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Let’s see how this goes.

A very cool piece in the Times about how Brits can now gain access to legal services in department stores–that is law firms that are not bound by the ethical requirement that only lawyers can run them, and have access to the capital markets–as a result of the new Legal Services Act.

Now, with calls increasing for a similar model in the United States, the country’s chief legal ethics authority intends to propose a plan to permit law practices to have limited outside ownership.

Such a move could upend the industry’s stiff adherence to the partnership system in favor of full-fledged corporations that have access to the capital markets.

Some legal experts envision a marketplace that would become more customer-friendly, affordable and accessible for the average consumer: one-stop shops on street corners that bundle, for instance, legal, banking, accounting and real estate services; drive-through-style law firms with numerous branches across the country, similar to accounting shops like H&R Block; more complex legal services offered online; and, of course, retail stores with a legal unit.

Allowing access to the capital markets will provide incentives to operate more efficiently, and invest in technology!

Regulators hope giving law practices access to private capital will allow them to invest in technology and other resources that could help them operate more efficiently and at cheaper rates.

“That surely expands the pool of individuals and organizations that have access to effective legal services,” said Mark Ross, the vice president of legal services at Integreon, an international legal process outsourcing company.

I find interesting the arguments of legal ethicists that non-lawyers would not be bound by the ethical code, and act unethically.

“The idea is that nonlawyers might not have the same codes of ethics,” said Andrew M. Perlman, a legal ethics professor at Suffolk University Law School and the chief reporter for the American Bar Association’s Ethics 20/20 commission, which is preparing the draft recommendation. “They might not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”

One ethical concern is about lawyer-client privilege, as shareholders would have an interest in knowing who the firm’s clients were and the specifics of their cases. Another is that lawyers might feel pressured, for example, to settle a lawsuit to make shareholders happy, no matter what the best interest of their client was.

Is this really much different from the incentives that currently face lawyers? Do lawyers not act unethically?

But such thinking derives from the naïve assumption that the lawyers “who currently own law firms are not motivated by profit,” said Ken Fowlie, the executive director of Slater & Gordon, an Australian law firm that was the first in the world to become a publicly traded company.

If anything, going public has increased transparency, Mr. Fowlie said, and has separated the ownership from the lawyers, giving the lawyers more distance from business side pressures than in traditional partnerships.

Don’t look here folks. Nothing to see. Keep moving on.

This funny interchange from Lafler v. Cooper:

JUSTICE BREYER: If he rejects it, there is no plea agreement. Now the defendant must plead. He can plead guilty or not guilty. And whatever flows fromthat, flows from that.

MS. NEWMAN: That’s also a perfectly acceptable — that’s also a perfectly acceptable remedy. The purpose — the reason -JUSTICE

SCALIA: Wait. Both can’t be perfect. Either he has another trial, although he’s just been found guilty by a jury of 12, with an entirely fair proceeding or else he doesn’t have a new trial.

JUSTICE BREYER: His suggestion is perfect but mine is more perfect.

(Laughter. )

MS. NEWMAN: Okay.

(Laughter. )

As Lyle notes, if there had been a fourth vote to dissent in Cavazos v. Smith there would have been enough for cert. I can only presume that Justice Kagan was the holdout.

The Court really called out the 9th Circuit for repeatedely disobeying:

The decision below cannot be allowed to stand. This Court vacated and remanded this judgment twice before,calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to state courts in§2254(d) habeas cases. Each time the panel persisted inits course, reinstating its judgment without seriously confronting the significance of the cases called to its attention. See Patrick v. Smith, 550 U. S. 915 (vacating and remanding in light of Carey v. Musladin, 549 U. S. 70 (2006)), reinstated on remand, 508 F. 3d 1256 (2007) (per curiam); 558 U. S. ___ (2010) (vacating and remanding in light of McDaniel v. Brown, 558 U. S. ___ (2010) (per curiam)), reinstated on remand sub nom. Smith v. Mitchell, 624 F. 3d 1235 (2010) (per curiam). Its refusal to do so necessitates this Court’s action today.

One interesting note dealt with the role of clemency (this reminded me of the Case of the Speluncean Explorers). The Court’s order effectively means that the defendant–who has been free for five years–must report back to prison, absent executive clemency (or the 9th Circuit making some other shit up):

It is said that Smith, who already has served years inprison, has been punished enough, and that she poses nodanger to society. These or other considerations perhapswould be grounds to seek clemency, a prerogative granted to executive authorities to help ensure that justice istempered by mercy. It is not clear to the Court whether this process has been invoked, or, if so, what its course hasbeen. It is not for the Judicial Branch to determine the standards for this discretion. If the clemency power isexercised in either too generous or too stingy a way, that calls for political correctives, not judicial intervention.

Ginsburg, whose dissent drips with empathy, basically says this is not fair.

Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By takingup the case, one may ask, what does the Court achieveother than to prolong Smith’s suffering and her separationfrom her family. Is this Court’s intervention really necessary? Our routine practice counsels no.

RBG is not willing to make an example out of the 9th Circuit here!

In sum, this is a notably fact-bound case in which theCourt of Appeals unquestionably stated the correct rule of law. It is thus “the type of case in which we are most inclined to deny certiorari.” Kyles v. Whitley, 514 U. S. 419, 460 (1995) (SCALIA, J., dissenting). Nevertheless, the Court is bent on rebuking the Ninth Circuit for what it conceives to be defiance of our prior remands. See ante, at 8. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.

In sum, it’s not fair to dispose of this on summary disposition

Peremptory disposition, in my judgment, isall the more inappropriate given the grave consequences of upsetting the judgment below: Smith, who has already served ten years, will be returned to prison to complete a sentence of fifteen years to life. Before depriving Smith of the liberty she currently enjoys, and her family of hercare, I would at least afford her a full opportunity to defend her release from a decade’s incarceration.

 

Justice Thomas dissents from denial of cert on the Utah cross memorial case.

Thomas rips into Lemon:

Unsurprisingly, the Tenth Circuit relied on its own precedent, rather than on any of this Court’s cases, when it selected the Lemon/endorsement test as its governing analysis. Our jurisprudence provides no principled ba- sis by which a lower court could discern whether Lemon/endorsement, or some other test, should apply in Establishment Clause cases. Some of our cases have simply ignored the Lemon or Lemon/endorsement formulations. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Good News Club v. Milford Central School, 533 U. S. 98 (2001); Marsh v. Chambers, 463 U. S. 783 (1983). Other decisions have indicated that the Lemon/endorsement testis useful, but not binding. Lynch v. Donnelly, 465 U. S. 668, 679 (1984) (despite Lemon’s usefulness, we are “unwillin[g] to be confined to any single test or criterion in this sensitive area”); Hunt v. McNair, 413 U. S. 734, 741 (1973) (Lemon provides “no more than helpful signposts”).Most recently, in Van Orden, 545 U. S. 677, a majority of the Court declined to apply the Lemon/endorsement test inupholding a Ten Commandments monument located on the grounds of a state capitol.2 Yet in another case decided the same day, McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 859–866 (2005), the Court selected the Lemon/endorsement test with nary a word of explanation and then declared a display of the TenCommandments in a courthouse to be unconstitutional. See also Van Orden, supra, at 692 (SCALIA, J., concurring) (“I join the opinion of THE CHIEF JUSTICE because I think it accurately reflects our current Establishment Clause jurisprudence—or at least the Establishment Clause jurisprudence we currently apply some of the time”). Thus, the Lemon/endorsement test continues to “stal[k]our Establishment Clause jurisprudence” like “some ghoulin a late-night horror movie that repeatedly sits up in itsgrave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398 (1993) (SCALIA, J., concurring in judgment).

The bulk of the opinion points out the indeterminancy of the Lemon test and the endorsement test.

One might be forgiven for failing to discern a workableprinciple that explains these wildly divergent outcomes.Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion, but instead asks, based on terms like “context” and “message,” whether a hypothetical reasonableobserver of a religious display could think that the government has made a law “respecting an establishment of religion.”7 Whether a given court’s hypothetical observer will be “any beholder (no matter how unknowledgeable), or the average beholder, or . . . the ‘ultra-reasonable’ beholder,” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 769, n. 3 (1995) (plurality opinion), is entirely unpredictable.

Once again, Justice Thomas stands alone.