John Culbreath Blog

Home-brewed pharmaceuticals are on the horizon (think 3D printing, but for chemicals) and Matt Jacobson is on the product liability implications for Drug & Device Law. Tags: pharmaceuticals , product liability Kitchen pharma and liability curated from Overlawyered

“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.” On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here . Tags: adoption , Indian tribes , live in person

Mike Masnick, TechDirt : [J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point: We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms. The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s sup

Not a new story, but new to me: Oklahoma State University says it has been awarded patent as well as trademark protection on what is called the Vegas Strip Steak, a part of the cow previously consigned to ground beef and other humble uses. [ John Klein, Tulsa World last October; Drovers , John Ewoldt, Minneapolis Star-Tribune in 2012] Kal Raustiala and Chris Sprigman wrote at Freakonomics in 2012: There’s no way OSU could patent the steak itself. The steak is just a piece of a cow. It is, in other words, a product of nature, which cannot be patented. Wisely, OSU’s patent apparently isn’t on the steak itself, but on the knife cuts necessary to extract the steak. But that approach is dubious as well. Once you know where the steak is, the cuts necessary to get at it may be obvious to a skilled butcher. Things that are obvious cannot be patented. The Patent and Trademark Office presumably accepted the methods for producing the cut as other than obvious. More on patented meat items

If lawyers can gain their client’s trust, they can win their business. Luckily, thanks to technology and a swath of online tools, earning trust and providing a better overall client experience is as simple as ever. All it takes is a little effort, and for lawyers to think of clients like any other consumer. Avvo Corporate Counsel Esther Sirotnik’s full presentation is available here : “The attorney-client relationship embodies a level of trust,” Sirotnik says. “This is about providing information and transparency to consumers so that they become your clients, and then it’s about taking that relationship and continuing to foster it and leverage it moving forward.” As Sirotnik puts it, there are five ways lawyers gain their client’s trust, and it begins the moment a potential client sits down at a computer or pulls out their phone. Lawyers have to be proactive in managing their online presence and meet the consumer’s expectations for information. And in a world where consumers know

It works if your court is in Maine: “Motion to Continue Because of Moose Attack” [ Lowering the Bar ] “John Bolton is Right About the International Criminal Court” [ Jeremy Rabkin, Weekly Standard , earlier ] No kidding. “Unintended Impact: Detroit Crackdown on Landlords Could Boost Rents” [ @DeadlineDetroit ; Violet Ikonomova, Metro Times ] Advocacy groups “were focused on food deserts ‘because access was a social justice issue. It wasn’t based on evidence because there wasn’t any evidence.'” [ Tamar Haspel, Washington Post ] “Good moral character” prerequisites for holding licenses are vague and subjective even in ordinary times, and should not be pressed into surrogate use against political foes [ Jonathan Haggerty and C. Jarrett Dieterle, R Street Institute ] California fisheries and Chevron deference: “An Otter Travesty by the Administrative State” [ Ilya Shapiro on Cato cert amicus petition in California Sea Urchin Commission v. Combs] Tags: administrative law , Detr

Today we will wrap up our coverage of easements, and focus on whether easements in gross are assignable, what the scopes of easements are, and whether easements can be terminated. The lecture notes are here . Othen v. Roster was authored by Justice Brewster of the Texas Supreme Court. Here a map of the property at issue in Othen, courtesy of the Dukeminier web site. Here is a satellite photo of the Tone Survey in Cedar Hill, TX . It seems the norther boundary (Fish Creek Road) has been chopped up into many subdivisions and is now called Sandy Creek Drive. Here is a visual representation of how access to beaches works. The NY Times wrote about Bay Head here . #Tanning. It’s a Jersey thing.   Prop2 Class 12 – Easements II curated from Josh Blackman's Blog

The lecture notes are here . Dred Scott v. Sandford This is Dred Scott. This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854. This is the Court’s judgment in Dred Scott, dated March 7, 1857. The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states. This map illustrates the free and slaves states in America. ConLaw Class 12 – Slavery curated from Josh Blackman's Blog

Type the name of your law firm into any search engine and the results are sure to yield a series of reviews in tandem with your business information. These star ratings matter. They’re the first thing consumers take into account when pursuing your services. How are you going to handle it? Written by Susan Cartier Liebel [Sponsored] 5 Ways to Manage Your Firm’s Online Reputation curated from Solo Practice University®

The Senate has now unanimously passed its own version of the Music Modernization Act, a bill intended to enable clearinghouse payment by those streaming, performing, or otherwise using older musical works. Under a House-passed bill more favorable toward owners of very old material, “a song recorded in 1927 would effectively get 140 years of protection, vastly longer than the 95 years current law gives to books, movies, and other works published around the same time.” [ Timothy Lee, ArsTechnica ] Tags: copyright , music and musicians “Senate passes copyright bill to end 140-year protection for old songs” curated from Overlawyered

Advocates are pushing for laws much expanding the ranks of private actors required by law to inform to authorities on suspicions about child abuse (“mandatory reporters”). Naomi S. Riley quotes some of my misgivings: “As Walter Olson of the Cato Institute notes, increasing the number of mandated reporters could ‘incentivize’ people ‘to resolve uncertain, gray areas in favor of reporting.’ It will multiply “investigations based on hunches or ambiguous evidence which can harm the innocent, traumatize families, result in CPS [child protective services] raids, and stimulate false allegations,’ he says.” [ Weekly Standard ] Tags: Catholic Church , Child Protective Services , churches , schools “The pros and cons of ‘mandated reporting.'” curated from Overlawyered

Among other barriers it erects against police accountability, California keeps prosecutors from knowing when and which cops have been shown dishonest. Time for reform [ Jonathan Blanks, Cato ] “NYC has shelled out $384M in 5 years to settle NYPD suits” [ Yoav Gonen, Julia Marsh and Bruce Golding, New York Post ] “Federal Judge Breaks Up Albuquerque’s Car Theft Ring” [ Jacob Sullum, Reason on forfeiture ruling; Tim Cushing, TechDirt ; Ilya Somin on legal implications] Class-action suit challenges civil forfeitures [ George Hunter, Detroit News ; C.J. Ciaramella, Reason ] Update on police union scandal in Orange County, Calif.: union’s law firm will pay $600K to a former mayor of Costa Mesa it targeted for harassment and intimidation [ Steven Greenhut , earlier ] “Thrown Chairs, Resignations, And An Envelope Full Of Cash Follow Exposure Of 2-Man PD’s Acquisition Of $1 Million In Military Equipment” [ Tim Cushing, TechDirt ] Denver cops, before handcuffing a journalist for photogr

The lectures notes are here . This graphic, courtesy of the Dukeminier & Krier web site, will help explain Willard v. First Church of Christ.   Prop2 Class 11 – Easements I curated from Josh Blackman's Blog

The lecture notes are here . Saturday Night Massacre The headline of the New York Times on Sunday, October 21, 1973, the day after the Saturday Night Massacre. This helpful graphic explains the sequence of events on Saturday, October 20, 1973.   Morrison v. Olson This is Ted Olson, who at the time was the Assistant Attorney General for the Office of Legal Counsel. Olson would later serve as President George W. Bush’s Solicitor General. This is Alexia Morrison, who served as the Independent Counsel to investigate whether Olson violated federal law.   NLRB v. Noel Canning Gridlock and Executive Power from Josh Blackman This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.   ConLaw Class 11 – The Separation of Powers I – The Appointment and Removal Power curated from Josh Blackman's Blog

Auto fuel economy standards: “The indirect CAFE program costs the economy at least six times as much as a carbon tax that reduces emissions equivalently.” [ Peter Van Doren and Randal O’Toole , Cato] Whether grounded in official discretion or legislation, cash exactions levied on land development should still need to meet constitutional standards [ Ilya Shapiro and Reilly Stephens on Cato Institute certiorari amicus brief in Dabbs v. Anne Arundel County] A stumbling block for Boulder: “With Two High-Profile Losses, When Do Climate Plaintiffs Start Worrying About Sanctions?” [ Daniel Fisher ; John O’Brien (views of former Colorado AG Gale Norton and current Colorado AG Cynthia Coffman); Adam Morey, New York Post ] Issue isn’t whether climate change should be addressed, but what the Constitution and prudence tell us about whose job that is [ Donald Kochan, L.A. Times ] And a Federalist Society podcast with Kochan on municipal climate lawsuits; “Contract Dispute Cracks the ‘Thin

The lecture notes are here . Dames & Moore v. Regan This is Donald T. Regan, who was the secretary of the treasury in Dames & Moore v. Regan. This is the logo for the Dames & Moore Group Company. Justice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer. Of course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article : Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’

On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability: KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government. But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy. This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.” You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, w

“What a wild story: a prisoner serving 39 years to life started making drawings of golf courses. The drawings made their way to Golf Digest, which wrote about him, then realized his conviction was sketchy, then investigated, and now he’s free.” [ Tom Gara on Max Adler, Golf Digest ] The article quotes one of Valentino Dixon’s pro bono lawyers: “It’s embarrassing for the legal system that for a long time the best presentation of the investigation was from a golf magazine.” Tags: crime and punishment , golf Exoneration on the links curated from Overlawyered

Are public subsidies to low-earning employees a subsidy to their employers, as Sen. Bernie Sanders claims? [ Cato Daily Podcast with Ryan Bourne and Caleb Brown; Bourne in USA Today and National Review ] “To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME” [ David F. Forte, Cato Supreme Court Review ] From two critics of decision: “What Janus Got Right — and Wrong” [ Will Baude and Eugene Volokh ] “More on Suits against Unions for Janus Violations” [ Will Baude ] Earlier here , here , etc. On sexual harassment, social mores have changed; biology hasn’t [ Suzanne Lucas, Law and Liberty ] California’s criminal code is honeycombed with special exemptions for conduct carried on as part of labor activity [ Edmund Pine, California Policy Center last year] Or at least make sure federal law does not provide it an artificial shield: “Congress Should Ban Union Violence” [ Emily Top, Economics21 ; David Kendrick, Cato 1998 ] “Verizon employee leaves work early, prompting months

Many blog articles address how to market for the purpose of attracting new legal clients. When these strategies work, and clients start calling, lawyers feel confident that their businesses are growing. While it is true that the first phone call may be the start of a new client relationship, there is no certainty until the engagement letter is signed—and the initial consultation is often the determining factor as to whether the lawyer is hired or not. The initial consultation is extremely critical to business development. It also sets the tone for the entirety of the case. Here are five tips for making sure it goes well and the client is secured. 1. Don’t Be Afraid to Charge Prospective clients are often looking for a free consultation, despite the old adage that “you get what you pay for.” As a result, lawyers feel pressure to give away their time with the hope of securing new business. However, the prospective client will take the meeting much more seriously when they are paying