Saturday, July 18, 2009

Two Years Blogging

My birthday just passed, as did the two year anniversary of my blog. Hence, this post will be a reflection piece. I didn't want to do a post just about my blog, and I didn't want to do just another "top 10" blog list, so I'm going to do a little bit of both.


As far as personal injury, I have done a few posts on areas that I find particularly interesting, such as construction accident or dram shop litigation. I try to make my posts informative, and responsive to both lawyers and lay readers. There are a few great personal injury blogs out there. Eric Turkewitz' New York Personal Injury Law Blog was one of the first blogs I started reading. He comments on a wide range of topics, from war stories to political commentary, and often about legal ethics. Recently, Eric's blog gained some notoriety for his coverage of Supreme Court Nominee Sonya Sotomayer. John Hochfelder's New York Injury Cases Blog provides coverage of settlements and verdicts, and is incredibly well polished (and often well illustrated). His posts are the type of thing you read and think "I may want to look that up again in the future."

Another blog of note, although not strictly discussing personal injury, is Andrew Lavoot Bluestone's NY Legal Malpractice Blog, which is both helpful for practitioners in this area, and as a tool for learning from others' mistakes. I have represented both plaintiffs and defendants in legal malpractice cases, and they can raise some interesting legal issues. Andrew focuses strictly on legal malpractice, and reviews decisions within this niche. His blog drawn a lot of attention on a few occasions due to litigation; one lawyer sued him because he didn't appreciate that his malpractice was publicized, and another sued for statutory damages claiming that faxes of Andrew's newsletter were unsolicited advertisements (the Court of Appeals found that it was not).


One of my major interests is consumer protection. It is an incredibly broad field, which lends itself to focusing on sub-issues rather than global ones. It is important from a social standpoint, and I believe it will become an increasingly important part of the legal profession in the future. The Consumer Law and Policy Blog is a long-running consumer blog, which reports on consumer issues from an academic and political perspective. The Consumerist (which was founded by the writers of pop-culture blog Gawker, and later purchased by Consumer Reports), in contrast, takes a more practical approach, and is geared towards warning everyday consumers about scams and how to deal with them.


One of my strongest talents is writing, and some of my most well received posts have been on appellate litigation and motion practice. There are a few quality blogs that focus on writing. Notably, Wayne Scheiss's Legal Writing Blog and Raymond Ward's The (New) Legal Writer are both excellent reads for people who love to write. I lump writing with procedure (who knows why), and another blog of honorable mention is the CPLR Blog, which provides useful New York procedural tid-bits.


The internet is the best place for legal news. Main stream print publications put much of their best content online through blogs such as (which owns the National Law Journal and the New York Law Journal) and Wall Street Journal Law Blog, which offer up-to-the-minute breaking news and commentary. Much of the best legal news, however, is from bloggers who are independent from any mainstream print media. Above the Law bills itself as a legal tabloid, offering both news and gossip; The Volokh Conspiracy is filled with original (often opinionated) content; and Nicole Black's Sui Generis focuses specifically on the New York legal community.

There are not many blogs, however, that specifically focus on Long Island. Long Island Business News provides some coverage of legal news, and Newsday covers many of stories of interest, but neither specifically focus on the law. I have been following the Long Island Bankruptcy Blog lately, but the blog is focused on bankruptcy in general rather than specifically Long Island.

For the last few months, I have done a regular post on legal news around Long Island. After tinkering with the format for a while, my posts spawned a new blog: Long Island Legal News. There isn't much content yet, but I plan to update regularly.


Lastly, some of my posts have been more for light-hearted entertainment. I did a post on Harvey Birdman: Attorney-at-Law, and one on Superman. There are a few blogs that take this lighter-side approach, such as Legal Antics (by Nicole Black, who also runs Sui Generis), SayWhat! a humor blog by US District Judge Jerry Buchmeyer, which provides amusing excerpts from trial and deposition testimony. Gerry Spence's Blog is not necessarily meant to be humorous or lighthearted, but it is filled with thought-provokingn musings and commentary.

So, that's my post. A description of my blog, and links to bloggers that comments on similar topics. It is by far not an exhaustive list of blogs, and if anyone has any suggestions of blogs that should be included feel free to leave a comment.

Thursday, July 2, 2009

Cuomo v. Clearinghouse Assoc. May Signal A Shift In The Fight Against Unfair Bank Fees

Recent developments show that there is hope in ongoing fight to protect consumers against unfair bank fees. As I have discussed in prior posts (here and here), the National Bank Act, which was enacted after the Civil War to foster a uniform national banking system, allows national banks to pick a "home state" whose laws it will follow regarding interest rates and fees. As you would expect, banks chose the states with the friendliest laws, which allow them to get away with whatever they want, and State usury laws gradually eroded.

There was a fair amount of litigation in the 1980's and 1990's, as nineteenth century banking laws were ill-equiped to cope with twentieth century technologies such as credit cards and other electronic transactions. In 2003, the Supreme Court excplicitly held that the National Bank Act pre-empts all state usury laws, crushing challenges to unfair credit card and banking fees. Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (2003). (See also Furletti, Debate Over The National Bank Act)

At the turn of the century, with state regulators out of the way and debit card use rising dramatically (particularly with small transactions), banks began earning substantial sums using a fuzzy a accounting method, resequencing daily transactions from highest to lowest in order to charge multiple overdraft fees against small transactions rather than one fee against a larger transaction. but In 2005, banks earned $10 Billion from this practice; in 2007 that number had grown to 17.5 Billion; this year, with bank accounts dwindling due to one of the worst recessions in US History, recent estimates show that banks will earn approximately 38.5 Billion in such fees. (Responsible; Consumerist; Washington Post).

Last year, a settlement was reached in a suit against the nation's largest bank, Bank of America, in an action in California State Court under California's consumer protection laws. I recommended the drop-in-the-bucket $35 Million settlement because, the way the law stood at the time, the bank had a very strong argument for having the suit dismissed outright.

Now, there is some hope that the legal landscape may be shifting. On June 29, 2009, the US Supreme Court issued its decision in Cuomo v. Clearinghouse Association, wherein it permitted an investigation of bank lending practices by state attorneys general to determine whether the banks had violated state fair lending laws.

Throughout the sub-prime lending crisis, the states were reluctant to act because, the way the National Bank Act had been interpreted, they were powerless to regulate national banks. (See Law Prof. Blog). After the sub-prime bubble burst, however, many states, including New York, launched investigations into the banks lending practices. As expected, the banks refused to cooperate and argued that the National Bank Act allows them to be regulated 0nly by the Federal Government's Office of the Comptroller of Currency (with whom they have a cushy relationship) and their home state.

Initially, the Courts sided with the banks. The US District Court for the Southern District of New York entered an injunction, halting the States' investigations, and the Second Circuit affirmed. The Supreme Court, however, in a surprise decision, overturned the lower court and found that the States had the power to enforce their fair lending laws against national banks.

The reason this is great for consumers is that, by overturning the injunction, the Supreme Court limited the pre-emptive effect of the National Banking Act. By allowing state attorney generals to pursue a fair lending law investigation against the banks, it opens the door (slightly) for state suits based upon unfair and deceptive practices and similar consumer protection statutes.

Unfair overdraft fees are also one of the issues that will be addressed by the Obama administration's new Consumer Protection Agency. Some economists have suggested that "micromanagement" and increased federal involvement is not the answer, and I tend to agree. (Becker-Posner Blog). Indeed, the problem was already made substantially worse by the Federal Government's prior attempts at nationalization through the National Banking Act. Changing the name of the Office of the Comptroller of Currency will not fix the fact that it has not done its job for decades; and even if there is improvement, a new administration could easily wipe out that improvement.

In my opinion, one of the lessons to be learned from the mortgage crisis is that all-encompasing Federal control can lead to all-encompasing failures. The Obama Administration's consumer protection agency is a great idea, but it can only achieve sustainable change if pre-emption is reduced in these areas. State law usury and deceptive practice claims should be permitted to co-exist with federal regulation.