Years ago, Kurt Vonnegut wrote a fascinating story -- I think it was in the second Harlan Ellison Dangerous Visions book (Again, Dangerous Visions). The premise was that society decided everyone needed to be equal in every way. Since there was no way to make people smarter, prettier, faster or stronger, the solution was to handicap everyone who would otherwise have excelled. If I remember right, strong people had to carry weights, smart people had buzzers go off in their ears so they couldn't think straight, good looking people had to cover their faces, you get the idea.

What does this have to do with the law? Today's Wall Street Journal has a great article -- front page A1 -- about the unintended consequences of the No Child Left Behind Act, which is forcing schools to divert virtually all their resources to bringing the laggards up to a minimal level of achievement. Unintended consequence -- there's no money left over for the gifted and talented programs. So the really bright kids are bored and neglected. I guess we're moving steadily toward a common demoninator of mediocrity. There's a solid recipe for becoming a has- been former world power. Let's make sure the best and brightest never achieve their potential.

According to the WSJ yesterday and today, the drums are beating down the river for the demise ("merger") of the Nasdaq. Yesterday, the WSJ reported that the Nasdaq was talking to the NYSE about a merger. WSJ, Dec. 23, 2003, A1 ("Nasdaq Chief Approaches NYSE to Explore Merger"). Today the WSJ reported that the Nasdaq denies any merger talks. WSJ, Dec. 24, 2003, C1 ("Nasdaq Faces Eroding Share, End of Boom Market Denies Merger Talks with NYSE as Greifeld Presented Issue with SEC, Then Big Board"). International investors may be aware that the German Nasdaq equivalent, the Neuer Markt, recently "merged" into the larger Deutsche Boerse. I imagine that by this time next year, we'll know whether the Nasdaq will go the way of the Neuer Markt or whether this is more like the Garciaparra Rodriguez trade talks.

An answer for those who wonder why the practice of law is so stressful: $3 error = claim for malpractice. This one really is amazing. Some lawyers in California filed a claim for medical malpractice based on the death of an infant child two days before the statute of limitations expired. They sent it to the Court by Federal Express and it arrived the day before the statute ran. They enclosed a check for the filing fee in the amount of $203. Unfortunately, the correct filing fee was $206. By the time the clerk let them know and they sent in the other $3, the statute had run. The court dismissed the complaint for violation of the statute of limitations, and the court of appeals affirmed. Unless the California Supreme Court sees it differently, these lawyers just went from representing these people to defending a claim for legal malpractice by them. Ouch. Personally, I call the clerk's office every time I file a complaint to make sure the fee hasn't changed, and I can say from experience that even at the same court, you can get different answers from different clerks about what the correct filing fee is for different things. It's hard to see how this ruling can possibly be the right outcome.

So President Bush signed the CAN-SPAM Act into law on December 16, 2003. You can read the White House fact sheet on the Act here. Full text of the Act and a helpful summary are available here. The Act takes effect January 1, 2004.

An important decision in several ways, Green Tree Financial Corp. v. Bazzle was issued by the Supreme Court a few months ago. It holds that where an arbitration clause is unclear on whether it permits class arbitration, the arbitrator must decide whether class arbitration is permitted. There was an article in the National Law Journal a few weeks back, arguing that this decision is a disaster for defendants, because plaintiffs will just file arbitrations in series, until they find an arbitrator who will hold that class arbitration is permissible.

Here's an interesting site that I found after reading an article on the WSJ's Op Ed page today: The Center for Financial Integrity. Burton Rothberg and Ned Regan wrote today in the WSJ about corporate governance, and discussed some interesting data gathered by the Center, which is at Baruch College (one of the authors is a professor there and the other is the president). According to the article, the Center gathered data from the SEC's Edgar database to see how large mutual funds are voting on corporate governance issues. The data showed that "virtually all of the funds strongly oppose antitakeover defenses." WSJ, December 17, 2003 at A22, "A Seat at the Corporate Governance Table." The authors conclude that takeover activity will accordingly increase as barriers fall.

Okay, this one is not really in my area -- it's a criminal law issue, but I just like the title of the article: Are Strip Searches Special?

Barbara Streisand's lawsuit to prevent publication of a photo of her home has been dismissed. You can read more about it here.

Preserving the Record: Here's a tip for the trial lawyers out there from yesterday's National Law Journal (page 6) -- if the judge dozes off during your trial, you have to object or else you will have no basis for appeal. Presumably, best practice is to wake the judge up and then object, because otherwise you're not likely to get a ruling either way on your objection.

Did you know you can read Martha Stewart's side of her case, including at least one of the briefs Martha Stewart's lawyers are filing in her case, helpfully posted on Martha's very own web site?

As promised in an early post, I did write an article about the Allan Van Gestel (Massachusetts Superior Court, Business Session) decision dealing with the fiduciary duties of Massachusetts corporate boards facing a hostile takeover bid. Mass. Lawyers Weekly published it December 1, 2003. As far as I know, the only place to read it on line for free is my web site. I posted a pdf file of it here.

You can, however, read my latest article in the Arlington Advocate (my local paper) on line here. It's about subpoenas and depositions. Eventually, that link will go stale as new stuff gets posted there (I think), but by then I will have the text posted to my archive of articles, which you can get to by clicking here.

Here's an article by Michael Dorf analyzing how courts respond to "frequent filers" -- people who file lots of lawsuits. Frequent Filers Article. Did the woman who got "trampled" at Walmart really suffer an injury? She reportedly has made nine prior claims against Walmart and a bunch of claims against other alleged transgressors. Kind of makes you skeptical, eh? A minor irony that occurs to me is the old Boy Who Cried Wolf syndrome. What if the prior 16 claims were bogus, but this time she's really been injured? My guess is not too many of us would shed any tears if that was how things stand and her claim was disbelieved.

Electronic discovery continues to generate all sorts of interesting decisions. In one recent skirmish, a group of plaintiffs/counterclaim-defendants ("Kucala") was accused of using software called "Evidence Eliminator" to remove relevant files from a computer (the perpetrator claimed he had determined they weren't relevant). The federal magistrate recommended that the offending parties' claims be dismissed with prejudice as a sanction, as well as awarding the other side ("Auto Wax") attorney's fees and costs. To their credit, the lawyers for these fools told them not to do it, and their new counsel hired a forensic expert to try and retrieve the destroyed files. The federal judge reviewing the magistrate's recommendation determined that the sanction was too harsh, but nonetheless lowered the boom pretty hard. The judge ordered the entry of judgment on certain counts of Auto Wax's counterclaim for declaratory judgment on the validity of its patents, ruled that the jury would be entitled to hear about the evidence destruction and draw its own conclusions, and awarded Auto Wax costs and fees. A cautionary tale to loose cannons everywhere. See Kucala Enterprises, Ltd. v. Auto Wax Co., Inc. 2003 U.S. Dist. LEXIS 19103 (N.D. Ill. Oct. 27, 2003)

Best bit in the WSJ today to my eye: the article on a recent decision dealing with the tax consequences of a settlement (at D1). According to the Article, back in January 1997, NBA star Dennis Rodman kicked a camera man in the groin. The cameraman, Eugene Amos, Jr., was taken to the hospital and within days had reached a settlement in the amount of $200,000 with Rodman. Among the terms of the settlement was an agreement not to "assist in a criminal prosecution" against Rodman. (Another interesting point.)

Amos excluded the whole $200k from his income on the theory that it was compensation for a physical injury. The tax court disagreed, allocating $120k to physical injuries, and $80k to "nonphysical injury provisions," such as the undertaking not to assist in criminal prosecution. The $80k is therefore taxable.

You can read the tax court whole opinion here.

Here's a link to a nice summary of the Fair and Accurate Credit Transactions Act. You can read the Act here.

On the securities front, the Boston Globe reports today (page A1) that the SEC is looking at imposing "sweeping changes in the way it regulates mutual funds." The SEC has tentatively adopted and circulated for public comment regulations intended to slam the window shut on market timing. See article here. For those who get the WSJ, there's a good article on the topic starting on D1 of today's paper. The big news is the imposition of a hard and fast 4 o'clock cut off to place trading orders in mutual funds. Apparently, this can cause a real problem for people buying funds through brokers, retirement plans or other intermediaries -- in order to make the 4 o'clock deadline they'll have to place their orders hours in advance of the deadline. The world gets a little more inconvenient for all of us to keep the crooks and weasels in check.

Although the Tyco news is relegated to the back pages (C11 in today's WSJ and just a mention in the Globe), the news continues to be pretty entertaining. Today, the reports center on testimony regarding Tyco reimbursing Kozlowski and Swartz for investments they made in restaurants. Maybe being at the trial would yield a whole different impression, but from reading the news reports, it seems like the tar is being heated and the feathers gathered.

The Supreme Court has issued a decision in the Raytheon ADA (Americans with Disabilities) case. The court held that Raytheon does not have to rehire a recovered drug user who claimed his drug addiction was a disability.

Okay, off point here, but I can't resist -- The Patriots have finally released their "punter" Ken Walter and brought in a new guy. I'm sure Ken is a terrific fellow with many talents, but punting was not one of them. Here's hoping the new guy can crack 40 yards now and again.

MCAD (Massachusetts Commission Against Discrimination) just lowered the boom on a Volkswagen Dealership in Tewksbury for firing a woman after she became pregnant. A Story about the decision is on line here. According to the Boston Globe, the MCAD awarded her $71,000 in damages, $100,000 as a penalty, and $45,000 in legal fees, plus interest, for a total of about $325,000. The dealership says it will appeal, although the owner had this stirring statement for the press: "I don't recall the case well enough to comment on it." Please. He just lost $325,000 and he "can't recall the case"?

Effective July 1, 2004, Massachusetts has revised its business corporations act, replacing M.G.L. Chapter 156B with a new Chapter 156D. You can read the revised Act here.

The latest big news class action lawsuit -- an action claiming that alcohol companies unlawfully market their products to underage drinkers. Another story here. It's pending in the Superior Court for the District of Columbia.