The Battle over the Second Amendment

Unless you've been on a media fast for the last month, you know that the Supreme Court will be hearing a case that could put to rest the great debate over the meaning of the Second Amendment - namely, whether it allows individuals to own firearms, or whether that right is limited to those serving in a "militia." The case is District of Columbia v. Heller (07-290), and the question presented, as written by the Supreme Court, is:

"Whether the following provisions -- D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 -- violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"
See the Supreme Court Docket.

You may not own a gun or you may be a member of the NRA. Regardless of your position, this could be a case that is studied in constitutional law cases for the rest of eternity. It certainly won't put the great "guns kill people" vs. "people kill people" debate to rest, but it could finally give some parameters for gun laws.

The case will probably be heard in March and decided in June. To get you in the mood for the showdown, here are some interesting articles on the case:

• A Question of Commas in the D.C. Gun Case. Period. - A fun little article on the grammar war over the Second Amendment.
• Supreme Court Agrees to Take D.C. Gun Case - A good summary of the case.
  

E-mails "Off the Record"

If you're tired of the gargantuan number of e-mails you get each day, particularly from colleagues who work a few steps away, here's another reason to encourage face-to-face conversations: "GCs to Employees: Think Before You Send."

The article highlights several examples of attempts to keep thoughts "off the record" when sent by e-mail. The problem, of course, stems from electronic discovery and the fact that even deleted e-mails are never truly gone. Those incriminating e-mails that were promptly deleted will often still turn up during the discovery process, and they can get your company into hot water.

A good rule of thumb is, if you wouldn't write it in a formal memo, don't write it in an e-mail or on your Blackberry. That includes bad language, poor grammar, personal insults, and anything you want to keep off the record. Pick up the phone, or make your pedometer happy and stroll down the hall.

When to Employ, When to Contract

The issue of whether to hire additional employees or independent contractors is an important one for small business owners. "The Road to Independents" on BusinessWeek online includes some issues to consider, as well as a brief discussion about the tax consequences of mis-classifying employees as independent contractors. If you work with a lot of independent contractors, you should speak with your attorney to ensure that they are properly classified as independents and that they have not crossed the boundary into employment. Making this mistake could cost you more than tax penalties - you could also run afoul of labor laws - and could be very expensive.

Entrepreneur School

Here's an interesting article from BusinessWeek online: "Can Entrepreneurship Be Taught?" The conclusion from the research is that while entrepreneurship really must be learned through practice, there are three elements that can be taught to enhance an entrepreneur's success: business knowledge, general entrepreneurship principles, and being alert to opportunities. Check out the article for more information.

Women in the Board Room

More from BusinessWeek -

A new report shows that women directors earn higher compensation than their male counterparts. The headline says "Surprise!", but anyone who understands supply and demand theory isn't surprised at all. Women corporate directors are a precious commodity, so it makes sense that their diverse viewpoints are well-appreciated.

If your board wants to diversify, there are several ways to find talented candidates. BoardRecruiting.com is one I personally recommend (yes, I am a member!).

Be a Good Boss

Because many people who read this blog are managers, I wanted to bring this to your attention: BusinessWeek Online has a slideshow called "Bosses We Love," highlighting the good traits that even not-so-good managers have. It wouldn't hurt to review these traits, pat yourself on the back for what you do well, and then decide how you can work on the areas in which you need to improve.

Happy Thanksgiving!

Advice for Companies Facing a Government Probe

An ex-federal prosecutor gave a talk to the Georgia Association of Corporate Counsel, asking all-important questions about how to avoid government probes, and how to avoid fallout if one is initiated. Don’t you wish you were there? Well, this article sums up his comments.

Some of the best advice:

• Have an effective compliance system in place.
• If you're in a large corporation, your compliance department should be separate from your legal department.
• Know the rules and law in advance - learning after you get a letter from the DOJ is too late.
• Don't consent and don't give up your right to counsel.
• But don't be too tough - be friendly and helpful to the investigators.
• Never, ever lie.
• Keep documents - they're the best witnesses.

As you can undoubtedly see from the advice above, this is solid reading for upper management and board members as well.

Business Strategy

What exactly is business strategy? I've been wondering as I read through courses offered in various MBA programs. I am wavering between picturing a chessboard and imagining a high-powered M&A deal.

Apparently I'm not the only one who isn't sure. Demystifying Strategy: The What, Who, How, and Why can be found on Business Week online from Harvard Business. This is a fascinating article for any corporate attorney, executive, or executive-in-the-making (like me!) on what business strategy is and is not.

Litigation Down against Major Companies

Good news! A survey commissioned by law firm Fulbright & Jaworski shows that litigation against major corporations has declined over the last year ending in June. Seventeen percent of in-house counsel reported ending the year without lawsuits, which is up from 11% the previous year. Why the decline? Fifty-five percent of respondents cited Sarbanes Oxley (and presumably the enhanced internal controls the law requires), 50% cited increased government enforcement, 44% cited the strong stock market, and 40% cited the indictment of plaintiffs' firm Milberg Weiss for paying kickbacks to plaintiffs to induce class action suits (I've been following this case here on The Brief Case).

For more information, read the article here.

Jerks Need Not Apply

I enjoyed this article on law.com, At Firms With 'No Jerks' Rules, Abusive Attorneys Need Not Apply. For obvious reasons, I'm a big fan of this philosophy, as I personally would not hire a jerk and certainly don't like working with or for them. But it goes beyond mere preference - research has shown that abusive employees and workplace bullying can be found in a lot of companies. And while the actual cost to employers of such behavior is difficult to measure, there is no doubt that employees who witness this feel less job satisfaction and loyalty. Based on my experience, those two factors are probably some of the best determinants of an employee's quality of work.

The article mentions a Seattle firm that attempts to avoid future problems by using their HR department to meet with staff who cause or are victims of negative incidents. This firm has also been named one of the Top 100 Best Places to Work for five years running. Coincidence? I doubt it.

We are living in an age where loyalty does not seem to mean much, and many people will change jobs every 2-3 years. Unfortunately that lack of loyalty does cost companies money in the long run, in training new employees, lower profits, and even employment litigation. One way to improve loyalty is to screen interviewees based on personality, and to put in place policies that allow problem employees to be dealt with in a way that will encourage harmony in the office. Call it enhancing your corporate culture, finding candidates that "fit", or whatever. Nobody likes to work with jerks.

Cert Granted

If you're like me, you often lay awake at night pondering the mysteries of the U.S. Supreme Court. (Please understand that was a joke - even I am not that big of a nerd.) Why is stare decisis so important - until the court decides to overrule itself? Why is a mandatory retirement age such a bad idea? Why do the justices choose to hear some cases but not others?

Well, I can help with that last one. Here is a link to a great article on law.com, "Demystifying the U.S. Supreme Court's Cert Granted Process." Interesting reading for anyone who would like to learn more about the #1 Court that shapes our jurisprudence.