Friday, September 30, 2011

This land is Your Land: Judicial Interpretation Illustrated #2

In an earlier post, I advanced the position that the process and results of judicial interpretation can be illustrated by making analogy to the process of music interpretation. Popular music can be a particularly effective device to illustrate complex legal principles. Since students already know and understand popular music and how it works, making proper analogy between what is well understood and what needs to be learned promotes understanding.

Below are six videos of the song, This Land is Your Land, beginning with a version by author/composer/performer, Woody Guthrie. If Guthrie's version is "the law," then what happens when the law is interpreted by other judges.  The song maintains certain consistency of melody and lyrics, but problematic verses are removed and tempo, arrangement and overall effect vary significantly.

This progression of videos may also be used to illustrate, more specifically, the topic of statutory interpretation along the lines as described in this earlier post.

Click on the image below to view the energetic performance of the Fabulous Echoes:

Thursday, September 29, 2011

The Right to Keep and Bear Cellphones

Many times since the Supreme Court’s decision in DC v. Heller, I have found myself mulling over the ramifications of the following quote:

If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny.
- U.S. Supreme Court Justice Antonin Scalia in District of Columbia v. Heller (2008)

Although the quote applies directly to the constitutional language referring to the right to “keep and bear arms,” what are the broader implications? Is there a citizen’s right to other means of safeguarding against tyranny?  For instance, this article documents the governmental practice of prosecuting persons who use their cell phones to videotape police officers publicly performing their duties. In some instances, the language of statutes designed to combat wiretapping or voyeurism is tortured to the extreme to support a prosecution. If the right to bear arms is a personal right in order to guard against tyranny, then can it not also be argued that there is a right to record allegedly tyrannical conduct for the same purpose? When a citizen is faced with conduct from a government official that the citizen believes is dangerously tyrannical, which response contributes more effectively to an orderly society; the citizen organizing a militia to start a revolution, or the citizen recording the allegedly wrongful conduct on her cell phone for later use in legal proceedings or for media scrutiny?

Wednesday, September 28, 2011

Inescapable Logic and a "Fair Cop"

A trial, medieval style.  In what ways has the trial process changed since then? 

Note the inescapable logic leading up to the determination of guilt. The accused ultimately admits it was a "fair cop."

Tuesday, September 27, 2011

Counteroffer: From My Cousin Vinny

Rarely is real life contract negotiation as stilted and mechanical as a formal offer, rejection, counterofffer, acceptance, etc.. Students have to sift through the way people actually communicate to identify the language, conduct, or other expressions of intent that make up the necessary elements of mutual assent for contract formation.  The following clip from the movie My Cousin Vinny includes a comical "contract" negotiation including, as Vinnie points out, a counteroffer.

Click on the image below to go to the video site:

Another option:

Monday, September 26, 2011

Statutory Interpretation Illustrated

I frequently use music in class to illustrate a legal principle.  My theory is generally that students understand how music "works." Therefore, music can be used as a scaffold to assist understanding of more complex principles.

I assign the videos below, all of various versions of the song, The First Cut is the Deepest, to illustrate the concept of statutory interpretation. Start with the performance of the composer/lyricist, Cat Stevens (now Yusuf Islam).  He wrote "the law" as expressed in the melody, lyrics, tempo, arrangement and overall feeling of his performance. Next, PP Arnold interprets the law by adding an R&B tempo and arrangement. Linda Ronstadt’s version tracks close to Arnold’s precedent, but adds energy and richness. In the chorus of Ronstadt’s version, there is a slight but noticeable change in the lyrics of the chorus, transferring focus from the “other” in the story to the “self” and, thereby, altering the meaning. Rod Stewart’s performance slows the tempo, stylistically shifting the feel of the song to more of an acoustic rock ballad and makes two notable textual and substantive changes.  In the third line of the first verse Stewart changes the word “got” to “have.” The word change does not affect the meaning of the sentence and is arguably a grammatical improvement.  However, the change destroys the three-line rhyming scheme of the verse as composed and falls more clumsily on the ear of the audience.  Even more notably, Stewart truncates the chorus, bringing it to a close after only two lines of the original three-line rhyming scheme and abandoning the reiteration of the “first cut” reference.  Sheryl Crow’s popular version matches Stewart’s version, embracing and solidifying in audience memory both the clumsiness of the first verse and the truncated, unfinished sounding chorus over the composer’s own aesthetic.  Crow has confirmed in interviews that she did not return to the original text in arranging her version because she knew Stewart’s version as precedent and “heard” the song principally in that way. Ultimately, she recorded the song as it sounded right to her, regardless of the composer’s intent.  Finally, Papa Dee’s version bears the least resemblance to the Cat Steven’s original despite similarity in melody and lyrics.  Each interpretation of the original (the statute) results in different meaning while retaining some measure of fidelity to the original composition. 

A tip of the hat should go to Ken Schneyer from Johnson and Wales who has suggested that a better example may be found by using a song that was composed but never performed by the composer.  (More like a legislature which must leave "performance" of the staute to the courts.)  He has suggested using Over the Rainbow.  I think that is also an excellent example.

Saturday, September 24, 2011

Law Music Video - Who Put The Benzadrine in Mrs. Murphy's Ovaltine?

This week's installment in the "Law Music Videos" series is Who Put The Benzadrine in Mrs. Murphy's Ovaltine? by the Chevalier Brothers. Certainly this is tortious conduct! 

Law music videos played before your class starts will positively contribute to learning.

Friday, September 23, 2011

Thursday, September 22, 2011

Featured Case: Anthony v. Blum

As reported in an article in The Business Lawyer:

In Anthony v. Blum,(1999 WL 259726 (Conn. Super. Ct. Apr. 23, 1999)). a Connecticut case, Blum had negligently represented Anthony and, in settlement, Blum executed a $10,400 promissory note on behalf of his law firm (an LLC), payable to plaintiff. Plaintiff sued Blum on the note and argued that Blum's negligence constituted the consideration for the note, thereby entitling plaintiff to hold Blum personally liable. The court held, however, that "the present action is not a malpractice action but a breach of contract action" in which the law firm was the obligor and for which "Blum is not personally liable."

So, the lawyer escapes liability on the note issued by the LLC to settle the case based on the lawyer's malpractice.  No wonder lawyers have a bad reputation for slick maneuvering.

Wednesday, September 21, 2011

Law Lessong - Take it Reasonably

The next installment in the “Law Lessong” series is Take it Reasonably. This simple video and song from a Power Point presentation helps students consider the nature of the law of negolgence. Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Monday, September 19, 2011

Jury Nullification Described

Looking past the Libertarian political overtones, this video gives a brief but effective description of the concept of jury nullification.

Saturday, September 17, 2011

Friday, September 16, 2011

Guest Blogger: Henry Lowenstein - Punitive Damage Award: Time = Money

Henry Lowenstein from Coastal Carolina University sent in the following:

I thought you might be interested in this just published case from the Court of Appeals in South Carolina on punitive damages. Cody P. v. Bank of America, August 23, 2011.

The 11 page opinion is  written in very plain language is a good walk through for students of the Court's logic in determining punitive damages that pass constitutional muster and those that violate due process (re:  U.S. Supreme Court in BMW v. Gore, and, State Farm Ins. v. Campbell.)

The case is interesting from a business standpoint as it involved the failure of the Bank of America to properly handle a conservatorship account (trust account) that is set up by the Probate Court in this state to protect the insurance proceeds for a disabled child. At the end of the day, experts testified that it would have taken the bank one hour to properly set up the account with their established safeguards.  So the punitive award was calculated to equal the earnings of the Bank of America for one hour......$1,583,000.

editor's note:  I added the image below:

source of image: South Carolina Lawyers Weekly

Thursday, September 15, 2011

Featured Case: Stambovsky v. Ackley - A Ghostly Silence Undermines Contract

Helen Ackley's beautiful victorian house in Nyack, NY was for sale. From the opinion of the Appelate Division of  NY Supreme Courts:

Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale.

Stambovsky, a resident of NY City, was not familiar with the local folklore surrounding the house at 1 LaVeta Place when he paid a $32,500 deposit on a $650,000 purchase contract. But, Ackley had made no secret of the paranormal activity in her house, writing an article for Reader's Digest entitled, "My Haunted House on the Hudson" and listing her residence on local haunted house tours.

Normally, a seller has no obligation to disclose "defects" in the house. Caveat Emptor has been the legal rule of the day.  But, as Judge Rubin points out in his decision:

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as a title song to the movie "Ghostbusters" asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.

This very practical decision rests also on other solid grounds:
In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public- at large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee.

Stambovsky was allowed to rescind the contract.  I imagine that Ackley's subsequent advertisements  read: "Haunted House For Sale!"

See UPDATE on this case here.

The Stambovsky House: photo credit: 

Wednesday, September 14, 2011

"Little Pink House" to Become a Movie

When I read Jeff Benedict's, Little Pink House, I did not get what I was expecting.  I got something much more enjoyable and satisfying.  I was expecting to gain some insight into the US Supreme Court's landmark eminent domain decision in Kelo v. New London.  Instead, I was treated to the opportunity to meet Susette Kelo and the other residents of the Fort Trumbull section of New London, Connecticut and the government officials who were responsibile for the decisions that affect people's lives. For students, there will be no great insight into the judicial decision-making process. But there will be the unmistakable lesson that beyond the words on the paper and the legal principles, all these judicial decision affect the lives of real people in real ways. Too often students are willing to accept judicial decisions as foregone conclusions.  I hear students react to cases  droning complacently, "The court had no choice, because that is the law."  This book will help students realize that judicial determinations are the product of choices - choices made by government officials at all levels, by business leaders, by corporate managers, by regualr people and, even by judges. And those choices have consequences.

Little Pink House is apparently being made into a Lifetime TV movie starring Brooke Shields as Susette Kelo.  I hope the movie does justice to the story.

Those of you who are not situated here in New England may not be aware of the ironic sequel to the story.  The massive governmental land grab that was approved by the court was to allow for a development to complement a nearby research campus built by the pharmaceutical giant Pfizer. The preferred developer for the parcel never got funded and never built anything and Pfizer ultimately abandoned the research campus that started the whole ball rolling.

A related post is here.

Tuesday, September 13, 2011

The Legislative Process

I have always thought it odd that few BLAW texts devote any significant space to the legislative process. Every text devotes a chapter (or more) to courts and the dispute resolution process.  There is coverage of juries, judicial selection, civil procedure, criminal procedure, stare decisis, judicial review, legislative interpretation by courts and many other topics that comprise the judicial process.  Why do we, as an academy, choose to largely ignore the legislative law-making process in the curriculum of a law class?

I use the old Schoolhouse Rock standby, Just a Bill on Capitol Hill, as an example of the "civics class" view of lawmaking (much in the way that high school students are informed that "law" is insulated from the effects of politics).

The "real" legislative process, of course, is imbued with interest group politics. Through lobbying, campaign contributions, astroturf organizing and other various methods, the best organized and well funded interest groups have a significant effect on what policies are enacted into law.

An article that appeared in the Hartford Advocate and the Fairfield County Weekly chronicled efforts of the Connecticut legislature to require disclosure labels for genetically engineered food. The article advises, "Colin O'Neil, a policy analyst with the Center for Food Safety in Washington, D.C. . . . says bills similar to Connecticut's genetically modified (or GM) food labeling measure have been repeatedly introduced in other state legislatures and in Congress, and have been blown away by the combined lobbying power of the food, agricultural and biotechnology industries."

Of course, it follows, unsuprisingly, that interest groups also heavily influence the administrative process. The US Supreme Court is likewise not immune from interest group influence. Perhaps this following parody of the Bill on Capitol Hill song is more appropriate.

Monday, September 12, 2011

Judicial Interpretation Illustrated

I favor using popular music to illustrate legal principles.

Prof. David Skover of Seattle University Law School has been quoted as saying that "all law is interpretation."  I am in complete agreement.  The following exercise illustrates this principle.

Folk music is an apt analogy for Common Law principles. Consider the legal principle such as, "a person who is negligent is liable for the damages that proximately result." Like a folk song, this principle is well known and accepted, but its precise origin may not easily be determined. Also like a folk song, the principle has been repeated and passed down through the oral tradition. And, also like a folk song, each "performance" of the legal principle (judicial decision) is the result of the performer's own particular interpretation of the song. The ultimate performance of a folk song depends on a number of factors including the versions of the song with which the performer is familar, the performer's own talents and abilities, and the effect that the performer wishes to create for the audience.  I would argue that a judicial decision is like a folk song performance. It  is a product of, among other considerations, the judge's understanding of the legal principle, the judge's talents in seeing the implications of the ruling for society, the judge's ideology regarding the proper role of judges and the impact that the judge intends the ruling to have on society (the audience).

Consider the three following performances of the old Irish folksong, Whiskey in the Jar.  They all come from a common melody and common lyrics - constituting "the law" of the song, if you will. But the performances are significantly different in tone, feeling and impact on the audience. So it is also with the law.

When I use these videos in class, I play about a minute of each for comparison purposes.

This one is extra just for fun. Who can resist Ireland's self-professed #1 Elvis impersonator?

Saturday, September 10, 2011

Friday, September 9, 2011

The Flip Side of Employment-At-Will

Here is an iteration of the law of employment-at-will doctrine:

All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.
                - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).

The flip side, of course, is that employees may quit without reason or notice. Hence, the policy of maintaining freedom of ingress and egress in the labor market is protected.

From the movie Waiting, "I quit." (Click on picture to go to video)

Longer Version: (Click on picture to go to video)

Take This Job and Shove It:

Thursday, September 8, 2011

RIAA - Campus Downloading Video

This video from the RIAA dealing with "peeer to peer file sharing" may trend a bit toward propaganda, but the facts seem to be correct and it is an important issue for students to understand. See a related post here.

Wednesday, September 7, 2011

Law Lessong - Substantial Performance

The next installment in the “Law Lessong” series is Substantial Performance. This simple video and song from a Power Point presentation helps set up a hypothetical of the construction of a new college dormitory for students to consider when substantial performance applies and has been achieved. Learn more about Law Lessongs from the post found here. More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Tuesday, September 6, 2011

"Actual Innocence" is NOT Grounds For a New Trial

My summer reading included a couple of books that I was considering for use in class.  The first was John’s Grisham’s, The Innocent Man. Grisham’s only non-fiction work is a legal horror story.  To say that the two accused defendants in this 1980’s murder were wrongfully convicted and sentenced to death is a woefully inadequate summary. The defendants were convicted by juries on the basis of what could be generously described as zero evidence.  Any evidence that did exist was contradictory and speculative. Yet, juries in rural Oklahoma apparently subscribe to the theory that if the police arrested  these guys, they must be guilty. The defendants were eventually exonerated by DNA evidence after intervention by The Innocence Project.  The book was an easy read, but I was worried about students dismissing the story as dated.  Too often, students respond to anecdotal stories about the legal system with the comment, “Well, that wouldn’t happen today,” or “Today, there is always DNA evidence that is conclusive,” or some similar comment.
A more promising resource was presented by the book, Human Sacrifice by James P. Moore.  The book chronicles the conviction and sentencing to life in prison (Maine does not have the death penalty) of Dennis Dechaine for the murder of a twelve year old girl in the rural mid-coast community of Bowdoin, Maine. The evidence, entirely circumstantial, was somewhat more convincing than the miserably non-credible case put together in the Oklahoma examples.  However, the book chronicles well a syndrome in law enforcement that can represent a crucial flaw in a system that needs to seek truth.  If law enforcement officials are not careful to remain objective, then there may come a point in the investigation where police cease to look for clues pointing to truth and instead proceed to gather evidence to prove the guilt of a favored suspect. This syndrome affected the police investigation in the Oklahoma cases but is so obviously prevalent in the Dechaine case as to have fatally prevented the likelihood of the truth ever being discovered.  (I am being purposely vague on the details so as not to spoil the reader’s experience.)  The short story is that Dechaine is obviously innocent (based on the evidence as described in the book) and has spent more than 22 years in jail. 
Although not as expertly  written as The Innocent Man, I am considering Human Sacrifice as the superior pedagogical resource for two principal reasons.  The first is that it rebuts the “there is always DNA evidence” retort of today’s students.  In this case, the defense’s request for DNA testing was refused by the trial judge because it likely would have delayed the trial for a month.  So, there isn’t always DNA evidence when an inexplicable legal ruling prevents it from assisting the truth seeking process. The second consideration is that this case is ongoing and continues to produce stunning legal rulings.  The DNA tests, completed post-conviction, show that the genetic material under the victim’s fingernails do not match Dechaine. This past July, the court ruled, over the prosecution’s objections, that the DNA tests may be run against the state’s database of 20,000+ samples taken from convicts. But the most provocative ruling was handed down just two weeks ago.  PARTIAL SPOILER ALERT: The book’s premise is that the most compelling evidence of Dechaine’s innocence is the scientific evidence surrounding the time of the victim’s death. However, the Brunswick Times Record reports that the court has determined that witnesses possessing this information may not testify to that effect. In Maine, as is the case in many other states, actual innocence is not grounds for a new trial. This is a concept that students can ponder deeply and discuss enthusiastically.  If the legal process is a “search for truth,” then this statement makes absolutely no sense. Therefore, the conclusion may be drawn, that the legal process is something less than a search for truth.  Justice is apparently a goal less desired than dispute resolution – even when lives are at stake.

Dennis Dechaine (1988)

Dennis Dechaine (2011):

Saturday, September 3, 2011

Law Music Video - He Fades Away

This week's installment in the "Law Music Videos" series is He fades Away performed by Kate Fagan. The song was written by Alistair Hullet and illuminates the position of a miners' wife as she watches her husband slowly die of mesothelioma. Law music videos played before your class starts will positively contribute to learning.

Friday, September 2, 2011

Thursday, September 1, 2011

What a "Good Samaritan Law" is Not

Often, legal education involves busting myths and folklore that has crept into consciousness as "knowledge" through various popular culture mediums. Famously, the last Seinfeld episode saw the protagonists prosecuted for failing to help someone in danger.  The law was referred to as a "Good Samaritan Law."  Judging from the way the local sheriff character drawls out that title, it seems as if the Seinfeld writers believed that they cleverly thought that up on their own. Of course, there are "Good Samaritan Laws" that are statutes designed to address the common law principle that one who seeks to provide assistance to another, has a responsibility to do so with due care or risk liability for negligent rescue. The Good Samaritan statutes, though differing somewhat from state to state, have the principal purpose of insulating the would be rescuer from liability for regular negligence as long as the rescue attempt was undertaken in good faith. Individual state statutes should be consulted for specific requirements.

Because the protection is stautory, would be rescuers must fall within the statutory definition to gain the Good Samaritan protection. In Van Horn v. Watson, the California Supreme Court considered whether a woman who pulled a co-worker from a car wreck was protected by the provisions of the California Good Samaritan statute. The statute protects rescuers who are providing "emergency care." The court determined that the statutory language "emergency care" was more properly read as "emergency medical care." The rescuer in this case pulled the plaintiff from a car wreck fearing a fire. The court determined that act to be outside of the definition of "medical" care and therefore, the defendant could not avail herself of the statutory protection.

Seinfeld and friends committing the crime of "criminal indifference."

A suprisingly uninformative national news media report of the Van Horn v. Watson case from California: