There is a standard legal fiction applied in a wide variety of situations: A corporation is the same as a person.  We, for instance, wouldn’t want to give people free license to steal from a corporation, but say it’s not a crime because the theft didn’t harm a person.  By the same token, we wouldn’t want to allow negligent acts that harm corporations to go uncompensated; otherwise, no one would bother to establish them.

Having said that, the blind application of a basic principle to a different concept is absurd.  All of us know that a corporation really isn’t a person, and saying it is doesn’t make it so.  And we don’t want to call a corporation of person if it’s going to interfere with free and fair elections.

The most telling quotation: “My contention has never been that the student did not do the work to earn the grade,” Wyant said. “The problem for me has always been the way it was handled, and the fact that right from the beginning I knew it was not right. Other students do not get that kind of attention.”

Emily Perdue did the work, but it’s a crime because she was given special treatment?  By special treatment, I assume we’re talking about an expedited path for completing coursework after Marshall University treated students in this program pretty shabbily as best I can tell?  And just where is the quid pro quo – the thing that someone at Marshall University was promised in exchange for the favorable treatment?  Again I ask why anyone would take a matter like this before a federal grand jury?

The blogger, “Soodo Nym,” was critical of administrators for dismissing his stepmother as chair of the University’s school of music.  Among other things, he wrote that the dean of the College of Fine Arts was “power-hungry and afraid of his own shadow” and that he “lied” to faculty and left the meeting “embarrassed” for having done so.  He also sent an email in which he said: “We can create much more trouble than we have so far,” which supposedly put Butler’s provost in fear for his own safety.

Several observations:

• It never ceases to amaze me how thin-skinned some people who reach positions of power can  be.  If you are a leader, you should expect to be criticized, fairly or unfairly, from time to time.  It goes with the territory.
• If there’s any area that should be a “free speech” zone, it is a college campus.  I would not want to attend any institution that sued its students for libel for criticizing, even unfairly, its administrators.
• I would much rather have had my accuser publish his accusations on a blog, rather than behind my back, even if more people might see/hear them.  At least you can refute the former.

Who are these four people?  Brother Peter Madoff and his daughter Shana, both lawyers, who were chief compliance officer and compliance director, respectively, in a business that was in blatant non-compliance with all kinds of securities trading laws and sons Mark and Andrew Madoff, co-directors of trading for a business that never really executed the trades it claimed.

Does the trustee allege they were co-conspirators with Bernard Madoff?  No, just stupid.  His legal theory in not-so-legalese: These people shouldn’t be allowed to profit as a result of being dumber than a box of rocks, if that truly was the case – recognizing, of course, that willful ignorance is not ignorance at all.

If only it were always true that people were not allowed to profit from being dumb ….

The last thing I would want would be for the governor (not this governor, but rather governors generally) to have exclusive power to appoint justices.  With only five justices on our highest court and the court’s stranglehold on appellate decisionmaking, West Virginia’s State Supreme Court could easily become dominated by a single governor’s appointments, and the governor could then end up controlling not one, but two, branches of state government.  So much for the fundamental constitutional principle of separation of powers.

By the same token, I’m not keen on the election option either.  The biggest problem: because the U.S. Supreme Court (wrongly in my opinion) equates obscene independent expenditure on elections with core First Amendment free speech rights, judicial seats – like all political seats for that matter – are vulnerable to being bought and paid for by rich lawyers and people like Don Blankenship who have a lot of money.  A secondary problem: I want my justices performing judicial business, not running around the state giving political speeches and eating pinto beans at gatherings of party faithful.

If I had my choice, the lower level judges selected to serve by lottery (described in my previous post) would select one of their own from time to time to continue judicial service as a state supreme court justice for a six year, non-renewable term.

Is Justice O’Connor right?  I think so, as long as we develop a system to replace popular election that is likely to produce the legal profession’s best and brightest and most fair and balanced as state judges.  I really don’t want my judge working the political pinto bean dinner circuit, nor feeling pressure to impose the popular criminal sentence.

Should the Governor be able to appoint judges, possibly with the advice and consent of the Senate?  If that’s the only process, I don’t think so.  Otherwise, we may do little more than place political partisans in positions of judicial power.

Should lawyers play a role in the selection of judges?  Yes, but ….  The people most likely to know whether an individual demonstrates the characteristics necessary to be a good judge are lawyers who interact with him or her regularly.  By the same  token, lawyers often do not appreciate larger policy issues nor do they always act honorably.

What would I do?

• I would solicit applications from all lawyers interested in being judges.  They would submit character references and writing samples.
• I would have a committee made up primarily of non-lawyers review the applicants’ qualifications and designate anywhere from 20% to 25% as the most highly qualified.
• I then would hold a lottery to select the judge, who would serve for six years.  Once he or she served six years, he or she would not be eligible to serve as a judge again.
• Judicial seats would be filled on a rotating basis so more veteran judges could mentor newer judges.

It’s one thing to say that there’s got to be a better system of selecting judges than popular election.  It’s another thing to come up with a truly better system given the vicissitudes of politics, money and self-interest.

At the State Capitol, we will read the most amazing part of the U.S. Constitution – a part not in the original, but quickly added by a wise citizenry – The Bill of Rights.  Democracy is premised on the notion of majority rule; the Bill of Rights seeks to ensure that the majority’s rule is not tyrannical – that the minority have certain rights that cannot be trampled upon by a rabble-rousing majority: the right to go to the church or synagogue or mosque of your choosing, the right to scream from the rooftops that the majority’s rule is corrupt, the right to a home generally free of government intrusion, protection against lynch mob justice and cruel and unusual punishment.

In the Bible, Christ says: “Inasmuch as you have done it unto one the least of these my brothers, you have done it to me.”  That’s what the Bill of Rights is all about – how we treat the least of these – our brothers and sisters with whom we may not always agree.

Take a few minutes and read the Bill of Rights.

The Caperton case and other cases involving questionable judicial campaign contributions ‘cast our whole judiciary in a negative light,’ O’Connor said….  O’Connor believes the solution lies in an independent commission recommending a list of judicial candidates to a state governor, who will make the final decision.

… Washington and Lee University’s School of Law has two truly spectacular public service law programs worthy of recognition:

Virginia Capital Case Clearinghouse. Instead of helping lawyers try to get death penalty sentences set aside after a case has been handled poorly at the trial court level, which is what most law school programs do, VC3 actually helps lawyers in the midst of death penalty proceedings.  VC3 deserves some credit for Virginia’s low death penalty imposition rate.

Black Lung Legal Clinic. When I was a student, I learned that one of the most challenging cases to make was for federal black lung benefits, even if the person were dying or had died from pneumoconiosis.  Washington and Lee law school students have been assisting coal miners and their survivors bring such claims for years and are five times more successful than average.

It’s easy to poke fun at all the rich kids who go to Washington and Lee University, but they did admit a poor kid like me, and some of those rich kids did learn a thing or two about real public service from these fine programs.

• he’s assisting the poor at his local legal aid office
• he’s representing children as part of a CASA program
• he’s working with a death penalty innocence project

… no, he’s handling appeals as an Assistant U.S. Attorney for the Western District of Virginia.  He says: “This appointment enables me to direct my commitment to pro bono work toward public/government service at a time when the District is in need of help.”

Unless things have changed dramatically since I worked for the federal court system, the only things surer than the Fourth Circuit’s affirmance of a criminal conviction or sentence (unless the judge did something crazy like depart downward from the Federal Sentencing Guidelines) are … death and taxes.

The Fifth Amendment’s Double Jeopardy Clause bars someone from twice being tried for the same crime.  Mr. Bowling pleaded guilty in Kanawha County Circuit Court to the credit-card-related charges and ultimately received a suspended sentence and home confinement – possibly not the sentence that should have been imposed, but his sentence nonetheless.

Now the U.S. Attorney’s Office is prosecuting Mr. Bowling yet again for the credit card offenses. This time Mr. Bowling, who pleaded guilty AGAIN yesterday before U.S. District Judge John T. Copenhaver, will receive a minimum mandatory sentence of two years for the same crimes for which he received a suspended sentence and home confinement in state court.

How can that be?  Technically, the Double Jeopardy Clause is not implicated for crimes that are violations of both federal and state laws.  The theory is that the separate federal and state sovereigns have separate interests, and both should have the right to punish someone for the same crime.

Recognizing the potential unfairness of dual and successive prosecutions, the federal Petite Policy requires approval from the appropriate Assistant Attorney General and satisfaction of three prerequisites before a successive prosecution may be launched: (1) the matter must involve a substantial federal interest; (2) the prior prosecution must have left that interest demonstrably unvindicated; and (3) the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.  The U.S. Attorney’s Office in Charleston apparently went through this process before initiating a separate prosecution against Mr. Bowling.

Successive state and federal prosecutions may be permissible legally, but that doesn’t make them right.

“If the law supposes that,” said Mr. Bumble, “the law is a ass — a idiot.”

- Charles Dickens, Oliver Twist

No big deal, right?  An eighth or sixteenth of a penny here or there couldn’t add up to much?  Just $8 BILLION across the industry, estimates one market research firm.  And from whom was the $8 BILLION taken?  Average investors like you and me.

Is the criminal arm of justice going after Mr. Aleynikov to protect you and me?  No, it’s going after him to protect Goldman Sachs.

This week’s edition contains an interesting article about some federally-funded research conducted by WVU health sciences faculty who also moonlight as expert witnesses in railroad workers’ solvents exposure cases.

Several points worth making:

• For those of you who think lawyers are whores, you haven’t met a real whore until you’ve met some of the “expert” witnesses that are paraded regularly through our courtroom doors.  Indeed in all my years associated with the legal system, I can think of only a handful of times when an expert produced an opinion that was inconsistent with what the person paying his or her bill wanted him or her to find.
• The work of James Turner and others in exposing the WVU researchers’ questionable work is an example of fine lawyering.  Lawyers have to become experts themselves to challenge expert witnesses effectively.  Mr. Turner appears to have left no stone unturned in getting to the bottom of this matter.
• If the allegations are true, several remedies are available to address it.  There are federal criminal and civil penalties for research fraud and/or misuse of federal funds, as well as penalties for perjury.  Furthermore, WVU has a system whereby tenured faculty can be stripped of both tenure and their jobs if allegations like these turn out to be true.  Finally, courts can sanction lawyers and others who knowingly perpetrate frauds like this on the court.
• I note that Mr. Turner hired as his expert a University of Michigan neurology professor.  The University of Michigan is one of the nation’s premier research universities  and member of the Association of American Universities.  See “To Research or Not to Research?  That Is the Question.”

“Free-Speech Case for a Debt-Ridden Age”

Any free-speech case in which lawyers’ First Amendment rights are the subject at hand is an appropriate subject for mirth.

“Investing in Lawsuits, for a Share of the Awards”

Instead of investing in stocks or bonds or even mortgage-backed securities, Juridica Capital Management invests in lawsuits.  Juridica, says the New York Times, “invests in one side of a lawsuit in exchange for a share of the winnings.”  To the legally unitiated, this may seem bizarre.  But lawyers who take cases on a contingent fee basis and who enter into co-counsel arrangements in order to finance high-cost litigation, such as class-action lawsuits, do much the same thing.

Juridica seems to be going down a road that is very similar to the one previously taken by bankrupt and near-bankrupt financial services companies, which never seemed to run out of new investment ideas.  Will we soon have a new financial market for lawsuits?  Will we soon pool together legal risks and sell and resell them so that no one can determine their true value?