Thursday, January 23, 2014

Ballot Initiatives Gone Wild

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politix and was re-posted by The Huffington Post.

Here a ballot initiative, there a ballot initiative, everywhere in California a ballot initiative.

How did we get here? About a hundred years ago the processes of direct democracy spread across the country. States gave their citizens the ability to directly enact laws (via the ballot initiative), to directly repeal laws (via the referendum), and to oust elected officials (via the recall). The purpose of direct democracy is to empower average citizens and decrease the power than moneyed interests may have over elected officials. Sounds quaint, doesn't it?

Welcome to 2014, when the very special interests direct democracy was meant to guard against now direct and control those processes. And specifically, welcome to California, where we have not only ousted a governor (Gray Davis) via the recall, but where we frequently use the ballot initiative process. Want to change how many lawmakers it takes to pass the state's budget? Pass a ballot initiative. Want to change the definition of marriage? Pass a ballot initiative. Want to cut or increase taxes? Pass a ballot initiative. Want to change the penalties for criminal offenses? Once again, pass a ballot initiative.

Read the complete piece.

Wednesday, January 22, 2014

Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

Monday, January 6, 2014

Introducing Guest Journalist Blogger Ben Adlin

Our newest Guest Journalist Blogger, Ben Adlin, has served as both a reporter and editor at the Los Angeles Daily Journal, where he is currently an associate editor. As a reporter, Ben has covered federal courts and topics as varied as public employee pensions and efforts to regulate medical marijuana. And his topic could not be more timely. With the high court's January 2014 session around the corner, it's high time to debate the role of oral arguments.

-Associate Dean Michael Waterstone

At Supreme Court, Evolution of Oral Arguments Speaks Volumes

By Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal

Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.

One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.

Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."

It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."