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Thank You, President Nixon

Posted in Access on Friday July 25 2014 @ 11:47am

What's older than the Federal Rules of Evidence, Wheel of Fortune, and the Betamax? The Legal Services Corporation, which turns 40 today.

Nearly 21% of the U.S. population qualifies for legal aid -- almost double the number from 1974, when only 12% met the requirements.

According to Senator Mary Landrieu, over 25% of Louisiana qualifies. These are difficult economic times, and people who never before found themselves struggling now rely on legal services to maintain fair housing, child support, and other basic needs.

Others who benefit from legal services include:

* Victims of the Oso mudslide in Washington state
* Law students who pursue public interest careers
* Innovators in the technology field, such as LawHelp Interactive
* Veterans facing foreclosure

Still, legal services is struggling mightily, as it has for decades. Rural providers are closing their doors, and urban providers are stretched to their limit. Meanwhile, LSC funding is only slightly above the all-time low. Who knew we would be pining for Nixon?

A 40th Anniversary Kick-Off will be held September 14-16 at the Omni Shoreham in Washington, DC. Who knows, maybe Richard Nixon's head will be among the guests.

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Bald, Hostile Aliens Eat Probate Court!!!!!!!!!

Posted in Probate on Thursday July 24 2014 @ 1:13pm

No, they didn't. But the entertainment world is abuzz with mundane news about wills and estates.

How did this happen? What about stars behaving badly? What about new summer blockbusters? Is everyone at TMZ studying for the bar? (Fun fact: the founder of TMZ has a law degree.)

The so-called news about Philip Seymour Hoffman leaving his estate to his partner is the simplest legal problem ever. See, e.g., Philip Seymour Hoffman Didn't Want Trust Fund Kids, Filing Says, Christie D'Zurilla, L.A. Times (July 21.2014).

The spouse (or, here, longtime companion, but still mother of his children) takes, unless there is a step-parent, in which case the step-parent shares with the surviving children. This handy National Paralegal College guide to Intestate Succession Rules makes the process easy to understand. You don't even need a will to accomplish this.

Simple? Utterly. Rare? Not at all. Newsworthy? Perhaps, in that Hoffman was a famous actor who died before his time, but not because he did anything unusual with his will. Startling headline? Nope! The media might just as well have proclaimed, Philip Seymour Hoffman Ate Breakfast Daily, While Alive!

So what have we learned? Entertainment news just made a big deal out of an everyday legal issue. Because the topic is wills, something everyone will have to deal with some day, it could have been informative. Rather, the trending story has people thinking that leaving your estate to your spouse is some kind of probate circus trick.

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Holiday Reading

Posted in Hype on Friday July 04 2014 @ 5:35pm

Constitution of the United States.

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I Hope A Gerrymander Falls On You

Posted in Elections on Tuesday June 10 2014 @ 9:04pm

I thought you said she was dead!
That was her sister, the Wicked Witch of the East. She's worse than the other one!

Before you go celebrating the demise of Eric Cantor's career, consider what happened here: he was regarded as too leftist for voters. That's right: too left.

How did he lose? His opponent created or took advantage of the perfect twister. Thanks to wonky friends in high places (namely Bill Raftery and Roger Hartley), we can sum it up as follows:

Passion over paper. Opponent Brat's people pounded the pavement and knocked on doors, creating a groundswell of support. Meanwhile, Cantor played it old school, sending flyers via snail mail. Which do you suppose was more effective? People vote with their hearts, not with their heads. As Bill says, Passion and commitment beat out money.

Labels. Brat labeled Cantor as a left-wing Obama-loving candidate. The label stuck. This may not make sense to some of you, but let me explain. In some circles, anyone who voted to reopen the government was siding with Obama. (One label that didn't stick -- Cantor's attempt to label Brat as a liberal professor. All professors are liberal, right?)

So-Called Amnesty. Immigration is a hot topic for people, particularly those who feel (rightly or wrongly) disenfranchised for whatever reason. For example, it is a popular idea that immigrants are here for the FREE MONEY. (Apparently, they give FREE MONEY to people who travel extraordinarily long distances to work in poultry plants.) Supporting that long and somewhat illusory Path to Citizenship was a factor, although not *the* deciding factor, in Cantor's loss. (As for what that means for future support of immigration reform, see Why Did Cantor Lose? Not Easy to Explain, Nate Cohn, June 10, 2014.)

Gerrymandering. What happens when a diabolical plan is a little TOO successful? See: GOP gerrymandering in the Commonwealth. Surround yourself with the most die-hard, rightward population, and the Tea Party is guaranteed a seat. Hartley says, The GOP has imprisoned themselves into districts they will not be able to escape from. For more insight and several nifty visual aides, see America's Most Gerrymandered Congressional Districts, Christopher Ingraham, Washington Post (May 16, 2014).

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To Read

Posted in Criminal on Saturday March 15 2014 @ 8:27am

The new New York Review of Books is in, and as usual there is so much to see. We are going to focus on the ads -- yes, the squillions of book ads, all of which look good but some of which may be particularly interesting to court-o-ramans:

This list is not exhaustive! Happy reading!

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The Five Percent

Posted in Criminal on Tuesday March 04 2014 @ 11:55am

What is cruel and unusual for the purposes of the Eighth Amendment? The U.S. Supreme Court held, in Atkins v. Virginia, that executing mentally retarded defendants amounted to cruel and unusual (again with capacity!), and was thus unconstitutional. What that decision left out, however, was what was meant by mentally retarded or intellectual disability.

States established criteria in their crazy patchwork way. As one can imagine, the results are not uniform. The Death Penalty Information Center (DPIC) compiled a state-by-state list of definitions.

Many states require a particular IQ -- usually around 70. But what about statistical deviation? IQ tests are only so accurate (and, some might argue, not very). Florida requires a 70. IQ is usually determined as a score, plus or minus 5. So, what of those plus-or-minus-5 group? One death row inmate in Florida is seeking reprieve due to his raw score of 71. See Supreme Court to Revisit IQ Rule in Death-Penalty Cases, Jess Bravin, Wall Street Journal (March 2, 2014). See also Hall v. Florida: Florida's Attempt to Limit Atkins' Constitutional Protection, John H. Blume, American Constitution Society (February 20, 2014).

See the SCOTUSblog resources on Hall v. Florida for more.

How could an outcome for Hall affect states in the future? See the DPIC's States That Have Changed Their Statutes to Comply With the Supreme Court's Decision in Atkins v. Virginia. If the Court finds for Hall, expect a similar update incorporating language and guidance from the opinion.

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Underage On All Counts

Posted in Juvenile on Sunday March 02 2014 @ 7:33am

Minors can't consent to sex -- the age varies from jurisdiction to jurisdiction, but it is usually 16 or so, sometimes with various qualifiers. See Age of Consent in North America, Wikipedia. Moreover, anyone under the age of 18 lacks capacity to contract. So how can a minor be prosecuted for doing a combination these things -- contracting to sell sex?

They are. Rather than services or housing or even -- gasp! -- sex ed, children picked up for prostitution are being prosecuted for a crime they cannot possibly have the capacity to commit. One court (at least) is taking another approach. See Courts Take A Kinder Look At Victims Of Child Sex Trafficking, NPR Staff (March 1, 2014). See also the wonderful policy resources provided by the Polaris Project: Sex Trafficking of Minors and Safe Harbor.

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We're 6 and We Know It

Posted in Hype on Tuesday December 31 2013 @ 9:21am

Six years ago we came up with the idea of As the courts are purportedly the least dangerous branch of government, so would this be the least dangerous blog. Sure, there were scores of legal blogs (blawgs), but almost none devoted to the courts themselves.

Six years ago it seemed like a crazy idea that just might work. My good times at the Jur-E Bulletin had come to a close. Although we branched out into new adventures, we always kept one foot in the court administration policy world.

Since then, we've brought you annual holidays such as Valentine's Day at probate courts around the country, and haunted Halloween courthouses. We continue to rail against both piss-poor research and bad ideas. To our great surprise, we grew readership beyond our starter Jur-E audience, and shot into the greater blawgosphere, meeting a bunch of interesting people along the way.

What's in our future? We plan to continue this blog, and we pray that people will keep reading and contributing. Whether we find ourselves discussing the rise of bitcoin, the extinction of the landline, or yet more traffic court basics, we promise to keep it real and fun.

In 2014, we wish all courts better funding, continued staff dedication (seriously, have you ever met some of these people? So committed!), and better public understanding. Happy birthday to us, and Happy New Year to you!

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Read All Over

Posted in Truth Is Stranger Than (Legal) Fiction! on Thursday December 05 2013 @ 6:34am

A few good reads --

  • So, you think you know what the Hobby Lobby case is all about? This is a case where everyone seems to have an opinion, although few are aware of the actual questions involved. The Volokh Conspiracy has a wonderful series about Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialty Store v. Sebelius: Hobby Lobby, the Employer Mandate, and Religious Exemptions Eugene Volokh, The Volokh Conspiracy (December 2, 2013). Links to the rest of the series are provided therein.

  • Volokh Conspiracy also cites a great local (to us) article about solo firm problems: Jim Hannah on Abandoned Practices of Dead or Disbarred Lawyers, Will Baude, The Volokh Conspiracy (December 2, 2013). We read it first, in an actual paper, but they beat us to the posting punch. Dear local paper: more like this, less like the other. Thank you!

  • The Unemployed Lawyer, ever deft, has a good explanation in the latest issue of Article 25: Courthouse Crap, Unemployed Lawyer, Article 25 (November 27, 2013). Yes, court staff ARE overburdened and underfunded, and the end is nowhere in sight. For some background, see Coalition Going to Court over Sheriff's Homeless Strategy, Ann Thompson, WVXU (October 15, 2013), and related stories (follow links from the WVXU story). Full disclosure: the sheriff in question is our sibling's boss, and he's a breath of fresh air in this county. We wish people would work WITH the new guy -- he seems to sincerely welcome it, and he has some good ideas.

  • Our apologies for thinking that the Ohio man mentioned in this story must be from Cleveland. No, he is from our very own Hamilton County. Sorry! See also Paper Terrorism, Prisoners, and Pro Se Mischief, David Giacalone, shlep: the Self-Help Law ExPress (December 16, 2006). We love being called well-footnoted!!!

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Posted in Civil on Thursday November 21 2013 @ 7:34am

Imagine you are in the E.R. of your local hospital. You have been examined, and there is no question that you are in need of urgent medical care. There are no insurance coverage or other payment issues barring proper treatment. Yet, you are discharged within hours because the hospital is unable to find you a bed. You go home and die the next day, as a direct result of your illness.

Sond crazy? Yes. Yet, this is a perfect description of how the Commonwealth of Virginia's mental health system does (or does not) work.

Why no beds? For one, there are not enough least restrictive alternatives available. Those who are civilly committed (i.e., are unable to care for themselves or who pose an immediate danger to themselves or others) meet the criteria for court-ordered treatment. From the moment of commitment, the individual must have a treatment and discharge plan. This plan must include keeping the person in the least restrictive alternative -- i.e., not necessarily a state mental hospital. But, because these less restrictive facilities such as group homes are small and rare, and have stricter standards (for example, a resident of a group home could be kicked out for being too disagreeable, or for stabbing someone's hand with a fork in the course of a dinner roll dispute), this type of placement is hard to come by. Likewise, a sensible transfer to a Veterans Administration hospital (a small wish if there ever was one) may be denied. Thus, individuals who might otherwise be in group homes, other hospitals, or day reporting centers end up hogging the more restrictive beds.

In 2005, Virginia had 8 state hospitals and 38 licensed hospitals available to provide adult psychiatric care. According to one report, In some localities, there are documented bed shortages and CSB [Community Services Board] staff report that at times, a TDO [Temporary Detention Order] is not issued for a person under an ECO [Emergency Custody Order] and he is released simply due to the lack of a bed. Virginia Civil Commitment Procedure and Practice: Policy Analysis and Recommendations to Increase Voluntary Admission, Brett M. Merfish (May 2010). See the Virginia statute addressing emergency custody (part J covers the issue of bed availability). For general information about the commitment process, see Eliminating Barriers to the Treatment of Mental Illness: Virginia. Northern Virginia, which is more heavily populated, has a stark imbalance of beds to patients. Thus, many are transferred to the less populous western part of the state.

Another reason, of course, is funding. See Are Cuts to Virginia's Mental Health Programs Implicated in Creigh Deeds' Son's Attempted Murder/Suicide? Matt Connolly, Mother Jones (November 20, 2013). Follow the money, or lack thereof!

Western Virginia counties are hilly and rocky and beautiful -- each Fall, tourists descend on the area to view the blazing colors. The people are some of the best you could hope to meet, with great community spirit, wonderful college towns, and a rich cultural heritage. Yet, it seems to be home to one avoidable tragedy after another -- two university shootings (one at a law school, one at a university), everyday mental health woes, and high-profile, completely preventable deaths such as the Deeds case. Whether because of its small population and remoteness, the rejection of government solutions, the poor quality of basic healthcare in Virginia's rural areas (we used to live in a county where the only healthcare facility was one small free clinic), or some combination thereof, Virginia has managed to create the perfect storm.

What's the definition of crazy? Doing the same thing over and over and expecting something other than the same bad result. By this definition, Virginia's mental health system is, well, crazy.

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