It is My Turn to Post!

People have been questioning where I have been lately, so I thought I would fill you all in on what has kept me busy as Husband studies for the Bar Exam. I have been putting in a lot of hours at work. A good friend once said (and he may have been quoting someone else, for all I know) “I go to work and stay late, not for the job I currently have, but for the job I want.” That has been my philosophy these last few months and thankfully it has paid off.

While the rest of the economy is starting to take a downtown, my company is continuing to strive (knock on wood) and we are opening up new offices. As of this past week I have officially been told that I will have the pleasure of running the financial aspects of one of our foreign offices as well as managing one of our most lucrative clients that gives us business in all our offices. What does this mean? Well besides the long hours, headaches and stress - this will mean that I get to learn a whole new financial system and attempt to implement it into our new office (that is the aspect I am most looking forward to). Once I have the system down and know what I need to do, I will then have to get our office setup with efficient, cutting edge procedures so that all financial processes, from A/R, A/P to Reporting, can run as smoothly as possible. I will then help hire more accountants and managers to run the day-to-day tasks. This new position is a huge obstacle in front of me, but I cannot wait to get started.

As you are undoubtedly aware, all companies have politics - I am sure to hit some speed bumps as I attempt to take control away from our “mother ship” and give us more control and power. Within the next two years, all American offices will be switch over to this new financial system that I am implementing in the office I will oversee. With me learning this system ahead of time, I will be better prepared to know what will need to be done so that we can successfully switch here in the US. My goal is to eventually become finance director of all of our world-wide offices (a position that does not yet exist) and lead the way for future expansion (Asia … here we come).

So besides work keeping me busy, I have been sorting out all aspects of our impending move. It is more complicated than one would think. The first task was to find a new place to live in the city that was close to both Husband’s firm and my office. Mission Accomplished. The next challenge is to decide what to do with all of our stuff that has been calling a storage shed home for the past nine months. On top of all that I need to pick out a new bed and that is something that leaves me completely spellbound (I welcome any advice on beds). These fun tasks (plus a visit back to where we lived for the last three years, and a business trip to our foreign office) will be keeping me busy for the next month.

Husband recently just celebrated a birthday and unfortunately he had to spend his second birthday in a row studying for the Bar Exam. I'm not sure that spending 13 hours studying in the library is his ideal birthday celebration. This will also be the second year in a row Husband will be taking the Bar on our anniversary. I anticipate this will be the last time Husband takes a Bar Exam. This is the last big test he will ever have to take. That has to be an exciting feeling! (I must admit I am a little envious he is done with school as I have still another year or so left of my MBA). It is fun and exciting times here in NYC!

Not Everyone Passes the Bar Exam

To help ease the stress of studying for the Bar Exam, I thought I would post a short list of notable men and women who failed. Certainly, there are countless names that deserve to be on this list that I left off, but here are a few;

• Jerry Brown: Attorney General of California (and former California governor). Failed the California bar once before passing.
• Hillary Clinton: Failed the D.C. bar exam in the 1970s, but passed the Arkansas bar.
  
• John F. Kennedy, Jr. (deceased): Son of President John F. Kennedy. Failed the New York bar twice, before passing on the third try. Served as an assistant district attorney in New York from 1989 to 1993.
• David Paterson: Governor of New York, failed the New York Bar Exam once, and he never sat for it again.
  
• Emily Pataki: Dughter of former New York Governor George Pataki. Failed the New York bar the first time, but passed the second time.
• Kathleen Sullivan: Former dean of Stanford law school, leading constitutional law scholar, and possible Supreme Court nominee in a Democratic administration, failed the California bar exam when she took it in July 2005.
• Pete Wilson: Former California governor. Failed the California bar exam three times, before passing on his fourth try.
• Richard M Daley, mayor of Chicago, failed twice.
• Ed Koch failed before going on to be mayor of New York City and more importantly the judge on the People's Court.
• Antonio Villaraigosa, mayor of Los Angeles, has failed the California Bar 4 times, and has yet to pass.
  
• Harold Ford, chairman of the Democratic Leadership Council (DLC) and is a former member of the United States House of Representatives from Tennessee.
  
• Pat Robertson. Yes, THAT Pat Robertson is a graduate of Yale Law School, but he failed the NY bar and never took it again.
• Greg Mathis, the television judge.
• Abraham Lincoln, the 16th President of the United States.
• Charlie Crist, governor of Florida, failed the exam twice.
• Jerry Brown, former California governor, managed to pass on his second attempt.
• Pete Wilson, another former California governor, did not pass until his fourth attempt.

Bar Exam Snacks

Studying for the Bar exam really isn't good for my waistline. Some major candy manufacturers are client's of Wife's - and they send her home with amazing quantities of chocolate. She has incredible self-control and eats none of it. But me...well...I'm enjoying the chocolate too much to care as I try to cram thousands of lists of elements into my head.

My law firm helped to heap on the calories by sending me a box of "brain food" along with a sweet card wishing me good luck, signed by my "Friends" at Law Firm. While the goodies are a wonderful gesture, the tremendous amount they spent on overnight shipping these boxes across the country disturbs me. Personally, I think a nice restaurant gift certificate, just for the amount they spent on shipping, would have been more useful. Of course, I suppose it would be taxable income. I'll have to check the tax code to see if there is an exception for a box of food from the definition of taxable income. I'll think about that after the Bar. I am in the process of expunging everything I ever learned about the tax code so that I can memorize the five factors the court will consider when determining whether a non-compete clause in a partnership agreement is enforceable (and thousands of other useless lists).

Love and Marriage in New York

In my Bar Exam studies, I have reached New York family law, which is a subject in which I have absolutely no previous knowledge. In my studies, I found a few discoveries surprising about New York law. I'm wading through new territory for me, so I'm finding these laws quite humorous:

* The law in NY actually provides that an engagement ring be given back to the gift-giver if the wedding is called off.

* Under old law (no longer good law), if an engagement is called off, a spurned person could sue her former fiance for "breach of promise to marry."

* Under old New York law, a father of a single woman could sue a man who has sex with his daughter for "seduction of an unmarried female."

* Under old law, a spouse could sue both his spouse and a new lover for adultery, alienation of affection, and criminal conversion (i.e., theft). Under current law, it is a felony to file such a suit.

* While a lawyer can generally take property as his fee, the lawyer cannot take a mortgage on a house.

* First cousins and step-siblings CAN legally marry.

* 18 year olds have the legal capacity to marry. 16 year olds can marry with the consent of both parents. 14 year olds can marry with consent of both parents and a judge (but a judge will generally only consent if there is a pregnancy). I found it surprising that a 14 year old could ever get married.

* A "shot-gun wedding" is voidable at the pressured party's option if a court finds that duress nullified consent. The ability to annul the wedding is waived if the parties freely cohabitate after te wedding.

* Misrepresentation/concealment of a person's religion, religious devotion, intention to convert, or intention to raise children in faith is grounds for annulment of marriage.

* Misrepresentation/concealment of a person's sexual history is grounds for annulment of marriage.

* Misrepresentation about money, salary, employment, job title is not fraud for an annulment. So, I could have told Fiance I was the chief of surgery making $1,000,000 a year with a trust fund worth $50,000,000 when I am really a janitor that barely scrapes buy - this is not actionable fraud. Why? Because the state takes the position that people do not marry for economic or social class motivations.

* New York is the only state that does not have "no fault divorce." Because of that it is theoretically possible for one spouse to desperately want a divorce, but for the partner to refuse to grant it forever (but there is a solution for that: move out of New York, wait long enough for the new state to get jurisdiction, then get a no fault divorce).

* Adultery is grounds for divorce. However, a "defense" for adultery is that your spouse committed adultery first. Another defense is also that your spouse arranged the affair (i.e., your spouse tried to entrap you - and it worked; any testimony of prostitutes or private detectives must be corroborated). So, imagine this: Wife sues for divorce claiming the grounds of adultery. Husband argues, "Well, you cheated on me too." The judge says, "Valid defense. You two deserve each other. No divorce."

* There is case law suggesting that moving from a shared bedroom to a guestroom is legal abandonment of one's spouse.

* In New York, academic degrees and professional licenses are marital property if they were awarded during the marriage. So, I guess if Wife and I got divorced, I she would get the J and I would keep the D? No, actually, the court will determine how the degree or license enhances lifetime earnings and then add that number to the marital property to be divided.

LEGAL DISCLAIMER: THIS IS NOT LEGAL ADVICE; YOU ARE NOT A CLIENT; I AM NOT YOUR LAWYER. THIS IS MERELY RAMBLING ON A BLOG. IF YOU WANT LEGAL ADVICE, GO TALK TO AN ATTORNEY.

New Housing Addendum

Returning to the subject our new NYC housing, the funniest part of the process came yesterday when Wife was speaking with the leasing manager about arranging a time for the “closing.” The agent said to her, "Oh yeah, your husband is a lawyer. I'd better send you the lease now so everything will go smoothly at the closing." Apparently, he’s familiar with my kind.

After spending some time reviewing the contract, I decided that the 38-page monstrosity is surprisingly fair. Unfortunately, we were required to waive our right to a jury trial if a dispute arises. This is unfortunate because I have an ace up my sleeve to ensure victory in a jury trial. If I had a personal matter that had to be tried before a jury, the first thing I would do is get LindaJ up here so that she could work her magic in front of a jury.

We Own an Interest in Manhattan Property

Wife and I now officially own an interest in real property here in Manhattan. This afternoon, we signed the contract for a leasehold estate in a term for years. No, we did not purchase fee simple or another freehold estate, but our leasehold IS an ownership interest in property (how else do you expect me to talk - the Bar is in less than three weeks). Our new living quarters will be in a high rise building located in Midtown West, not far from Times Square, and within walking distance of both of our jobs.

Actually, we already had an interest in our current apartment in Greenwich Village, but now we have a new apartment near the yuppies to move into when our time with the Bohemians ends.

What is the Best Gift for Somebody Studying for the Bar?

Last night, I checked the statistics for the blog. To my surprise, I found that quite a number of people have found this site after googling “best gift for someone studying for the bar exam” (or some variation of those search terms). Though I am diligently preparing for the bar, I have absolutely no idea why Google suggests this blog to a person searching for gifts. But for those of you who have found our site looking for presents to give loved ones, I thought it would be nice to offer you some gift suggestions:

• A time machine that provides extra study time during the day.
• A time machine for those who need to return to May and then do the last six weeks over, this time without procrastinating.
• A cushion to sit on (library chairs can be very uncomfortable after long periods of time).
• Prepared meals.
• A collection of pens and pencils for the Bar Exam (exam takers seem to feel the need to bring in a wide collection of writing instruments, preparing for the full days of non-stop writing).
• Magic herbs that increase memory.

Those are just a few ideas I had off the top of my head. Feel free to add suggestions in the comments.

The Supreme Court Makes a Mistake?

Undoubtedly, no matter what your political persuasion, you frequently disagree with Supreme Court decisions. However, last week the Supreme Court’s decision on the punishment for child rape contained a surprising factual error.

Last Week, Supreme Court announced its controversial decision of Kennedy v. Louisiana which held that the death penalty is not a constitutional penalty the rape of a child. In this decision, the Court surveyed the law in the United States governing the maximum permissible sentence for such a crime. Both the majority and the dissent overlooked a congressional statute right on point.

When Justice Kennedy, writing for the majority, held that capital punishment for child rape was against the “evolving standards of decency” by which the court judges how the death penalty is applied, he based that holding, at least in part, on the fact that a child rapist could face death in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

The Court observed:

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U. S.U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death. Kennedy, slip op. at 12-13. C.).

The majority continued:

Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Id. at 15.

Writing for the four dissenters, Justice Alito countered:

The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court….Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values." Kennedy, dissent slip op. at 13 (Alito, J., dissenting)

However, in 2006, Congress enacted a law permitting the death penalty for the rape of a child. Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

To cut through the legal jargon, in 2006 Congress passed, and the President signed, a law pertaining to military tribunals which permits the death penalty for child rape. This is a congressional statute expressly authorizing the death penalty for the rape of a child, which, apparently, everyone failed to notice.

While this finding does not change the outcome of the case, and, probably, would not have changed a single vote, one would think that with all of the lawyers, clerks, and justices that worked on this case, they would have found that statute.

Perhaps our “standards of decency” have not evolved as much as Kennedy would like to believe.

The New York Times reports on the story HERE.

Quote of the Day

"It's very dangerous to make predictions. Especially about the future."

Richard D. Freer
(Robert Howell Hall Professor of Law at Emery School of Law)

A Legal Question

As our regular readers undoubtedly noticed, blogging has been relatively light recently. There are a couple reasons for that. One of the reasons is that I am studying for the Bar Exam, and that makes me, honestly, pretty much incapable of talking about anything else. I don't really want to turn the blog into a whiny, rambling tirade about the Bar. But as I study, I occasionally start thinking through hypotheticals and legal oddities. As I study, I thought I would write what I consider to be interesting fact patterns and their results.

Topic: Conflicts of Law

Legal Background: Domicile is essentially where a person lives (it is where the person intends to stay indefinitely). A person can only have one domicile. Where a person is domiciled is generally where they owe local taxes (but the issue here is domicile, not taxes).

Fact Pattern: Joe has always lived in Scranton, Pennsylvania, but he has always dreamed of retiring in the Big Apple. After making a fortune in Scranton selling paper, he decides to fulfill his dream and move to NYC. Before the move, Joe is visiting with his lawyer, Larry. Larry says, "Hold on now. With your particular portfolio, estate taxes are much better for you in Pennsylvania than New York.** I'm a brilliant lawyer, so I have a plan for you. Go ahead and move to New York, but don't change your legal residence. Make sure everyone knows that your domicile is Pennsylvania. That way your family won't need to pay New York estate taxes when you die." Joe loves the idea of avoiding taxes, so he follows Larry's advice. He buys his dream condo in New York and resides there most of the time, but Joe keeps his address in Scranton. To ensure that everyone knows that he has no intention of changing his domicile, Joe mentions to people he meets at parties, "Hey, don't forget, my domicile is Scranton, and I intend to keep it there until I die." In reality, once he moves, Joe never again enters the state of Pennsylvania. Joe dies in New York. Which state can collect estate taxes from Joe's estate?

A. Lawyer Larry thought up a perfect scheme - no state can collect taxes.

B. Only New York can collect estate taxes because Joe's actions demonstrate that he indeed intended to move his domicile to New York.

C. Only Pennsylvania can collect estate taxes because Joe was careful to leave evidence that he intended PA to be his domicile.

D. Both New York and Pennsylvania can collect estate taxes from him. His estate will pay taxes twice, and without any set-off or credit from paying taxes to the other state.

Answer: Lawyer Larry had better call his malpractice insurance carrier and warn them of an imminent claim because D is the correct answer.

Reasoning: New York will successfully argue that Joe's only domicile is NY because his "actions speak louder than words" - by moving to NY and spending all his time there, his actions show his intent was to make NY his domicile. PA will successfully argue that PA is his only domicile because he demonstrated the intent to keep their state as his home for the indefinite future by keeping his address and telling everyone it is his domicile. Thus, both states will successfully argue that Joe only has one domicile - in their state.

* In reality, it is doubtful that estate taxes would be lower in PA than NY.

LEGAL DISCLAIMER: THIS IS NOT LEGAL ADVICE; YOU ARE NOT A CLIENT; I AM NOT YOUR LAWYER. THIS IS MERELY RAMBLING ON A BLOG. IF YOU WANT LEGAL ADVICE, GO TALK TO AN ATTORNEY.