the individual and their personal life expectancy," Hoffmann said. "But if damages are about deterrence, then that says you don't get off the hook just because you were lucky enough to hit someone who had a short life expectancy."

It's all speculative for now, as these tests are still in their early stages and not yet at the level of admissibility. But when they get to that point, there will be some interesting new possibilities and challenges for legal application.

[FN1] Earlier this month, Professor Farahany wrote an extremely interesting opinion piece for the Washington Post , imagining a world in which "police officers can read the minds of potential criminals and arrest them before they commit any crimes." It's not as far-fetched as it might sound: "various government agencies are funding the development of technology to detect brain activity remotely and are hoping to eventually decode what someone is thinking."

DNA Tests Offer Deeper Examination Of Accused [Washington Post]
The Government Is Trying to Wrap Its Mind Around Yours [Washington Post]

We don't normally do this (and probably won't make this a regular feature). But since we have a few on hand right now, we'd like to pass along the following public service announcements:

* Attention Washingtonians. There's an interesting panel discussion taking place here in D.C. next week: "Practicing Law in the E-Court of Public Opinion: How the Internet Can Make or Break a Lawyer’s or Law Firm’s Reputation and What You Can Do About It."

We are on the panel, along with Mark Britton of Avvo, Andrew Mirsky of Mirsky Legal, and fellow bloggers Carolyn Elefant, of My Shingle, and Jonathan Frieden, of E-Commerce Law. [Avvo Blog; MyShingle.com]

* Attention Asian American lawyers and law students (but all are welcome; this isn't the K&E GLBT party). There's an interesting conference taking place next month in Philadelphia, PA: "Emerging Asia: Shedding New Light on the Legal Landscape." We're delivering the keynote address at dinner. [APALSA]

* Attention South Asian lawyers and law students (but again, all are welcome). There's an interesting conference taking place next month in Los Angeles, CA: "Reflecting Back, Reaching Forward: Building on a Decade of Progress." [NASALSA]

* Attention essayists. Check out this essay contest: "How Do We Close the Gap Between Baby Boomers and Millennials on Work/Life Balance?" It's sponsored by Ms. JD and The Project for Attorney Retention. Prize of $1,000; entry deadline of February 29. [Ms. JD]

* Attention prospective bone marrow donors. A tipster writes:

A former Simpson Thacher associate needs a bone marrow transplant, most likely to come from someone Jewish, and we’re trying to notify as many people as possible to get on the donor list.

More details, after the jump.

Who knew that being a judge could be so dangerous? Maybe jurists should get hazard pay. From the Boston Globe:

Few at the Norfolk Superior Court house in Dedham disputed that the worn and uneven front steps needed fixing. But when a judge in his late 60s tripped on them and broke his left kneecap more than three years ago, neither the state nor the county wanted to take responsibility for the condition of the steps.

Now the judge, Paul A. Chernoff, is suing both the state and the county to determine who is at fault. Chernoff, who is about to retire, wants to know which party will cover his future medical bills if he develops arthritis in the damaged knee or requires a knee replacement....

The judge is seeking $10,000 for anticipated future medical and hospital expenses and $25,000 for pain and suffering, according to court documents, which state that the injuries have caused a permanent disability.

According to Judge Chernoff's lawyer, judges in Massachusetts aren't eligible for workers' compensation. Workers' comp would have covered future medical bills -- and the judge could plausibly claim he was injured in the course of performing his duties:

On the morning of June 30, 2004, Chernoff was returning to the Superior Court house after delivering instructions to a jury, which had gathered at the District Court house across the street. As Chernoff ascended the worn stone steps of the Superior Court - the same steps that spectators of the trial of Sacco and Vanzetti, the Italian anarchists, went up in the 1920s - he tripped and landed on his knee.

Courthouse perils should not be underestimated. Magistrate Judge Ted Klein (S.D. Fla.) may have died as a result of deadly toxic mold in his courthouse.

Update: Might Judge Chernoff be engaging in some forum shopping? A tipster tells us:

FWIW, the courthouse where he fell has a reputation for juries who are not terribly plaintiff-friendly. Which is probably why he filed in Middlesex County (at least in part). I understand there are a few more liberal jurors in Cambridge...

Judge sues over court mishap [Boston Globe]

A case going to trial next month raises some, er, probing questions. From the NYT's City Room:

Under what circumstances can a patient in an emergency room be forced to submit to a procedure that doctors deem to be medically necessary? That question — and the notion of informed consent — is at the heart of a civil case that is about to go to trial next month in State Supreme Court in Manhattan.

Brian Persaud, a 38-year-old construction worker who lives in Brooklyn, asserts that he was forced to undergo a rectal examination after sustaining a head injury in an on-the-job accident at a Midtown construction site on May 20, 2003. Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.

According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, “Please don’t do that.”

C'mon, Brian. Why not have a more open mind (among other things)? Don't knock it 'til you've tried it.

As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth.

After Mr. Persaud regained consciousness, he was arrested, then taken — still in his hospital gown — to be booked on a misdemeanor assault charge. Gerrard M. Marrone, who was Mr. Persaud’s lawyer, got the criminal charges dropped, then helped Mr. Persaud file a civil lawsuit against the hospital.

For more discussion -- including additional facts about the case, legal discussion, and comment from the hospital -- check out the full post, by the indefatigable Sewell Chan.

Update: More about involuntary rectal exams from Slate (via WSJ Law Blog).

Forced Rectal Exam Stirs Ethics Questions [City Room / New York Times]
But I Don't Want a Rectal Exam! [Slate]

Ah, to be a federal judge. Life tenure means never having to say you're sorry (unlike those state judges, like the hat-hating Holly Hollenbeck).

Judge Samuel Kent (S.D. Tex.), who has lawyered up in response to being charged with sexual misconduct by a court employee, is speaking out -- sort of. In an interview published earlier this week in the Houston Chronicle, he tried to win some sympathy from the public.

Judge Kent discussed his struggles with alcohol (like Justice Thomas in his recent memoir), his diabetes, and the death of his first wife from brain cancer. But he did not address the substance of the allegations made against him:

"As with every human controversy, there are absolutely two sides to this one, and I will vigorously present mine at the appropriate time," he told the Houston Chronicle. "It has been extremely frustrating for me, my family and my staff not to be able to speak in my defense."...

He declined to address specifics of the misconduct allegations against him, citing federal laws that make judicial investigations secret.

So according to Judge Kent, there is another side of the story. As for what exactly it is, stay tuned.

After the jump, selected comments on the story from Houston Chronicle readers.

Kent talks of personal struggles [Houston Chronicle]
U.S. District Judge Samuel Kent Hires Dick DeGuerin, Meets With FBI [Texas Lawyer]

Here's a quick update about yesterday's Judge of the Day, the Honorable Holly Hollenbeck. From the Tri-City Herald:

A Benton County judge has apologized for telling a woman with cancer to take a knitted cap off her bald head or leave his courtroom. "Words can't express how sorry I am," Judge Holly Hollenbeck told the Herald on Monday, a few hours after he spoke with Bev Williams by phone and offered an unconditional apology.

Hey look! It's an ATL shout-out:

The story was picked up by Seattle news media, then was spread across the country by The Associated Press. The Drudge Report website, published as a digest of headlines across the nation, reported the story Sunday. A website called Abovethelaw.com also invited comments about the incident, and had drawn more than 60 by Monday evening.

"I'm being vilified," Hollenbeck said. "I made no excuses to her for my behavior. What happened to her was inexcusable."

And what about the headgear rule?

Hollenbeck, who is presiding judge for the District Court, said each judge retains discretion on how to enforce rules about hats and appropriate attire in court. "The rule has been changed (in my court)," he said.

So if you ever get to wear your hat in Judge Hollenbeck's courtroom, you have ATL to thank for it (in part).

Judge apologizes for telling woman with cancer to remove hat [Tri-City Herald]

Earlier: Judge of the Day: Holly Hollenbeck

A recent trend: judges who are touchy about courtroom attire. Last week we wrote about Judge William Sosnay, who is no fan of ascots. Now meet Judge Holly Hollenbeck:

Bev Williams of Richland wears a knitted beanie cap to cover her hairless head everywhere she goes, but not in Judge Holly Hollenbeck's courtroom.

The District Court judge told Williams, 43, to take her cap off or leave his court in the Benton County Justice Center on Friday morning.

"I was embarrassed. It made me cry," said Williams, who recently underwent six months of chemotherapy for cancer.

But Judge Holly Hollenbeck -- who's a man, by the way, so he ain't no Hollenbeck girl [FN1] -- has a rebuttal:

"I ask everybody to remove hats," he said, noting the only reason he has allowed one — once — was for a religious reason.

Hollenbeck said, "I am very understanding with people who battle with cancer. My own mother died from cancer. I've had hundreds of cancer victims come through my court, and I've never had one not remove their hat, ever."

He added, "Refusal to remove shows contempt for the court and for the judge."

So what do you think? Is Judge Hollenbeck's position reasonable? Or is this s**t bananas, b-a-n-a-n-a-s?

By the way, with respect to our earlier poll, almost 55 percent of you don't think an ascot is appropriate courtroom attire.

[FN1] Nor should Judge Holly A. Hollenbeck be confused with motivational speaker Holly H. Hollenbeck, author of Sex Lives of Wives: Reigniting the Passion, and proprietress of PassionSeekers.com.

Judge's strict no-hat rule upsets cancer patient [Seattle Times]

No, that's not some insult hurled at the distinguished constitutional law professor by a right-wing zealot; it's a fact. From a memorandum that went out to Harvard Law School students this morning:

In order to help you plan your spring schedules, I need to let you know that Professor Laurence Tribe’s class this spring is being cancelled because he has recently been diagnosed with a brain tumor that is benign but will require medical treatment. Professor Tribe has asked me to convey this information and his regrets about this necessary decision.

We wish Professor Tribe the best of luck with his treatment regimen, as well as a speedy recovery.

From one tipster:

It's just a matter of time before knee-jerk dittohead-wannabes bust out jokes like "Isn't liberalism a form of a brain disorder?" Then again, this could end up straight out of Woody Allen's Everyone Says I Love You, if the removal of the brain tumor turns Tribe into a fire-breathing right-winger.

Professor Tribe is a public figure, and he has surely had every epithet in the book leveled at him, multiple times. Nevertheless, even if he's a big boy (who has better things to do than read blog comments), please keep the discussion civil. Thanks.

That's the basic question posed by this interesting piece, currently the most emailed article on the New York Times website. After describing some of the sufferings of lawyers and doctors today, Alex Williams writes:

[I]n the days when a successful career was built on a number of tacitly recognized pillars — outsize pay, long-term security, impressive schooling and authority over grave matters — doctors and lawyers were perched atop them all.

Now, those pillars have started to wobble.

“The older professions are great, they’re wonderful,” said Richard Florida, the author of “The Rise of the Creative Class: And How It’s Transforming Work, Leisure, Community and Everyday Life” (Basic Books, 2003). “But they’ve lost their allure, their status. And it isn’t about money.”

Oh really? Tell that to the readers of ATL. Compensation coverage sends our traffic through the roof.

More discussion, after the jump.

Today we bring you not one, but two Judges of the Day. We can't decide who is more deserving of the honor. From the Florida Times-Union:

Twelve days before Christmas, Circuit Judge Aaron Bowden fired his 17-year judicial assistant, who had been on leave since August with cancer. The Jacksonville judge said he feared her prolonged illness would leave him without an assistant at a time when the state had implemented a hiring freeze.

But his decision left Christine Birch, 54, with no medical, life or disability insurance and has created a firestorm at the courthouse.

Chief Circuit Judge Donald Moran responded by calling Bowden "a no-good son of a bitch," prompting Bowden to respond with a blistering e-mail (PDF) defending his decision and calling Moran's criticism irresponsible, unprofessional and unseemly.

Other judges' assistants were also appalled by Birch's firing. They raised money to pay her rent this month....

Birch declined comment Thursday. But she thanked Moran in a handwritten note last week for putting her back on the courthouse payroll in a rotating judicial assistant's position. Birch was paid about $3,275 a month in her old job, and the state paid her health insurance premium. Her new rotating position pays $750 less a month and requires her to pay her own premiums.

Our tipster writes:

Best quote from the article: "He said if she died while on the payroll, he would have been without an assistant for two months, 'not an ideal situation for a judge.'" I guess dying wouldn't have been an ideal situation for her, either.

To get both sides of the story, check out the email from Judge Bowden in which he defends his actions (and rips Chief Judge Moran a new one). You can access his message -- in which he benchslaps Chief Judge Moran for his "effrontery" and his "irresponsible" comments, made "precipitously [and] without authority" -- by clicking here (PDF).

P.S. Speaking of cancer, here's a PSA from ATL, and bad news for Biglaw associates and paralegals: according to cancer researchers, overnight work and sleep deprivation may raise your cancer risk.

Judge fires his assistant, draws criticism [Florida Times-Union]
Email from Judge Aaron Bowden (PDF) [Florida Times-Union]

This actually happened quite some time ago -- last month, to be exact. But we're happy to write about it because (1) it hasn't been blogged about elsewhere, as far as we know, and (2) with the passage of time, tempers have cooled. So maybe now people can look back on it with amusement rather than anger.

A summary, from one of the several tipsters who drew our attention to this:

A friend of mine at Cumberland School of Law in Birmingham, Alabama, sent me this. Apparently some girl sent out a mass email about President Bush's veto of some health care legislation. This set off a whole clusterf**k of responding emails, with the debate devolving into one over race and class. From reading through the several threads, it's almost frightening that some of these people are actually going to become lawyers.

[One of the more] recent post[s] is especially enlightening.... [T]he author states that "The powers that be count on sellouts to climb the ladder of success and refuse to help those underneath them. That way they can use you sellouts as tokens...."

However, the most hilarious part of this whole thing is where one of the black (1L) students responds to an Asian student by saying, "To the Asian.....u aint black." Further idiocy follows.

The aforementioned "idiocy," after the jump.

Some etiquette tips for law school deans:

1. If you send one of your students to another law school, for a year-long stint as a visiting student, don't "apologize" for it -- even if that student has a severe peanut allergy, requiring the receiving school to "peanut-proof" itself for the year.

2. If you really must issue an "apology," do so by phone or in person, not by email.

3. If you really must issue an "apology" by email, send it to the individual dean. Do not send it to a listserv consisting of the deans of ABA-accredited law schools.

Because it might get leaked to ATL:

ATL readers: Please take this opportunity to engage in a vicious comments clusterf**k spirited debate over whether schools, airlines, and other institutions go too far -- or not far enough -- in accommodating people with extreme food allergies. Thank you.

* Family to sue NYC over staph death. [CNN]

* Nader sues DNC for trying to win 2004 Presidential election conspiring against him in 2004. [AP via Breitbart]

* Should law school be more like business school? [WSJ Law Blog]

* Georgia to $336,000 in child support! [Atlanta Journal-Constitution]

* Yep, de facto moratorium. [New York Times]

If you're an employee of the U.S. Department of Justice, and your name isn't Susana Lorenzo-Giguere, your job probably doesn't have many perks. They toss a few four-dollar meatballs your way, and public outcry ensues.

And now you can't even go to the office gym, thanks to a potential outbreak of staph infections, aka "Staphylococcus aureus." All three DOJ fitness centers are being closed for "a thorough cleaning" (which makes you wonder how "thorough" the regular cleanings are).

First the rat-ridden day care center, and now this. What next for the DOJ's beleaguered employees?

These are not the easiest times to be at the DOJ. In the wake of the U.S. Attorneys firing controversy, the Justice Department has been plagued by a leadership vacuum (not just in terms of no Attorney General, but a very high number of acting AAGs). It has also suffered from a loss of public respect and low employee morale.

But no gym? To quote Justice Scalia, "this is really more than one should have to bear."

The memo, which includes tips for preventing infection that everyone should read, appears after the jump.

Our parents keep reminding us to get a flu shot (which we haven't gotten yet this year). If we worked for a law firm, maybe we wouldn't have to worry about this. From a tipster:

My firm provides flu shots for all of its employees every flu season. I was wondering if this was typical.

The idealist in me wants to think that the firm actually cares about my health and well-being. On the other hand, the skeptic in me believes the firm doesn't want me to get sick so that I won't miss work.

They make you sign a consent form (of course).

Forget about the free iPhones and subsidized gym memberships. Flu shots are clearly what separate the men from the boys.

So... does YOUR firm furnish free flu shots? Please discuss, in the comments.

Whenever something like this happens, people speculate that perhaps the poor associate was sleep-deprived. Now there's some scientific research to support such speculation. From the BBC:

Brain scans can show how the brain gets "tired and over-emotional" when someone is deprived of sleep. US researchers kept volunteers awake for 35 hours and found huge increases in brain activity when shown images designed to make them angry or sad....

The researchers found that the parts of the brain linked to emotional reactions - the amygdala - showed bigger reactions (over 60% more) to the cards compared with a normally-rested volunteer.

Researcher Matthew Walker said: "The size of the increase really surprised us."

"It is almost as though, without sleep, the brain reverts back to a more primitive pattern of activity, becoming unable to put emotional experiences into context and produce controlled, appropriate responses."

Do you feel you get enough sleep? Take our reader polls, after the jump.

* Holy Lawsuit, Batman! Professors sue Ave Maria. [AveWatch.org]

* TMI indeed; spare us talk of that burning sensation. Just say you have a doctor's appointment, and leave it at that. [Nasty, Brutish & Short]

* Just because you're a 46-year-old man who has never been married doesn't mean you're gay. Plamegate prosecutor Patrick Fitzgerald -- whom we met earlier this month, btw -- is engaged. Congrats, Pat! [WSJ Law Blog]

* Milberg Weiss and the Democrats: politics makes for not-so-strange bedfellows. [Overlawyered; Overlawyered]

* Some undergraduates earn cash by selling their class notes online. How long before this trend takes hold in law schools? [Conglomerate]

* Who says Yale Law grads can't be funny? [Wonkette]

* Politician busted for cheating in marathon. Seriously. [Sports Illustrated] [FN1]

* iPhone sued over exclusivity. [MSNBC]

* Hospital employees suspended for violating HIPAA after Clooney visit. [CNN]

* Suspected killer escapes to St. Martin, so far evades extradition. [CNN]

[FN1] Shameless plug: Speaking of marathons, David is running the New York City marathon next month, to raise funds for cancer research. If you'd be willing to support him with a tax-deductible donation, please click here.

As noted yesterday, we're smack in the middle of clerkship hiring season. Perhaps some of you are applying to judges based in Miami. Clerking in a tropical paradise -- what's not to like?

Possibly deadly toxic mold, that's what. From an article by Julie Kay in the Daily Business Review (via SDFLA Blog):

Two studies performed at the historic David W. Dyer federal courthouse in downtown Miami show there are significant mold and air safety issues at one of Miami-Dade County’s oldest courthouses and suggest parts of the building are beyond repair.

The studies... were commissioned by the U.S. District Court of the Southern District of Florida after U.S. Magistrate Judge Ted Klein became ill and died last year of a mysterious respiratory illness, and his fellow magistrate judges raised concerns about the building’s environment.

Additional discussion appears after the jump.

Here's an amusing anecdote from a West Coast reader:

Went to visit a dentist in Palo Alto for a routine cleaning the other day. When I told him I was an attorney, he quipped: "So, do you grind your teeth? Lawyers are notorious for grinding teeth."

And then, unprompted and somewhat gratuitously, he added, "Especially those guys at Wilson Sonsini -- they're the worst."

Granted, my dentist's views could be somewhat skewed given WSGR's major presence in Palo Alto. Nevertheless, I hope WSGR has a good dental plan.

And that recruiting has figured out how to use the bcc field.