Thursday, December 1, 2016

Thought Provoking Law Quote: Hermione Granger

The popular Harry Potter book series featured the exploits of a group of teenage wizards as they navigate the travails of life, friendship, evil forces, and magical education at the Hogwarts School of Witchcraft and Wizardry. An ongoing theme throughout the series focuses on the forces of dark magic and the danger presented to society by a particularly powerful dark wizard known as Voldemort. Harry and his friends, including the very bright Hermione Granger, have discovered that Voldemort’s presence was once again threatening danger to society and they had reported it to the appropriate governmental authorities. However, in order to avoid a public panic, the government has not merely ignored their entreaties to take action, but has engaged in an aggressive campaign to discredit the young wizards and their statements. In this setting, the following exchange takes place between Hermione Granger and Minister of Magic Rufus Scrimgeour:

"'Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour. ‘No, I am not,’ retorted Hermione. ‘I’m hoping to do some good in the world!'"

From her point of reference in the eternal struggle between good and evil, Hermione conceptualized law as an impediment to the accomplishment of good.  In her eyes, law was bad and to “do good” one had to do something other than law.  Considering law through Hermione’s eyes introduces us to the complexity of the question, “What is law?”

Tuesday, November 29, 2016

President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.


Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

Monday, November 28, 2016

Blaming the Trial Lawyers

This  syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The cartoon above erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.

Friday, November 18, 2016

Law School Songs

Stressed, worried, impoverished, insecure, feeling inadequate, intimidated, exhausted, disappointed, overworked . . . welcome to the law, young people..

Thursday, November 17, 2016

US Law Essentials: Court Systems

The US Law Essentials YouTube channel has been uploading a new set of animated videos.  They are generally short enough to show in a class lecture if desired.  Check out the video below on court systems as an example:

Wednesday, November 16, 2016

14 Ways to Interpret the Constitution

Well, it isn't exactly "50 Ways to Leave Your Lover," but this Huffington Post piece does give a nice concise explanation of the breadth of Constitutional interpretation.  In my Legal Environment class, I think it is important for students to understand that there is no one, single, right way to interpret the Constitution (despite the statements in the judicial election ad below).  However, I don't have a lot of class time to devote to the details.  It is always a question of how many layers of the onion should be peeled back to explore a legal principle in a survey law course. This article gives the opportunity to expose students to the concept - Constitutional interpretation is broad, complex, nuanced and uncertain - without overburdening them with details and without taking up other valuable class time.

"Commitment to properly interpreting the Constitution":

Tuesday, November 15, 2016

Victim of Racial Discrimination? You Take 'Em to . . . Arbitration?

The old People's Court with Judge Wapner featured commentator Doug Llewelyn coining a phrase that became iconic in American legal culture:  "If you're involved in a dispute such as this with another party and you just can't seem to work it out, don't take the law into your own hands - you take 'em to court."

See video below at :30:

When an African-American man sued Airbnb over racial discrimination, he discovered that he can't "take 'em to court."  His Airbnb account contract included an enforceable mandatory arbitration clause.  So instead of presenting his evidence to an impartial, competent judge or jury, he will have the opportunity to present his case to non-judicial decision-maker who makes a living out of deciding cases for Airbnb and similar parties.  Could such a decision-maker likely have some innate partiality toward a business or industry that provides his/her livelihood?

What do you think?