Author Archive for Kris Calson

Gun Control (or lack thereof) Around the World

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Recently gun rights advocates got a huge power boost from the highest court in the United States. On Junes 28, 2010, the Supreme Court ruled explicitly that the Second Amendment, which guarantees “the right to bear arms,” applies to the states.

While this does make some legal issues clearer, this ruling has also opened a huge can of worms. The justices specifically avoiding declaring which kinds of state gun control laws would now be considered unconstitutional. This means that without any clear cut guidance, the majority of these laws will be challenged individually.

This got me thinking about the origins of gun control laws, and how other countries have dealt with the issue.  The basic premise of our right to bear arms was meant as a check on the power of the new sovereign state. The U.S. founding fathers believed they’d been oppressed and abused by their former sovereign state, and as such feared that even with all the safeguards they’d designed, their new state could eventually oppress their descendants. The second amendment was about freedom of the individual to resist the Tyranny of the Government.

And the rest of the world?  Each nation has a different history which has shaped their modern perspective on gun control.  A few highlights are below:

Mexico

Our neighbors to the south have a large problem with gun violence, but it is unlikely that their problems stem from their own official government policy.

Article 10 of the Mexican Constitution of 1857 granted Mexican citizens the right to arm themselves for security and legitimate defense. However by 1917 Mexico had a new constitution and a new Article 10, in which the types of guns regular citizens are allowed to own was more narrowly restricted. The Article states that if the weapon is designated for exclusive use by any branch of the military, the regular citizen is banned from using that weapon. It also stipulates that federal law can dictate conditions, requirements and places in which gun possession is allowed.

Legal, licensed, gun ownership is tightly regulated in Mexico. A Mexican citizen can purchase a gun for self-defense or hunting only after their petition to the Defense Ministry has been approved and their background checks have cleared. The type of legal weaponry available for purchase is limited to low caliber weaponry and the only legal seller is the Defense Ministry itself.

Mexico’s problems with gun violence more likely stem from the flow of weapons obtained legally and illegally in the Unites States. Once obtained, these firearms are then smuggled south across the border.

China

In 1911 the last of China’s long line of monarchist dynasties collapsed, leaving the large nation under the control of a patchwork of dueling warlords. Out of this chaotic and violent period, two parties emerged the Kuomintang Party and the Communist Party of China (CPC). Neither was powerful enough to take over the entire country on their own and both appealed to foreign powers for help with their domestic issues. An extensive Civil War followed, it lasted form 1927 until around 1950 when the CPC took over mainland China and formed the People’s Republic of China as a Communist State.

Today’s China fits in with the traditional stereotype of Communist states in that they allow very little in the way of personal or individual freedom. Speech, media, education, jobs, and arms are all strictly controlled. The actual political situation is much more complicated than such a superficial description, but such discussions aren’t meant for a blog like this.

In short, the right to bear arms is nonexistent in China. If you are not a member of the police, the army or the paramilitary you are not allowed to own or sell a gun. If you are convicted of violating this law you face a minimum 3 year prison sentence and at maximum the death penalty.

Switzerland

Switzerland is a landlocked European nation that has quite literally been at the center of a large number of European wars. Historically, as a result the Swiss army had to be well trained and ready for rapid deployment in response to foreign aggression at all times. The Swiss enabled this rapid deployment by training their army through their militias. Though the political climate of Europe has calmed, Switzerland’s militia tradition continues.

All young Swiss males are subject to Switzerland’s universal conscription law which means they are automatically eligible for conscription into the armed forces when they are between 20-34 years old. In addition, after they have completed their period of active duty, they will most likely be placed back in their militias until age, disability or some other infirmity renders them unable to serve and thus ends their legal obligation. Since most Swiss men are part of the militia, they are required to keep their service weapons in their homes.

However, Swiss citizens who are not part of the military and are not licensed to carry the weapons are not allowed to carry them. In addition, owners are considered legally responsible should a third party access and use their weapons.

So where does that leave us?

Obviously our country has a deep history with guns. There are many responsible gun owners out there but there are also many stories of gun violence: school shootings, gang violence, drug violence, etc. Considering the words of the Constitution, the history of American gun rights, and the power behind gun right advocates like the NRA (National Rifle Association), it is unlikely we will see an end to the right of individual gun ownership in America.

However, perhaps using a uniformed licensing and registration procedure could help curb the volume of gun related deaths in America. If all owners were required to go through a licensing program and register their weapons, (just as they are required to for the use of automobiles) it could encourage them to be more responsible and careful when using and securing their weapons.

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Graffiti: Street Art or Destructive Menace?

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The problem with this question is that its answer changes with your perspective. From the standpoint of a landowner or public works manager, graffiti is the work of people with little to do and even less respect for the property of others. For graffiti artists they are making their mark in a very public way, promoting art in underserved communities or bringing something beautiful to a blighted area.

Further, not all graffitists are created equal. Some are simply taggers; their “art” is nothing more than a gang sign or personal nickname scrawled across a park bench, the side of a subway car or on the wall of a privately owned building.

However some graffitists are true artists like Banksy who operates primarily in London, but his work has been found in several locations across America as well, including Boston, Los Angeles, and San Francisco. There’s even a documentary film about him. Most other graffitists exist somewhere on the spectrum between Banksy and the taggers, between artist and menace.

However, all graffitists do have one thing in common: if they are not operating with the express permission of the city or landowner whose property they are currently defacing to express themselves, what they are doing is in fact illegal. Graffiti is a form of vandalism which under its broadest definition includes all manner of damaging property that does not belong to you, including breaking windows, arson, slashing tires, tee-peeing houses, and keying cars. All of which seem completely juvenile to anyone over say 18 years old (and even to some under that age limit).

In some cases, the cost of repairing and repainting property after repeated graffiti attacks has become so costly that some graffiti victims are seeking out the assistance of local artists to help combat graffiti through collaborative programming. Cities and owners commission murals on heavily tagged walls and hope that other graffitists, who view themselves as artists, won’t deface the work of another artist. They also bring street artists into local schools to speak about the importance of caring for public spaces and the differences between “artistic expression and vandalism.”

Cities are also tired of the repair costs associated with graffiti and vandalism; they’re taking a harsh line on the crime, setting up graffiti abatement task forces, which operate across agency lines and gather police, public works, parks and recreation departments to collaborate and find comprehensive solutions to the problem.  Cities are also increasing punishments for repeat offenders and banning the sale of graffiti paraphernalia (i.e. spray paint and other materials) to people under age 18.

With such creative and comprehensive programs, maybe a balance can be struck between artist and landowner where both can benefit. Time will tell if the collaboration can survive.

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Can legalized Medical Marijuana survive in the Wild Wild West?

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Medicinal Marijuana use is becoming more accepted, but as the field of legitimate medicinal shops expands, so does the shadow of illegal growers and sham prescriptions. Certain counties are even working on adding marijuana workers to local unions. However, even as acceptance grows, so does the backlash, as medical  marijuana clinics are being attacked by people opposed to legalization.

Back in 2009, the Obama administration advised its US attorneys that they should bow to state law when pursuing marijuana cases in states with marijuana laws. If the operations they investigated were following state law, then they should chose not to prosecute. This goes along with a general policy of using federal resources in the most effective and efficient manner.

With that leniency, the legal marijuana business is growing; but as with any new field they still have significant issues. Since marijuana use (even medical marijuana use) is still technically illegal, there is a hodgepodge of overlapping and contradicting Federal, State, county and city laws which make the lucrative business a risky one as well.

One of the biggest obstacles to legal operations is their illegal competitors. Illegal growers don’t have as many costs as legal growers, i.e. the long and costly permit process, and so can undercut the price point of legal growers. They also operate outside regulations so don’t have to worry about proper business practices, while the legal businesses have to, and are having difficulty getting business loans from banks.

There’s also the issue of legal competition. In certain cities, local government has enacted legislation which restricts the number and placement of legitimate medical marijuana shops. In Los Angeles, CA, the city enacted a cap on the number of shops allowed to operate, but failed to enforce it for a number of years.  When they finally sought to enforce it and faced a backlash of complaints from store-owners who felt they were being unfairly attacked.

As the medical marijuana business continues its efforts to legitimize itself, it must also take up the additional burden of product regulation. At this point, product regulation for quality and safety is largely at the whim of the growers and shop operators, which allows some growers to claim their product is of higher quality than it actually is.  Some growers are even endangering the lives of their customers by using toxic pesticides (which the FDA would not allow any legal farmer to use) on their crops.

Whether they are legal or not, across the board marijuana growers also face threats to their own personal safety. Marijuana is a lucrative business, owing largely in part to its status as a quasi-illegal (or actually illegal) substance. This means that dispensaries, sellers, growers are all in increased danger of theft or physical assault to themselves or their employees. In San Francisco, a local seller was attacked and robbed of his product and $1000 when he went to make a delivery.

When it comes to medical marijuana, the whole industry seems to be stuck in the lucrative but dangerous mentality of the “Wild Wild West.” And while certain forces are trying to curb those influences, without a comprehensive federal policy, the rodeo show will just keep on going.

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Does Transocean really expect to pay only 2% of the bill?

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The complicated web of liability stemming from the April 22 Deepwater Horizon oil spill poses some complicated legal questions; but one of the most pressing to many affected by the spill is who is responsible for the bill?

Possible contenders obviously include the giant oil conglomerate BP, but they also include its many contractors, the US government and the owner of the rig Transocean Ltd.. BP is expected to carry the majority of the load, but the other companies involved are already trying to place strict caps on their liability.

Transocean has submitted an application to the courts to limit its liability to only $27million based on the “Shipowners’ Limitation of Liability Act of 1851” (SLLA). With recent estimates of expected damages surpassing $1.25 billion, this calculation seems ludicrous to many.

However, it is important to note that under the SLLA, the $27 million figure only relates to personal injury and wrongful death suits, and due to the passing of the Oil Pollution Act (OPA) in 1990, does not restrict suits with respect to oil pollution damages. A Transocean spokesman has asserted that the company never intended to include oil pollution damages in that calculation.

But where does this calculation even come from? Eleven workers are presumed dead and 151 of their comrades were injured in the explosion and subsequent sinking of the rig. Transocean is worth approximately $23 billion and are expected to receive an estimated $560 million in insurance payouts stemming from the incident. In fact, despite the devastation wreaked across the gulf, Transocean actually expects to see a profit of $270 million based on those insurance payouts. Can their losses really be limited to such a proportionally trivial sum?

The calculation is based on the SLLA provision that liability is limited to the value of the ship, post disaster. Before April 22nd, the rig was worth approximately $650 million, but today the value of the hunk of junk sitting at the bottom of the sea, is ZERO. So where does the $27 million come from? It mainly refers to the rent money BP still owed Transocean for the rig’s lease as of April 28.

The SLLA cap can be lifted if the plaintiffs can prove that the owner was complicit in the negligence that caused the accident. This is an unlikely result because the owners in Transocean were the high-level officers sitting in their offices oceans away from the site of the spill.

In regard to the oil pollution damages, the OPA made any parties deemed responsible for the spill automatically liable for the cost of the cleanup as well as damages to natural resources, property and revenue. However, it places a cap on this liability: $75 million for vessels and $350 million for offshore facilities. This also poses an issue because it is not completely settled which category the Deep Horizon rig falls into since rigs are often tied to the ocean floor or part of artificial islands, while this rig floats and is mobile, not stationary.

Once the amount owed by the responsible parties is exhausted, the US government is then responsible for up to $1 billion per spill; paid from the Oil Spill Liability Trust Fund. The fund is financed by the tax on both imported and domestically produced petroleum.

The Exxon Valdez disaster of 1989 took 20 years to work its way through US courts and that occurred in Alaska and as such had far fewer litigants and nowhere near the jurisdictional issues that the Deep Horizon spill will face. Undoubtedly, even with the streamlined payments enforced by the OPA as a direct result of the 1989 disaster, the resulting legal mess could take even longer than 20 years to clean up.

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Lawyers on Twitter: Twitteriffic or just Twitterpated?

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To start out, I must confess, although I’ve grown up with computers and the internet, I just don’t get Twitter. I find the constant “tweeting” back and forth a bit dizzying. (Twitter’s not just for text anymore, there’s TwitPic and TwitVid as well now.) But it looks like I’ll have to learn how to tweet with the best of them, because Twitter is definitely here to stay. Everyone is tweeting; Oprah, Bill Gates, and even President Barack Obama are all on Twitter.

Lawyers are using Twitter much like others: for networking, as a way to connect with people, and converse online about common topics of interest. And its not just solo practices or small firms out there in the twitterverse; mid-size and big firms are also using the service to connect.

But lawyers are taking a much more focused approach to the medium. Instead of tweeting every thought that comes to mind, or where they are at that exact moment, lawyers are using twitter to talk about issues specific to their fields. A securities lawyer may tweet a link to an article about a new merger, or a real estate lawyer may tweet about a recent trend in foreclosures in her area. Some lawyers are even offering advice to their less tech savvy colleagues.

Many lawyers are using twitter to increase traffic on their own blogs. They’ll tweet the titles of articles they’ve written recently hoping to tap into a broader audience. A potential client or contact interested in a certain issue will see their tweet, connect to their blog, note their expertise and then contact them directly, with a case or maybe with a job offer. Twitter is just another step in their process of using social networking sites as marketing tools.

Lawyers can use the service to respond to questions posed by potential clients. They could tweet back and forth several times. If a certain topic is mentioned multiple times it is, to use twitter speak, “trending” higher and thus of greater interest to a larger swath of the twitter audience. Increased traffic on a lawyer’s twitter feed can lead to increased traffic on his website and then increased business in his office.

The ease of connection makes twitter a very popular networking option but it also has its downfalls. The casual tone and rapid pace of the tweets can often lead to impulse tweets, something entirely inappropriate if your goal is to maintain a professional reputation. You can become a pariah just as quickly as you can become a prophet. So tweet away, but maintain professionalism and tweet with caution. As advice columnist Ann Landers once said: “The trouble with talking too fast is you may say something you haven’t thought of yet.”

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