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Legal Writing: Bookmark This Site

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Raymond Ward's blog, the (new) legal writer, is billed as "a collection of resources for lawyers and other writers."

And that's exactly what it is--you can always find a useful link.

Ward's latest post, "The Redbook (3d ed.)," concludes this this advice--

[I]f you are serious about being a professional writer (which all lawyers are), then you need the Redbook. The optional part is whether to take a CLE class in how to use it. My opinion: if you are going to use the Redbook, then a little CLE time in how to use it is not a bad investment of time or money.

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rl5am
3715 days ago
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Atlanta, Georgia
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[Ilya Somin] Do illegal immigrants have an obligation to obey laws banning them from entering the United States?

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One oft-made argument against illegal immigration is that it is morally wrong simply because it is illegal. Immigrants have an obligation to obey the law. If they violate it by entering the country illegally, that by itself is enough justification for deporting them, regardless of whether their illegal entry actually harms anyone or not. In an interesting recent Fox News interview, former Florida governor and possible Republican presidential contender Jeb Bush takes issue with some aspects of this argument:

Jeb Bush said the debate over immigration reform needs to move past derisive rhetoric describing illegal immigrants.

The former Florida governor said in an interview Sunday in College Station, Texas, that people who come to the United States illegally are often looking for opportunities to provide for their families that are not available in their home countries.

“Yes, they broke the law, but it’s not a felony. It’s an act of love, it’s an act of commitment to your family,” Bush told Fox News host Shannon Bream at town hall event at the George Bush Presidential Library Center….

“I honestly think that is a different kind of crime, that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families,” he said.

“I think we need to kind of get beyond the harsh political rhetoric to a better place.”

In contrast to many critics of illegal immigration, Bush recognizes that the reasons why illegal immigrants violate the law matter to any moral evaluation of their actions. Those reasons might be irrelevant from a standpoint that condemns all illegality equally, regardless of the situation. But few Americans actually endorse any such position. To the contrary, most believe that many violations of the law are perfectly fine. For example, most people violate speed limit laws almost every time they drive to work. Most businesses violate at least some OSHA regulations. Most readers of this blog are probably federal felons, at least if they are anything like the average American, who commits about three federal felonies every day.

The point is not just that we violate laws all the time, but that in many circumstances we don’t consider it morally wrong to do so. If you violated the speed limit on your way to work today, you probably do not believe you did anything ethically questionable.

I. Illegal Immigration is Easily Justified Under a Weak Presumption in Favor of Obedience to Law.

Many Mamy people implicitly assume that there is only a relatively weak moral presumption in favor of obeying the law. If obeying a law is inconvenient and violating it is unlikely to harm anyone, they believe that violation is morally justified. That explains why most people believe it is morally permissible to violate the speed limit laws, so long as you don’t drive so fast as to seriously endanger other drivers and pedestrians. Strict compliance with the speed limit would be annoying and inconvenient, and make it harder for us to get to our appointments on time. Ditto for violations of various federal regulations that ordinary citizens and small businesses routinely run afoul of. Obeying all of these laws to the letter would be costly and inconvenient, and most people believe it is all right to violate them in cases where there is no significant harm to others.

If you apply this theory to illegal immigration, it becomes clear that illegal immigrants have a much stronger case for violating immigration laws than native-born citizens do for their routine violations of the speed limit and various petty federal regulations. For most illegal immigrants, obeying the law would harm them a lot more profoundly than merely making it harder to get to work on time. It wouldconsign them to lives of poverty and oppression in the Third World, a harsh fate imposed on them through no fault of their own, merely because they were born on the wrong side of a line on the map. And, just like going slightly over the speed limit, merely crossing a boundary and seeking out employment from willing employers does not harm anyone in itself, certainly not in any significant way.

Some illegal immigrants do, of course, harm others by committing violent crimes or by using welfare benefits to which they are not entitled. But to the extent that this is true, it merely means they have a moral duty to refrain from violence or from taking welfare benefits once they enter the US, not that they are morally obligated to obey laws restricting immigration itself.

II. Much Illegal Immigration is Justified Even Under a Strong Presumption in Favor of Obedience.

Not everyone who rejects an absolute obligation to obey all laws agrees that there is only a weak moral presumption in favor of obedience. Some believe that there is a very strong presumption that can only be overcome by extremely powerful countervailing considerations. For example, perhaps southern blacks were justified in violating Jim Crow laws in the days of segregation, because of the severe harm that those laws inflicted on them. But ordinary Americans today are not justified in violating laws that harm them in more modest ways.

Even on this view, illegal immigrants have a strong case. If anything is enough to overcome the strong presumption, it surely is a situation where obedience forces you and your family into life-long poverty and oppression that you did nothing to deserve, and violation of the law does not in itself harm anyone. The strong presumption theory might still condemn illegal immigrants who come from advanced liberal democracies, such as Canada or Britain. Life in these countries is at worst only modestly less happy and free than in the United States. But the vast majority of illegal immigrants are fleeing far worse condition – often even worse conditions than African-Americans endured in the Jim Crow era.

Finally, it is worth noting that scholars such as A. John Simmons and Michael Huemer argue that there is no presumption in favoring of an obligation to obey the law at all. They hold that a moral obligation to obey a law requires something beyond merely the fact that it was enacted by a government, even a democratically elected one. I have a lot of sympathy for that position. But here, I want to stress that many illegal immigrants would be justified in violating the law even under more conventional views about the extent of our obligation to obey the state.

The claim that illegal immigration is wrong because it violates the law is far from the only plausible argument against it. It is certainly possible to argue that illegal immigrants should be deported for a variety of other reasons. But the supposed wrongness of illegal immigrants’ violations of the law is often raised in discussions of the issue. So it is worth pointing out the flaws in that argument. Ultimately, if you believe that you are justified in exceeding the speed limit on your way to work, you have little basis for criticizing immigrants for illegally crossing the border.

UPDATE: Economist Bryan Caplan has an interesting post commenting on this one here.








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rl5am
3715 days ago
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The Prayer of Saint Francis

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I am not a religious person, but Reverend Smith spoke a few lines of the Prayer of Saint Francis on an episode of Deadwood I watched recently and I can't stop thinking about it. The prayer in full:

Lord, make me an instrument of Thy peace;
Where there is hatred, let me sow love;
Where there is injury, pardon;
Where there is error, truth;
Where there is doubt, faith;
Where there is despair, hope;
Where there is darkness, light;
And where there is sadness, joy.

O Divine Master, Grant that I may not so much seek
To be consoled as to console;
To be understood as to understand;
To be loved as to love.
For it is in giving that we receive;
It is in pardoning that we are pardoned;
And it is in dying that we are born to eternal life.

The Reverend put it slightly differently:

Lord, grant that I may seek rather to comfort than to be comforted, to understand, than to be understood, to love, than to be loved...

Believer in eternal life or not, that's a way of living life I can get behind.

Tags: religion
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rl5am
3715 days ago
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Leadership from within

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In recent years, Chipotle has worked to promote their managers from within the company. And the tactic seems to be working.

The common element among the best-performing stores was a manager who had risen up from crew. So Moran started to outline a program that would retain and train the best managers, and reward them to the point where they would be thrilled to stay on.

After Flores expressed his frustration, Moran showed him his early notes for the restaurateur program, which is unique among fast food restaurants in that it ties pay and promotion to how well you mentor people, rather than store sales.

"It was a great meeting but I didn't know what was going to happen. At most companies you meet the top execs and then you never hear from them again," Flores says.

A few weeks after the October meeting, while vacationing in Houston, Flores got a call on his cell from Ells and Moran letting him know that he had been promoted to restaurateur and was getting a $3,000 bonus. Rather than waiting until he returned to Milwaukee to get him the check, it was delivered to him in Houston the following day. At the time his salary was around $38,000, and the bonus was meaningful.

"That's when I knew the company was special," Flores said.

Interesting bits of business wisdom throughout this piece.

Tags: businessChipotlefoodrestaurants
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rl5am
3715 days ago
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IL: Use of administrative search power in aid of a Medicaid criminal investigation violated state constitution

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The use of administrative search power in aid of a Medicaid criminal investigation made the search violate the Illinois constitution. People v. Lee, 2014 IL App (1st) 130507, 2014 Ill. App. LEXIS 167 (March 14, 2014):

=> Read more!

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rl5am
3740 days ago
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CROSS EXAMINATION IDEAS

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Have you thought about what the possible objectives are in cross examination? Often times we have not thought out the possible avenues we could take in cross examining a witness. Here for example are some of the objectives one might have in cross examination:

  • To establish the witness is not telling the truth on one or more material points.
  • To show that the witness is biased and has a motive for coloring the testimony.
  • To show that the testimony is improbable.
  • To obtain admissions about particular facts.
  • To question the accuracy of testimony by problems of observing, hearing or seeing.
  • To question the qualifications of the witness to express opinions or make observations. To impeach the witness by showing conflicting statements or actions.
  • To question the witnesses credibility for truthfulness.
  • To impact the impression of the witness.
  • To discredit the witness because of bias, prejudice, lack of qualifications or other deficiencies.
  • To obtain helpful or damaging admissions.

Lewis Nizer was a famous lawyer years ago who wrote best selling books about his trials. He used to refer to what he called  “the rule of probability.” He would a attempt to determine what was the most probably and the most  likely version a jury would except as being true and then work around this trial and in his examination of witnesses. This fits the principle of Occam’s Razor: The simplest explanation is the most likely and is a good way to think about your cross examination.

Elizabeth Loftus is a professor of psychology who taught at the University of Washington in Seattle before moving on to other academic institutions. She did considerable research about the testimony and believability of witnesses. One of her findings was that the more detail the witness has about the event they are describing the more credible they seem. She has written:

“why is detail testimony powerful? Jurors and further a witness who provides details has a good memory of the accident or crime. They also seem to think that the witness must have paid close attention to critical aspect of the events. Also, some jurors may simply believe that people who remember details must be telling the truth because it would be unlikely that they would make up seemingly insignificant details.”

Consequently cross examination about the ability to provide details is important. Her research also established that jurors rely upon the degree of confidence of the witness in expressing the testimony. She found that jurors were far more likely to believe eyewitnesses who were confident than those who were not. The impression the witness makes on cross examination is important. Your ability to undermine that confidence is also important. In a case I tried last year the defendant’s lawyer asked the doctor how certain she was about a key fact she testified to. She answered: “Ninety Nine percent.” I found it interesting that some listeners and apparently some jurors put significance on the fact she didn’t say: “One hundred percent.” The impression of confidence counts.

There was a scandal under President Nixon, known as the Watergate scandal. John Connolly had been secretary of the treasury under President. Nixon and was charged with having taken a $10,000 bride to influence the president to raise federal price supports for milk. The principal witness against him was a Jacob Jacobson, a disbarred Texas lawyer. Connolly was represented by the famous Washington DC lawyer Edward Bennett Williams. His cross examination destroyed Jacobson and Connolly was acquitted.

Attorney Michael Tiger set 2nd chair to Williams and did a reenactment of the cross examination at a seminar. It went like this:

Q. Mr. Jacobson you’re a liar aren’t you sir?

A. No I’m not.

Q take a look at this document. It says “statement of Jacob Jacobson” on the top. That you is that?

A yes

Q and that your signature on the bottom?

A yes.

Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?

A yes.

Q so you’re a liar, aren’t you?

Very effective technique. Before John Edwards became a politician he was very successful trial lawyer. In his book Four Trials he describes a cross examination of an expert where the expert was evasive and gave long complicated answers. John had a very straight forward question prepared on a poster and asked him for the answer. He wrote on another paper in front of the jury the witnesses long evasive answer. When he was done, John said: “Would it surprise you to learn that several months ago you were asked that same question in a deposition and your answer was….” (John pulled out a large poster with the answer: “Yes, sir.”

When John put up the next question he had printed on a poster the witness again gave an evasive lengthy answer again. Once more, John produced a large poster with his answer at the deposition which was “Yes. sir.” The technique was very effective and attention getting for the jury.

Cross examination is a powerful tool and we should learn to use it right. We tend to argue with witnesses and often over insignificant points, at least in the juries mind. We have a habit of boring the jury with details and focusing on issues that aren’t major issues. The jury assumes the witness isn’t perfect and that everyone tends to exaggerate or fudge with the facts, so if it isn’t a major point or if it doesn’t seriously impact the impression the witness is making forget it. Jurors watch TV trials. They think examinations are two or three minutes long with huge dramatic points. They are not prepared for lengthy examinations unless it is interesting and entertaining. Prepare your cross examination. Try it on non lawyers and be prepared to reduce it to an examination which is meaningful to the jury.

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rl5am
3740 days ago
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