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Sunday, November 25, 2012

Law - "Kramer.com vs. Kramer.com"

Fascinating article published Nov. 23rd by Pamela Paul of the NY Times. Some quotes:

MOST divorced couples would probably prefer not to see each other. Ever again. But when you share custody of your children, you have to assume a certain amount of face-to-face time amid the endless back-and-forthing. * * *

Unless, of course, it’s all done remotely. These days, the cool aloofness of technology is helping temper sticky emotional exchanges between former spouses. And for the most part, according to divorce lawyers and joint-custody bearers, handling the details via high tech is a serious upgrade. * * *

“People don’t want to talk to their exes because just the sound of their voice is irritating,” said Randy Kessler, chair of the American Bar Association’s Family Law Section and a matrimonial lawyer in Atlanta. “But they can e-mail. They can share an online calendar. They can use any number of resources on the Internet. There are even divorce apps.”

E-mail and texting alone have practically revolutionized postdivorce family relationships. “E-mail absolutely takes away the in-your-face aggravation and emotional side of joint custody,” said Lubov Stark, a divorce lawyer on the Upper East Side of Manhattan. “You just write, ‘I want to pick up Kimmy at 5, but I’m running late and will be there at 6.’ It’s the best thing ever.” * * *

Former spouses aren’t the only parties to see a benefit in keeping their communiqués limited to the keyboard. Technology has become so commonplace in divorce arrangements that it has become part of the formal legal process, a development divorce lawyers and judges applaud. Many joint custody arrangements will stipulate weekly Skype sessions between parent and child while apart.

“It’s all set out in detail,” said Michael Kelly, a divorce lawyer and partner at Kelly, Fernandez & Karney in Los Angeles. “Your phone has to be available at certain hours, and if you don’t follow the rules, it’s a good way to lose custody.”

Parents are often required to buy a cellphone for their child, and call times are recorded to ensure an adequate amount of time. “That way, Mom can’t say, ‘O.K., you can talk to Daddy for two minutes, but that’s it,’ ” Mr. Kelly said. And with a parent calling children directly on their phone, there’s no possibility of a bitter intermediary exchange between parent and parent.

When relationships deteriorate to the point of renewed legal action, courts are increasingly ordering ex-couples to work out their differences via technology. A new crop of online custody tools has been specifically designed to keep sniping parents at bay.

Sherry Thomas, 56, shares physical custody of her two teenage sons with her ex-husband in Boca Raton, Fla. But since their divorce in 2005, the arrangement has been fraught with disagreement. When Ms. Thomas requested court-mandated parent counseling, the judge ordered the two to use an online tool called Our Family Wizard instead. Now, lawyers supervise e-mail exchanges between her and her ex, ensuring that each party responds to the other in a timely manner. All e-mails are time dated and tracked. Parents can create a shared expense log and receive automated notices and reminders about parental obligations. * * *

Having negotiations set in writing (whether it’s a text, a cellphone log or an online calendar) also creates a permanent record of who did and wrote what. If somebody misbehaves, it can become evidence.

The NYT story is followed by many comments. Several links are mentioned, including this one to Our Family Wizard.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to General Law Related

Courts - "PACER federal court record fees exceed system costs"

From The Bay Citizen ("Your nonprofit source for no-holds-barred reporting about the Bay Area"), this Nov. 20th story by Shane Shifflett and Jennifer Gollan that begins:

The federal government has collected millions from the online Public Access to Court Electronic Records system, or PACER – nearly five times what it cost to run the system.

Between fiscal years 2006 and 2010, the government collected an average of $77 million a year from PACER fees, according to the most recent federal figures available.

Critics have derided PACER, saying the government has increased user fees over the years without making the system easier to use. The fees, some say, act as a deterrent to public access.

The Judiciary Appropriations Act of 1992 limited the use of PACER fees to “reimburse 
providing these services.” But lawmakers on the House Appropriations Committee have allowed the courts to invest in a wider range of information technology projects using fees collected from PACER. Fees for online access have risen from 7 cents to 10 cents per page.

“Given the lack of oversight for what the fees are being used for, the incentive for the courts is to raise fees,” said Stephen Schultze, associate director of Princeton University’s Center for Information Technology Policy.

[ILB emphasis]

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Courts in general

Courts - "Decisions Open Door to Appeals of Plea Bargains "

John R. Emshwiller and Gary Fields reported Friday in the WSJ that:

The Ninth Circuit's September decision cited two Supreme Court decisions, both issued in March, in which the high court found defendants in two other cases hadn't been adequately represented by their attorneys during the plea-bargain process.

Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote for the majority.

Judges and legal observers view the high court's rulings as a major shift in the standards that govern plea bargaining, a widely used legal strategy in which defendants plead guilty to one or more charges usually in exchange for a lighter punishment than they would receive if they went to trial and lost. Plea bargaining allows criminal cases to be settled more quickly and with less expense than a jury trial.

Federal and state court statistics show over 90% of all convictions come through plea bargains.

As the Supreme Court rulings percolate through the judicial system, there will be many more cases where defendants challenge their plea deals based on inadequate assistance of counsel, said David Carroll, executive director of the Sixth Amendment Center, a Boston-based nonprofit that focuses on legal representation for indigent defendants. The Ninth Circuit decision "is the tip of the iceberg," he said.

Sentencing Law Blog wrote about the piece Saturday in a post headed "One notable case showing impact and import of Lafler and Frye."

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Courts in general

Ind. Decisions - More on: Supreme Court hears oral argument in school voucher challenge

Dan Carpenter's opinion column today in the Indianapolis Star is headed "Questions left off voucher court test." Some quotes:

The question before the Indiana Supreme Court and a packed gallery on Wednesday morning was a technical one: Is the benefit direct or incidental?

If the state persuades the court that the Choice Scholarship plan hinges on parental decisions -- even though the money flows not to them but to the schools they've chosen, without restrictions on how it's spent -- it may beat back a challenge to one of the Daniels administration's signature policy changes.

If that happens, opponents say, disingenuous hair-splitting will have trumped the needs of public school pupils who make up the vast majority of the state's children.

Other questions went unasked by the justices but were much on the minds of many in the crowd. Most pertinent: If vouchers are being sold as a way for low-income kids to escape poor-performing public schools, why is there no performance standard either for the school they leave or the one to which they move? * * *

It was a query from Rucker that may have spoken most resoundingly, in large part because of what he left unsaid.

He asked Assistant Attorney General Thomas Fisher whether parents truly had a choice "if nothing is available but religious schools and the parents have either the underperforming public school or the high-caliber superior religious school?"

Fisher replied that there is a choice to opt out entirely. Mark GiaQuinta would say the justice begged the question.

He's the board president of Fort Wayne Community Schools, which has lost $7 million to vouchers this year. His hardest-hit school was rated A by the state, he said; and the religious school that drew the most away was rated F.

"The idea this is providing an opportunity for poor children to leave bad schools is nonsense," he declared before the hearing. "I said to Tony (Bennett), 'If this is truly providing an opportunity to leave a failing school for a successful one, why not make that a criterion? Maybe the other school just needs a quarterback.'"

The blog Advance Indiana has a post on the oral argument that concludes:
On one final note, I couldn't help but wonder whether Justice Massa should have recused himself from participating in this case. He was, after all, chief legal counsel to Gov. Mitch Daniels, whose office worked closely with Supt. Tony Bennett's office to help draft, lobby and steer the Choice Scholarship legislation through the state legislature, prior to him being appointed to the Court by Gov. Daniels. Nobody watching that oral argument could believe that he has an open mind about the legislation, and he certainly made little attempt to hide his views. It's one of the crowning achievement of his former boss. I think the parents' attorney made a mistake in not publicly calling on him to recuse himself, if for no other reason than to put him on notice that he was being watched closely.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Ind. Trial Ct. Decisions

Law - History of U.S. Senate's "Long Slide to Gridwalk" along with Efforts to Remedy

Jonathan Weisman has the long story that begins on the front-page of Sunday's NY Times. A sample:

The Senate — the legislative body that was designed as the saucer to cool the House’s tempestuous teacup — has become a deep freeze, where even once-routine matters have become hopelessly stuck and a supermajority is needed to pass almost anything.

As a result, the first fight of the next Senate, which convenes in January, is not likely to be over a fiscal crisis, immigration, taxes or any issue that animated the elections of 2012. It will instead probably be over how and whether to change a troubled Senate, members and aides say.

With his majority enhanced and a crop of frustrated young Democrats pushing him hard, Senator Harry Reid of Nevada, the Democratic leader, says he will move on the first day of the 113th Congress to diminish the power of Republicans to obstruct legislation. “We need to change the way we do business in the Senate,” said Senator Tom Udall, Democrat of New Mexico. “Right now, we have gridlock. We have delay. We have obstruction, and we don’t have any accountability.”

The pressure leaves Mr. Reid with a weighty decision: whether to ram through a change in the rules with a simple majority that would significantly diminish Republicans’ power to slow or stop legislation.

The changes under consideration may sound arcane, but they would have such a profound impact that they are referred to as the “nuclear option.” In effect, they would remake a Senate that was long run on compromise and gentlemen’s agreements into something more like the House, where the majority rules almost absolutely.

Critics of the idea, who exist in both parties, say such a change would do great damage, causing Washington to career from one set of policies to another, depending on which party held power.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to General Law Related