Thursday, May 22, 2008

UPDATE: More On DOJ Deferred Prosecution Agreements

Today the House Judiciary Committee released a bunch of documents supplied by the Justice Department concerning the increased use of deferred prosecution agreements in recent years.
Democrats have been pushing the issue since it emerged that former Attorney General John Ashcroft was set to earn up to $52 million for monitoring an orthopedics firm subject to such an agreement.
Concerned that monitorships are a cushy deal for former DOJ officials, they want to learn more about how monitors are appointed and are considering legislation that would require judicial oversight.
The DOJ documents are available here.

Tuesday, May 20, 2008

Cisco's General Counsel In Senate Firing Line


Mark Chandler, the general counsel of Cisco Systems Inc., hasn't had much luck with senators from Illinois this year.
First, the presidential candidate he raised money for, Hillary Clinton, was bested by Barack Obama.
Then today, the senior senator from Illinois, Richard Durbin, hauled Chandler before his Senate Judiciary Subcommittee on Human Rights and the Law.
Along with Nicole Wong, deputy general counsel of Google, Inc., and Michael Samway, deputy general counsel of Yahoo, Inc., Chandler had some explaining to do about his firm's dealings with the Chinese government.
It was Chandler, though, who faced the bulk of questions following the recent publication of an internal Cisco document from 2002 that contained information about the Chinese government's IT needs, including its desire to censor the Internet.
The document included a reference to the government's desire to limit access to information about Falun Gong, a religious group that the Chinese government has repressed.
At this morning's hearing, Chandler maintained that Cisco sells the same products globally and does not alter their properties depending on the needs of customers.
He also noted that the document was prepared by a low-level Chinese employee and did not reflect the views of the company.
"We disavow the implication that this reflects in any way Cisco's views or objectives," Chandler said.
Cisco's involvement was limited to providing routing and switching equipment worth a total of $10 million, he added.
"There was nothing there that had anything to do with censorship," he said.
Human rights groups aren't convinced.
Dr. Shiyu Zhou, deputy director of the Global Internet Freedom Consortium, testified that there is a "strong indication that companies in free societies, such as Cisco, may have been involved in assisting the Chinese security services to monitor and censor the Internet."
*See tomorrow's print edition of the Daily Journal for more on this story.

Thursday, May 15, 2008

Senate Panel Approves Judgeships Bill

This morning the Senate Judiciary Committee voted 14-5 to approve a bill that would create dozens of new federal judgeships for the first time since 1990.
The bill would add 38 district court judgeships and 12 circuit court judgeships.
A full breakdown of where the judgeships would go is here.
Not surprisingly, California will get the most.
The committee's chairman, Sen. Patrick Leahy, D-Vt., didn't get it all his own way, however.
He had to agree to hold a hearing on the issue before bringing up the bill on the Senate floor due to concerns raised by several members, including Sen. Jeff Session, R-Ala., and Sen. Ben Cardin, D-Md.
"I just don't think this is something the committee should be doing," Cardin said of the hasty vote. "I don't feel comfortable at all."
Neither of them is convinced that adding new judgeships is the best use of resources.
*The committee also passed out an IP bill this morning.
The Orphan Works Act would reduce the potential damages for using copyrighted material when the copyright owner cannot be located.

Wednesday, May 14, 2008

Dennis Quaid: Expert on Federal Preemption


Hollywood actor Dennis Quaid, best known for starring in some movies I can't quite recall, took on a new role today as an expert witness on federal preemption.
He appeared before the House Oversight and Government Reform Committeee to testify about the overdose of blood thinner his twin babies received last year due to a labeling problem.
Quaid (pictured) was presumably there to put a human face on an otherwise dry hearing about whether the Federal and Drug Administration can invoke preemption to stop lawsuits like the one the actor has filed against the drug manufacturer, Baxter Healthcare Corp.
Obviously well briefed by his attorneys, Quaid did a decent job of explaining the issue.
He mentioned the forthcoming Supreme Court case on a related issue (Wyeth v. Levine) and highlighted the understaffing problems the FDA cases.
But his real concern was what he and his congressman in L.A., committee chairman Henry Waxman, see as a sneaky attempt at tort reform through the back door.
"A federal ban on lawsuits against drug companies would not just deny victims compensation for the harm they experience," Quaid said. "It would also relieve drug companies of their responsiblity to make products as safe as possible."

Tuesday, May 13, 2008

A Timely Note On "Anatomy Of A Murder"


There's been plenty of discussion today about the issue of prosecutors getting involved in fictionalized accounts of pending cases.
This came in the aftermath of two California rulings Monday in which a couple of prosecutors were let off the hook for helping out with a movie and writing a novel respectively (See Adam Liptak's NY Times article here).
The episode brings to mind perhaps the mother of all fictionalized legal proceedings, the classic 1959 drama Anatomy of a Murder.
Directed by Otto Preminger and starring Jimmy Stewart (during his mature, Hitchcock phase), the movie told the story of how a defense attorney (Stewart) helps get a murder suspect (Ben Gazzara) off the hook.
The defendant, an army lieutenant, maintains that that the victim had just raped his wife.
Stewart's character wins the case by asserting an "irresistible impulse" defense and unleashing a series of quirky courtroom tricks to win over the jury.
It wasn't a pending case, but what's really interesting is that the book upon which it was based was written by a sitting judge at the time, John D. Voelker, of the Michigan Supreme Court.
Even better: The Jimmy Stewart character was apparently based upon Voelker himself, who won the real life case upon which his novel was based.
After the success of the novel and movie, Voelker stepped down from the bench to become a full-time writer.
"While other lawyers may write my opinions, they can scarcely write my books," he quipped.
Incidentally, the actor playing the judge in the movie was real-life lawyer Joseph N. Welch, who rose to fame for his role during the Army-McCarthy hearings in the 1950s, in which he represented the army.

Monday, May 12, 2008

Scalia's Got Some Advice For You


Today's Daily Journal (subscribers only) features an interview with Supreme Court Justice Antonin Scalia conducted by my colleague in the Washington bureau, Brent Kendall.
Scalia talks about his new book, Making Your Case: The Art of Persuading Judges, which he wrote with Bryan Garner.
Among his words of advice for lawyers: briefs should read like magazine articles, oral arguments are more important than some might think, and advocates should be as succinct as possible.
Oh, and always answer a judge's question. They can always tell when you're trying to change the subject, apparently.
"In a way, I'm feathering my own nest," Scalia admitted in the interview. "To the extent you can get the lawyers to do a better job, the judge's job is easier."

Thursday, May 8, 2008

UPDATE: House Passes IP Enforcement Bill

The House today passed a major IP enforcement bill on a 410-11 vote.
Known as the Pro-IP Act, the legislation would increase damages in counterfeiting cases and toughen up criminal penalties for copyright infringement.
It would also set up a new Office of the United States Intellectual Property Enforcement Representative, which would oversee enforcement at the national level.
Now it's on to the Senate, which has several IP enforcement bills of its own, none of which have made it out of the judiciary committee.
*In other IP-related matters, the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property voted out the Orphan Works Act this week.
The Senate version of the bill was on the agenda of this morning's judiciary committee meeting but has been held over until next week.

Tuesday, May 6, 2008

McCain Wants It Both Ways Over Judicial Nominations


In a speech today, Republican presidential nominee John McCain (pictured) appeared keen to placate the conservative base when it comes to what kind of judges he would appoint.
But, perhaps with an eye on the general election, he also sought to play up his role as a member of the Gang of 14 senators who helped prevent a constitutional meltdown over nominations back in 2005.
First the red meat: McCain made it clear that his preferred nominees would be pretty similar to President Bush's.
"I have my own standards of judicial ability, experience, philosophy, and temperament," he said. "Chief Justice [John] Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me."
Then the caveat: McCain attempted to portray himself as a serious-minded moderate when it comes to confirming judges in the Senate.
The Gang of 14 "showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger," he said.
McCain also noted that he voted to confirm Clinton Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer.
"Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise," he added. "Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make."
In seeking to highlight his willingness to doff his cap to the president, McCain compared his own actions with those of and Barack Obama, who voted against Roberts' confirmation.
"Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done," McCain said. "But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd."