Monday, November 21, 2011

This is the Kind of Person I’d Hire as My Attorney

Like many of you, I read a lot of blogs, some of which are even worth reading and fewer of which might even be true.

I recently read a blog that says it all about our modern life, the practice of law, being a parent and human values. Think about this when you are sweating your practice:

“Hey, Dad, you’ve got a pretty good job.” “Why’s that, Jere?” “Because it’s air-conditioned, and you can get a root beer whenever you want one.” [Think about that the next time you're sitting in your office cursing a colleague, opposing counsel, a client or a judge: "It's air-conditioned, and I can get a root beer whenever I want one."]

The blog is written by Mark Herrmann, Vice President and Chief Counsel for Litigation at Aon, a risk management, insurance and reinsurance brokerage and human capital and management consulting firm. Herrmann is the author of The Curmudgeon’s Guide to Practicing Law which, while I haven’t read yet, intend on doing so simply because of the title.

Herrmann’s blog, Inside Straight: Things My Son Said is funny and oh so very true.

I commend it to your attention. Read it here.

Friday, November 11, 2011

Graphic Video Showing Changes in the Surface Temperature of the Earth

Richard Muller, professor of physics, McArthur Prize winner and principal investigator for the Berkeley Earth Surface Temperature (BEST) project, took a hard look at the actual data regarding changes in surface temperatures on the Earth over the past two centuries.

The BEST project was funded in part by the Charles G. Koch Charitable Foundation, one of the Koch brother entities dedicated to “the advancement of economic freedom” and a conservative climate change skeptic.

Climate change skeptics loved Muller – until he reported on the data.

Muller’s research group has put together a video that shows the changes. Wow.

The video makes the data come alive. It is impossible to miss the huge temperature changes. Look at especially the post-1950 changes.

Watch the whole video; it only takes a couple of minutes. Here's the link.

For more about BEST, see here.

Monday, November 7, 2011

Is Delaware’s Court Arbitration System for Business Disputes Unconstitutional?

Delaware, the state with laws designed for businesses, has a statute authorizing the Delaware Chancery Court judges – sitting Court judges – to conduct confidential arbitrations of business disputes.

The law, Arbitration Proceedings for Business Disputes provides that the “Court of Chancery shall have the power to arbitrate business disputes when the parties request a member of the Court of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate a dispute.” (77 Del. Laws, c. 8 §1).

The Delaware Supreme Court has adopted rules governing the arbitration program. The rules provide that arbitrators are sitting Court judges or masters. Further, and the subject of controversy and now litigation, the Rules provide that all proceedings of the arbitration are confidential unless the proceedings are appealed.

There are at least two things wrong with this picture. First, why are these Court proceedings (even if labeled arbitration) confidential? Is this not private law? And second, why is an arbitration award appealable? Is this not evidence that the so-called arbitration proceeding is simply litigation in the Chancery Court – before Chancery Court judges and using the Court’s case management system by another name – to allow parties to cloak their dispute with the one of the benefits of private arbitration – confidentiality?

Recently the Delaware Coalition for Open Government as sued the five judges on the Delaware Chancery Court for operating a private arbitration system. The only difference between civil litigation - which is public - and the arbitration is that the "procedures and rulings occur behind closed doors instead of in open court," according to the complaint filed in Delaware's federal district court. The Coalition argues that the arbitration proceedings violate the right of access to judicial proceedings and records in civil and criminal cases guaranteed by 1st Amendment to the Constitution as applied to the states in the 14th Amendment.

The case is Delaware Coalition for Open Government Inc v The Honorable Leo E Strine Jr et al, U.S. District Court, District of Delaware, No. 11-1015.

This case is more fully discussed in the always interesting ADR Prof Blog by Professor Art Hinshaw. Professor Hindshaw points out that many courts manage arbitration programs; most typically occur in open court without confidentiality protection and the loser can appeal or ask the trial court for a trial de-novo.

"If the parties really want to go to arbitration, why not go to the private market?"