What You'll be Talking About in 2007
We’ve consulted with some of the legal profession’s best prophets, prognosticators and soothsayers to bring you a report from the future.
In 2007, judges will increasingly get creative with sentencing, shaming defendants in the hope they will think twice about violating the law again. Partners being pushed out by their firms will have new leverage to negotiate sweeter severance deals. And patent holders will find their way to a forum that resolves their disputes in record time.
Americans will battle over who’s really a citizen, online background checks will raise thorny questions about discrimination, prosecutors will zero in on medical ID theft, and lawyers will discover that MySpace ain’t just for kids.
For a closer look into our crystal ball, read on.
Who’s a Citizen? Immigration reformists want to deny citizenship to “anchor babies.”
Saul Arellano is 8 years old, but he may carry the fate of current and future generations of his family on his small shoulders. Saul’s mother, Elvira Arellano, has been living inside a church on Chicago’s west side since early September, when the pastor granted her sanctuary to prevent her deportation to her native Mexico.
Federal immigration authorities have said nothing in U.S. law requires them to recognize the church’s grant of sanctuary, and they may at any time decide to enter and remove Arellano, who was convicted of working under a false Social Security number. If she is deported, Saul, a U.S citizen by birth, will either have to go with her or stay in the U.S. in the care of others, growing up without his mother. His father is not a part of his life and also is not a U.S. citizen.
Saul’s plight may make him the poster child for a question begging to be asked in the vast immigration debate: Who is entitled to citizenship? While Saul and supporters crisscross the country in a well-orchestrated campaign for his mother to remain here, immigration reform activists are pushing for legislation to deny citizenship to babies born in the U.S. to illegal immigrants or those here on temporary visas. It’s an uphill battle, but one sure to be widely debated in a country built by first- and second-generation Americans.
Saul is but one of hundreds of thousands of young Americans whose citizenship is based on the 14th Amendment provision that makes citizens of nearly anyone born on U.S. soil. The only general exception is for those whose parents are not subject to U.S. jurisdiction, such as children born to foreign diplomats working in the United States.
Saul, via his pastor, tried to argue in federal court in Chicago that his due process rights would be violated if he had to leave the country. The court rejected that argument, finding the law didn’t require Saul to leave: As a citizen, Saul would be allowed to stay if his mother turned over guardianship. Thus, the court said, there was no due process violation of Saul’s rights inherent in his mother’s deportation. Coleman v. U.S., No. 1:06-cv-04582 (Sept. 29).
The decision was seen as a victory by immigration reformers who have dubbed Saul and other such children “anchor babies.” The Federation for American Immigration Reform estimates there are between 285,000 and 365,000 children like Saul in the U.S. The term anchor baby refers to the fact that a U.S.-born child is sometimes viewed as a family foothold into the country: When the child reaches the age of majority, he or she can sponsor family members for entry into the United States. In some cases, families also hope the child’s citizenship will cause immigration authorities to allow parents to stay to avoid splitting up families.
INTENT OF 14TH AMENDMENT
FAIR has issued opinion papers noting the 14th Amendment, written just after the Civil War, was intended to assure that states could not deny citizenship to former slaves. At the time of the amendment’s passage, the U.S. had no formal immigration policy. FAIR argues the phrase “subject to the jurisdiction thereof” was intended to exclude people “whose allegiance to the U.S. was not complete.” This, they argue, includes those whose parents are not U.S. citizens, those who are in the country illegally and those who maintain an allegiance to another country.
The U.S. Supreme Court addressed the issue of citizenship for those born on U.S. soil in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The court said a man born to two Chinese citizens who were permanent U.S. residents was a U.S. citizen. But 14 years earlier, the court found the children of American Indians were not citizens because they were under the jurisdiction of their sovereign tribes, not the U.S. government. Congress passed the Indian Citizenship Act of 1924, making all American Indians U.S. citizens.
In 1982, the Supreme Court found children of illegal immigrants were subject to U.S. jurisdiction, whether or not those children were born in the United States. Plyler v. Doe, 457 U.S. 202, found that states could not deny benefits such as a public education to children based on their citizenship or that of their parents. The 109th Congress considered several bills to override the court’s assessment about who is subject to U.S. jurisdiction under the 14th Amendment. Though none passed, each bill would have defined U.S.-born children of illegal immigrants as “outside” the jurisdiction of U.S. authorities. Some proposals would do this by statute, which would subject the law to constitutional scrutiny. Other proposals seek the harder road: a constitutional amendment defining who is a U.S. citizen.
Sidney Weintraub of the Center for Strategic International Studies says he thinks proposals to change the requirements for citizenship may return, even with Democrats in control of both houses of Congress.
Weintraub doesn’t believe the movement to exclude some native-born people from automatic citizenship will ultimately succeed. Noting that most Americans today have parents, grandparents or great-grandparents who came from somewhere else, he says none of us can fathom having to earn our U.S. citizenship. “We have too long a tradition of the U.S. as a place where citizenship is a birthright."—Margaret Graham Tebo
Suing Sidley Austin An Equal Employment Opportunity Commission action emboldens law firm partners to explore severance options
Until recently, most partners leaving a law firm never asked questions like: “Do I have a potential discrimination claim against my firm? And what kind of out-of-court settlement could I get?” Partners by definition are not employees, and they’re not protected by anti-discrimination laws.
But that mindset may be changing because of the groundbreaking discrimination suit filed by the EEOC against Sidley Austin, a major Chicago-based law partnership. Some disgruntled partners nationwide are using the ongoing EEOC case to negotiate for more severance, employment practitioners say. The Sidley case “opens up that possibility for leverage in severance negotiations” because it shows partners can be considered employees in discrimination cases, explains Amanda L. Reichek, a Dallas employment lawyer who represents plaintiffs.
The precedent was set in 2002 when the parties asked the federal courts to decide a discovery dispute in an administrative discrimination case. The Chicago-based 7th U.S. Circuit Court of Appeals held the EEOC could discover from the 1,600-lawyer firm whether so-called partners were in fact partners under the federal Age Discrimination in Employment Act. EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696.
The EEOC sued in federal court in 2005, contending Sidley between 1978 and the late 1990s discriminated against more than 30 of its own partners and illegally demoted them because of their age. The firm, formerly known both as Sidley & Austin and as Sidley Austin Brown & Wood, contests these claims. EEOC v. Sidley Austin Brown & Wood, C.A. No. 05 C 0208 (N.D. Ill.)
Whether playing the “Sidley card” wins the bet on a sweetened departure package at other firms depends on various factors, says Chicago lawyer Jane M. McFetridge, who represents employers and knows of such out-of-court settlement negotiations. Factors include the nature of the allegations made by the soon-to-be former partner and the personalities of soon-to-be former colleagues.
Possibly the greatest contribution of Sidley for plaintiffs is that it knocked down the “wall of arrogance” that at most firms made claims of any kind about any firm employee difficult to resolve, says Los Angeles lawyer Jeffrey K. Winikow, who represents plaintiffs. But unhappy partners don’t have a decisive edge yet. Like other professionals, they are reluctant to sue, fearing career repercussions.
Even using a potential discrimination claim as a bargaining chip can backfire. “It’s a small community,” Reichek says. “These firms can be somewhat intolerant of boat-rockers and might not want to invite that kind of person to work for them. Even though it’s illegal to do that, it still occurs.”
A small number of private suits claim law firms discriminated against so-called partners. But so far, discrimination cases finding law firm partners to be employees are virtually nonexistent.
This issue is undecided in Sidley, which is still in discovery, and Reichek expects trial courts in different jurisdictions will reach conflicting results. “I think this gives a circuit a lot of discretion to go in some unpredictable directions,” she says. “In circuits that are more employee-friendly, they might be more inclined to find coverage.”—Martha Neil
MySpace Discovery Lawyers are mining social networks for nuggets of evidence
Friends, enemies, potential employers—and now even attorneys—may be checking out your MySpace page. MySpace and other social networking sites on the Internet can be caches of evidence.
“A few years ago, lawyers would call and say they had no idea what [MySpace] was,” says Jeff Fischbach, a Chatsworth, Calif., forensic examiner, “but now everybody keeps talking about it.”
Criminal defense lawyers use social networking sites the most, usually to investigate witnesses, according to Fischbach.
“It’s a tool that is out there,” says Eugene, Ore., lawyer Laura Fine, who found evidence on the Net while she represented a teenager accused of forcible rape. The witness told police that she would never willingly have had sex, according to Fine, but her page on MySpace said something different.
“She talked about parties, drinking and ‘getting some,’ ” Fine says.
The page also displayed provocative photos of the young woman, according to Fine, and a lascivious screen name. The page was meant to be private, but lawyer Fine viewed it over the shoulder of another witness, who gained access through a MySpace group he and the girl belonged to.
The girl’s parents would not allow the lawyer to interview her, but Fine says she found out what she needed to know from the site. She also got a good sense of how the young woman would present to a grand jury.
Based on what she read, Fine called the girl as a witness, and ultimately the grand jury dismissed the charge.
“What you put on MySpace, essentially, becomes public consumption. There’s no right of privacy,” says John Wesley Hall Jr., a Little Rock, Ark., criminal defense lawyer who writes extensively on evidence issues.
Besides looking for information on witnesses, Hall investigates clients through various personal Web pages.
“I’d rather know where the land mines are so I don’t walk into one,” he says. Prosecutors, Hall adds, generally don’t use online networking sites as much. Often, that’s because they end up with better evidence obtained through search warrants, says Clinton Parish, a Yolo County, Calif., deputy district attorney.
A POST ISN’T PROOF
Parish is prosecuting a case in which police say they found information about marijuana sales on a MySpace page. Police used the page, which included images of the suspect, his girlfriend and his car, to get a search warrant, Parish says. Rajneel Kumar was arrested and charged with felony possession for sale of methamphetamine and marijuana.
But proving Kumar wrote the text detailing his business or posted pictures of his alleged marijuana plants may be difficult. Evidence seized during the search warrant could prove more effective in the prosecution, Parish says.
Fischbach predicts that as lawyers become more familiar with networking sites, prosecutors will use them more frequently.
“It would be really wise if every attorney [did an Internet search for] all the individuals involved in a case, just so they know what they’re up against,” Fischbach says.—Stephanie Francis Ward
Scarlet Letter Sentencing Judges may feel more free to craft sentences that suit the crime
Take a sentence that isn’t having an impact, a judge who feels free to choose a punishment, and what do you get? Well, Nathaniel Hawthorne might have pinned on the letter “A”—public shaming for adultery. In Missoula, Mont., U.S. District Judge Don Molloy ordered up a placard that read, “I am a liar. I am not a Marine.”
The sign was for William Cody Horvath, a Whitefish man who pleaded guilty to making false statements, chiefly that he lied about his military career to get compassion from his probation officer.
Douglas A. Berman, an expert on sentencing law and policy, says the nation can expect more of these sentences as judges feel free to use greater discretion thanks to the U.S. Supreme Court’s 2005 decision in U.S. v. Booker, 543 U.S. 220. And while critics would say this is a setback to uniform sentences that treat defendants more fairly, Berman is looking at creative sentences as a way for judges to break out of a pervasive imprisonment mentality.
“Guidelines or any kind of structure map onto prison very easily,” says Berman, who teaches law at Ohio State University. On the other hand, shaming punishments, sometimes called creative sentencing, are hard to quantify.
Consider what’s happening in Portage, Ind., Judge Julia M. Jent’s courtroom. After years of seeing next to no reaction or remorse from teens facing fines for driving infractions, Jent ordered offenders to give up their cars for a period of time and take the school bus. No rides from mom and dad, no rides from friends, no walking.
When the first defendant broke down in tears upon hearing the sentence, Jent knew she was on to something. “You would have thought I sentenced her to death,” Jent says. “She was devastated.”
Jent, who has raised four children and has grandchildren in high school in the area, has expanded her use of the sentence. She doesn’t have any studies to show whether her sentences are having a deterrent effect, but she believes area teens are more aware of the consequences and are getting her accountability message.
“I really believe in the long run it’s going to slow them down,” Jent says.
Berman argues there are realities about particular offenders that only a judge like Jent, looking at an individual offender, can appreciate in crafting a sentence. Asked whether there will be a breakaway number of judges coming up with creative sentences, Berman hedges. It depends, he says, on the type of coverage these sentences get. If judges are praised, we will see more. If they are condemned, creative sentencing is likely to be more of an exception.
In Jent’s case, the local press was positive. She’s starting to get more parental support, and her fellow judges are following her lead. When it comes to serious offenses, especially sex crimes and domestic violence, creative sentencing is quick to draw critics. But for other offenses, especially involving options besides jail, creativity is more welcome. —Molly McDonough
Medical ID Theft Sophisticated schemes to get medical records add to the risk facing medical information holders
As a front desk coordinator, Isis Machado had easy access at her Weston, Fla., hospital to patient records, including birthdates, Social Security numbers, Medicare numbers and home addresses.
Federal prosecutors allege she exploited that access, downloading more than 1,100 patient records from a local hospital. She then allegedly sold the records to a cousin, Fernando Ferrer Jr., who is alleged to have used them in a scheme to submit $2.8 million in false claims to Medicare. A Sept. 8 indictment spells out the allegations, charging the pair with conspiracy to commit fraud, conspiracy to commit identity theft, and violation of the Health Insurance Portability and Accountability Act through the wrongful disclosure of individually identifiable information.
While health care fraud is a well-known foe to care providers and law enforcement, medical identity theft is a growing problem for providers, insurers and patients. According to a spring 2006 report, Medical Identity Theft: The Information Crime that Can Kill You, by the World Privacy Forum, as many as 250,000 to 500,000 Americans have been victims. One of the most alarming culprits: organized crime. “Organized, complex schemes have been discovered in California, Florida and New York,” the report stated. “In the hands of organized crime, false claims are spread out across multiple patients, and the claim amounts are small.”
That’s what prosecutors say happened in northern California. In U.S. v. Dzhuga, No. 5:05-cr-00589, the U.S. Attorney’s Office in San Francisco claimed to have uncovered a “clinic takeover” scheme in which defendants induced Medicare recipients to visit a clinic with promises of free food, milk and transportation. Once there, Medicare ID cards were copied. Staff gave out false diagnoses and billed Medicare for approximately $1.1 million, prosecutors allege.
Washington, D.C., lawyer Kirk Nahra, who chairs the ABA Health Law Section’s eHealth, Privacy & Security Interest Group, says medical identity theft “is a sleeper that is starting to awake.” The rate of medical identity theft merits the growing awareness, especially for lawyers, he says. “People are just starting to recognize the nonfinancial aspects of identity theft and, in the health care industry, how there can be real significant risks to patients,” Nahra says.
While victims suffer some of the same consequences as those hit by financial identity theft—persistent bill collectors and damaged credit histories—medical identity theft victims may find their health insurance has been exhausted, or they may fail an employment exam based on erroneous information in their records, according to the report.
Employees or other insiders in the health care profession are often the most likely culprits in such schemes, but according to the World Privacy Forum, an increasing number involve “highly sophisticated crime rings.”
The variety of perpetrators reflects the fact that the aims of criminals can be wide-ranging. “If I’m somebody who doesn’t have health insurance, and I’m trying to get medical services, I just need one name, not 50,” Nahra says. However, there are middlemen who traffic in the information.
With risks to patients comes liability for health care providers and others responsible for medical records, and litigation has begun. But, according to Nahra, these cases have largely been dismissed because there were no actual damages, only potential risks from the theft or other misuse of stolen information. Still, the dismissals don’t mean this door is closed to victims. “Clearly, more suits are expected,” Nahra says. —Geri L. Dreiling
Online Background Checks As social networking sites grow, so does the ability of employers to discriminate
The growth of online communities like Facebook and MySpace is staggering (the latter reports 5 million new members every month), and it’s apparent to any Internet surfer that profiles, blogs and visible chat sessions can be particularly revealing.
Many employers are noticing too. And they’re making online searches part of their background checks. But if employers don’t hire a candidate based on what they find, is that employment discrimination?
That’s likely to be a question that will pop up more often as job interviewees are asked about comments they’ve made online, or as applicants suspect their age, race or nationality was at play in the hiring process. Although there are no reported cases at this writing that pit a disgruntled candidate against a search-engine-fueled human resources department, some believe it won’t be long before the issue looms large for many companies.
Part of the difficulty with employment screening that looks at personal Web pages is that if information is online, it’s considered public, says John Challenger, CEO of the Chicago-based outplacement firm Challenger, Gray & Christmas. And some of those details, especially for younger people, can be pretty revealing. “Many people, especially students, have an unreasonable expectation of privacy,” says Steven Rothberg, the founder of CollegeRecruiter.com. “There’s some awareness, and some password protections are being put in place for MySpace users, but on the whole, many of the younger generation think it’s a good thing to be an exhibitionist and talk about bad behavior.”
Rothberg says about three-quarters of the employers who talk to him say they regularly search online as part of background checks, including blog content. Some have admitted to him they turned down intern candidates because they didn’t like what they saw on those pages. A CareerBuilder.com survey showed that more than one in 10 hiring managers search social networks as part of the background checks they do on job candidates. According to Rosemary Haefner, CareerBuilder.com’s vice president of human resources, that’s less than the one in four who use an Internet search. Haefner says candidates seem to be more honest online than on their resumés, with manufactured qualifications the most common online discovery that leads to disqualification for jobs.
Because many younger people coming into the HR field have broad experience with online resources, the use of social networking sites for background screening is likely to boom, Challenger says.
And for those who believe a blog or MySpace posting lost them a job, proving that it was because of their race, gender or age could be difficult. “Companies aren’t going to say, ‘Here are the 10 sources we used to check you out,’ ” Challenger says.
In offline discrimination suits, it’s often a comment made by an interviewer or an inappropriate question that provides the basis for the complaint. But short of issuing a subpoena to check browser records on an interviewer’s computer, it could be very difficult to discover if an employer had checked on the candidate online.
Still, a lawsuit could bring negative publicity. “With accessing all this information comes risk,” says St. Louis labor and employment lawyer George L. Lenard. “Companies are going to find that in the future, they’ll need clearly spelled-out policies about online tools and employment screening, or they’ll run the risk of being accused of discrimination.”—Elizabeth Millard
Patent Rocket Docket Patent holders choose the International Trade Commission for fast, powerful results
Five years ago, few patent litigants found their way to the International Trade Commission. But these days, the two courtrooms in the ITC’s glass-facade building in Washington, D.C., are abuzz. That’s because the ITC’s quasi-judicial court is seen as the fastest and most powerful method to stop patent infringements.
The ITC can, under section 337 of the Tariff Act of 1930, bar all imports that infringe a company’s intellectual property rights. If some infringing goods are already in the country, the ITC can forbid those items from being sold in the United States.
Fiscal year 2006 set a new high for the agency’s IP work. It launched a record 40 section 337 proceedings between Oct. 1, 2005, and Sept. 30, 2006. This was up 38 percent from fiscal year 2005, and up a whopping 250 percent from four years ago.
“All signs are that this trend will continue,” says Brian Busey, a Washington, D.C., attorney who has represented clients simultaneously before the ITC and in litigation. Busey successfully represented Fujitsu, accused of importing plasma display screens that allegedly infringed patents owned by the University of Illinois and Fairfield, Conn.-based Competitive Technologies Inc. Both the ITC proceeding and the court case were filed in 2000. The plaintiffs had to withdraw their ITC complaint against Fujitsu in 2001, while the district court granted summary judgment in favor of Fujitsu in 2004. The Federal Circuit Court of Appeals upheld the district court decision in 2006.
Patent owners are drawn to the ITC because of its speed. Once a complaint is lodged with the agency, it will investigate the alleged infringements, hold a hearing before an administrative law judge and issue a decision, usually within 14 months. It takes at least 22 months for an infringement case to go to trial in most district courts. The agency acts more quickly than other so-called rocket dockets, experts say.
Patent owners also appreciate the expertise of administrative law judges who adjudicate section 337 proceedings. They are conversant with both technology and the law, so there’s no need to educate, as with a district court judge or a jury, about the intricacies of construing a patent.
Perhaps because of the judges’ expertise, ITC rulings tend to hold up unusually well on appeal to the Federal Circuit. “The ITC’s claim construction has a better affirmance rate than that of the district courts,” says Washington, D.C., lawyer Delbert R. Terrill Jr., a former ITC judge who chairs the ABA Section of Intellectual Property Law’s Committee on the International Trade Commission.
Not all patent disputes can be brought before the ITC. If the infringement is purely domestic, involving no infringing imports, the commission can’t act. But with globalization, more and more disputes involve imports. Even disputes between two U.S. companies are coming before the ITC because so many American companies manufacture their products outside U.S. borders.
The ITC doesn’t award damages for infringement. Only a court can do that. So more companies are making a two-pronged attack, suing in court for damages and seeking injunctive-type relief from the ITC.
Yet there are signs the ITC might fall victim to its own success. The rising number of section 337 cases is threatening to swamp the agency. That’s why the Intellectual Property Law Section passed a resolution in June calling for the agency to add another courtroom and administrative law judge. “Without a third courtroom and a fifth judge,” Terrill warns, “the ITC’s ability to sustain its workload is becoming problematic.”—Steve Seidenberg