lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

On Defense Attorneys

It surprises me – I’m not sure that it should – that many of the most principled lawyers I come into contact with do criminal defense. Three links that reminded me of that recently -

Randy E. Barnett, Three Cheers for Lawyers: Don’t think a good defense attorney matters? Think again.

Newsweek: What Really Happened that Night at Duke

From Mark Bennett’s blog, Defending People: Advice to a Young Criminal Trial Lawyer. Suitable for framing.

Debt Collectors, Banks Going after Seniors’ Social Security Payments in spite of Federal Prohibition

Not the finest hour for banks in a pair of WSJ articles from Ellen Schultz.

Heart surgery halted Viola Sue Kell’s work sewing carpets in a rug mill in 2001. It was the end of 40 years of cleaning motel rooms, restaurant jobs, “just hard stuff,” says Mrs. Kell, a 64-year-old widow. She applied for Social Security disability, and her monthly $827 benefit now is her only income.

But when Mrs. Kell tried to pay her mortgage and electric bills in 2004, her checks bounced. Every cent of the Social Security check, which went straight to her bank each month, had been taken by a debt collector that had garnished her bank account.

Federal law says creditors can’t take Social Security and Veteran’s benefits to pay debts. Yet the practice is widespread. There is no established process for enforcing the federal prohibition.

The garnishment process can be rewarding for banks. When they restrain an account, they collect a range of fees — for imposing the freeze, for the resulting bounced checks, or for short-term loans to prevent bounced checks. If the account contains Social Security, banks commonly collect these fees and their loan repayment out of those exempt funds. Banks argue that the ban on collecting debts out of Social Security benefits doesn’t apply to them.

From the WSJ: The Debt Collector vs. The Widow ($)

James Cain, a terminally ill Florida veteran, got his first Social Security disability payment last month. Before he could withdraw any of it to pay for his medicine or mortgage, his bank took it out of his account. His wife’s Social Security check went in the same day. The bank took most of that, too. It withdrew the money to make payments to itself on a car loan the bank had made to the Cains.

Federal law says Social Security can’t be taken to repay debts. So how can banks do it? They don’t use the technique of debt collectors, which is to file garnishment orders on bank accounts — orders that succeed because by and large no one is enforcing the exemption. Banks have a different rationale. They say the federal ban on taking Social Security benefits to repay debts doesn’t apply to them. The reason: They aren’t really collecting debts.

They cite the doctrine of “set-off,” which says banks can collect money that customers owe them by taking it out of customers’ accounts. All agree this traditional practice makes sense for routine fees like monthly account charges. But banks apply it broadly, to other money customers owe them. Banks argue that when they take cash out of a customer’s account — including cash from a Social Security check — they aren’t really collecting a debt, just “setting off” what’s owed them.

From the WSJ: Banks Tap Social Security Funds Too ($)

Should we recognize negligent infliction of emotional distress in death of pets?

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PHOTO: Piotr Ciuchta / SXC

The Wall Street Journal takes up the question – How Much Is Your Dog’s Life Worth? – in litigation that is.

Most people consider their pet priceless. But in civil law, at least, pets are usually seen as property — akin to a toaster or TV set — worth only their market value. Now, amid the incidences of tainted pet food tied to animal deaths and the subsequent rash of lawsuits against pet-food makers, there’s a push to put a higher value on a pet’s life.

[Advocates] say pet owners whose animal is injured or killed should receive compensation not only for vet bills and a replacement animal — but for emotional distress as well. While legal experts say big payouts for emotional damages are unlikely in the pet-food cases, the lawsuits and large number of pets affected could accelerate a growing trend to give pets more recognition under the law.

There’s no question that the life and welfare of our pets have emotional value. If my grandparents had to choose between saving me or their two dogs from a burning building I’m not sure I’d want to know the outcome. Yet I shudder at the thought of making it legally cognizable. I suspect courts will be reluctant to open the door for a parade of sob stories seeking outlandish awards on the premise of who can cry the hardest on the stand. It begs the question of whether or not a somewhat objective method of calculating emotional value can be found. Of course there are the issues of who has standing for bystander recovery, that would be a fun one to sort out.

WSJ: How Much Is Your Dog’s Life Worth?

A separate but equally pressing issue, IMHO, is when we should start recognizing a dog’s cause of action for intentional infliction of emotional distress against their owners.

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Or perhaps alienation of affections?

Average Law Student Loan Debt, Bill to Assist Prosecutors and Public Defenders

Legislators have introduced a bill – John R. Justice Prosecutors and Defenders Incentive Act of 2007 – aimed at encouraging law students to consider careers in the prosecutors and public defenders offices by offering “up to $10,000 per year, to a maximum of $60,000, in exchange for a commitment of at least three years of qualifying service.” As the article notes, graduating law students who might otherwise be interested in becoming a prosecutor or public defender don’t feel they can consider it because of the debt load they’re carrying.

In introducing S.442, Sen. Richard Durbin noted that the bill would establish a student loan repayment program for qualified attorneys who agree to remain employed for at least three years in certain public sector employment. The ABA noted that the average private law school graduate in 2005 had incurred $79,000 in debt, while students at public institutions borrowed on average $51,000. According to the Department of Education, the average student carries $20,000 in undergraduate debt before pursuing a career in law.

The choice is a real one. Prosecutors in Harris County make approximately $52,000. A recent law grad with offers at a firm offering six figures would be hard-pressed to take less than half of what he could get if he or she is just when the loan payments are starting to come due.

ABA Journal: ABA urges financial assistance for prosecutors and public defenders

Blawgletter on the U.S. Attorney Scandal

I hesitated on posting about the U.S. Attorney scandal looming over Bush administration and Alberto Gonzales but the Blawgletter’s theory on the appointment of Tim Griffin deserves some attention.

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