Neuroscience and the Law

Neuroscience and the Law I am always on the lookout for creative and interesting Continuing Legal Education seminars. This one clearly fits the bill:

Baylor College of Medicine’s Initiative on Neuroscience and Law is proud to announce its 2008 Conference. This conference showcases talks from experts in several aspects of neurolaw. Topics include responsibility, punishment, prediction, rehabilitation, brain death, genetics, competence, intention, and ethics – all with an eye toward understanding how cutting edge neuroscience will touch the current practice of law.

The conference, which is worth 3.5 hours of CLE credit, will take place on Friday, May 23, 2008, from 1-5 p.m. at Baylor College of Medicine (Room M321) in the Texas Medical Center. One of the speakers for the conference is Daniel Goldberg, a local attorney and former Texas Supreme Court clerk who is currently working on his PhD at the University of Texas Medical Branch while serving as a Research Professor at Baylor’s Initiative on Neuroscience and Law and as a Health Policy Fellow at Baylor’s Chronic Disease Prevention & Control Research Center (Daniel is also a frequent commenter on health care and health care finance issues on this blog). The preliminary agenda for the conference is here. Check it out.

The Troubling U.S. Incarceration Rate

The NY Times’ Adam Liptak has penned a couple of interesting articles recently (here and here) on a frequent topic of this blog — the troubling incarceration rate in the United States.

With only 5% of the world’s population, the U.S. now houses almost a quarter (2.3 million!) of the world’s prisoners. One in 100 adults in the U.S. is now behind bars and 751 people are in U.S. prisons or jails for every 100,000 in population.

The only other major industrialized nation that even comes close to that rate of incarceration is Russia with 627 prisoners for every 100,000 people. England’s rate is 151, Germany’s is 88 and Japan’s is 63.

Attempting to keep all of this in perspective, Pepperdine University’s James Q. Wilson provides this recent op-ed that puts the U.S. incarceration rate in a more favorable light with regard to reducing serious crime.

Among other things, these incarceration numbers certainly makes one wonder why on earth we are sending folks like Jeff Skilling, the NatWest Three, the Nigerian Barge defendants and Jamie Olis to prison?

Meanwhile, in this five-part LA Times debate, Reason’s Jacob Sullum takes on the Heritage Foundation’s Charles Stimson over one of the main reasons for the high U.S. incarceration rate — drug prohibition.

At least in this first installment, Sullum makes a much more compelling case than Stimson. And Peter Gordon has this sage observation about the genesis of drug prohibition.

Remember Kelo?

Brooklyn NEts Check out this recent Second Circuit decision (H/T to Robert Loblaw) as an example of how the appellate courts are applying the U.S. Supreme Court’s controversial 2006 decision in Kelo v. New London. Kelo allows the state to seize private property to facilitate private re-development as a legitimate form of "public use" under the U.S. Constitution.

Kelo has been widely criticized for creating perverse incentives for politically well-connected real estate developers to exercise their political clout where negotiation with private property owners didn’t generate the developers’ desired result. The Second Circuit case involves the huge redevelopment plan in downtown Brooklyn that will primarily benefit Bruce Ratner, a wealthy New York real estate developer. In addition to the ubiquitous office buildings and high-rise condos involved in such deals, the redevelopment will include a new arena for the New Jersey (soon to be Brooklyn) Nets NBA basketball club. Although most of the property to be contributed to the development is public land, the redevelopment plan also requires the state to seize several tracts of private property through exercise of its eminent domain power.

The private property owners sued and argued that the state’s claim of public benefit is a facade, as the Second Circuit puts it, "to benefit Bruce Ratner, the man whose company first proposed it and who serves as the Project’s primary developer. Ratner is also the principal owner of the New Jersey Nets. In short, the plaintiffs argue that all of the ‘public uses’ the defendants have advanced for the Project are pretexts for a private taking that violates the Fifth Amendment."

The Second Circuit upheld U.S. District Court dismissal of the property owners’ claims, explaining that the massive private benefits to Ratner do not trump the state’s judgment that the project will also benefit the public. Moreover, even though the costs to the property owners may far outweigh the public benefits, the Second Circuit concludes that type of cost/benefit analysis is irrelevant under Kelo:

At the end of the day, we are left with the distinct impression that the lawsuit is animated by concerns about the wisdom of the Atlantic Yards Project and its effect on the community. While we can well understand why the affected property owners would take this opportunity to air their complaints, such matters of policy are the province of the elected branches, not this Court.

Given such dubious "public" ventures as this, the implications of the foregoing interpretation of Kelo are downright frightening.

Icahn on settling Pennzoil-Texaco with Jamail

This blog is mostly about business and law, so Carl Icahn’s activities have been a frequent topic. Likewise, this blog also centers on Houston, where the Pennzoil v. Texaco case from the mid-1980’s is a part of the city’s storied legal lore. Consequently, the video below of Icahn doing his equivalent of a standup comedy routine describing how he settled the Pennzoil-Texaco case with famed Houston plaintiff’s lawyer Joe Jamail is an absolute classic for this blog. A very big hat tip to John Carney at Dealbreaker for the link to the Icahn video.

The Spitzer Lesson

The mainstream media and the blogosphere have been buzzing over the past 24 hours regarding the fall from grace of New York’s governor and former Lord of Regulation, Eliot Spitzer.

As noted in this previous post, there is an under-appreciated human element in such dubious criminal problems as Spitzer fell into.

So, I have a great deal of compassion for the members of Spitzer’s family, although Spitzer’s many victims would certainly attest that he showed none for them. Larry Ribstein has related and typically insightful thoughts regarding why the revelers in Spitzer’s fate should be concerned about the way in which he was brought down.

But I hope that the most important lesson that Spitzer’s political career teaches us is not lost amidst the glare of a tawdry sex scandal.

As with Rudy Giuliani before him, Spitzer rose to political power through the misuse of the state’s overwhelming prosecutorial power to regulate business interests. In so doing, Spitzer manipulated an all-too-accommodating mainstream media, which never misses an opportunity to take down an easy target such as a wealthy businessperson. Spitzer is now learning that the same media dynamic applies to powerful politicians, as well.

However, as noted earlier here, where was the mainstream media’s scrutiny when Spitzer was destroying wealth, jobs and careers while threatening to go Arthur Andersen on American Insurance Group and other companies?

Where was the healthy skepticism of the unrestrained use of the state’s prosecutorial power to regulate business where business had no available regulatory procedure with which to contest Spitzer’s actions?

As Dealbreaker’s John Carney noted at the time of that earlier post:

Why didn’t [the mainstream media covering Spitzer’s investigation of Grasso] reveal the slimy tactics of the Spitzer squad?

We suspect part of the problem was the fear of being “cut off” of access. Reporters compete for scoops, and often those scoops depend on sources who will leak information to them. In the NYSE case, reporters assigned to the story were largely at the mercy of the investigators, who could cut-off uncooperative reporters, leaving them without copy to bring to their editors while their competitors filed stories with the newest dirt. They probably felt—not unrealistically—that their very jobs were on the line.

This reveals an unfortunate state of affairs. Playing bugle boy while government officials call the tunes from behind a veil of anonymity is not investigative journalism—it’s hardly journalism at all. It’s closer to propaganda. It would have been far better had the journalists turned their backs on the Spitzer squad, or even revealed these tactics to the public. Sure they may have lost some “good” stories but they could have painted a truer picture of what was going on. But that’s probably too much to hope for.

And, as noted here, the same prosecution manipulation of the mainstream media contributed to the utter lack of balance in the media’s reporting on the Enron criminal prosecutions.

Alas, change does not come easily to the mainstream media.

Late last week, this post reported on developments that could well expose an egregious abuse of prosecutorial power in connection with the prosecution for former Enron CEO, Jeff Skilling. Why has no mainstream media outlet intervened in that case and demanded that the information about potentially serious governmental misconduct be made public?

The Spitzer lesson is not easily embraced.

Update: Following on the theme of this post, the W$J’s Kimberly Strassel reviews the mainstream media’s complicity in portraying Spitzer as something that he is not, and Charlie Gasporino — who wrote the book about Spitzer that foreshadowed these issues — comments along the same lines here.

Landry’s is worth more because of what?

Landry's logo 012908Did I read right what Steve Scheinthal, general counsel of Houston-based Landry’s Restaurants, Inc., said in this Chronicle article?:

Landry’s is .   .  . facing a handful of shareholder suits seeking class-action status in the wake of CEO Tilman Fertitta’s bid to take the company private.

Fertitta made an offer on Jan. 27 to buy out the company at $23.50 for each unowned share. The $1.3 billion deal, including debt, is being reviewed by a special committee of the Landry’s board. [.  .  .]

Scheinthal dismissed the shareholder suits as standard in a going-private transaction.

"Absent Mr. Fertitta’s offer, the likelihood is that the company’s stock would be trading well below the current market price," he said.

Landry’s stock closed Friday at $17.73 a share, down 38 cents.

Fertitta’s offer for Landry’s was made without a financing commitment in a tough credit market. Yet, the company’s general counsel is claiming publicly that such a speculative offer is all that is propping up the company’s stock price?

I wonder what the boys over at Long or Short Capital will think about that?

Sanctionable softball parents

softball%20players.jpgRobert Loblaw explains why parents of high school softball players who are upset with their daughters’ coach should not vent their criticism in a federal civil rights lawsuit. At least not in the Seventh Circuit.
Meanwhile, lest you think that women’s athletics is not serious business, take a moment to watch the video below (H/T Jay Christensen) University of Michigan women’s basketball coach Kevin Borseth have a post-game meltdown after his team blew an 18-point lead Thursday night and lost to Wisconsin, 69-67.

Justice for Perverted Justice?

predator-hansen-book-cover Earlier posts here, here and here addressed NBC’s To Catch a Predator series, in which a television crew cooperates with police and a vigilante justice group to create child predator crimes. Then, the television crew follows the police as they apprehend the suspects, which NBC broadcasts for all to see in a sort of modern version of a witch hunt. This dubious combination of law enforcement and "entertainment" resulted in the tragic case of Louis Conradt, Jr., the late North Texas prosecutor who committed suicide with the witch hunters were on his front doorstep.

Now, this Dan Slater/W$J Law Blog post reports that Condradt’s sister is suing NBC in New York for $100 million, claiming, among other things, intentional infliction of emotional distress. Slater reports that her case has already survived the preliminary motion to dismiss stage of the lawsuit.

I don’t know about you, but I hope she rings the bell on NBC.

Thoughts on Rusty and Pettitte

rusty hardin 022308This earlier post was one of the first to express reservations regarding Rusty Hardin’s handling of Roger Clemens’ defense to the allegations contained in the Mitchell Commission Report (previous posts here) and aftermath, but my reservations are nothing compared to those of Minneapolis attorney Ron Rosenbaum:

No one can really explain the strategy followed here," says Ron Rosenbaum, a local attorney and former talk-radio host on KSTP-AM, a station that still features him all too occasionally. "It strikes me as insane." [.  .  .]

"There’s a difference of opinion in this town, but from the very beginning I thought this was a textbook case of how to not handle a legal situation like this," Rosenbaum says of his fellow lawyer, adding with incredulity that Hardin would allow Clemens to submit himself to a lie detector test, which the pitcher has said he would take. "At the end of the day, all you can do is recommend advice as an attorney. You can’t tell your client directly what to do."

Rosenbaum is even harder on Clemens, who he characterizes as an ego-driven "buffoon."

pettitte 022308I know Hardin, who is a first-rate trial attorney. Thus, unlike Rosenbaum, I’m certain that Hardin has fully advised Clemens in writing of the considerable risks of the strategy that Clemens has undertaken in attempting to defend himself against alleged PED use. Nevertheless, the disastrous Clemens defense strategy to date reminds me of the best advice I used to pass along to young attorneys who I trained: "One of the most difficult, yet important, responsibilities of a good lawyer is to tell a potentially lucrative client ‘No’."

Meanwhile, Clemens’ former teammate and friend, Andy Pettitte, was widely praised across most of the mainstream media (the Chronicle’s Jerome Solomon was a notable exception) for his "honesty" in admitting during a press-conference earlier in the week to use of human growth hormone at several times in the past. Now, I’m not much of one for simplistic morality plays being applied to complex issues such as steroids or other PED use in professional sports and society. Moreover, I certainly don’t approve of the way ballplayers such as Pettitte and Clemens have been filleted publicly while Major League Baseball owners have largely received a pass on their culpability for promoting an almost pathologically competitive MLB culture that promotes use of PED’s and other drugs. Nevertheless, as this C.J. Mahaney post points out, Pettitte’s supposed adherence to his avowed Christian faith during his "confession" leaves much to be desired. Sometimes those simple morality plays aren’t quite as applicable as they first appear.

Looking for other lines of work

buser.gifSo Professor Buser, what did you plan on doing as a side occupation after your expert witness career? Judge Posner wants to know:

Buserís initial report proposed that if permitted by Allmerica to continue its market-timing trading, Emerald would have earned an annual rate of return on its investment
of 34 percent for 20 years, for a discounted present value of $150 million. That was a preposterous estimate, properly excluded by the district judge under Fed. R. Evid. 702. . . .
Buserís first report was so irresponsible as to justify the judgeís decision to exclude the second report summarily. Buser had demonstrated a willingness to abandon the norms of his profession in the interest of his client. Such a person cannot be trusted to continue as an expert witness in the case in which he has demonstrated that willingness, and perhaps not in other cases either.