Alito In? Alito Out? If you're only halfway in, you're neither in or out.

We're in the dark too. We don't know what will happen. But what does that matter. Using our best talking head technique, we'll speculate.

Or maybe we'll reach up into the penumbra which floats above the debate, and pluck an answer. So here it goes...

Most observers agree Alito has the intellectual mettle for the post. Quarrels over his capacity will therefore not be front and center in the debate. The direction Alito will take, as found in his past decisions and actions will be the vanward territory for exploration. Much political gold will be made of how Alito may tip the Supreme Court one way or the other, and the politics of fear will be front and center. We thus predict that Alito will survive, but not without a little blood being spilled, mostly after the fact.

The net result will be the Alito will be confirmed, and partisans on both sides will use the appointment for immediate political gain. The appointment will be most upsetting to the left, and thus most useful for the left.

Of course we reserve the right to edit this blog post after the fact. Our technical staff says it won't be hard, but we'll need to alter some date stamps on the files... ...well you get the idea.

With Alito, Kennedy would have pivotal role - On contentious issues, justice's vote would be decisive, scholars say - By Charlie Savage, Globe Staff November 4, 2005 WASHINGTON -- The confirmation of Samuel A. Alito Jr. to the US Supreme Court would make Justice Anthony Kennedy the court's swing vote... READ MORE

Politics are Key in Alito Nod - Dan AnixtDan AnixtBy Published: Tuesday, November 29, 2005 - Adrienne Gaffney's op-ed "No Real Case Against Alito" presents the rather idealistic view that politics does not or should not play into the Senate confirmation process for the Supreme Court. Specifically, that Alito's views, including his unequivocal stance that abortion is not protected by the Constitution, should not bar him from confirmation. However, such sentiments belie the fact that the Senate does, and should, in my opinion, take the viewpoints of nominees into consideration in the confirmation process. Particularly when a nominee maintains extreme positions on the rights of criminal defendants, civil rights, voting rights, the extent of the Commerce Clause and, yes, abortion. - READ MORE

SURPRISE BONUS- Posner on Avian Flu

Trial Lawyers for Public Justice - Back in Supreme Court

The following just arrived in the Rominger Legal mail bag. The case involves arbitration clauses in contracts, federal preemption issues under the Federal Arbitration Act ("FAA"), and predatory lending issues in general.

According to the Trial Lawyers for Public Justice, "Tomorrow morning at 11:00 a.m., Trial Lawyers for Public Justice will be back before the U.S. Supreme Court, arguing a key access to justice case -- Buckeye Check Cashing, Inc. v. Cardegna. The closely-watched case, in which a payday lender is trying to use federal preemption and mandatory arbitration to keep its victims out of court, is featured in the National Law Journal. It is our third case before the Court on access to justice issues in the last six years."

To read the brief to the U.S. Supreme Court, click here.

"The Buckeye case is crucial to consumers' ability to get access to justice. That's why our position is supported by amici briefs filed by, among others, the Attorneys General of Florida, 40 other states, the District of Columbia, and Puerto Rico; the National Association of Consumer Advocates, U.S PIRG, and the Center for Responsible Lending; AARP; and Professors of Contracts, Commercial, and Consumer Law. "

We at Rominger Legal think this case is well worth following, as the ramifications for both the consumer and for business are likely to ripple into other contract situations. We'll keep you posted on this case.

See also LawMemo.

Boston Legal - Why we like David E. Kelley

Here at the Rominger Legal offices we don't have have a television set. Which is good, because it means we have to leave the office at some point before 10 O'clock in the evening if we want to see Boston Legal or any other television show for that matter.

Boston Legal is David E. Kelley's latest creation in a successful string of lawyer shows for prime time. Starring James Spader and William Shatner, we believe it is the best lawyer show on television today. Sure we watch at least three different incarnations of Law & Order, as well, but no other legal show, in our opinion, is as much fun.

Now we realize you can't sue the Federal government in an hour, nor can a lawyer shoot his client (though he can think about it) and then appear on Larry King Live to talk about it. Nor do most lawyers have a balcony, wet bar, and humidor available for the evening assuagement.

And, of course as TV Lawyers they can skip the mundane. But, do we really want to watch them review answers to interrogatories? Maybe we can watch Denny Crane could call out a deed? Most legal professionals don't need television to find that variety of entertainment.

Hollywood polish aside, the genius in the show is how it allows a viewer to see, on a very human level, a group of lawyers, with very different approaches to the practice of law, full of personal quirks and foibles, working their way through ethical dilemmas, eccentric clients, and a parade of bizarre cases.

Legal professionals can enjoy the improbable and the impossible, while those who work outside of the profession can enjoy a sassy, funny situational comedy, heavy in drama.

So we highly commend you check it out. Just remember to allow time for driving when you leave the office, or set your PVR.

P.S. - If you are David E. Kelley, the bill for this plug is in the mail.

Years Old 13 Million Dollar Legal Bill - Gets Paid?

Well sort of.

Most lawyers try to get at least part of the fee up front. While most people will pay, a few clients simply won't pay their bills, and most of the time it is impossible to know which clients will and which clients won't. So everyone has to pay upfront. Well almost everyone.

It seems, from an account in The Age that "FLAMBOYANT socialite Rose Porteous has agreed to hand over more than $13 million in unpaid legal fees to settle a court battle with Melbourne law firm Slater and Gordon." The paper says the fees date back to work on a string of cases one from as early as 2001.

The thinking here at Rominger Legal is that 4 years of work without pay is unconscionable, as none of our staff have gone longer than 6 months. So you can imagine we were relieved to learn, as we read farther that, "Mr Grech said the debt had been allowed to run so high only because Mrs Porteous had given Slater and Gordon a first mortgage over her $30 million Perth mansion, Prix D'Amour."

The morale of the story is get the retainer up front, or at least get a first mortgage on the client's home. Of course not every client comes with a Perth mansion (with no first mortgage nonetheless).

The First Thanksgiving Proclamation

June 20, 1676
"The Holy God having by a long and Continual Series of his Afflictive dispensations in and by the present Warr with the Heathen Natives of this land, written and brought to pass bitter things against his own Covenant people in this wilderness, yet so that we evidently discern that in the midst of his judgements he hath remembered mercy, having remembered his Footstool in the day of his sore displeasure against us for our sins, with many singular Intimations of his Fatherly Compassion, and regard; reserving many of our Towns from Desolation Threatened, and attempted by the Enemy, and giving us especially of late with many of our Confederates many signal Advantages against them, without such Disadvantage to ourselves as formerly we have been sensible of, if it be the Lord's mercy that we are not consumed, It certainly bespeaks our positive Thankfulness, when our Enemies are in any measure disappointed or destroyed; and fearing the Lord should take notice under so many Intimations of his returning mercy, we should be found an Insensible people, as not standing before Him with Thanksgiving, as well as lading him with our Complaints in the time of pressing Afflictions:

The Council has thought meet to appoint and set apart the 29th day of this instant June, as a day of Solemn Thanksgiving and praise to God for such his Goodness and Favour, many Particulars of which mercy might be Instanced, but we doubt not those who are sensible of God's Afflictions, have been as diligent to espy him returning to us; and that the Lord may behold us as a People offering Praise and thereby glorifying Him; the Council doth commend it to the Respective Ministers, Elders and people of this Jurisdiction; Solemnly and seriously to keep the same Beseeching that being perswaded by the mercies of God we may all, even this whole people offer up our bodies and soulds as a living and acceptable Service unto God by Jesus Christ."

The Mayflower Compact

1620
"In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&.

Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.

In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620."

Padilla - Possible Supreme Court Review Mooted

"WASHINGTON (Nov. 22) - Jose Padilla, a U.S. citizen held without charges for more than three years on suspicion of plotting a "dirty bomb" attack in this country, has been indicted on three counts alleging he conspired to "murder, maim and kidnap" people overseas. (see link for more)"

Clever - Essentially, by making Padilla's challenge to his interment moot, future Executives will not have a clear decision on point, and can detain others in "good faith", until the Supreme Court would rule otherwise. Protection of the President's prerogative in future matters is preserved, and a prosecution moves forward at the same time.

Of course, perhaps Padilla could argue that mootness is not applicable, in that this case involves actions capable of repetition yet evading review. See Weinstein v. Bradford , 423 U.S. 147, 148-49 (1975).

Pennsylvania DUI

- Did you know that the DUI law in PA has three gradings based on blood alcohol content by weight (BAC)? Thanks to the new structure criminal defendants have a great incentive to challenge the accuracy of their BAC. In one example, on a third offense, a 0.159 BAC carries 90 days, while a BAC of 0.160 carries a mandatory 1 year in jail. 0.001 makes a 9 month difference in mandatory sentences. Do You think this makes sense?

Pit Bull on Rampage - Attorney not Spared

What Happened to Professional Courtesy?

We usually don't like lawyer jokes here at Rominger Legal, and two attorneys in Florida recently found out that Courts don't like lawyer jokes or plays on cliches, at least when their hammed up into an advertisement.

The Florida Supreme Court said the advertisement, which compared a lawyer to a pit bull, is both demeaning and misleading. We suspect the Court found it more demeaning and crass then they did false or misleading. First Amendment concerns have historically forced courts to regulate advertising by finding it misleading or false. If it is truthful, even if it offends the sensibilities, the Court's powers are very limited.

Obviously very secure in the First Amendment, one of the accused said, 'I'd like to make a bird-cage liner out of it...'' ``...We're pretty disappointed by the whole thing.''

Any Suggestions?

Welcome to Rominger Legal's new blog. We thought it was time experiment with this "new" medium. In the next few weeks we hope to begin a lively discussion about all things legal. If you have any ideas, or topics for legal discussions, let us know.

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