Legal Pad

Because Kozinski Must Always Have His Fun

A brief excerpt from Chief Judge Alex Kozinski’s concurrence today, in which he recites case law on what constitutes a crime of violence (bonus points for whoever is first to spot Kozinski’s special tweak of a certain liberal lion on the Ninth Circuit… just leave it in the comments section):

“[W]e often disagree. See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not); United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088 (Duffy, J., dissenting) (“I respectfully dissent.”); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J., specially concurring) (or is it?); United States v. Trinidad- Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-inbodily- injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting) (Bull!).

— Dan Levine

Class Action Against NCAA Yields "Historic" Ruling

A federal judge yesterday threw out the National Collegiate Athletic Association’s motion to dismiss an antitrust class action over the use of student-athletes’ images and likenesses, and a legal team for the athletes is celebrating getting the “green light” to delve into discovery.

“We think it’s a historic ruling because no one, to our knowledge, has ever been able to look at the financial records of the NCAA and all of its hundreds of member schools and conferences to total up the value of the merchandise they’re selling,” said Jon King, a partner in Hausfeld’s San Francisco office and the players’ lead attorney.

The class action was filed by former UCLA basketball player Ed O’Bannon last July. Among other allegations, the suit says the NCAA works together with Collegiate Licensing Company and a video-game company to distribute products using players’ images without compensating them. In her order, Northern District Judge Claudia Wilken wrote that O’Bannon’s allegations “sufficiently support O’Bannon’s theory that, after NCAA and its members obtain releases from student athletes, CLC brokers agreements that do not compensate him or the putative class members for the use of their images. This demonstrates CLC’s role in the alleged conspiracy.”

King said the legal team started the suit with the two groups of athletes who generate the highest revenue, but that other sports are growing ever more popular and increasingly driving products the NCAA sells. “We view this really as just the beginning, and that more antitrust cases will follow on this,” he said.

— Kate Moser

Republicans Draft Legislation with Focus on Biz-friendly Deregulation

State Republican lawmakers on Wednesday are expected to unveil a “jobs package” of legislation that includes a familiar target: employment litigation.

Sen. Minority Leader Dennis Hollingsworth has already introduced early drafts of two bills. Although the bills’ specifics are still being worked out, SB 990 would amend laws guaranteeing meal breaks to workers while SB 988 would change alternative work week rules.

“The main purpose is to spur job creation and to help businesses with less regulation,” said Hollingsworth spokesman Hector Barajas. Republicans will pursue their package of 15-20 bills separately from budget negotiations, Barajas said.

30 Years in San Quentin, Granted New Hearings

U.S. District Judge Saundra Brown Armstrong has ordered an evidentiary hearing in the 30-year-old capital case against Marvin Pete Walker, Jr., formerly of Santa Clara County.

Walker, who was convicted of killing a 15-year-old in a botched armed robbery attempt, appealed on the basis of ineffective assistance of counsel. Judge Armstrong agreed that he had at least raised doubts sufficient to warrant new inquiries, according to the Mercury News.

State prosecutors insist Walker got a fair trial, but Judge Armstrong wants the hearings to investigate whether or not Walker's former attorney, Dennis Kollenborn, failed to investigate wither Walker's accomplice was the actual gunman, among other alternate crime theories.

— Cynthia Foster

UCSD and Cal Western Say Taxpayers Wouldn't Pay for School Merger

According to a new post over at Inside Higher Ed, administrators at UC-San Diego are touting the possible merger between the school and Cal Wastern Law as "cost neutral" to taxpayers.

“There are no professional schools in the University of California that do not rely on state funding, and we’re saying this will not rely at all on state funding,” said Paul Drake, senior vice chancellor for academic affairs at San Diego.

In an email to me today, Drake had this to say about how the merger could be "cost neutral":

"The merger would essentially maintain the current stand-alone funding model of CWSL, which basically relies on student tuition to cover the vast majority of its costs. There are no significant startup or building costs because CWSL and its faculty already exist. Hence UCSD would not have to invest any of its own or state monies in the operation, as we would if we were starting a law school from scratch."

UCSD and Cal Western have teaching and research relationships that go back several years. Vice Chancellor Drake told Inside Higher Ed that he expects the merger proposal to go before the UC Board of Regents during the 2010-2011 academic year. I still say don't hold your breath.

— Cynthia Foster

Jackson Physician Refused to Pose for Handcuffed Photo Op, Says Lawyer

The lawyer for Dr. Conrad Murray, the physician who authorities believe had an involvement in the death of pop star Michael Jackson, is telling the press that negotiations between his client and prosecutors broke down when the former refused to pose for a handcuffed photo op.

According to L.A. Now, law enforcement sources had claimed that the doctor had objected to making a formal court appearance. Murray's attorney called those allegations "bullcrap."

“I told them there is no way that I’m going to let my client sit in jail so you can have your show and parade him into court in handcuffs,” [Murray's attorney Ed] Chernoff said. “That’s when they pulled the plug.”

Prosecutors are now saying they'll file charges against Murray on Monday.

— Cynthia Foster

A Friday Aside: Hitler, Too, Delves Into Demon Sheep Territory

I admit: I can’t get enough of the ‘Hitler is informed about…’ parody videos. When I have spare moments at my desk (NB for corporate: mostly during lunch), I sneak in one or two of them. They are of varying edge; my favorite is Hitler having a conniption about Michael Jackson’s death because it means the King of Pop can’t play Der Fuehrer’s birthday party. Sometimes, I push links on innocent coworkers and friends, a handful of whom enjoy them as much as I.

So now it’s your turn, Legal Pad readers. This morning I was delighted to see Jim Geraghty’s interpretation of Hitler being informed that his demon sheep ad didn’t work. Enjoy.

— Dan Levine

DOJ Still Has A Lot to Say About Google Books

The Department of Justice still has concerns about a settlement between Google and a class of authors and publishers, saying the deal still gives Google a monopoly on orphan works, the New York Times writes.

The DOJ filed its 31-page comments late Thursday. More tomorrow as this story develops …

— Amanda Royal

Chen Re-Approved by Senate Judiciary Committee

After being re-nominated by President Obama, U.S. Magistrate Edward Chen has been approved for a federal judgship by the Senate Judiciary Committee.

The committee, according to SFGate, voted 12-7 to approve Chen. The vote was identical to Chen's previous Senate Judiciary Committee vote. 

Chen has faced criticism from Senate Republicans (free reg. req.) because of his previous position as staff counsel at the ACLU.

— Cynthia Foster

Fiorina: Nobody Said Attention-Getting Was Pretty or Sane

In response to widespread criticism of Carly Fiorina's bizarre new Senate ad, the campaign has seemed to take a "Duh, that's why we made it" approach to dealing with the now-viral video that features robotic sheep and a trippy Darth Vader-esque voice over.

According to spokeswoman Julie Soderlund, who spoke with the LA Times blog PoiltiCal via email:

"... the Democrats are all out there attacking the video which is both predictable and fine by us since the more people talk about it, the more people watch it, which of course is the whole point."

It's not really just the Democrats who are "attacking" the video, though.

Assemblyman and Senate candidate Chuck DeVore (R-Irvine) chose to capitalize on the #demonsheep Twitter tag, used by watchers of the video to broadcast nuggets such as "Hows the Tea Party convention going? Did they chase out all the #demonsheep ?"

DeVore purchased the demonsheep.org domain and posted on it a video of him mocking Fiorina, situated jauntily within a lo-fi site design that takes this whole thing to new levels of ridiculous.

Perhaps most alarmingly, a commercial producer tells the Fishbowl LA blog that Fiorina's people likely shot all of the sheep footage themselves, rather than using stock footage. Hope she at least didn't use any washed up liberal livestock from Sonoma County.

— Cynthia Foster