Innocent Until Strong Armed into Court?

The dust has settled and the cycles are long gone but there still remains a fog over the polarizing figure, Lance Armstrong.

It has been almost a week since Armstrong has decided to drop his fight against the United Stated Anti-Doping Agency ("USADA") and there has already been screams of constitutional violations and injustice. One yahoo contributor called Armstrong the modern day "Robin Hood," and called the whole situation a "travesty of justice."

I think she's completely right. This reminds me of when the Sheriff of Nottingham stripped Robin Hood of his archery trophies because of his alleged doping. There was absolutely no proof that the witch concocted the testosterone steroid and supplied it to Robin of Loxley. And the testimony of Little John against Robin Hood was completely motivated by his desire to smear Robin's name. Obviously I jest. Robin Hood fought the allegations till the end and ultimately proved his innocence.

Lance Armstrong is undeniably an inspiring figure. He was diagnosed with testicular cancer as a young man and beat it. His charity does great work and helps individuals live a more healthy lifestyle. But, this does not change the fact that there is overwhelming evidence that he cheated. Armstrong's courage and success against a horrible disease does not mean a successful argument can be made that he has been denied his due process rights.

USADA, in accordance with authority given to it through various treaties ratified by the United States Congress, moved to sanction Armstrong when a number of people came forward willingly to testify against him. The list of adverse testimony was credible and long. The list's length may have rivaled the Tour de France route.

Instead of vindicating his claims of innocence with an adversarial proceeding that would have given him the opportunity to cross-examine his teammates, present exculpatory evidence, and present his own witnesses, Armstrong elected to drop the fight. He issued a statement later in the week that said we should not cry for him. Don't worry, I won't.

The AAA-CAS, the alternative dispute resolution organization, that would have been the impartial determiner of Armstrong's guilt is not a perfect judicial proceeding. But that does not mean it is insufficient, obsolete, or unfair. One could make the argument that it is on par with most judicial courts in the United States.

A case in arbitration still has an equitable process. It is not a sham proceeding. Thousands of people use arbitration every year and receive an award or a favorable result. Furthermore, Armstrong would have been able to appeal in the event that he was found guilty of doping.

It is unfortunate to see people vilify USADA when it was simply doing what it was formed to do - keeping international sports free from doping. Of course, there may be some ways to improve the independence of the proceedings for the athletes accused of doping. Armstrong's case could have moved that conversation forward.

Armstrong made the decision to forego the arbitration yet still claim his innocence and victories. He does this despite the federal court's dismissal of his suit against USADA and determination that the AAA-CAS is a capable fact finder. It makes one wonder whether he has simply ran out of steam. Or maybe the performance enhancing drugs have no effect on his ability to present a case. I'll have to ask Robin Hood.

Legimate Rape: Something "Akin" to Rape?

I have friends that fall on every notch of the political scale. They range from tea party conservatives to occupy progressives.  With that in mind and as a preface, I want to discuss a heated political issue that should be non-partisan. I am afraid, however, that like with every public matter - it will turn into a dividing issue among friends and colleagues.

The 2012 election cycle is one of the most important in our lifetimes. There is a lot at stake in regards to what values and economic reforms we ultimately embrace. We have two distinct presidential candidates with clear differences in opinion about the economy. It will be a stark choice. However, many people are unaware that there are other important issues at stake.

Recently, a candidate for the senate in Missouri, Todd Akin, started a firestorm of controversy when he took up the issue of abortion. He was answering a question on why he vehemently opposes a rape exception to the anti-abortion law when he made the following statement:

"'From what I understand from doctors, that’s really rare,' 'If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something, I think there should be some punishment, but the punishment ought to be of the rapist, and not attacking the child."

His statement is scientifically unsound. A woman's body cannot shut down ovulation of an egg merely because it was the product of rape. There is no legitimate rape. There is just rape.

I do not think this should be a dividing issue.

The comment, however, does put into perspective a Republican party position, which will cause debate. The Republican party wants to add a human life amendment which would ban abortion in all instances, even rape. The RNC will vote to add this position to its platform before the convention in Florida.

Furthermore, state legislatures, throughout the year, have attempted to pass "personhood" bills, which would legally make a fertilized egg a "person." The law's effect would make an abortion illegal in all circumstances.

It is not news that conservatives and Republicans are pro-life. It is newsworthy that elected officials are taking drastic measures to overturn forty years of precedent. Some of the candidates, like Akin, are explaining their position, albeit poorly.

Roe v. Wade, a 1973 decision, established abortion as a 14th Amendment liberty right. In Pennsylvania v. Casey, the court upheld that restrictions on previable abortions are unconstitutional when they cause an undue hardship to the woman. This has been the law for decades. The court in Casey even acknowledged that precedent should be followed to avoid further political polarization.

A pro-life individual has a right to oppose abortion. I understand the moral, ethical, and legal arguments against abortion. I emphasize with them. Everyone should do what they can  to help prevent abortions through education and counseling. Those tools needs to be utilized. That's where I draw the line.

Like my conservative friends, I think the government should stay out of our personal lives. Elected officials should not impose their religious beliefs via a constitutional amendment. Women should be able to make their own decisions.

No matter what I think, this election will have consequences. Even on non-economic issues, like abortion.

Ultimately, we can spend a lot of time trying to overturn a law or we can take steps to decrease the need for abortions. We can educate individuals about sex and its consequences. We should implement values in our schools that can help prevent unwanted pregnancies and strengthen the family.

I guess pushing for a radical change in the law regarding a woman's right to choose is also an option. That is why we have elections.

Don't "Like" this!

I write this blog for a number of reasons. One reason is that I want to give readers insight into important law cases that are being covered by the media. Second, I like to practice my writing skills. But probably the most important reason is that I want to get as many facebook "likes" as possible to boost my ego. As if my ego needed it.

But in all seriousness, as Facebook evolves and becomes more involved in our everyday lives, so does the law developing around social networking. It has been at the center of conversation about privacy rights. And just recently, it has been a topic of interest among 1st Amendment enthusiasts.

Bobby Bland and other sheriff deputies probably did not expect that a simple "like" could jeopardize their careers. They surely did not anticipate that they would be arguing in front of the federal circuit court of appeals about Facebook. No matter what the expectations were, the following decision could potentially affect how government employees socialize online.

The deputies of Hampton, Virgina are arguing that a simple online click is protected free speech. The Sheriff who fired them, allegedly because the deputies liked a competitors Facebook page during a local election, is arguing that it is not. They fought the law in the district court, and the law won.

The district court judge held that a Facebook "like" is insufficient speech to warrant protection. It saved the judge some time because he did not have to analyze the three-prong test to determine whether the state's conduct was retaliation to their "speech." If their conduct did not amount to speech, then obviously it could not  be speech regarding the public concern, which state employees may  constitutionally engage in.

The district court judge cited cases argued by the deputies in which the court did hold that Facebook activity is protected. He distinguished these cases, however, by stating that they differ markedly in one crucial way: both cases involved actual speech. They had commented on a post.  Maybe the judge is not a Facebook user because most people know that a "like" could have the same effect as a comment or even more. I mean everyone knows that if a woman "likes" a man's status update, it's because she has a crush on him.

After the case, there was a firestorm of commentary from different individuals, associations, and professionals. The ACLU, Facebook, prominent lawyers, and users each gave their two cents. Everyone came up with their own unique analogy for a Facebook "like" to actual speech. Facebook Inc. analogized a "like" to a campaign sign in the yard. An attorney analogized it to wearing a campaign button on a shirt. The ACLU analogized it to an "I like Ike" pin. How original. Although if I had to pick a winner - it would be the ACLU.

The United States Court of Appeals for the Fourth Circuit will have the opportunity to reverse the District Court. If it decides to uphold the decision, government employees will definitely have be more careful on Facebook. Like that's a bad thing. But, I do predict that it will be reversed because the courts are more likely to classify  this type of activity as protected speech. However, if it is "speech," it does not necessarily mean that the appellants would win. The three-prong test would still need to be employed.

Part of me actually wants the decision to be upheld. Maybe then, people will start to think about the consequences of their social networking activities, thinking before posting. But, let's be honest. I will probably see a "bong hit" on my news feed before the day is over.

iRipped: Battle of the Smartphone Giants

Chances are that the phone in your pocket is either a Samsung device or the coveted iPhone. Together the tech titans sell over 41% of all the smartphones in the market. And, I just found out via my news app that both companies are 100% committed to winning the high stakes legal battle they are embroiled in.

In 2007, Steve Jobs introduced the original iPhone. He was right; it was revolutionary. But, the important question now, five years later, is whether its been ripped off by a big competitor.

The Constitution mandates that the Executive Branch "promote the progress of science...by securing for limited times to inventors the exclusive right to their respective discoveries." This mandate allows inventors to bring lawsuits into federal court to protect their products. Or, like in this case, protect the future success of its brand.

It looks like Apple may have a few ambitious attorneys because it is not timid when it comes to enforcing it's patents. On June 30, 2011 Apple filed its amended complaint against Samsung stating that, "instead of pursuing independent product development, Samsung has chosen to slavishly copy Apple's innovative technology..." Ouch.

This case is not only about patent infringement. Apple's complaint also contained claims of Lanham violations. For Apple to win on these additional claims, it will need to show that Samsung intentionally made its products to confuse consumers. And no, not confusion regarding price differences.

Winning a Lanham Claim

Apple is arguably the best technology company. It offers sleek products that talk to you. Siri has been known to carry on conversations better than most patrons at a local bar. The ironic thing about the lawsuit is that Apple will have to argue and successfully prove that consumers believe Samsung devices are the same as iPhones. To win versus Samsung, Apple will argue that its devices are just as revolutionary.

A New York case sums up actual confusion. "[Consumers are confused when there is a] likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question." In other words, when you go to best buy - you are not be able to tell the difference between a Samsung and Apple product. Consumer sophistication is one of the factors for the court to consider when determining a finding of confusion.

This legal standard will make it difficult for Apple to win on these trade dress claims in my opinion. The ordinary smartphone user is financially wealthy and sophisticated. I know its shocking but young college-educated individuals are likely to be a consumer of these devices. These facts bolster Samsung's arguments that most consumers are sophisticated enough to not be confused. Although, I do know some college graduates that are dumb as bricks. I'll refer Apple to them.

Apple v. Samsung is a big case. The outcome will have serious consequences in the mobile phone market. I am sure the other big players will be watching closely. As for me, I already set notifications to alert me of any new developments. It was not too difficult, my Samsung Galaxy S III is just like an iPhone.

Is Law School For You?

As a recent law graduate, I did the most sensible thing while waiting for my bar results - I started a blog. The most difficult thing about blogging is coming up with interesting topics for potential readers. My girlfriend, mom, and dad.

All kidding aside, my blog will cover trending law. The purpose of the blog is to provide easy to understand commentary on legal matters that affect my readers. My passion lies with business law but I will comment on other civil matters.

With that being said, I do feel it is important to discuss whether law school is right for those thinking about attending 3+ years of law school . The Wall Street Journal and the Huffington Post report a decline in law school applications. The articles attribute the lower rate to the difficult job climate. I suggest it may have more to do with the stress, weight gain, and repetition of reading boring casebooks that law school has to offer.

Attending law school is an important decision. It's a career path that can offer many new opportunities. Almost 200 members of the House of Representatives and over half of United States Senators hold law degrees. That fact may persuade you that law school is not for you since congress is despised by almost everyone according to some polls.

A juris doctor degree is also expensive. Be prepared to accumulate large debt unless you have wealthy parents. I love my parents but they are hard working middle class Americans so I had to take out a few loans to finance my higher education goals.

Like with any decision, you have to weigh the benefits versus the costs. For me, the education and opportunity I will receive outweighs any pecuniary sacrifice I had to make. But, for those still undecided - I will give some quick takeaways.

1) Law school is what you make of it.

If you have friends who have graduated from law school or who are currently in law school, I am sure you have heard horror stories about exams, professors, and assignments. Most of them are highly exaggerated. I do not want to discredit what graduates or attorneys have accomplished, but with the right attitude and work ethic you will be able to succeed. Just be prepared to read material that should be saved for bedtime.

2) Law school allows you to meet a diverse group of people.

Lawschools are centers for diversity. This allows students to learn about different cultures, ideas, and customs. I find that this benefit will help me tremendously when I enter into practice. I made friends from Armenia, England, the Philippines and Mexico.

3) Law school is a three year boot camp for the bar examination.

Law school is just the beginning, a mere boot camp. The real challenge will come when you have already graduated. The California bar examination is a three day struggle that tests your mental and physical resolve. It will cause nightmares, high levels of stress, and doubt. Law school prepares you for this as best as it can. For example, your grade will come down to one final exam in most cases. It will also train you to write, analyze, and critical think which are the skills that will ultimately be tested on the bar.

Before applying you should weigh the traditional factors, i.e. costs, living arrangements, and the time commitment involvement. However I hope that my takeaways give you some perspective before taking the plunge.

I know I made the right decision. I learned a great deal about important and not so important legal matters. I am one step closer to reaching my dreams.

As far the bar exam goes - I'll keep my fingers crossed. I may even say a prayer or two. Maybe three to be on the safe side.