Left to right: Eric Cuellar, Hazhir Kargaran, and Justin Teixeira (click to enlarge).
Lawyers and Las Vegas are a dangerous combination. Just ask the lawyer who allegedly inflicted almost $100,000 in damage on a suite at the Encore Hotel.
Sin City seduces law students too. We’ve extensively covered the sadstory of how three Berkeley law students, while visiting Vegas on spring break, killed a helmeted guinea fowl named “Turk” at the wildlife habitat of the Flamingo Hotel.
It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.
And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.
To do otherwise would violate the Ex Post Facto clause.
The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.
Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.
So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?
On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.
In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.
(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)
* Online gambling wants to come back to the U.S. after the government cracked down last year. Anybody want odds on whether this works? [Wall Street Journal]
* In news that only affects those who want to dress like whores, Abercrombie & Fitch and Hollister may systematically mistreat the disabled. [Fox News]
* Post-disaster price gouging is sad, but inevitable. Oklahoma’s Attorney General E. Scott Pruitt is having none of it. [The National Law Journal]
* Obama will address drone policy and Gitmo in a security speech today because, after the last couple weeks of scandal, he’s hoping to introduce fodder for another round of withering criticism. [Huffington Post]
* The Daily Caller is all over the idea that Michelle Obama may have dated the Inspector General of the IRS at Harvard Law. Which proves… actually, I have no idea if the Daily Caller even knows why this might be significant. [Daily Caller]
* U.S. and Chinese law schools are collaborating more. American law schools are really desperate to open themselves to more students, aren’t they? [China Daily]
* The Jodi Arias jury may not be able to make a decision on sentencing. If you cared about this story at all, you’ve already heard Nancy Grace’s opinion. [NBC News]
* Elie argues with folks about Greece v. Galloway and legislative prayer. Video after the jump…
* Dewey know when we’ll be able to stop using this pun? Hmm, at this rate, probably never. Steve Otillar and Citi recently settled their dueling suits over the ex-D&L partner’s capital contribution loan to the failed firm. [Am Law Daily]
* Cahill Gordon was supposed to investigate the Rutgers basketball scandal, but the firm cited a conflict of interest, so Skadden Arps stepped in. [Insert the joke of your choice here. I don't like or watch this sport.] [Reuters]
* She’s got a death wish: the aggravation phase of the Jodi Arias trial was postponed at the last minute yesterday, and some think it’s because of the interview she gave after the verdict was announced. [CNN]
* Right about now, the Second Circuit is wondering why authors are suing Google and crying infringement over the Internet company’s e-book project, especially since digitization could benefit so many of them. [Thomson Reuters News & Insight]
* This is the end of an era of legal battles: Jeffrey Skilling, Enron’s former chief executive officer, is getting a little shaved off the top of his 24-year prison sentence thanks to a deal with the Department of Justice. He’ll be out in 2017. [CNBC]
* Biglaw expected to have a slow start in 2013, but no one expected it to be this slow. The latest Citi report wasn’t exactly encouraging; on average, firms saw a 0.2% increase in revenue during the first quarter. [Am Law Daily]
* In the past decade, the American Bar Association has created six task forces to explore changing the face of legal education as we know it. Funny… nothing’s really changed. [National Law Journal]
* Bail for Ariel Castro, the accused Cleveland kidnapper, has been set at $8 million. “Just think of how many ribs and salsa albums could be bought with that, bro,” said Charles Ramsey. [Chicago Tribune]
A famed hacker, Andrew “weev” Auernheimer, was sentenced to 41 months in prison yesterday. A jury convicted Auernheimer of conspiracy and identity theft back in November stemming from his role in a scheme to snag the personal email addresses of over 114,000 iPad users, including Mayor Michael Bloomberg, Diane Sawyer, and Mayor Rahm Emmanuel.
Auernheimer argued that he acted as an uninvited “gray hat” hacker, grabbing the email addresses of customers for the sole purpose of exposing the flaws in AT&T’s security.
The sentence, at the upper end of the Guidelines range, is a far cry from the non-custodial slap on the wrist Auernheimer’s attorneys sought. There are two broad categories of response to the sentence. First, that Auernheimer is a completely terrible human being, but that his being a dick does not justify the harsh sentence. Second, that Auernheimer did not commit a real crime because he never intended to steal anyone’s identity and the Computer Fraud and Abuse Act is a bad law.
To these arguments, I reply “yes it does,” and “who cares?”
Full disclosure: Former Jack Abramoff associate Kevin Ring, whose criminal conviction was recently upheld by the D.C. Circuit, is a friend of mine. We grew up in the same town and have known one another for decades. In no way is what follows unbiased or objective in any sense. That said, I know that I’m right and the case against Kevin Ring was simply, unambiguously wrong. Not to say that there was no ambiguity as to whether he broke a law — there was a tiny bit of that. But under no sane system of justice would Kevin be going to federal prison. Though he almost certainly is, pending a request for en banc rehearing from the D.C. Circuit followed by a Hail Mary filing for a writ of certiorari.
We can all stipulate that Jack Abramoff is one of the sleaziest and most repellent characters to besmirch the legal profession in decades. (My favorite Abramoff moment: the time he tried convince his rabbi to bestow upon him a fake, back-dated “Scholar of Talmudic Studies” award, so he could get in the Cosmos Club.)
Anyway, Abramoff was Kevin’s boss for three and a half years, during the final period of which they were both partners at Greenberg Traurig. In the words of the judge at his sentencing hearing, Kevin was a “cog” in the Abramoff operation, a “second-tier level” administrator of the firm’s lobbying team. I won’t try to spin Kevin’s time as a lobbyist as some honorable endeavor. I couldn’t. Generally speaking, lobbyists are regarded by most of us as only slightly less distasteful than the politicians whose favor they are trying to curry. But that does not make them criminals….
Imagine you’re in a negotiation to buy a used car. You use the Blue Book — the Kelley Blue Book, not the legal Bluebook — to set the starting point on the price. You do your research at home based on the blue book that’s online, which says the starting point for the car you want is $10,000.
Then, when you get to the used car dealer, you find out that they have a new blue book, one that just came out that day. It says that the starting point for the car you want is really $12,000.
You’d probably be annoyed, maybe angry. The whole starting point for your conversation about the price of the car changed.
Yet, the dealer could tell you, and you could still agree with him to pay any amount you’d like for the car. The starting point doesn’t necessarily set the ending point.
This was, basically, the situation the Supreme Court was called in to referee in this morning’s oral argument in Peugh v. United States….
* What to do when your federal agency’s website has been hacked by Anonymous and you’re unable to post a major report online for public dissemination? Well, just ask a law professor to do it for you on his blog; that’s not embarrassing, not at all. [WSJ Law Blog]
* The many victims of the Deepwater Horizon disaster can now rejoice, because yesterday, Transocean pleaded guilty to violating the Clean Water Act, and will pay the second-largest environmental fine in United States history to the tune of $400 million. [CNN]
* Money takes flight: eleventy billion Biglaw firms are behind the beast that is this awful airline merger, but taking the lead are lawyers from Weil Gotshal for AMR and Latham & Watkins for US Airways. [Am Law Daily]
* After questioning the validity of one of the NBA players union’s contracts, Paul Weiss is withholding details about it thanks to the government’s intrusion. Way to block nepotism’s alleged slam dunk. [New York Times]
* “When is the last time you took the biggest financial institutions on Wall Street to trial?” Elizabeth Warren took the Socratic method to the Senate Banking Committee and she was applauded for it. [National Law Journal]
* If you liked it, then perhaps you should’ve put a ring on it, but not a Tiffany’s diamond engagement ring that you’ve purchased from Costco, because according to this trademark lawsuit, it may be a knockoff. [Bloomberg]
* “We feel very badly for Megan Thode.” A Pennsylvania judge ruled against the Lehigh student who sued over her grade of C+ because let’s be serious, did ANYONE AT ALL really think he wouldn’t do that?! [Morning Call]
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
Things have changed recently in Korea – a few of our US and UK client firms are looking, very selectively, for a lateral US associate hire. Until just recently, there was not much hiring like this going on in Korea, since US and UK firms started opening offices there. We have already placed two US associates in Korea in the past month at top firms. Most of the hiring partners we work with in Korea do not actively work with other recruiters.
If you are a Korean fluent US associate in London, New York or another major US market, 2nd to 6th year, at a top 20 firm, with cap markets or M&A focus (or mix), or project finance background, and you are interested in lateraling to Korea to a top US or UK firm, please feel free to reach out to us at firstname.lastname@example.org or email@example.com. Our head of Asia, Evan Jowers, was just in Korea recently, and Evan and Robert Kinney will be in Korea in a few weeks. We are in the process of helping several firms open new offices in Korea (a number of which are interviewing our partner level candidates) and also helping existing offices there fill openings.
Professor Joel P. Trachtman has developed a unique, practical guide to help lawyers analyze, argue, and write effectively.
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