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From the Legal Profession Blog:

The Iowa Supreme Court has dismissed ethics charges against an attorney, rejected the recommendation of its Attorney Disciplinary Board. The board had sought a suspension of no less than nine months. . . .  The police obtained a warrant to search his house after the accident. They seized a firearm that the attorney had lawfully accepted custody of in 2006. Because he later became a crack addict, the possession of the weapon became unlawful. He was convicted of a federal firearms  offense. The issue before the court was whether the conduct that led to the conviction warranted additional discipline.

The court answered in the negative, concluding that the evidence failed to establish a nexus between the conduct and the attorney’s fitness to practice law:

From the Court’s opinion:

The board has established that [the attorney] was convicted of a felony for knowingly possessing a firearm while being an unlawful user of, or addicted to, a controlled substance. However, the board has not demonstrated how this conviction relates to [his] fitness to practice law. [His] illegal possession of a firearm has not affected the professional relationships he has with his clients, fellow lawyers, or judges. This criminal conduct has not called into question his ability to competently and vigorously represent clients in important controversies and guard confidential information. [He] legally gained possession of the firearm on behalf of a client prior to his struggles with addiction; therefore, the nexus linking his criminal conduct to his fitness to practice law is tenuous.

Two pieces to compare and contrast the BFF public choice relationship between the United States and G.E.

First, from the Times, an article titled G.E.’s Strategies Let It Avoid Taxes Altogether:

The company reported worldwide profits of $14.2 billion, and said $5.1 billion of the total came from its operations in the United States.

Its American tax bill? None. In fact, G.E. claimed a tax benefit of $3.2 billion.

That may be hard to fathom for the millions of American business owners and households now preparing their own returns, but low taxes are nothing new for G.E. The company has been cutting the percentage of its American profits paid to the Internal Revenue Service for years, resulting in a far lower rate than at most multinational companies.

Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore. G.E.’s giant tax department, led by a bespectacled, bow-tied former Treasury official named John Samuels, is often referred to as the world’s best tax law firm. Indeed, the company’s slogan “Imagination at Work” fits this department well. The team includes former officials not just from the Treasury, but also from the I.R.S. and virtually all the tax-writing committees in Congress.

Second, an opinion piece by John Stossel, titled The Cozy Government Business of Handing Out Favors to Folks With Connections:

In America today, the biggest recipients of handouts are not poor people. They’re corporations. . . .  “General Electric is structuring their business around where government is going … high-speed rail, solar, wind. GE is lining up to get what government is handing out.”

Businesses love to have government as their partner. There’s safety in it. Why take chances in a marketplace full of fickle consumers and investors, when you can get secure money and favors from the taxpayers? It’s an old story, and free-market advocates as far back as Adam Smith warned against it.

The public choice relationship between the United States and G.E. is textbook rent-seeking, eerily reminiscent of Taggart Transcontinental from Atlas Shrugged. Build exactly what the government wants, receive massive subsidies from the government, and pay no taxes. What a wonderful business model? Meanwhile highly effective business models that do not fit into the government’s agenda (think Rearden Metal or Wal-Mart) receive no such subsidies or tax breaks, and are effectively competing at a disadvantage. Frankly, I’ll take Rearden Metal over a ride on the Taggart Transcontinental any day.

The other day I blogged how the future of legal scholarship likely lies in electronic self-publishing. Today’s Times has a piece about a very successful self-publisher who became so successful, she signed a lucrative deal with a traditional publisher.

In the past year Ms. Hocking, a 26-year-old from Minnesota, became an indie heroine in the literary world for publishing nine books that sold a total of more than one million copies, nearly all of them in e-book form, earning almost $2 million for her efforts.

But for Ms. Hocking, self-publishing has had its limits. On Thursday she announced that she had sold a four-book series to St. Martin’s Press, ending a frenzied weeklong auction that involved nearly every major publisher in the business, including Random House, Simon & Schuster and HarperCollins.

St. Martin’s, part of Macmillan, paid more than $2 million for the world English rights to the “Watersong” series, Ms. Hocking’s latest books in the young-adult paranormal genre.

Why did she revert to a traditional publisher? She notes that they still have value, specifically with respect to marketing.

“I’ve done as much with self-publishing as any person can do,” Ms. Hocking said in an interview on Thursday. “People have bad things to say about publishers, but I think they still have services, and I want to see what they are. And if they end up not being any good, I don’t have to keep using them. But I do think they have something to offer.”

Publishers, weary of hearing about their disposability in an age when writers can self-publish their work on the Internet and sell it on Amazon.com, said they were vindicated by the news.

…

That was what made Ms. Hocking seek a traditional publisher, she said, after months of hearing from readers who were frustrated that they couldn’t find her books in stores. She was also tired of spending time formatting her books, designing covers and hiring freelance editors — all tasks that fall to the self-publishing author.

I wonder, though, in the absence of self-publishing, how far would Hocking have made it? Would a publisher have ever accepted her book? The world may never know. Interesting development.

 

I’m a little confused. In Dickerson v. United States, the Supreme Court 7-2 held that Miranda, long recognized as a prophylactic against police misconduct, was in fact a constitutional right. Congress could not abrogate that right by staute. How can the President contract that Constitutional right, in this case the “public safety exception,” via a memorandum or regulation? Isn’t it the Court’s prerogative (for better or worse) to make that call?

From the WSJ:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades. . . .[The Good Faith] exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.. . .

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This change stems from the Christmas Day 2009 attempted suicide attack, where the would-be terrorist Umar Farouk Abdulmutallab was read his Miranda rights after an hour of interrogation. After the warnings, he lawyered up.

The article notes that the DOJ thinks this Change can be done without Congressional authorization. Congress unsurprisingly thinks it can be done with legislation.

The Justice Department believes it has the authority to tinker with Miranda procedures. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

“I don’t think the administration can accomplish what I think needs to be done by policy guidance alone,” said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. “It may not withstand the scrutiny of the courts in the absence of legislation.”

If this is a Constitutional right, how can Article I or Article II change it? Wasn’t that the entire point of Dickerson. That 18 U.S.C. § 3501 was unconstitutional because it statutorily limited a Constitutional right?

What am I missing here?

Update: Commenter Jacob Berlove writes:

The last sentence of the article: Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn’t be admissible in court, the memo says. If the statements won’t be used in court, what’s the big deal?

My reply:

Is it that simple? If the government does not seek to use the evidence in Court, they can ignore the Constitutional right? Isn’t the point of Miranda to deter police misconduct–not just to prevent its admission in Court. I don’t think the US would need whatever statements the Christmas Day bomber made in order to convict him. Thus, with impunity, they could ask any sorts of questions notwithstanding Miranda, and convict him just the same. It seems they can have their cake, and eat it too.

This position really seems to defeat the purpose of Miranda. I suppose one day the Court will have a chance to opine on this issue. But how? There won’t be a motion to suppress because these statements will never be introduced. Perhaps under a 1983 action for violation of civil rights? That won’t get very far. Perhaps a due process challenge? It seems any proceeding would be collateral to the conviction. In essence, this action is shielded from any meaningful judicial review (I think).

Wow. I think I agree with Ralph Nader, kinda. I have blogged before about the farce that is college athletics (see here, here, and here).

From ESPN:

Consumer advocate Ralph Nader is calling for the elimination of college athletic scholarships, saying the move is necessary to “de-professionalize” college athletes.

“As we near the exciting conclusion of ‘March Madness’ — which would more accurately be described as the 2011 NCAA Professional Basketball Championships — it’s time we step back and finally address the myth of amateurism surrounding big-time college football and basketball in this country,” said Nader, whose League of Fans is proposing that the scholarships be replaced with need-based financial aid. The Associated Press obtained a copy of the proposal Thursday, ahead of its official release. . . .

Nader, a former presidential candidate, argued that his plan would also help reduce the “win-at-all-costs” mentality in high schools, by reducing the incentive of college scholarships.

“An entire industry has developed in the youth sports arena — club teams, personal trainers, etc. — to prey on families’ dreams of an athletic scholarship,” he said. “The lure of the elusive athletic scholarship is the primary — sometimes the only — marketing tool these youth sports entrepreneurs use.”

“We’ll use all the levers,” Nader said. “We’ll use the parents of athletes who’ve been mistreated and sick, and forced to play when they’re injured.”

Right on Ralph! College athletics are really unsafe at any speed. What does he propose?

Nader said that colleges should either integrate athletics into the educational mission by eliminating college scholarships, or, “openly acknowledge the professionalism in big-time college sports, remove the tax-exempt status currently given to athletic departments, and make universities operate them as unrelated businesses.”

I have a different solution than Nader. Replace these “scholarships” with a simple paycheck. Pay these professional athletes–that is what they are–for their labor. If they decide to go to classes, let them earn an academic scholarship like the rest of the students. Let’s see how that works out. Or maybe they can pay their own tuition, borrowing against their future earnings (if any) as professional athletes.