The Washington Post reports on new data that shows that health spending, as a share of the economy, has shrunk. The Post further reports: '"There are two explanations,' says David Cutler, a Harvard economist who served as a health care adviser in President Obama's 2008 campaign. 'One is the recession was a big and drunken episode that has a very long hangover. The alternative view is that something big has actually changed.'"
Law professor Noah Feldman argues in a piece for Bloomberg that the U.S. Supreme Court's decision to strike down the federal Defense Against Marriage Act without declaring same-sex marriage a fundamental constitutional right has left the issue "a total friggin' mess." The result is the limbo in Utah in which a federal judge has declared that state's ban unconstitutional and same-sex nuptials have been proceeding until the Supreme Court stayed the ruling yesterday. Feldman said that the Windsor majority made a mistake by not going to the full marital goalpost. "Striving for gradualism, it gave us confusion," Feldman says. "Right now in Utah, some people are in a marriage limbo. They have married since the district court ruling, and now their unions are recognized by the federal government, too (one presumes) under Windsor. If the state ban is reinstated, what then? They will be unmarried (maybe) under Utah law. Will they be federally unmarried, too? It's not an abstract question, since they might not be able to get married in other states that recognize gay marriage since they aren't residents of those states. In short, we may be facing citizens who are married in no state but are married federally."
Four couples are challenging Arizona's ban on same-sex marriage in a putatative class action, Courthouse News Service reports. For example, "plaintiffs Holly Mitchell and Suzanne Cummins say that though they were able to become certified foster care parents, only Cummins was allowed to adopt their two children because 'Arizona law strongly prefers heterosexual couples in permanent adoption proceedings and permits only a husband and wife to jointly adopt,'" Courthouse News Service further reports. The plaintiffs are seeking declaratory judgment and injunctive relief.
Philadelphia attorney Daniel-Paul Alva, winner of the bid to start a new Office of Conflict Counsel in Philadelphia, said in an interview today that he is looking forward to proving “detractors” wrong.
The city announced its intention Tuesday, December 31, to contract with Alva & Associates to start a for-profit law firm from scratch to represent criminal defendants and family court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates is already representing another person in the case.
The firm will do the work for $9.5 million, which is what the firm bid, Alva said.
The firm will handle the first appointments in criminal cases and juvenile-delinquent cases in which the Defender Association has a conflict, and the firm will represent the primary caregiver in every dependency case, Alva said. The firm will take all new appointments starting March 1.
While the firm will be for-profit, “I did not expect to make one cent of profit” from city funds, Alva said. “No one is going to accuse myself or my firm of pocketing profit” at the expense of quality legal representation.
The new office won't make a profit from city tax dollars, Alva said, but from fees earned by referring clients' cases in other types of matters.
Through those referrals, the firm could help achieve the goal of “Civil Gideon,” a movement in recent years to expand legal representation for civil legal matters involving fundamental needs like custody of children or housing, Alva argued.
Karen Williams, an attorney who does court-appointed work, said in an email sent on behalf of other court-appointed counsel and herself that Mayor Michael A. Nutter's administration “has chosen to disregard the constitutional rights of an already disadvantaged clientele by substituting a conscientious corps of skilled attorneys -- who are, in essence, 'pro bono' – for those bound by the 'bottom line.' Rather than increase compensation for counsel who have labored long, hard and faithfully (even when not paid),” ineffective counsel will ensue.
Councilman Dennis O'Brien also opposes the plan. Funding a new law firm just at $9.5 million is not enough money, O'Brien said. If the system is "underfunded, criminal cases, even death penalty and homicide cases, are going to be dismissed under the speedy trial rule," he predicted.
And "when the system crashes and burns and we can't put Humpty Dumpty back together again, all the lawyers that were doing this [legal work] will have gone elsewhere," O'Brien said.
The standard of representation will improve upon the current model in which individual attorneys, often solo practitioners, are appointed by the court, Alva counter-argues. Attorneys working for his firm will be able to be more efficient than the current model in which there are “300 lawyers running from room-to-room and for the most part not getting in the rooms they need to be because they can't be in more places than one,” Alva said. There also will be oversight of legal work, and the firm will provide social workers and social services to clients, he said.
The First Judicial District has been cooperative, including agreeing to concentrate the firm's cases in certain courtrooms and on certain days, Alva said.
Some lawyers working for the firm will keep their own part-time practices, and their overhead will be paid for by Alva's new firm, he said. In return, they will pay a percentage of their profits from their other legal work in exchange for Alva covering their overhead, he said.
Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm, originally submitted the plan. DiClaudio resigned from the project following social-media postings he made.
There were four other bidders for the contract: Ahmad & Zaffarese & Smyler, AskPhillyLawyer.com, Montoya Shaffer and Sokolow & Associates, according to the city's notice.
While Alva & Associates was not the lowest bidder, the city states in its notice that Alva & Associates would provide "superior quality, efficiency and fitness" as well as "superior ability or capacity to meet particular requirements of contract and needs of City Department and those it serves."
The U.S. Senate has not ratified the UN Convention on the Rights of Persons with Disabilities, including a vote in December 2012 that failed by five votes, The Interdependent reports. The convention was modeled after the 1990 Americans with Disabilities Act. The Senate likely will consider the convention again this year, The Interdependent further reports.
"Both U.S. Ambassador to the UN Samantha Power and Secretary [of State John] Kerry have argued that the treaty’s benefits occur not through changing any U.S. laws or even spending U.S. resources, but rather by encouraging other countries to follow U.S. leadership in terms of the ADA—legislation that is widely recognized as among the world’s highest standards for protecting the rights of the disabled," The Interdependent also notes.
Just Security's Steve Vladeck's writes that last week's decision finding a Department of Justice's Office of Legal Counsel memo is exempt from the Freedom of Information Act "may have the effect, unintended or otherwise, of insulating virtually all nonpublic OLC memos and opinions from FOIA requests–regardless of their subject-matter or sensitivity." (The opinion regards the FBI's use of exigent National Security Letters.)
Vladeck writes the D.C. Circuit reasoned that the memo was exempt under Exemption 5 for "'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'" The court said the memo was not the "working law" of the FBI. Documents developed under a federal agency's working law are not exempt under Exemption 5. The problem is that Office of Legal Counsel's "memos are generally viewed as authoritative guidance to the rest of the Executive Branch when it comes to the scope of the government’s legal authorities–whether or not they are 'adopted' as such," Vladeck concludes.
ProPublica reports on a little-covered problem: some people harmed by medical malpractice can't find any attorneys to take their cases.
This is a phenomenon that many plaintiffs lawyers told me about when I was regularly reporting on medical-malpractice litigation for The Legal Intelligencer. Med mal cases are very expensive to work up because they require expert witnesses and scientific-oriented discovery, and many firms will not take cases in which the injury is less catastrophic or their are low economic damages because the return on investing in the case is so low.
ProPublica reports on the "problem faced by many who are harmed in a medical setting: Attorneys refuse their cases, not because the harm didn’t happen but because the potential economic damages are too low." This includes the elderly who have low incomes because they are retired, because their medical bills are picked up by Medicare and they typically have no dependents, ProPublica further reports.
The U.S. Supreme Court halted same-sex marriages in Utah this morning while an appeal of a ruling that the state's ban on same-sex nuptials violates constitutional rights proceeds in the Tenth Circuit, NPR reports. A stay during an appeal was denied by lower courts. The justices' order was without comment or dissent.
Craig Zucker founded Buckyballs, a desk toy of small magnets that can be stacked into infinite shapes. But "perhaps more than 1,000" kids have swallowed the magnets and needed to undergo surgery, The Washington Post reports. Now the Consumer Product Safety Commission is seeking to hold Zucker personally liable for the $57 million recall because he dissolved his business, The Post further reports: "The commission supported that move with a legal precedent known as the Park doctrine, which allows the government to criminally prosecute corporate officers for failing to prevent violations of the Food, Drug and Cosmetic Act."
The New York Times' Adam Liptak writes on the difficulties in protecting the constitutional right to have counsel paid for in criminal cases when you can't afford your own lawyer. For example, in Washington, a federal judge has found two cities violated the constitutional right to counsel by having lawyers handle 500 cases at a time. The judge has imposed a federal monitor to improve the situation. In Texas, a pilot program is starting to allow defendants to pick their own lawyers among a pool of qualified counsel.
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