Tag Archives: In Practice

Legal Biscuit Returns From Brief Hiatus

Hello, readers!  My Tax Court internship has officially concluded, so I have returned to my blogging platform.

Two more disclaimers:

  1. These views on my blog are my own and not my employers’ views.
  2. My posts are not legal advice.  If you would like legal advice then feel free to contact me directly.  Advice, strategies, and tactics may vary depending on a person’s situation and a lot of legal advice contingent on a person’s specific facts.

Thanks for reading!

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Updates and Disclaimers

First, the postings on my blog are my own words and Legal Biscuit’s words.  Second, I will be taking a brief hiatus from providing legal advice and posting on my blog because tomorrow I start my judicial internship/summer law clerkship.  Third, because I consider myself an ethical person and I abide by the rules of professional responsibility, during the duration of my internship/clerkship, I will not be publishing or blogging.

Thank you for being my avid readers and followers.  I hope to return once my employment is completed.

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Microsoft Sues DOJ

In order to sue the Department of Justice, Microsoft has brought out the big guns by hiring law firms Covington and Burling LLP, where partner James Garland used to work for former Attorney General Eric Holder, and Davis Wright Tremaine LLP.  Yesterday, Microsoft’s complaint was filed in the Western District Court of Washington State and the complaint is available on the Wall Street Journal website here.  The complaint is also available on Pacer, but the Wall Street Journal has the free version.

In the past, the U.S. government has requested information about certain users from Microsoft, presumably when warranted Microsoft complied with the production of information, and then the U.S. government could temporarily bar Microsoft from telling its users about the request for data.  Under 18 U.S.C. Section 2705, a governmental entity, with a court order, may delay notification to customers for a period not exceeding 90 days if the government has reason to believe that the notification would result in adverse results.  So, a customer would not be notified that a provider, like Microsoft, supplied information to a governmental authority until well after the production of information.  Adverse results include endangering the life or physical safety of an individual, flight from prosecution, destruction of evidence, tampering with evidence, intimidation of a potential witness, or otherwise seriously jeopardizing an investigation or unduly delaying trial.

Microsoft argues that this is unlawful and that tech companies should be allowed to tell their users when their cloud database and private information has been turned over to the government.  The U.S. government may argue that the disclosure to users would compromise an investigation.  However, Microsoft asserts that the U.S. government’s behavior is a violation of the Fourth Amendment.  But, is it?

This lawsuit is no easy feat.  It can be difficult to sue the U.S. government due to sovereign immunity issues.  Furthermore, the lawsuit boils down to a fundamental right to privacy argument that seems almost basic and may merit standard Fourth Amendment treatment regardless of all the discussion about cloud computing and the digital age.

Under F.R.C.P. 12, a U.S. governmental agency has 60 days from when they were served to file an answer.  It will be interesting to see who from the DOJ is assigned to the case and what the DOJ’s answer will be.

Furthermore, this case is not likely to settle.  Rather than Microsoft’s typical way of hiring lobbyists to change the law through Congress, it looks like Microsoft is using the courts and this lawsuit to change Fourth Amendment law.  Read more about this new case in this Wall Street Journal article here.

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Upcoming Supreme Court Decisions and the Further Impact of Justice Scalia’s death

While the country is deeply saddened by Justice Scalia’s death, many are still in shock over the loss of a truly influential judge.  It is Article II, Section 2 of the U.S. Constitution that gives the President, with advice and consent of the Senate, the authority to appoint judges of the Supreme Court.  As the current President Obama fights with Republicans in the Senate over the appointment of a new Supreme Court Justice, it will be interesting to see how upcoming case decisions will change due to the loss of such an outspoken legal figure.

Forthcoming Supreme Court decisions will, for the most part, be reviewed as an eight judge panel.  This means that decisions that were originally 5-4 could result in a 4-4 even split.  That being said, Tom Goldstein from SCOTUS Blog wrote a piece addressing this issue.  Read his article here.

Most notable of Goldstein’s post is this:

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”  (emphasis added)

Also, please be sure to check out SCOTUS Blog’s other coverage on Justice Scalia’s death available here.

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Justice Scalia passes and the Supreme Court enters a new era

Yesterday, Supreme Court Justice Antonin Scalia passed away.  While I missed my opportunity to meet Justice Scalia in person when he spoke at my school, he has had an impressive impact on all Americans through his literal, originalist, textual interpretations of the law and written decisions.  His death marks the end of an era on the Supreme Court.

Further details about Justice Scalia’s life and passing are detailed in this New York Times article and this NPR broadcast.  While this comes as shocking news to a lot of people since his death was so unexpected, the upcoming presidential election now takes an interesting turn as both parties fight to obtain power to appoint the next Supreme Court justice if current President Obama does not appoint a new justice soon.  Things are about to get a lot more interesting in the current presidency and in the upcoming presidential elections.

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Further Clarification on the Discharge of Student Loans based on Debt Forgiveness

In my last post about a new bill addressing student loan debt forgiveness, I mentioned that student loan debt that is forgiven may be viewed as taxable income.  I wanted to further clarify my earlier statements.  As with most things, there are exceptions.

Generally speaking, debt that is forgiven is typically viewed as income by the IRS and this means that it will be taxed.  Again, this is a very general rule.  But, there are many exceptions to this rule.  For example, from 2007 to 2014, this general rule did not apply to short sales with mortgage debt that is cancelled or forgiven because of the Mortgage Forgiveness Debt Relief Act.

Similarly, with student loans, the specific area in the code that refers to gross income exclusions for student loans is 26 U.S.C. Sec. 108(f).  In addition, the IRS has a publication available here that states if you work for a 501(c)(3) tax-exempt organization for a certain period of time under certain conditions, then your student loan forgiven debt will be discharged and not viewed as gross income.  Within the publication and within the student loan debt forgiveness programs, there are additional parameters that must be met by the borrower (too long to go into for this post, but I can save it for another post if readers are interested in learning more).  But, in short, there is an exception to student loan debt forgiveness taxability.  Additional information about student loan debt forgiveness is available in this other IRS publication on page 4 available here.

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Starting July 2017, California Bar Exam to go from 3 days to 2 days

First New York, then California!

During some time approximately last year or earlier this year, the New York State Board of Law Examiners announced that they are switching the New York bar exam to the Uniform Bar Examination (UBE) format starting in July 2016.  See the website announcement here.

Now, California bar officials announced that, starting in July 2017, they will convert the original three day bar exam to a two day test.  See the full details of this change published in this American Bar Association Journal article.

The big question is: now that the New York bar exam will be UBE format and the California bar exam is one day shorter, will it be easier?  What do you think the numbers will look like after the tests (will it be a higher pass rate or a lower pass rate)?

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Realistic Tips to Networking

This article about networking, published by the New York Times last Saturday, stood out to me because the advice is very practical and very different from things I generally hear from people.

The author gives typical advice like:

“Make the meeting convenient” and “don’t argue about their advice or point out why it wouldn’t work for you.”

But, the author goes further to say things like:

“Businesspeople generally think of networking as a mutually beneficial meeting for both parties.  But that’s not usually what it is.  Far more often, it is one person asking the other for a favor.”

“Never ask for any written follow-up.”

“Spend time at the end of the meeting finding out what you can do for them… At the very least, consider writing a recommendation for them on LinkedIn.”

The article is worth a good read.  Check it out!

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Massachusetts HomeCorps Program

I recently rediscovered this article in the National Consumer Law Center’s Consumer Impact Newsletter about the early stages of HomeCorps.  The article is from the Spring 2013 newsletter, and on page 8, describes the Massachusetts HomeCorps Program as a “small battalion [of legal services attorneys that] has been deployed to stop foreclosures in their tracks.”

Starting in 2012, I was one of the 18 attorneys hired to advocate for homeowners, tenants, and consumers facing foreclosure-related issues.  We are housed in legal aid agencies across the state of Massachusetts with cases from various counties.  We advocate on behalf of our clients on a vast range issues like housing, consumer rights, debt collection, mortgage issues, tax lien cases, property lien cases, and loan modification issues.

HomeCorps and legal services was one of the most fantastic, humbling, fulfilling, exciting, and challenging jobs that I have ever had.  I truly loved working with my colleagues and clients.  After three years with HomeCorps and legal aid, I have started the next chapter of my life and moved to Washington DC to pursue an LL.M. at the Georgetown University Law Center.

As the Massachusetts HomeCorps Program continues to grow with the National Consumer Law Center, the Massachusetts Legal Assistance Corporation, and the Massachusetts Attorney General’s Office, it will be interesting to see how it evolves and adapts to fit the needs of communities!

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Worcester Community Dialogues on Race

Earlier tonight, I tweeted about the Worcester Community Dialogues Listening Sessions on Race.  You can see my tweets @legalbiscuit.

With the spike of racial tensions across the country, as witnessed by the violent-race-related deaths, the City of Worcester decided to take pre-emptive action and start an ongoing dialogue between community members and leaders.  The hope is that this open dialogue will prevent future race violence in this geographic area.

The seven part series started on Monday, May 18th.  These listening sessions take place every Monday night from 5:30pm to 8:00pm.  They are facilitated by the US Department of Justice’s Community Relations Service and the Massachusetts Attorney General’s Office.

I went to my first listening session tonight.  The theme was “Media and Online Social Networks.”

When you arrive at the listening session or community dialogue, you are assigned a number.  Brief introductions are made in the main foyer area.  Then, participants are divided equally among different listening sessions or break out groups.  You converse with your group for about an hour and a half.  The group facilitator leads the group discussion through a series of race-related questions.  The questions vary week to week and focus on the theme for that session.  Then, the notetaker in the session synthesizes and summarizes the discussion into a 2-3 minute presentation.  At the end of the listening session, all participants converge into the main foyer again.  Each break out group has one person present their group’s discussions to the main audience.  Closing remarks are then made.

Also, importantly, they feed you dinner at the event.

The remaining listening sessions, locations, and themes are listed below:

June 29th, 2015       Economic Development (at Worcester Technical High School, 1 Skyline Drive)
                                     
July 13th, 2015        Report back and next steps (at DCU, enter showcase corner at the intersection of Martin Luther King Jr. and Major Taylor Boulevards)

If you have additional questions about free parking for the event or shuttles, the most recent press release is available here.  Also, the United Way posted a frequently asked questions PDF available here.  Worcester Magazine published an article about the initial event available here.
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