Would-be lawyers have a lot to mull over these days before pulling the trigger on a law school:  struggles (and lawsuits) over law school job placement data, concerns over “economic viability,” suggestions that law schools may not be necessary, and stress levels high enough to bring in the puppies for therapy.

Now, Yale Law School is scaling back its loan forgiveness program, which partially subsidizes tuition loan payments for graduates who enter relatively low-salary careers, according to Yale Daily News. The school says the program will require greater contributions from incoming and future classes, and that the change is due to more conservative budget projections as a result of the recession.

The Career Options Assistance Program is meant to encourage alumni to pursue public service careers, although it is not limited to specific career paths. Previously, the program allowed law school graduates who earn less than $60,000 a year to have their loans fully subsidized, while those earning more are expected to contribute a quarter of their income above that baseline. The new policy lowers the baseline salary to $50,000 and expects varying percentages of income from alumni, based on a sliding scale of income brackets.

Some students admitted to the school’s class of 2015 said the change wouldn’t impact their decision to attend, as Yale’s program remains among the most generous in the nation, Yale Daily News noted. Harvard Law School has a similar program, and requires no contribution from those earning $45,000 or less. Columbia Law School’s program has a $50,000 threshold.

Yale Law School’s changes to the program won’t affect any current students or alumni that participate, or who may be eligible to participate.

Since Australia’s high court in 2006 gave litigation funding its stamp of approval, the industry has grown significantly.

In a new report sponsored by the U.S. Chamber Institute for Legal Reform, an Australian law professor takes a look at how the practice — where businesses invest in high-stakes legal disputes, sharing the risks and potential rewards — creates conflicts of interest.

The conflict argument has been made in the U.S., which is still feeling its way in the field, but Australia’s track record is longer. And the report concludes that the country’s experience should be a lesson to the legal community here.

The conflict is one of loyalty: As a lawyer, is it possible to make decisions based entirely on the best interests of your client when you have to answer to someone else who is paying the bills?

The report, by Michael Legg of the University of New South Whales, says most of the reported legal decisions in Australia on the subject have dealt with whether litigation funding is an abuse of process or contrary to public policy. The conflict issue usually arises in the context of  the lawyer’s role  in the litigation funding arrangement.

He writes,

The funder’s role as financier who pays the lawyer’s fees, sometimes with some form of success fee, creates a relationship of economic dependence by the lawyer on the funder. The economic relationship being summarised by the aphorism “He who pays the piper calls the tune.”

Anecdotal evidence suggests Australian Lawyers recognize the conflict. Some have advised clients to seek independent legal advice on the terms of the funding agreement, Legg says.

But that raises the question of “how is it that the lawyer can be said to act for the client if they are unable to advise on the fundamental contractual arrangement between the client and the funder.” And, he adds, how can a lawyer meet his duty of loyalty to a client if he doesn’t even try to bargain with the funder over how big of cut the funder will receive?

According to Legg,

On the very issues where a client needs a loyal lawyer — such as understanding the fundamental precepts of the funding arrangements, their rights and obligations as set out in the litigation funding agreement — their lawyer goes missing because the conflict of interest is so stark that their lawyer cannot advise.

This is only one side of a very important issue. Feel free to weigh in, LBers. We note that Legg’s report offers case studies and careful analysis of real cases in Australia over litigation funding (though not cases that squarely address conflicts), so take a look if you’ve got some time.

The WSJ’s Jess Bravin has a report on the latest (potentially) seismic Rakoff ruling:

The government may have misled the Supreme Court about its policies on helping improperly deported immigrants return to the U.S., possibly influencing a decision to make it easier to deport thousands of aliens, according to a ruling by U.S. District Judge Jed Rakoff in New York.

The judge’s opinion requires the government to disclose by Monday internal emails in which Justice Department lawyers developed the claim they made to the Supreme Court.

In a 2009 Supreme Court case, the Justice Department told the justices that when appellate courts ruled in favor of deported immigrants, the government’s policy was to facilitate their return to the U.S. and restore their status.

Chief Justice John Roberts cited the claim in his April 2009 opinion, finding that immigrants deported erroneously wouldn’t suffer “irreparable injury” because the government would help them return if they later won their appeals.

But immigration lawyers said they’d never heard of the policy, and in a response to Freedom of Information Act requests the Homeland Security and State departments said they had no information on such a policy. The Justice Department said it had four pages of emails among officials on the policy but refused to release them.

The Immigrant Rights Clinic at New York University School of Law sued to get access to the emails. Rakoff (pictured), in siding with the clinic, wrote in a 20-page opinion that there is “substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may well have been inaccurate or distorted factual representation” by the solicitor general’s office. ”

“‘Trust everybody, but cut the cards,’ as the old saying goes,” Rakoff wrote.

So what happens if Supremes were misled?

Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, said the implications could be serious.

“Lawyers for the solicitor general’s office carry special responsibilities to present a full and fair record,” she told Bravin. She said that either the solicitor general’s office should confess the error “or the policy should be revised to be what the government said it was.”

The Justice Department did not respond to requests for comment. The emails are unlikely to come on Monday. According to Bravin, the government plans to ask Judge Rakoff for a stay, and he plans to hold a hearing on the request Tuesday.

Rakoff’s opinion is embedded below.

SJ Memo Order Final (2)

A Texas school-prayer case that fueled calls by Republican presidential hopeful Newt Gingrich to curtail the power of federal judges was settled Thursday, as our own Nathan Koppel reported in today’s WSJ.

The case stems from a May lawsuit by a former student and one who was  graduating  from a San Antonio high school who demanded that federal judge block religious displays at the school, including a prayer at the graduation ceremony. U.S. District Judge Fred Biery ruled in their favor, finding that he prayers were likely to violate the First Amendment’s establishment clause.

He was reversed by the the U.S. Court of Appeals for the Fifth Circuit in New Orleans, but Gingrich wasn’t assuaged. He pointed to Biery, an appointee of President Clinton, in television interviews and in a speech after winning South Carolina’s primary as evidence of a judiciary that is out of touch with mainstream American and needs reining in.

In an order approving the settlement, Biery closed, unusually, with a personal statement:

During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security:

Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions: Bless you

Gingrich’s camp didn’t respond to requests for comment.

Foreclosure settlement: The $25 billion settlement with banks over alleged foreclosure abuses will provide financial relief to an estimated one million at-risk borrowers, raising new hopes for an economy still hurting from the mortgage bust, the WSJ report. The Journal has more here on the negotiations that led to the settlement. And click here for mini-profiles of the key players.

Rep. Spencer Bachus targeted in ethics probe: The Alabama congressman who serves as the chairman of the House Financial Services Committee is under investigation into whether he improperly traded stocks or funds in financial markets based on inside information. A spokesman for Bachus didn’t immediately respond to a request for comment. WSJ, WaPo

‘No Child’ left behind in some states: President Barack Obama has authorized 10 states to ignore key provisions of the No Child Left Behind law: Colorado, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey and Tennessee the power to design their own school accountability systems, instead of using the one mandated by the decade-old federal law. Florida, Georgia and Oklahoma received waivers on condition they adopt specific policies promised in their applications. WSJ

Super judge, convicted: Spain’s Supreme Court found Judge Baltasar Garzón guilty of illegal wiretapping during a corruption probe, effectively ending the career of the man who became world famous by launching a human-rights case against former Chilean dictator Augusto Pinochet. WSJ

Insider-trading bill, passed: After a six-year effort, the House of Representatives passed legislation that would formally ban insider trading by Congress, along the way picking up support from some surprising backers—lawmakers who actively trade stocks. WSJ

State lawmakers — have you heard that slashing judicial budgets could end up costing your state more money in the long run than it saves?

If not, don’t blame the legal community, which has been beating the drum on this for months at hearings, in reports, and on newspaper op-ed pages.

“Really, we’ve cut to the bone,” former Solicitor General Ted Olson told the Law Blog over the weekend at an American Bar Association meeting in New Orleans. “We’re now into the bone and finding the marrow. It is that serious a problem.”

Over the past year the bar has teamed up with business interests and non-profits to sound the alarm about the crisis, which many in the legal community say has delayed justice, dampened economic growth and shut down access to the legal system for many low-and-middle income Americans.

Lawyers have skin in the game for two reasons. Yes, they have a professional duty to preserve the justice system.

But a clogged court system can also end up wasting attorneys’ time and costing them money.  An economist testifying at an ABA hearing in Georgia last year found that a 2002 court budget cut in Los Angeles, which shuttered 29 courtrooms, also appeared to put the brake on local lawyers’ compensation, which fell behind “Houston, Philadelphia, New York, Chicago, and the U.S. as a whole.”

Olson leads an ABA task force on the subject with fellow legal heavy David Boies. Onetime adversaries in Bush v. Gore, the two litigators have also teamed up to battle California’s ban on same-sex marriage (see WSJ’s latest on that here).

On this issue, their job is, in part, to lend their joint star power to a problem that they say has few lobbyists pleading its cause to cash-strapped legislatures.

Last year 42 states cut judicial funding, according to the National Center for State Courts. The reductions come as poverty levels rise and states continue to pass new laws that essentially act as unfunded mandates because they increase the number of cases coming into the court system, Olson said.

“The problem with these cuts is in part that it’s making the justice system much more costly, and much less efficient, than it would otherwise be,” said Boies, during a break from yet another hearing on the issue at New Orleans Sheraton. “So you think you’re saving a million dollars by cutting the judicial budget. But in fact you’re incurring tens of millions of dollars of costs on consumers of the justice system who now have to wait, have to travel, have to incur additional fees — have to just generally have justice delayed.”

People are waiting weeks or months for probation officers and orders of protection, they said, and business disputes can extend into decade-long battles. In Minnesota, court offices now keep shorter hours, according to the ABA. In New Hampshire, judicial vacancies remain unfilled. In Albuquerque, the backlog of court filings meant the district court clerk’s office laid off key judicial staff to hire entry-level clerks and institute night shifts to keep documents flowing throw the system.

“There aren’t any remaining efficiencies that can be squeezed out,” Boies said. “Now what you’re doing is you’re cutting essential services. You’re eliminating health insurance for some judges. You are closing courthouses. You are forcing people in some counties to bring their own paper if they want to get a copy of a court order. You have chief Justices having to beg suppliers for pens and pencils and paper for their clerks.”

Delays also cost lawyers money. They might spend weeks preparing for trial, only to arrive at court and be told to come back in three months because there aren’t any courtrooms.

“Now the case has to be prepared all over again, the witnesses have to be subpoenaed, blah, blah, blah,” Olson said. “The cost is enormous and much of it can’t be passed on to the client.”

The issue has united supporters as disparate as the NAACP and the U.S. Chamber of Commerce’s Institute for Legal Reform.

“If you don’t have a reliable way of enforcing contracts, if don’t have a reliable way of resolving disputes, you can’t run efficient businesses,” Boies said. “We’re turning into a third-world country in terms of our administration of justice in some areas.”

Anyway, earlier today we wrote this:

In the U.S., ethics rules require law firms to carry the last name of partners who work there, or who did before they retired or died. China has no such rules. Firms there are free to name themselves however they like, and an evocative name can be an asset.

Then we had an astute reader leave this comment:

In the U.S., ethics rules require law firms to carry the last name of partners who work there, or who did before they retired or died.” — This is probably true in only a minority of U.S. states. I believe at least half of the states now allow trade names, if not more

And another smart reader who wrote:

most states do allow trade names. But, in those states, if you use a person’s name as the firm name, or part of it, that person must be a partner (or shareholder), or some one who had that position prior to retirement or death.

They are both right, according to Mike Downey, a partner at Armstrong Teasdale LLP in St. Louis and vice chairman of the ABA’s  Law Practice Management section.

In 1979, the  Supreme court looked at whether optometrists in Texas could use trade names in Friedman v. Rogers. The majority in the case ruled that a regulation that prohibited the use of assumed names was constitutional because it was meant to curb deceptive practices; Justice Harry Blackmun, joined by Justice Thurgood Marshall, found the regulation violated the First Amendment.

At the time, most states required law firms to take their names from partners at the firm, or partners who had retired or died, Downey said.

But a few years after Friedman v. Rogers, the American Bar Association changed its model rules — which are generally incorporated by individual state bar associations — to reflect that firms could use trade names as long as they weren’t deceptive.

Downey said most states allow trade names these days, but King & Wood potentially would have to drop the name were it to open its doors in the U.S.

“If you were to name a firm King & Wood, the expectation would be that King and Wood actually work there,” he said.

In other words, if a firm uses a person’s name to which it has no earthly connection, that could be considered “deceptive,” Downey said.

Deceptive, he added, is often defined very broadly.

After President Barack Obama made his not-technically-recess recess appointments, indignant Senate Republicans said no Obama nominee, for any position, would have their support for the rest of the year.

The idea appears to have lost its shine pretty quickly. The Hill reports,

Sen. Mike Lee’s (R-Utah) effort to block the confirmation of an Obama nominee in retribution for his controversial recess appointments faltered on Thursday when Cathy Ann Bencivengo was confirmed to the District Court of the Southern District of California by a strong vote of 90-6.

It was no cake walk, however. Bencivengo waited 126 days for consideration by the Senate after her unanimous approval by the Judiciary Committee.

Lee, for one, is not budging. ”I oppose this confirmation not because of the qualifications of this nominee but I do so in defense of the Constitution,” he said Thursday.

Ohio Attorney General Mike DeWine believes Ohio “absolutely” needs to address some issues with its lethal injection process before the state will be able to proceed with its calendar of executions.

On Wednesday, the U.S. Supreme Court issued a one-sentence order, denying an application by the state to vacate the stay the execution of convicted murderer Charles Lorraine.

A lower federal court in Ohio had ruled earlier that his execution should be stayed until the state makes some changes to how it handles lethal injections.

The changes include requiring the execution team to indicate on checklist that it reviewed the inmate’s medical chart the day before his execution.

In January, DeWine, representing Ohio Gov. John Kasich and the Ohio Department of Rehabilitation and Correction, had asked the high court to vacate the stay of execution.

DeWine told Law Blog on Thursday that corrections official are continuing to work on refining Ohio’s death penalty procedure to comply with the lower court’s order.

“It is not the easiest thing to do,” DeWine said. “If you have a slight deviation, you might not know that until after the fact. But they are working on it.”

A number of prisoners in the state, including Lorraine, have questioned the state’s legal injection procedures, DeWine said.

DeWine said he didn’t think the U.S. Supreme Court’s order would have a significant impact on the state’s execution schedule. The next execution being scheduled for April.

“I would fully expect before April to see action in court on this,” he said, adding that he expects to have plan for the lower court explaining how it will comply with its order by then.

Correction: An earlier version of this post stated that Ohio filed an application to stay the execution. In fact, the application was to vacate the stay the execution.

What could get the inventor of the World Wide Web to testify in a courtroom for the first time? A patent suit that’s perceived as a threat to the modern web, particularly interactive features.

Tim Berners-Lee, who teaches at MIT and is considered one of the fathers of the Web, testified Tuesday about the early days of the web, as part of a case brought by a patent-licensing company called Eolas, and in which Google, Amazon and Yahoo are defendants, according to Wired.

Eolas and the University of California say they’re entitled to royalty payments from pretty much every website that has interactive features, like rotating pictures or streaming video. The claim stems from a patent for “the interactive web” by University of California researchers in 1993. Defendants contest that claim, saying the Viola browser offered that function first.

Berners-Lee described Viola as “an important part of the development of the web,” and evidence was presented showing working interactive elements of the browser before the patent claim.

On cross-examination, Berners-Lee was pressed on his opinion of software patents, a subject he’d addressed in print. The plaintiff’s attorney presented segments of a 2004 presentation Berners-Lee gave in Finland, in which he noted U.S. patents created “fear, uncertainty and doubt” and “an incentive for obfuscation,” adding that the U.S. patent office set a “ridiculously low bar” for what constitutes a novel invention.

“I had concerns about the software patent system in the U.S., and this particular patent is key in raising those concerns,” he said, according to Good Morning Silicon Valley.

His testimony also described the early days of the web community, and said it wasn’t focused on patents or money, noting that the Viola invention was put online for free.

A jury may reach a decision this week on whether the patents are valid. Eolas is seeking royalties of more than $600 million, according to CNET.

The Senate Judiciary Committee voted 11-7 to advance a bill that would permit the televising of Supreme Court proceedings. The bill wouldn’t mandate cameras in the court: If a majority of the justices voted against allowing access in any given case, the arguments wouldn’t be televised.

The idea is that even if a majority of the Supreme Court justices now oppose cameras in the court — and they do — the future could bring justices to the bench who hold a different view of government transparency.

The committee held a hearing on the bill in December, and click here for a video of today’s vote.

The ayes:

Chairman Patrick Leahy (D., Vt.)

Sen. Dick Durbin (D., Ill.), who introduced the bill

Sen. Richard Blumenthal (D., Conn.)

Sen. John Cornyn (R., Texas)

Sen. Chuck Grassley (R., Iowa)

Sen. Amy Klobuchar (D., Minn.)

Sen. Charles Schumer (D., N.Y.)

Sen. Herb Kohl (D., Wisc.)

Sen. Sheldon Whitehouse (D., R.I.)

Sen. Chris Coons (D., Del.)

Sen. Al Franken (D., Minn.)

The nays:

Sen. Dianne Feinstein (D., Calif.)

Sen. Orrin Hatch (R., Utah)

Sen. Jon Kyl (R., Ariz.)

Sen. Jeff Sessions (R., Ala.)

Sen. Lindsey Graham (R., S.C.)

Sen. Michael Lee (R., Utah)

Sen. Tom Coburn (R., Okla.)

A similar bill — the Camera in the Courtroom Act of 2011 — is pending in the House Judiciary Committee.

In December, when we got word that Beijing-based King & Wood, a top Chinese law practice, and the big Australian firm Mallesons Stephen Jaques were tying up, we wondered aloud how the Chinese firm got its very Anglo-sounding name.

Leigh Jones at Reuters has found the answer. In fact, Messrs. King and Wood do not exist.

In the U.S., ethics rules require law firms to carry the last name of partners who work there, or who did before they retired or died. China has no such rules. Firms there are free to name themselves however they like, and an evocative name can be an asset.

Stuart Fuller, global managing partner of Mallesons, told Jones King & Wood’s name choice was “a very smart move.”

“It was symbolic of King & Wood’s approach to position itself as a firm with a heavy international focus,” Fuller said.

The firms also have Chinese names, but they aren’t identified with people either. King & Wood goes by Jin Du – Jin means gold, and Du can mean earth or wood.

The name issue goes both ways. U.S. firms that are opening doors in China have to call themselves something in Chinese. According to The American Lawyer, firms have tried a couple strategies.

Some have adopted two Chinese characters that sound similar to the firm’s name in English but also convey something about the firm’s ideals. Davis Polk & Wardwell in Chinese, for instance, translates to “Flourishing Safeguard.”

Other firms — including Sullivan & Cromwell, Wilson Sonsini and Shearman & Sterling — simply translate the name phonetically.

All is Wells: Federal securities regulators plan to warn several major banks that they intend to sue them over mortgage-related actions linked to the financial crisis, the WSJ reports. At issue is whether the banks misrepresented the poor quality of loan pools they bundled and sold to investors.

It isn’t clear which firms will receive the “Wells notices.” Banks whose activities are being examined in the civil investigation include Ally Financial, Bank of America, Citigroup, Deutsche Bank and Goldman Sachs, according to the Journal. Representatives of the banks declined to comment, as did a spokesman for the SEC.

Deal on foreclosure abuses: Government officials have sealed a pact worth as much as $26 billion with five major banks, capping a yearlong push to settle federal and state probes of alleged foreclosure abuses by lenders. Attorney General Eric Holder, HUD Secretary Shaun Donovan and other federal and state officials are scheduled to announce the details of the settlement at 10 a.m. in Washington. WSJ

Too exclusive: Kessler, Topaz, Meltzer & Check and Prickett, Jones & Elliott — the firms that recently won a $305 million attorney fee award in the Grupo Mexico shareholder derivative litigation — and  Klausner, Kaufman, Jensen & Levinson filed class actions on Monday and Tuesday challenging company bylaw provisions that would require shareholder suits to be filed exclusively in the Delaware Chancery Court. The lawsuits claim such rules require shareholder votes. The AmLaw Litigation Daily (sub req)

Insider-trading bill: The House of Representatives is expected to approve legislation Thursday to tighten insider-trading rules in Congress, despite changes made by a top lawmaker to remove a key disclosure provision. WSJ

Ex-UVa lacrosse player George Huguely never intended to kill his ex-girlfriend when he broke into her bedroom two years ago, his attorney told jurors on Wednesday at the start of his criminal trial. WSJ

A suspected Russian arms dealer convicted last year of conspiring to sell surface-to-air missiles and other weapons in a U.S. sting operation wants to be held under less restrictive conditions while he’s awaiting sentencing.

Viktor Bout, a former Soviet air force officer, no longer wants to be held in the special housing unit, or SHU, at the Metropolitan Correctional Center in lower Manhattan. He has been held there since he was extradited from Thailand in 2010 after two years of legal wrangling.

His lawyer, Albert Dayan, said in a letter to the court that Bout, 45 years old, is essentially held in solitary confinement with no human contact, no fresh air and no access to the prison commissary to supplement his diet. Dayan said the prison diet is inadequate for Bout’s needs as a vegetarian.

Dayan asked that Bout be moved to the prison’s general population, noting that Monzer al-Kassar, an alleged Syrian arms trafficker, was allowed to be in general population while at the MCC.

Kassar, 66, was sentenced to 30 years in prison in 2009 after he was convicted of conspiring to sell weapons and murder U.S. citizens following a similar sting operation by the U.S. Drug Enforcement Administration.

“[Bout] doesn’t know when the sun rise or sets,” Dayan said in the letter, which was read during a court hearing on Wednesday.

U.S. District Judge Shira Scheindlin seemed to agree with Dayan’s arguments. ”It seems harsh. It seems brutal,” she said. “It seems unnecessary. It seems like something should be done about it.”

The judge set a hearing for Friday to discuss the issue further. Prosecutors on Wednesday said they need time to consult with the U.S. Bureau of Prisons before responding.

Dayan said that he wants to resolve the issue before Bout is sentenced, otherwise the special designation may follow him to the prison where he ultimately serves his time.

Separately, Judge Scheindlin rejected a bid Wednesday by Bout to set aside his conviction in November on four conspiracy charges. He faces up to life in prison on the charges. Sentencing is set for March 12.

Maybe you saw this gem from the South Florida Sun-Sentinel about a man who was sentenced to a date night:

A marital spat that began when a Plantation man didn’t wish his wife a happy birthday and then escalated into a domestic violence charge, resulted in an unusual bond court ruling by a perceptive judge.

Instead of setting bond or keeping Joseph Bray locked up, [the judge] ordered him to treat his spouse to dinner, a bowling date and then to undergo marriage counseling.

“He’s going to stop by somewhere and he’s going to get some flowers,” Judge John “Jay” Hurley said during the first appearance hearing. “And then he’s going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.”

Judge Hurley’s creative sentence — as in more creative than jail — is not anomalous. Well, not entirely. Maybe he’s the first to sentence someone to dinner at Red Lobster, but he’s not the first to dispense justice in a way lawmakers probably never contemplated.

In one famous case, a federal judge in California – Vaughn Walker of Proposition 8 fame — ordered a mail thief to stand outside a post office with a sign that read: “I stole mail. This is my punishment.” The case went to the U.S. Court of Appeals for the Ninth Circuit, which upheld the punishment.

Doug Berman, a law professor at the Ohio State University who writes the Sentencing Law and Policy blog, told Law Blog that Judge Hurley’s sentence was interesting because it wasn’t aimed at shaming Bray.

Berman, who said he generally supports creative sentencing, pointed to cases across the country where judges have ordered defendants to enter in to education programs or write reports on Shakespeare.

“When done well by the right folks with the right idea in mind, creative sentencing can be a good thing. There are lots of folks for whom prison may do more harm than good, not just for themselves but for society,” he said.

But the question is, can judges really order people to do such strange things?

“And the answer is it’s not clear, in part because judges don’t do this much,” Berman said. ”There’s not a lot of law out there on this, and this stuff usually comes up in settings where it’s awfully unlikely to be litigated.” (Like Hurley’s courtroom.)

If legislatures don’t define the forms and range of permissible punishment for a crime, judges have a lot of slack. Even if the the statute spells it out, judges can institute creative conditions to supervised release or probation.

Opponents of creative sentencing say it smacks of judges looking for publicity. And, they say, citizens should know what the consequences are for breaking the law.

DOJ’s Lanny Breuer

You’d think Lanny Breuer, head of the criminal division of the U.S. Department of Justice, would want to avoid a panel discussion called “Crooks on the Loose? Did Felons Get a Free Pass in the Financial Crisis?”

Apparently not. Breuer walked into a brawl Wednesday when he sat on the New York University School of Law panel with former New York governor Eliot Spitzer, an outspoken critic of the Justice Department’s lack of criminal prosecutions in the wake of the subprime mortgage collapse.

Shots were fired almost immediately when the moderator Neil Barofsky, a former special inspector general of the Troubled Asset Relief Program, asked Breuer why he hasn’t done more to go after those responsible for one of the country’s biggest financial meltdowns in history.

Elliott Spitzer chimed in, offering tips on how Breuer’s office should go after alleged perpetrators of the financial crimes.

Breuer stood his ground. “I just don’t accept the fact that we haven’t done anything,” he said, pointing to a myriad of recent insider trading convictions and Ponzi scheme busts. Breuer said he finds the excessive greed risk and risk-taking that led to the 2008 global financial crisis “abhorrent,” but said not all of it was criminal.

Ironically, Mr. Breuer’s biggest defender on the panel was Mary Jo White, a former Manhattan U.S. Attorney who chairs Debevoise & Plimpton’s litigation department, which defends clients against the Justice Department. White noted that Breuer recently sat on a different panel, where he took heat going after Wall Street executives with too much gusto.

“I want to know who was on that panel,” Spitzer said. “I find that shocking.”

This WS comes to us via Howard Bashman at How Appealing.

In a dissent Tuesday, Judge Neil M. Gorsuch of the U.S. Court of Appeals for the 10th Circuit let loose his inner grammarian on sentencing guidelines for defendants who illegally re-enter the country after being deported.

He wrote,

In the richness of the English language, few things can create as much mischief as piling prepositional phrase upon prepositional phrase. The child says, “I saw the man on the hill with the telescope.” Did the child use the telescope to see the man on the hill? Or did the child see a man — or even a hill — bearing a telescope? A newspaper headline heralds, “Brothers Reunited after 20 Years on a Roller Coaster.” Did the brothers recently bump into each other at an amusement park? Or were they the long suffering experimental subjects of some evil genius?

Of course, we’re all guilty of venial syntactical sins. And our federal government can claim no exception. Which takes us to USSG § 2L1.2(b)(1) and this jumble of prepositional phrases — If the defendant previously was deported, or unlawfully remained in the United States, after —

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded thirteen months . . . [add a sentencing enhancement].

This has to be a sentence only a grammar teacher could love. We have here our old nemesis the passive voice, followed by a scraggly expression of time (“previously . . .after”), then a train of prepositional phrases linked one after another and themselves rudely interrupted by a pair of parenthetical punctuations. Happily, our role isn’t to grade the grammar, only discern the meaning.

Adam Liptak at the Times had a fascinating story yesterday on the waning influence of the U.S. Constitution. It was based largely on a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

The gist: Our founding document is passe. It is less imitated these days, and to the extent it is still an example, the Constitution is more likely to serve as what-not-to-do guide, the authors say. These are harsh truths.

Why is the Constitution losing its sway internationally? The authors point to criticism that the document is out of sync with an evolving global consensus on issues of human rights.

But if the U.S. Constitution is no longer the chief inspiration for constitution-making in other nations, who is the new king?

Canada. That’s who.

According to Law and Versteeg, over the 1960s and 1970s,  global constitutionalism showed signs of convergence on the Canadian and the U.S. models. They were similar to each other, and nations around the world were copying them at a high rate. When one would dip a bit in terms of influence, so would the other.

But Canada’s adoption of a statutory bill of rights in 1960 put it closer to the mainstream, and by 1982, the influence gap between the U.S. and Canadian models was profound. Then something funny happened. That year, the Canadian Charter of Rights and Freedoms was adopted.

(The revisions guarantee equal rights for women and disabled people, allow affirmative action and require that those arrested be informed of their rights, among other things, but as Liptak notes, the Charter is also less absolute: Such rights are balanced against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”)

According to Law and Versteeg, Canada fell out step with the world for a few years after the revisions, but then it rallied:

For a few brief years following those revisions — and for the first time ever — the Canadian Constitution became more of an outlier than the U.S. Constitution. By1986, however, Canada was once again more in line with the constitutional mainstream than the United States. The gap between the two countries proceeded to widen dramatically in the 1990s, as average similarity to the U.S. Constitution went into a nosedive at the same time that similarity to the Canadian Constitution continued to creep upward.

Canada’s “constitutional leadership” is pronounced in common law nations. But among other categories of countries, the authors found overall similarity to the Canadian model was “barely increasing.”

Marcia Walden refused to counsel a woman in a same-sex relationship and referred her to another counselor, saying that her “personal values” prevented her from helping the woman. CDC officials asked that Walden be removed from her counseling job.

The Atlanta-based U.S. Court of Appeals for the 11th Circuit said the record was clear that Walden was removed for the manner in which she handled the referral — not because of her beliefs — and because officials were concerned she would act the same way in the future, the Atlanta-Journal Constitution reported. The ruling can be read here. The Daily Report has a story on the ruling here.

The decision by the three-judge panel upheld a lower court’s decision to throw out Walden’s claim.

Walden’s lawyer, Byron Babione, told AJC he was disappointed with the ruling and was determing the next steps to  ”ultimately vindicate Marcia and the freedoms for which she’s fighting.”

Last month, Law Blog noted the revival of a three-year old lawsuit concerning counselors who refuse to work with gays and lesbians on religious grounds and whether they are in violation of professional ethics.

In late January, the Sixth Circuit reversed a lower court’s dismissal of a case from a woman who refused to counsel on the basis of sexual orientation, and sent the case back to federal district court for trial.

A federal judge in Washington has denied requests by Justice Department prosecutors and their attorneys to keep an investigative report on the Ted Stevens case secret.

The report, parts of which were revealed in court filings in November, found that prosecutors handling a corruption case against the late senator engaged in “systematic concealment” of evidence that could have helped Stevens defend himself.

Stevens (pictured) was convicted in 2008 of making false statements on his Senate disclosure forms about gifts he received. U.S. District Judge Emmet Sullivan later dismissed the case at the request of Attorney General Eric Holder.

Four of the six prosecutors who were investigated for their role in the Stevens case opposed releasing the report, Judge Sullivan said in a ruling Wednesday. The names of the prosecutors were redacted.

Sullivan denied the requests, writing that the public has an “overriding and compelling right to access” the 500-page report. The report will be filed on the public docket on March 15, after the prosecutors have a chance to submit comments or objections to its findings, the judge said.

Sullivan appointed Washington lawyer Henry F. Schuelke III to investigate the prosecution.

Stevens died in a plane crash in 2010.

Sullivan’s ruling is embedded below.

schuelke