What Happens If There Is An Electoral Tie?

As with most Presidential elections, the 2008 election has tightened up with about one day remaining. If Democratic Sen. Barack Obama fares better (but not much better) than Sen. John Kerry did in 2004, the electoral vote count could end up in a deadlocked tie 269 to 269. Our constitutionally prescribed method of dealing with ties in the Electoral College makes the famous “recount” election between then-Gov. George Bush and Sen. Albert Gore, Jr. in 2000 look like a city council election, and could even result in Alaska Gov. Sarah Palin becoming our next President.

Crazy? Yes. But also completely in line with how we elect the President.

First things first: Is it even possible that this election could result in an electoral tie? As Sarah Palin might say, “You betcha.” If the state-by-state polling 14 days out from the election is any indication, it looks like Sen. Obama will safely carry all of the states that Sen. Kerry did in 2004, with the possible exception of New Hampshire, a state that has a special political relationship with Sen. John McCain. Polls also indicate that Senator McCain will carry most of the states that President Bush carried in 2004, with the exception of New Mexico, Colorado, and Iowa, which it now seems likely that Obama will carry. This outcome is in fact an increasingly likely scenario among oddsmakers, political scientists, and computer modelers of the 2008 election. And that, my friends, gives us a 269-269 tie in the Electoral College.

Background on the Electoral College

Most people know how the Electoral College works in a normal Presidential election. Under the process established by Article II Section 1 of the U.S. Constitution, when people in each state cast their ballots on Election Day, they are not really voting for President, but for a slate of “electors” for their state, equal to the number of Representatives and Senators who represent that state in Congress – these electors are generally already nominated by the political parties in their state. In almost every state, whichever candidate wins the popular vote gets to seat its party’s electors in the Electoral College, and is entitled to all of that state’s electoral votes. (Maine and Nebraska award electors to the winners of each individual Congressional district.)

So for most elections, at some time late on election night, we know the outcomes of the votes in each state, and we know how many electoral votes each candidate will receive. On the first Monday after the second Wednesday in December (Monday, Dec. 15 in 2008), the electors chosen on election day meet in each state and cast their separate ballots for President and Vice President, generally in line with the votes in their states (although they are not bound by law to vote that way.) Their votes are delivered to the President of the United States Senate, who presides over a joint session on Congress at 1 p.m. on January 6 of the following year to open and count the ballots. Because the outcome of the election is generally known on election night, both the votes of the electors and the counting of the electoral votes are normally ceremonial exercises.

Electors Gone Wild

That’s how it normally works. But what happens when the outcome of the Electoral College vote is a tie?

The 12th Amendment to the Constitution says that in the event that no candidate receives a majority of votes in the Electoral College (a majority is currently 270 electoral votes), the U.S. House of Representatives selects the President, and the U.S. Senate selects the Vice President.

In the House’s selection of the President, the top three electoral vote-getters are eligible for election as President.[1] But the election is not a floor vote in the new House – instead, the 12th Amendment specifies that each state gets one vote, and the House members from each state would meet in a special caucus to decide which candidate gets their state’s vote.[2] The candidate who receives a majority of state votes (currently 26) becomes President. Representatives are not bound by how the residents of their state voted in the general election, and the Representatives alone will select the new President. This is not a hypothetical situation – it’s actually how we picked Thomas Jefferson President in 1800 and John Quincy Adams (left) President in 1824.

The fact that Democrats currently hold a majority of House seats is immaterial. Because each state gets a single vote, the more important question is the composition of each state’s delegation in the new Congress. To put it differently: are there more states that have a majority of Republican Representatives, or more that have a majority of Democrats representing their states? Democrats currently have a majority of Representatives in 27 states, Republicans have a majority of Representatives in 21 states.

There are three oddities to this state-by-state election in the House: First, some “crossover” states will cast their electoral votes for one candidate, but their Representatives would likely cast their state’s vote for the other. Polls in Mississippi (for example) have shown Senator McCain with double-digit leads since the start of the general election, so he would likely win Mississippi’s four electoral votes. But in the event of an electoral tie, the state has three Democratic Representatives in Congress and one Republican – Mississippi’s vote in the House election would go to Senator Obama. Based on current polling and the current composition of the House of Representatives, as many as ten or eleven states could be “crossover” states (like Mississippi), and it is not clear that those delegations would vote strictly along party lines if that means subverting the will of a majority of the state’s general election voters.

Second, the House delegations of Arizona and Kansas are equally divided between Democrats and Republican Representatives in Congress (Arizona is represented by four Democrats and four Republicans, and Kansas is represented by two Democrats and two Republicans). There is no Constitutional or statutory guidance about breaking ties in such states, and assuming that their Representatives vote along party lines, these two states would be deadlocked, and probably unable to cast a ballot in this election.

Third, because the new Congress convenes on January 3 and the joint session to count electoral votes is not until January 6, Constitutional scholars agree that it would be the incoming Congress that would vote in this election – and the state-by-state composition of each state in the new Congress is anyone’s guess.

Senate Selection of Vice President

In an electoral tie, the House’s choice for President doesn’t just get to bring their running mate along as Vice President – the Vice President is separately selected by the Senate as between the two highest vote-getters in the Electoral College. This is not a caucus by state – it’s instead “one Senator, one vote,” or a straight floor vote in the Senate.

In this election year, this might not be so simple. The composition of the Senate is 49 Democrats, 49 Republicans, and 2 independents (Sen. Bernie Sanders from Vermont and Sen. Joe Lieberman from Connecticut). Both independents typically caucus with the Democratic party, but Lieberman has endorsed McCain, which means the current Senate would deadlock as well. In tie votes in the Senate, the sitting Vice President, Dick Cheney, could vote to break the tie, and he could literally hand-pick Palin as his successor. Again, however, it is the new Senate that will vote for Vice President, and polling suggests that Democrats will win enough Senate seats to avoid such a deadlock.

President Biden? Or President Palin?

The Senate’s selection of a Vice President in the event of an electoral tie is particularly important. Under the 20th Amendment, in an electoral tie, if the House cannot muster a majority of states to vote for either candidate for President, the Vice President shall serve as President until such time as the House can select a President – and if the House never makes a choice, that could be for the entire four-year term.


Although this possibility may seem remote, the election of 1824 went to 35 separate ballots before John Quincy Adams was selected in a compromise on the 36th ballot (which prompted the drafting of the 20th Amendment).

So it would be possible for 51 Senators to elect a Vice President who would then serve as the new President – unlikely perhaps, but completely possible and completely constitutional.

In most Presidential elections, the edge provisions of the 12th and 20th Amendments do not arise. However, in the odd case of a 269-269 tie in the Electoral College, every one of these possibilities is in play. America’s closely divided electorate produced a calamitous election in 2000 – but if 2008 produces an electoral tie, this election year may make 2000 look straightforward by comparison. At least the 2000 election was decided by the nine-member Supreme Court, where the odd number of Justices doesn’t result in ties.

Ed Walters is a lawyer and serves as Chief Executive Officer of Fastcase, Inc., a legal research company based in Washington, D.C. Christina Steinbrecker, a lawyer and Customer Outreach Specialist at Fastcase, provided invaluable research assistance for this article.

[1] Presumably in a 269-269 tie, only the candidates who actually received electoral votes would be eligible, McCain and Obama in the scenario spelled out above. However, this is not explicitly enumerated in the Constitution, so it’s not inconceivable that a 2008 third-party candidate such as Rep. Robert Barr of the Libertarian Party or Ralph Nader of the Green Party would be eligible to receive votes in this House of Representatives election.

[2] Another issue unaddressed by the Constitution is whether the District of Columbia would have a vote in such an election. It is, of course, not a state – but under the 23rd Amendment, it is treated like a state in the Electoral College, with three electors who vote for President. The most literal interpretation of the Constitution would suggest that the District would not participate in this state-by-state election in the House of Representatives. However, because the 23rd Amendment says that the District’s electors shall “perform such duties as provided by the 12th article of amendment,” it is arguable that the District might also get a potential tiebreaking vote in the House election spelled out in the 12th Amendment.

Countdown to November 4: Voting on the "Master Plan" in New Orleans

The team of consultants that the New Orleans City Planning Commission hired to complete a "master plan" for economic development, better housing, improved infrastructure.  After Katrina, the plan was introduced and repeatedly stalled.  Whether to give this plan the force of law goes to vote on November 4th.

Proponents say that the plan aims to balance the necessary upgrades with an eye toward preserving the "architectural and cultural legacies."  Critics remain unconvinced largely because the plan isn't finished yet and voting for it feels like of like signing a blank check.  The local NAACP, for example, is not on board because it is unclear how the plan will treat historically African-American neighborhoods.  Other critics ask: what is the rush?  Commenters at the Times-Picayune certainly do not appear to be on board.

Check out the website for the plan here.

See a list with links to plan documents here.

Read what people are saying here.

Source: nola.com

Twitter for Terrorists

Anti-terrorism authorities in both the US and the UK are becoming increasingly worried about the role of Twitter in "extremist groups." Twitter is a free social networking site which allows users to post "tweets" to update their networks. Additionally, large businesses like Cisco Systems, Jet Blue, and Whole Foods Market use Twitter to disseminate product information. The LA Fire Department used it to monitor fires, and Barack Obama uses it to update supporters.

A recent US Army report contains a chapter on "Potential for Terrorist Use of Twitter" and notes that protesters used Twitter to organize efforts at the RNC this year. Additionally, Twitter was faster than US news services in reporting earthquakes in LA this July. For this reason and because satellite navigation and mapping tools have been discussed in al-Qaeda forums twitter is seen as a possible venue for terrorists.

Source: BBC

Worse than 2000? How About a 269-269 Electoral Tie?

As with most Presidential elections, the 2008 election has tightened up with about one day remaining. If Democratic Sen. Barack Obama fares better (but not much better) than Sen. John Kerry did in 2004, the electoral vote count could end up in a deadlocked tie 269 to 269. Our constitutionally prescribed method of dealing with ties in the Electoral College makes the famous “recount” election between then-Gov. George Bush and Sen. Albert Gore, Jr. in 2000 look like a city council election, and could even result in Alaska Gov. Sarah Palin becoming our next President.

Crazy? Yes. But also completely in line with how we elect the President.

First things first: Is it even possible that this election could result in an electoral tie? As Sarah Palin might say, “You betcha.” If the state-by-state polling 14 days out from the election is any indication, it looks like Sen. Obama will safely carry all of the states that Sen. Kerry did in 2004, with the possible exception of New Hampshire, a state that has a special political relationship with Sen. John McCain. Polls also indicate that Senator McCain will carry most of the states that President Bush carried in 2004, with the exception of New Mexico, Colorado, and Iowa, which it now seems likely that Obama will carry. This outcome is in fact an increasingly likely scenario among oddsmakers, political scientists, and computer modelers of the 2008 election. And that, my friends, gives us a 269-269 tie in the Electoral College.

Background on the Electoral College

Most people know how the Electoral College works in a normal Presidential election. Under the process established by Article II Section 1 of the U.S. Constitution, when people in each state cast their ballots on Election Day, they are not really voting for President, but for a slate of “electors” for their state, equal to the number of Representatives and Senators who represent that state in Congress – these electors are generally already nominated by the political parties in their state. In almost every state, whichever candidate wins the popular vote gets to seat its party’s electors in the Electoral College, and is entitled to all of that state’s electoral votes. (Maine and Nebraska award electors to the winners of each individual Congressional district.)

So for most elections, at some time late on election night, we know the outcomes of the votes in each state, and we know how many electoral votes each candidate will receive. On the first Monday after the second Wednesday in December (Monday, Dec. 15 in 2008), the electors chosen on election day meet in each state and cast their separate ballots for President and Vice President, generally in line with the votes in their states (although they are not bound by law to vote that way.) Their votes are delivered to the President of the United States Senate, who presides over a joint session on Congress at 1 p.m. on January 6 of the following year to open and count the ballots. Because the outcome of the election is generally known on election night, both the votes of the electors and the counting of the electoral votes are normally ceremonial exercises.

Electors Gone Wild

That’s how it normally works. But what happens when the outcome of the Electoral College vote is a tie?

The 12th Amendment to the Constitution says that in the event that no candidate receives a majority of votes in the Electoral College (a majority is currently 270 electoral votes), the U.S. House of Representatives selects the President, and the U.S. Senate selects the Vice President.

In the House’s selection of the President, the top three electoral vote-getters are eligible for election as President.[1] But the election is not a floor vote in the new House – instead, the 12th Amendment specifies that each state gets one vote, and the House members from each state would meet in a special caucus to decide which candidate gets their state’s vote.[2] The candidate who receives a majority of state votes (currently 26) becomes President. Representatives are not bound by how the residents of their state voted in the general election, and the Representatives alone will select the new President. This is not a hypothetical situation – it’s actually how we picked Thomas Jefferson President in 1800 and John Quincy Adams (left) President in 1824.

The fact that Democrats currently hold a majority of House seats is immaterial. Because each state gets a single vote, the more important question is the composition of each state’s delegation in the new Congress. To put it differently: are there more states that have a majority of Republican Representatives, or more that have a majority of Democrats representing their states? Democrats currently have a majority of Representatives in 27 states, Republicans have a majority of Representatives in 21 states.

There are three oddities to this state-by-state election in the House: First, some “crossover” states will cast their electoral votes for one candidate, but their Representatives would likely cast their state’s vote for the other. Polls in Mississippi (for example) have shown Senator McCain with double-digit leads since the start of the general election, so he would likely win Mississippi’s four electoral votes. But in the event of an electoral tie, the state has three Democratic Representatives in Congress and one Republican – Mississippi’s vote in the House election would go to Senator Obama. Based on current polling and the current composition of the House of Representatives, as many as ten or eleven states could be “crossover” states (like Mississippi), and it is not clear that those delegations would vote strictly along party lines if that means subverting the will of a majority of the state’s general election voters.

Second, the House delegations of Arizona and Kansas are equally divided between Democrats and Republican Representatives in Congress (Arizona is represented by four Democrats and four Republicans, and Kansas is represented by two Democrats and two Republicans). There is no Constitutional or statutory guidance about breaking ties in such states, and assuming that their Representatives vote along party lines, these two states would be deadlocked, and probably unable to cast a ballot in this election.

Third, because the new Congress convenes on January 3 and the joint session to count electoral votes is not until January 6, Constitutional scholars agree that it would be the incoming Congress that would vote in this election – and the state-by-state composition of each state in the new Congress is anyone’s guess.

Senate Selection of Vice President

In an electoral tie, the House’s choice for President doesn’t just get to bring their running mate along as Vice President – the Vice President is separately selected by the Senate as between the two highest vote-getters in the Electoral College. This is not a caucus by state – it’s instead “one Senator, one vote,” or a straight floor vote in the Senate.

In this election year, this might not be so simple. The composition of the Senate is 49 Democrats, 49 Republicans, and 2 independents (Sen. Bernie Sanders from Vermont and Sen. Joe Lieberman from Connecticut). Both independents typically caucus with the Democratic party, but Lieberman has endorsed McCain, which means the current Senate would deadlock as well. In tie votes in the Senate, the sitting Vice President, Dick Cheney, could vote to break the tie, and he could literally hand-pick Palin as his successor. Again, however, it is the new Senate that will vote for Vice President, and polling suggests that Democrats will win enough Senate seats to avoid such a deadlock.

President Biden? Or President Palin?

The Senate’s selection of a Vice President in the event of an electoral tie is particularly important. Under the 20th Amendment, in an electoral tie, if the House cannot muster a majority of states to vote for either candidate for President, the Vice President shall serve as President until such time as the House can select a President – and if the House never makes a choice, that could be for the entire four-year term.


Although this possibility may seem remote, the election of 1824 went to 35 separate ballots before John Quincy Adams was selected in a compromise on the 36th ballot (which prompted the drafting of the 20th Amendment).

So it would be possible for 51 Senators to elect a Vice President who would then serve as the new President – unlikely perhaps, but completely possible and completely constitutional.

In most Presidential elections, the edge provisions of the 12th and 20th Amendments do not arise. However, in the odd case of a 269-269 tie in the Electoral College, every one of these possibilities is in play. America’s closely divided electorate produced a calamitous election in 2000 – but if 2008 produces an electoral tie, this election year may make 2000 look straightforward by comparison. At least the 2000 election was decided by the nine-member Supreme Court, where the odd number of Justices doesn’t result in ties.

Ed Walters is a lawyer and serves as Chief Executive Officer of Fastcase, Inc., a legal research company based in Washington, D.C. Christina Steinbrecker, a lawyer and Customer Outreach Specialist at Fastcase, provided invaluable research assistance for this article.

[1] Presumably in a 269-269 tie, only the candidates who actually received electoral votes would be eligible, McCain and Obama in the scenario spelled out above. However, this is not explicitly enumerated in the Constitution, so it’s not inconceivable that a 2008 third-party candidate such as Rep. Robert Barr of the Libertarian Party or Ralph Nader of the Green Party would be eligible to receive votes in this House of Representatives election.

[2] Another issue unaddressed by the Constitution is whether the District of Columbia would have a vote in such an election. It is, of course, not a state – but under the 23rd Amendment, it is treated like a state in the Electoral College, with three electors who vote for President. The most literal interpretation of the Constitution would suggest that the District would not participate in this state-by-state election in the House of Representatives. However, because the 23rd Amendment says that the District’s electors shall “perform such duties as provided by the 12th article of amendment,” it is arguable that the District might also get a potential tiebreaking vote in the House election spelled out in the 12th Amendment.

Notable Morning Stories ...

Have we learned enough from the Crash of 1929? - The Conglomerate Corporate Law Blog

Alaska Senator Ted Stevens, 84, Convicted - Blog of Legal Times

With One Week to Go, Palm Beach County (Florida) Nervous About Counting Votes - NPR

Sites We Like: The Avalon Project at Yale Law School

Yale's Lillian Goldman Law Library hosts an online component known as the Avalon Project.  This initiative aims to provide access to source materials in the fields of law, diplomacy and history. Our favorite segment consists of ancient documents where you can read the text of some of the very first written laws.

Source: Yale Law School's Lillian Goldman Law Library

Rehnquist Family Donating Papers to Stanford

Justice William Rehnquist was on the Supreme Court for thirty three years before his death in 2005.  Interestingly, only papers relating to decisions made between 1972, when Rehnquist joined the Court, and 1975, when John Paul Stevens joined the Court, will be made public.  This is because papers are not made public until every sitting Justice from each year is deceased.

Another piece of trivia related to this donation is that, unlike most Justices, the Rehnquist papers will not be released to the Library of Congress.  Apparently, Rehnquist was outraged with the LOC for releasing papers having to do with relatively recent cases after Justice Marshall died.

Scholars are excited about the release of his papers from the 1973 decision in Roe v. Wade as well as documents relating to his role in the impeachment of Bill Clinton.

Source: The Blog of Legal Times

Lawdable Quotes:Hart Pomerantz

Law school taught me one thing: how to take two situations that are exactly the same and show how they are different.

~ Hart Pomerantz

Lawdable Quotes: Albert Einstein

As long as I have any choice, I will stay only in a county where political liberty, toleration, and equality of all citizens before the law are the rule.

~ Albert Einstein

Greenspan's Written Testimony Received in Congress

The House Goverment Oversight and Reform Committee received Former Fed Chairman Alan Greenspan's testimony which opened by calling the economic downturn a "tsunami."  The 1033 word document summarizes Greenspan's take on the source of the crisis, policies for going forward, expectations for the future, as well as lessons learned.  It does not address the views of those who criticize Greenspan.

It ends with the statement: This crisis will pass, and America will reemerge with a far sounder financial system.

John Snow, former Secretary of the Treasury, and Christopher Cox, Chairman of the SEC, also testified.

Source: NPR

Tax I.Q. Test

"I have a Ph.D. from an Ivy League university and my wife is a CPA and we are still incapable of doing our own taxes." -Political Science Professor, University of Wisconsin, 2004

According to that professor, you cannot expect to be able to do your own taxes just because you're smart.  So, should you seek guidance in paying your taxes?  When you have ten minutes, check this out - the Tax IQ test.  It's 25 questions and it covers basic taxpayer concepts.   

Don't worry if your score is low - there's still plenty of study time before April! 

Source: Tax Law Blog

New Gmail Labs Feature: Canned Responses

Gmail Labs is a fun playground for using features that haven't made it yet as a standard Gmail.  Earlier this month they launched Mail Goggles  which caused much fervor and debate in the Fastcase office over the utility of such a feature.  With the launch of canned responses there can be no question in terms of utility of this new feature.  The ability to reply to an email with a standard script is one that I'm sure most business users who have migrated their platforms to Gmail Apps have been clamoring for. 

If you are interested in trying out canned responses select settings in Gmail and then labs.

Source: Gmail Blog

MIT OpenCourseWare: The Law of Corporate Finance and Financial Markets

MIT OpenCourseWare

15.617 The Law of Corporate Finance and Financial Markets

Interested in learning more about the law and how it relates to corporate finance? MIT is offering class materials to allow you to self study how the law interplays with financial markets and corporate finance.  MIT is part of the OpenCourseWare initiative which publishes the course materials of previously held classes.  You can follow along the lecture notes and and learn more about this subject at your own pace. The course description and class materials link are below.

Course Description

Much of 15.617 focuses on mergers and acquisitions (M&A), and the law-sensitive aspects of financial services and financial markets. The course is designed to be an introduction to business law that covers the fundamentals, including contracts, liability, regulation, employment, and corporations. This class also provides an in-depth treatment of the law of finance

Download the course materials here: The Law of Corporate Finance and Financial Markets 

Proposition K Could Legalize Prostitution in San Francisco

If Proposition K passes this November, San Francisco could certain sections of Nevada and Rhode Island where prostitution is legal behind closed doors  Proponents say that if prostitution is legalized, sex workers will be able to organize for rights and safety.  Plus, it will free up $11 million dollars in police power each year. 

Opponents argue that the crime of prostitution does not exist in a vaccuum and that deregulation will cause other crimes to increase.  First, they argue that making prostitution legal will hinder the fight against sex trafficking which is the practice of forcing people into the sex trade.  The proposal would make it difficult to investigate rings.  Additionally, police would be prohibited from accepting federal or state funds for sex trafficking investigations that involve racial profiling.  

Source: Breitbart

Today Is Global Anti-Piracy Day: View An Interactive Map of Legal Action Across The Globe

Microsoft has launched a coordinated global effort against piracy today with legal action commencing across 49 separate countries to help stem the distribution of counterfeit software.  They've also set up an interactive world display where you can view the individual actions being taken in each country.  Hit the links below to learn more about the effort and check out the US Case Summaries below.

View the map here.

Watch Microsoft Lawyers talk about the effort here.
  
Source: Microsoft 

U.S. Case Summaries:

Filed in the U.S. District Court for the Middle District of Florida, Jacksonville Division

Microsoft Corp. v. A-1 Discount Computer Sales & Service Inc.

Case No. 3:08-cv-999-J-32JRK

Filed in the U.S. District Court for the Southern District of Ohio, Eastern Division

Microsoft Corp. v. Broad Computer Center Inc.

Case No. 2:08-CV-00984

Filed in the U.S. District Court for the Central District of California

Microsoft Corp. v. Computer Czech LLC

Case No. CV08-06874

Filed in the U.S. District Court for the Central District of California

Microsoft Corp. v. Century Software Systems

Case No. CV08-06871

Filed in the U.S. District Court for the Southern District of Ohio, Eastern Division

Microsoft Corp. v. Computers Unlimited and Services Inc.

Case No. 2:08-CV-00985

Filed in the U.S. District Court for the Western District of Louisiana, Lafayette-Opelousas Division

Microsoft Corp. v. Custom Computer 4 Less

Case No. 6:08-cv-01569

Filed in the U.S. District Court for the Central District of California

Microsoft Corp. v. Cygma Computer Systems

Case No. CV08-06873

Filed in the U.S. District Court for the Eastern District of Texas, Sherman Division

Microsoft Corp. v. Hill Country Computer

Case No. 4:08-cv-00396

Filed in the U.S. District Court for the Central District of California

Microsoft Corp. v. JY Computer Inc.

Case No. CV08-06869

Filed in the U.S. District Court for the Southern District of NY

Microsoft Corp. v. Main PC

Case No. 08-civ-8975

Filed in the U.S. District Court for the District of Minnesota

Microsoft Corp. v. Miracle Computers LLC

Case No. 08-cv-5772

Filed in the U.S. District Court for the Northern District of Texas, Lubbock Division

Microsoft Corp. v. Epic Computer Solutions

Case No. 5:08 –cv-00207-C

Filed in the U.S. District Court for the Central District of California

Microsoft Corp. v. Brereton Computer Services

Case No. CV 08-06875 CBM (PLAx)

Filed in the U.S. District Court for the Southern District of California

Microsoft Corp. v. H&C Computers

Case No. 08 CV 1925

Filed in the U.S. District Court for the Southern District of California

Microsoft Corp. v. Best Deal Computers

No. 08 CV 1927

Filed in the U.S. District Court for the Southern District of California
Microsoft Corp. v. Computer Plus

Case No.: 08 CV 1928 JLS RBB

Filed in the U.S. District Court for the Southern District of California
Microsoft Corp. v. SP Computer

Case No.: 08 CV 1926 WQH AJB

Filed in the U.S. District Court for the District of Oregon
Microsoft Corp. v. Agility Corporate Solutions
Case No. CV 08 1219 HA

Filed in the U.S. District Court for the District of Oregon
Microsoft Corp. v. Grand Avenue Microtech (Portland, Ore.)
Case No. CV 08 1218 AA

Filed in the U.S. District Court for the District of Connecticut

Microsoft Corp. v. Compatible Computers

Case No. To be provided upon request

Supreme Court To Hear Arguments On Identity Theft and Illegal Immigration

The Supreme Court will hear oral arguments in the case of Ignacio Flores-Figueroa, an illegal immigrant who used a fake ID to get a job at a plant in Illinois.  At issue is who has the burden of proof in showing whether an illegal immigrant knew his documents were stolen from real person. 

Lower courts in this case found that the DOJ need not prove an illegal immigrant knew a real person was being victimized.  The Eighth Circuit affirmed.  Flores-Figueroa was sentenced to six years in prison.  However, three other appellate courts ruled that the DOJ must show an illegal immigrant knew a real person was being victimized in order to convict on aggravated identity theft.

The Supreme Court will resolve this circuit split.  The statute in question (18 U.S.C. 1028A(a)(1)) states that anyone who knowingly uses another's identification during the commission of a listed crime shall receive at least two years in prison.  The DOJ argues that an adverse ruling will all but completely erradicate its ability to prosecute immigrant identity theft because most illegal immigrants have no idea where fake paperwork comes from.  Others think that deporting illegal immigrants should be enough.

Source: Washington Post

Expect Long Lines On Election Day

An estimated two million new voters registered to vote in the 2008 presidential election and a record turnout is expected. Many worry about voter fraud, but Nate Persily, a Columbia University law professor, warns that the bigger danger for November 4th is going to be managing the election day crowds and technology.


Even though states are doing the best they can to train their poll workers, the large voter turnout is going to magnify the problems that have always existed in presidential elections, Persily said in an interview this week. He points to examples like the long lines that Ohio faced in 2004 and election technology as potential voter obstacles.


The worry, of course, is that litigation will follow the election. New suits are already filed in Ohio almost every day. Early voting is an imperfect solution because the sheer volume of early/absentee votes in states that allow no fault absentee voting will probably constitute cause to challenge the result.


Additionally, states that have always been "safe" red states (North Carolina, Virginia, Colorado) are finding themselves on the front lines of the battle ground. Election results in these states have not traditionally been challenged, and experts worry that they might not be prepared to protect their election practices.


Then, of course, there's the question of whether Ben and Jerry's is breaking federal law by promising to give out free ice cream to encourage voter turnout. . . .


Source: Election Law Blog and The Takeaway

Lawdable Quotes:J. William Fulbright

Law is the essential foundation of stability and order both within societies and in international relations.

~ J. William Fulbright

Lawdable Quotes: B.R. Ambedkar

Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered.

~ B.R. Ambedkar

Stumped by Technology?

Ever worry that your computer can do things that you have no clue how to ask it to do? Me too. That's why I love David Pogue's article in the NY Times today entitled "Tech Tips for the Basic Computer User."

Here are a couple of things this blog contributor learned:

1. You can enlarge text on any web page. In Windows, press control and the "+" or "-" key (for bigger or smaller font). On your Mac, press command and "+" or "-".

2. Hide all the windows you have open on your desktop immediately by pressing the "Windows" key and "d."

Also, read the more than 1200 comments below the post for more tips. Feel free to share your tips on the Fastcase blog as well!

Source: NY Times

Lawdable Quotes: Will Rogers

The minute you read something that you cannot understand, you can almost be sure that it was drawn up by a lawyer.

~Will Rogers

Dallas Lawyer and Firm Respond to "Out of Context" Letter by Houston Lawyer

Last week, we brought you this letter from a Houston hurricane victim/lawyer to a Dallas attorney.  In this letter, the Houston lawyer rants about all the reasons he could not make it to a deposition scheduled by the Dallas lawyer and states that the Dallas lawyer completely failed to be sensitive to the logistical challenges in light of the hurricane.

The letter spread on blogs (like ours) and via email.  Now, the Dallas lawyer wants that same community to hear his side of the story.  He publically responds to the Houston lawyer's allegations on his firm's website.  He also details the effect of this email on his personal reputation and his firm's reputation.  

We post this not because anyone is particularly interested Texas attorneys' online beef, but as a reminder to ourselves and our readers that every story has two sides.

Source: Above the Law

Preparing for Liability on Wall Street

Capitol Hill staffers can attest that over the last two weeks, many consituents who called their representatives to support the bailout want the corporate officers "responsible for this mess" brought to justice. Allegations are being made of "massive fraud". The presidential candidates want voters to believe that justice will be served. But what will it look like?

Investigations are expected to begin this spring. "Congress gave a pint, if not a quart, of blood in the current bailout plan," says Micah Green, partner at Patton Boggs. "When they come back to work to make sure it never happens again, they're going to be out for more than a pound of flesh." By spring, Congress will have had the opportunity to have gone through internal Wall Street communications, a luxury not afforeded to Rep. Henry Waxman who is currently holding preliminary hearings.

The key to a Wall Street insider's defense? Preparation. Companies will want to look over their communications before the government does to get a head start on their defense. Attorneys are also advising their clients to check their indemnity agreements to be sure their companies will pay for the cost of their defense.

Source: Law.com

Lawdable Quotes: Oliver Wendell Holmes

This is a court of law, young man, not a court of justice.

~Oliver Wendell Holmes

Tech Rumor: Affordable MacBooks Coming Next Week!

Rumors are flying that Apple is about to introduce a $799 MacBook this year.  Currently, you cannot get out of an Apple Store with a computer costing less than $1099.  Apparently, Apple plans to increase its line to 12 different laptops (currently there are only 8).

The rumor comes from "information" provided to Duncan Riley of The Inquisitr .  Riley's informant supposedly works at an Apple retailer and leaked the newest price.  The informant reports that price lists are delivered to retailers about ten days before new products arrive.  

Source: NY Times

Lawdable Quotes: Ronald D. Dworkin

Integrity is the key to understanding legal practice. Law’s empire is defined by attitude, not territory or power or process.

~ Ronald D. Dworkin  

Linking Dropping Oil Prices to World Events

Good news!  Deutsche Bank predicts that oil prices may fall to as low as $60 per barrel.  As a point of reference, the price per barrel today is $80.42 (and prices have already started dropping).

We LOVE this 1861-2007 crude oil price chart with corresponding world events (the Pennsylvanian oil boom of the 1860s, the discovery of Spindletop Texas, and the Asian financial crisis which was responsible for that supercheap gas in the late 1990s), check out this BP chart.

Source: CNN Money

As Roberts Warned, "Underpaid" Federal Judges Are Leaving...

Senior U.S. District Judge James T. Giles is leaving the bench for a law firm, and he is citing "financial reasons" as the reason.  He told reporters that he does not see Congress giving federal judges a "meaningful raise" in the near future.  So, he's going back to the job at Pepper Hamilton that he left in 1979.

According to Giles, if Congress does not approve higher salaries for judges, more senior judges are going to be leaving.  Supreme Court Chief Justice John Roberts made some efforts in the past to increase salaries for federal judges, but Congress has yet to act.  Roberts argued that average salary has risen by 17.8%, but federal court judges' salaries have dropped by 23.9%.  Some call it a constitutional crisis.  

Source: WSJ Law Blog

Free Podcasts Explaining the Financial Crisis and Rescue Package

No one is going to disagree that the financial world is changing.  But, where does a busy person turn for a basic AND in-depth explanation?  We like the October 4 broadcast of This American Life.  Download the podcast at itunes.com or at NPR.  Do it before the October 11 podcast is posted and it's free!

The podcast explains the commercial paper market, breaking the buck, how Lehman and AIG are related.  About halfway through This American Life, experts ask and analyze the question: "Is it fair for me to be mad about the meltdown?"

Once you've got the background, check out the daily Planet Money Podcast here.  Each episode is about 25 minutes long.

Source: NPR

Attorney Spotlight: David Boies

Representing Wachovia in its battle with Citigroup, David Boies reports that for the first 48 hours he spent working on the case, the only time he saw daylight was when he walked to court. As the American Lawyer Litigation Daily tells it, Mr. Boies was in his office drafting Congressional testimony for former AIG CEO Maurice "Hank" Greenberg when the call from Wachovia came in.

He describes the multijurisdictional ligitigation as "like some of the old takeover battles that I used to be involved in...Someone is running to state court. Someone is running to federal court. Someone is running toanother state court."

Citigroup maintains that Wachovia's deal with Wells Fargo violates a preexisting agreement preventing Wachovia from discussing a sale or merger with anyone but Citigroup until October 6. On Saturday, a judge issued an order extending that agreement until further action can be taken.

Source: WSJ and American Lawyer Litigation Daily

Ex-Detainees to be Released in US

On Friday, 17 Chinese Muslim detainees are scheduled to be released from Guantanamo Bay and delivered to the DC Court which ordered their release on Tuesday.  In an emergency motion, the Department of Justice argues that only the executive branch may decide whether to admit an alien to the United States.  

The detainees were pursuant to charges that they received weapons training at an Ahfgan military camp.  They fled to Pakistan and Pakistani authorities ultimately turned them over to the United States.  They were held in Guantanamo even though, in 2004, it was determined that they were not military combatants.  

They are not being returned to China because there are credible threats that they would be harmed upon returning to China.  However, the DOJ argues that they should not be released in the United States because they present a risk to citizens.  Efforts to place the released in another country have been unsuccessful.

Source: CNN World News

A Democratic Duty to Learn About Technology?

In a poll by The Project on Emerging Nanotechnologies, researchers found that half of Americans know nothing about nanotechnology or synthetic biology.  This report concerns policy experts because this technology will be breaking onto the scene in the next administration, and the public has not even begun to discuss the benefits and risks of the technology.

In case you don't know: Synthetic biology is the use of advanced science and engineering to redesign living organisms (bacteria) so they can carry out specific functions.  Nanotechnology is a field of applied science whose them is to "control matter on an atomic and molecular scale. 

Source: Pew Trusts Newsroom

Beards at the DC Fire Department

Today, the U.S. Court of Appeals of the D.C. Circuit heard oral arguments in a case about whether DC Fire Departments are violating the Religious Freedom Restoration Act in requiring firefighters to shave their beards.  DC argued that facial hair interferes with the mask's seal and increases exposure to toxic air.  Attorney Richard Love, on behalf of DC, argued that there is a compelling government interest to maximize public safety and that assigning a "bearded" firefighter to administrative duty does not go far enough to protect the public.

However, no death or injury has ever resulted from wearing the masks.  D.C. firefighters were allowed to wear beards until 2001.  If you're interested, check out the Washington Times article about the plaintiffs.  

Source: Blog of Legal Times

Gmail Labs Launches Mail Goggles

Most employees here at Fastcase use Gmail as their personal webmail service. One of the more interesting aspects of Gmail is the Labs playground where Google posts new projects before their release -- you can add and test out features that appeal to you.

One new feature, dubbed "Mail Goggles" was just added to the labs list. Mail Goggles will prevent a user from sending an e-mail during the late evening hours unless the user is able to successfully answer a challenge question. These challenge questions consist of simple math problems that could prove perplexing to the intoxicated. (Question: is this a big enough problem at Google to call for this solution?) See an example of the challenge screen below:

Interested in preventing yourself from sending embarrassing emails to your ex, co-workers, friends or parents? To enable Mail Goggles go to setting, select labs and then enable Gmail Goggles.

Source: Gmail Blog

Iceland May Go Bankrupt

Iceland is experiencing an economic nightmare due to the global instability in the financial markets.  Their currency, the krona, has dropped 45% against the euro and according to their prime minister; Geir Haarde, the country may be on the verge of a "national bankruptcy."  In the trailing 12 months the krona has been listed as one of the top three under performing currencies along with the Zimbabwean dollar and Turkmenistan manat.

Read the prime ministers sobering address to the nation here.

Source: WSJ and Bloomberg

Free Book of the Month: Aristophanes's The Wasps

This month the Fastcase  Blog is bringing you Aristophanes's  The Wasps for your reading pleasure.  This witty satire of the Athenian Law-courts is a must read.  If you are feeling adventurous and still remember your ancient Greek, check out the original text of the play here. Otherwise please right click/save as the full text of the book from the link below:

Aristophanes's The Wasps (PDF from Google Books)

Let us know what you think of this play in the comments!

Nobel Peace Prizes in Medicine Announced

Francoise Barre-Sinoussi and Luc Montagnier of France will be honored for discovering the human immunodeficiency virus. Harald zur Hausen of Germany will also be honored for discovering the human papilloma virus which leads to cervical cancer. The winners will split a $1.4 million prize and will be honored in Switzerland in December 10.

Source: CNN