Author: Dave Hoffman

1

Wex

wex.gif

Cornell Law School’s Legal Information Institute recently launched WEX, “a collaboratively built, freely available legal dictionary and encyclopedia.” Sounds peachy. What is it?

According to an email which has been circulating from the Tom Bruce, Director of the LII [who kindly gave me permission to quote]:

At the risk of sounding a little more diffident than perhaps I should, I’ll say that we’ve just put something sorta new and very interesting on the LII site. It’s called WEX, and we are hoping that it will grow into a very ambitious and interesting project indeed — interesting and ambitious enough that we should be trumpeting it from the housetops, I suppose, but for the moment we’re confining ourselves to low-key conversations with our friends and supporters. Hence this note.

WEX . . . will be the first collaboratively edited legal encyclopedia and dictionary on the web, aimed specifically at law novices.

Read More

3

David Giacalone on the FTC’s Price Gouging Statement

gasoline.jpg

David Giacalone has a nice new post up about the FTC’s recent position statement against a federal price gouging law. I had missed this development last week.

According the FTC’s chairperson, “[e]nforcement of the antitrust laws is the better way to protect consumers.”

As a first take, I think I agree that there is no pressing need for yet more federal regulation of economic activity, especially where states are both capable, and in this case motivated, to take care of the “problem” themselves. This is particularly true in this context, where the harms attributed to price gouging are localized and fleeting.

4

Unauthorized Practice on Craigslist?

craigslist.gif

I was recently browsing Craigslist’s Legal Forum. On that forum, folks post legal problems and others answer them. Some of the answering posters identify as lawyers, but do not provide their names.

The forum describes itself as follows:

res ipsa loquitur

DISCLAIMER – craigslist is not responsible for, and you may not rely upon, the accuracy of any information or advice posted here – this forum is provided for educational and entertainment purposes only – you should consult with an attorney prior to acting on any information found here.

Will such boilerplate really protect CL if, say, the PA Bar were to seek an injunction again the discussion group for hosting the unauthorized practice under 42 PA C.S.A. 2524? Or if the Bar were ask the attorney general of Pennsylvania to seek criminal penalties under that section’s misdemeanor provisions? I’m imagine that CL would try to avoid liability by pointing to the “Terms of Use” provisions on the page, but do such disclaimers survive a Grokster-like analysis? Maybe Dan’s analysis of suing wikipedia would throw some light on this problem. I haven’t been able to find much in the legal ethics literature on this problem – and some might argue that state bars have enough on their hands without investigating internet practice.

Obviously, what constitutes the practice of law is a matter for debate, and you should feel free to visit the site yourself and make your own mind up.

2

Saddam’s Host of Lawyers

saddam.jpg

Via Drudge, I hear that 1,100 lawyers are leaving Saddam Hussein’s defense team because of security fears. But Saddam’s trial will go on.

I lack expertise in the Iraqi security situation and legal system, and so I’m left with a (perhaps naive) question: why does Saddam need over a thousand lawyers? [And how did the team apparently grow by 1,089 lawyers over a few weeks?] Only three explanations come to mind.

1. Saddam plans to mount a meticulous defense to the charges on the merits, and needs hundreds of attorneys to comb through the evidence against him, interview witnesses, and develop a coherent legal strategy.

2. Saddam plans to win at trial by hook-or-crook, and has employed a host of lawyers as a first step in rebuilding his empire of patronage and client relationships.

3. Saddam is not in control of his legal team. The person who is plans to use the opportunity as first step in building an empire of patronage and client relationships.

Possibility #1 is a joke; #2 is delusional; #3 is just sad.

4

Sex Sells Contracts: Why Not Securities Law?

markets.jpg

The ContractsProf Blog recently posted about “Sex and Contracts.” Frank Snyder notes that the post resulted in a huge traffic spike. “There’s a lesson there,” he concludes. There sure is.

I could (as this blog did) identify a case or so that directly appeals to your prurient interest in the topic. But maybe the better path is to take a step back, and consider a more academic question.

Let us assume that you, a general counsel, have just learned that your CEO is having a consensual affair with a subordinate. Also assume that the corporation has recently stated, in a regular reporting statement, that its management team is “cohesive, ethically sound, and 100% committed to shareholder value.” [Note: this is entirely hypothetical]

Putting aside other considerations, is it likely that a court or jury would find it materially misleading to have omitted disclosure of the affair?

Read More

0

Back from the Hiring Conference

I just returned from the AALS hiring conference. Temple saw some wonderful folks, including several confessed readers of this blog.

Because of the swirl of events, I didn’t get to see others who I would have liked to, even though I did mill around the Friday night reception for that very purpose! (For a pre-conference take on whether going to such receptions makes sense, see here.) Despite Al and Mike‘s fashion tips, I admit to not wearing a tie. And that is about as much as I think I can say about the experience, as the deliberative process privilege probably applies to the rest of what went on.

3

Guidant/JJ Litigation

heart.jpg

Counsel, start your time-clocks.

As has been well-reported, Guidant has sued Johnson & Johnson for specific performance of J&J’s $25.4 billion acquisition. J&J will almost certainly assert that its obligation is void under the merger agreement’s “material adverse effect” clause, and, specifically, will argue that the clause has been triggered by Guidant’s messy encounters with state and federal regulators over its heart stents.

Bill Sjostrom at the Business Law Prof Blog has been all over this looming fight.

Back in September, he started questioning the deal’s continued viability. In October, he put up a great post on the MAE at issue in the (then) potential litigation. He argued that NY AG Spitzer’s lawsuit against Guidant may strengthen JJ’s claim here. Finally, he broke news of the suit here.

Obviously, I do not know how this will turn out. But doesn’t it seem that J&J could have protected itself against this type of risk with more precision? Isn’t regulatory action the number two legal problem medical device makers potentially face, after patent claims?

For more information, Pharmablog talks about the underside of drug testing here. Finally, the Stent Blog (!) is a must-read resource if you care about the statistical likelihood of stent failure.

0

Welcome Business Week Readers

welcome.jpg

This week’s Business Week Online contains a reference to this blog’s postings on Judge Alito’s securities jurisprudence. For your reference, we’ve written about Judge Alito several times.

1. Solove on Alito and privacy law.

2. Hoffman on the power of Congress to subpoena Alito’s former law clerks.

3. Solove on the utility of mining Alito’s record.

4. Hoffman on Alito and securities law (Part I).

5. Hoffman on Alito and securities law (Part II).

6. While you are here, you may also be interested in posts that don’t appear on our main page, including Oman on the bankruptcy of France and the philosophical significance of the repo man, and Wenger on liability for blogging. Plus, you really ought to read our registration statement.

1

“Potentially Safer” Cigarettes

images.jpeg This article from the Times (UK) is interesting. Apparently, BAT is planning to introduce a cigarette that, through various filtering technologies, may cut the risk of cancer and other smoking related diseases up to 90%

There are many problems with producing, marketing and buying “safer” cigarettes. Some were explored in one of my favorite books about American business, Barbarians at the Gate. As the article points out, the BAT folks are nervous. Although “privately” they refer to the cigarette as “risk free” or “low-risk cigarettes”, they are going to be sold as merely “potentially safer”.

But here is the kicker. BAT executives understand they can’t say, out loud, that consumers using their product as it was intended to be used will not get sick. Even safe cigarettes are bad for you, even if somewhat less so than competitive brands. But the “safe” inference is the inference that BAT really would like consumers to make. Without the inference, why would smokers buy a cigarette that likely will be more expensive, or have a harder “draw,” or might even taste terribly. So, BAT is “likely to focus its advertising on the new technology,” and hope that consumers will reach the appropriate conclusion themselves.