Second Circuit Strikes Down Restrictions on Legal Advertising

Ted Rao, Albany Government Law Review Member

On March 12, the Second Circuit affirmed a lower court’s decision that certain restrictions on legal advertising were unconstitutional.[1]  In doing so, the court rejected rules governing the legal profession promulgated by New York’s Appellate Division that were originally slated to go into effect on February 1, 2007.  The court also upheld rules requiring that attorneys wait at least thirty days before soliciting accident victims as potential clients in personal injury claims.[2]

 The court’s opinion was authored by Senior Judge and former Yale Law School Dean, Guido Calabresi, joined by Judge John Walker Jr.  Prior to being nominated to the United States Supreme Court, Justice Sonia Sotomayor also served on the panel that heard oral arguments in the case.[3]

The Appellate Division’s new rules[4] restricted, among other things, “testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.”[5]

Plaintiffs were personal injury attorney James Alexander, his Rochester and Syracuse-based law firm Alexander and Catalano, and Public Citizen, a non-profit consumer advocacy organization originally founded by Ralph Nader.[6]  The Court described the firm’s advertisements as such:

[T]he firm’s commercials often contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm’s name. Firm advertisements also featured dramatizations, comical scenes, and special effects—for instance, depicting Alexander and his partner as giants towering above local buildings, running to a client’s house so quickly they appear as blurs, and providing legal assistance to space aliens. Another advertisement depicted a judge in the courtroom and stated that the judge is there ‘to make sure [the trial] is fair.’ The firm’s ads also frequently included the firm’s slogan, ‘heavy hitters,’ and phrases like ‘think big’ and ‘we’ll give you a big helping hand.’[7]

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Paterson’s Proposed Soda Tax: Not the Cure for Obesity

Danielle Erickson, Government Law Review Member

          We live in an age where 60.5% of American adults are currently overweight, 23.9% are obese, and 3% are extremely obese.[1] Beyond that, one in every six school-age children is not just overweight, but obese![2]  The Centers for Disease Control and Prevention contend that the prevalence for obesity in school-age children has tripled since the 1970s.[3]  This is especially troubling when taking into account that early obesity leads to earlier onsets of obesity associated health problems such as: diabetes, high blood pressure, heart disease, asthma, pregnancy complications, arthritis, certain cancers, and depression.[4]  It has been estimated that between 300,000 and 400,000 deaths a year can be attributed to poor eating habits and obesity.[5]  This number is just shy of smoking related deaths and far surpasses the number of deaths caused by alcohol, car accidents, guns, or sexual disease.[6]  All in all obesity costs Americans an average of 117 billion dollars in obesity related medical problems as well as lost wages from illness and premature death.[7]

          In December 2008, New York Governor David Paterson proposed an 18% tax on soda and other sugary drinks containing less than seventy percent juice as part of what is now loving referred to as an “obesity tax”. [8]  Patterson declared childhood obesity a public health epidemic and compared it to smoking; citing statistics as staggering as one in four New Yorker’s under the age of eighteen is obese with the rate being closer to one in three in high poverty areas. [9]   The soda tax was aimed at reducing the consumption of soft drinks, which have been found to be one of the key factors in childhood obesity.[10]   Governor Paterson cites Harvard research which indicates that, “for each additional 12-ounce soft drink consumed per day increases the risk of a child becoming obese by 60 percent”, with the correlation for adults being equivalent.[11]  The Governor estimated that the tax would raise 404 million dollars, which would be used to fund public health programs but perhaps more importantly would reduce soda consumption by 5%.[12]

           However, by February 2009 Governor Paterson realized that his proposal for an 18% tax on soda would not pass in the legislature.[13]  As a result Paterson proposed a revised soda tax in January 2010, in which he seeks to gain approval for a penny per ounce tax on sugary drinks.[14]  The added tax would be less apparent to consumers as it would be figured into the retail price of the soda instead of added on at checkout, still it is estimated that it could reduce soda consumption by 10 to 15%, but would raise an estimated one billion dollars in revenue solely allocated to the heath care and education budget.[15]

Continue reading “Paterson’s Proposed Soda Tax: Not the Cure for Obesity”