Monthly Archives: January 2012

One in two lawyers is always wrong (Quotes)

“One in two lawyers is always wrong–and they’re  rich.  What they can’t be is incompetent.  So don’t stress if you are wrong.”

Professor Peter Jan Honisberg, University of San Francisco School of Law


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One step forward, two steps back (Scalia is retarded)

Most laymen normal people take the law as it comes, while law students and lawyers have stupid thoughts like, “I like the result, but don’t agree with the reasoning.”  Many times during my law school career I agreed with outcomes but not reasoning—or with reasoning and not outcomes.  The Supreme Court just wrote one of those opinions wherein they found that GPS tracking of vehicles constitutes a search for 4th Amendment purposes and requires search warrant.  Duh, right.  Well, previous cases had found that GPS tracking devices were not searches because people did not have a reasonable expectation of privacy in the location of their cars.  Police could simply follow the car instead, and so GPS devices did little to alter the privacy concerns. 
The Law (Its Katz, not Cats)
The 4th Amendment protects citizens from unreasonable searches and seizures by government actors.  However, not everything is considered a search.  Before 1967, the 4th Amendment was construed as protecting places—areas that were deemed private.   In the 1967 decision, Katz v. United States, the Supreme Court changed the definition of search for 4th Amendment purposes—stating that “The fourth amendment protects people not places.”  The concurrence in the decision gave us what is now the test for whether or not government conduct amounts to a search—that is whether or not a person has a “reasonable expectation of privacy.”  Katz shifted the focus from places to people and to an understanding of privacy interests more than property interests.  Subsequent cases have fleshed out exactly what that means, but they have been rather consistent in their reasoning.  In this case, Scalia wrote an opinion—properly finding that a GPS device attached to a car amounts to a search—but stated, “”The government physically occupied private property for the purpose of obtaining information, we have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the 4th Amendment when it was adopted.”  But, being Scalia, he did acknowledge the existence of the “reasonable expectation of privacy” test, just failed to apply it.  Oh boy.  Even Justice Alito in his concurrence noted that Scalia was wrong—in that Katz had done away with any physical intrusion analysis. 
The problem is that application of bad law—even if it gets the right result may result in a shift back towards a physical space formulation for 4th Amendment analysis in the future.  Let’s hope not.  In the meantime here is the very long read and drive free of warrantless GPS devices.

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Filed under Criminal Law

Guantanamo by the numbers (sad)

I have to agree with the government that some prisoners at Gitmo are too dangerous to release even though we lack adequate evidence to prosecute them.  However, no matter what one’s political persuasion, Gitmo has been an overall failure.  America can and should do better than this.  If you can stand it, look at the numbers.

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Be careful what you ask for (Attorney’s fees in contracts)

Common usage creates some confusion in this area, but lawyer fees are the amount an attorney charges his client, whereas attorney’s fees are costs of litigation potentially shifted between parties.  There are no attorney’s fees at common law.  Usually you pay for your lawyer, I pay for mine.  However—attorney’s fees can be awarded by statute or by contract. 
A common attorney’s fee provision reads something like this:
“The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.”
Some parties to contracts attempt to create a more one-sided risk regarding attorney’s fees, with clauses such as the following:
“The employer shall have the right to collect from the employee its reasonable costs and necessary attorney’s fees in enforcing this agreement.”
You thought you were so smart when you wrote that clause.  Guess what?  California has other plans for you.  Any provision calling for an award of fees to only one contracting party is deemed to apply to any contracting party who prevails in litigation under the contract.  See CA Code Civ. Proc. § 1717.  So, anytime one creates a one sided attorney’s fees provision, it is construed bilaterally and is binding on all parties.  Considering the uncertainty in litigation its generally best to stay away from attorney’s fee awards altogether.  Things have come to a pretty pass, goodness knows what the end will be, so let’s call the whole thing off.  (Louis Armstrong anyone?)  So, next time you are writing a really creative contract provision and think you’re really smart—remember the California legislature might just be one step ahead of you, and that provision may have unintended consequences.

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Filed under Contract