Tuesday, May 24, 2011

A Song About Asbestosis - "He Fades Away"

He Fades Away was written by the late Scottish singer/songwriter Alistair Hulett. It is written from the perspective of a miner's wife as she watches him slowly die from this horrible disease. The futility of the legal system's role is evident.

Monday, May 16, 2011

Reflection at Semester's End

With the end of the Spring semester, posting will be intermittent through the summer. As our thoughts and attention turn back to course and lecture preparation later in August, regular daily posting will resume.

One prominent occurence at the end of this semester prompts this reflection and resolve for change next semester.  Last year at the annual ALSB conference, a recurring theme was, "I'm teaching, but are they leearning?" I had the experience of considering that question deeply last week in grading finals in my Legal Environment class. Just two weeks before, I taught a lecture that serves as the wrap-up for the unit on civil liability.  Featured is a presentation of purported lawsuit abuse and issues of tort reform.  The McDonald's Coffee case is featured prominently as the cornerstone for the presentation.  I know from student comments on earlier assignments that many of them believe that the plaintiff received nearly $3M from McDonald's.  This lecture, as the capstone of the civil liability unit, gives me the opportunity to talk about the difference between the jury's verdict and the court's judgment, how appeals of trials can affect ultimate compensation and other important issues.  All, once again, using the McDonald's Coffee case as an example. There is an assigned reading from Law 101- a chapter entitled "Auto Accidents, Scalding Coffee and Medical Malpractice." And also assigned is a short webpage, "The Actual Facts of the McDonald's Coffee case" from the 'Lectric Law Library.  A Power Point presentation of the lecture is posted on our Blackboard site.

Because attendance was particularly poor (about 55%) in those sections on that day, I made a point to specifically ask a final exam question on the McDonald's Coffee case. Any student who paid any attention in that lecture or read either of the assigned readings would have learned in class that the plaintiff's recovery was actually less than 25% of the nearly $3M figure that was reported and would easily have answered the question correctly.  To my dismay, only 27 of 129 students (23%) chose the correct answer. And, to make matters worse, a large percentage of students also believed in the veracity of other ridiculous litigation fables (a woman received millions from a microwave manufacturer after putting her poodle in the microwave oven to dry off after a bath; a man received millions of dollars from the crash of his Winnebago after putting the vehicle on cruise control and going in the back to make a cup of coffee.)  All this, despite having been assigned a website reading specifically debunking this folklore and following specific mention of their falsity during the lecture.

So, here I am left with nearly 100 students who came out of my class, convinced of the veracity of absolute gibberish about the law - and they believe that they learned this nonsense in my class. Read, here, the frustration expressed by a young PhD student (who happens to be my daughter) experiencing the same problem in another discipline. Despite my best efforts, my most provocative presentations, my most pointed and thorough coverage of the material, these student remain not merely uneducated, but thoroughly mis-educated with respect to an important concept that (in my opinion) is necessary to be considered an educated person.

These myths, this folklore, these popular beliefs apparently transcend common sense and are far more durable than I had ever imagined. Whether they come from popular culture or social networking sites or media misrepresentation, they endure even in the face of formal educational efforts.  I am now back to the drawing board, rethinking and redesigning my approach for the Fall - determined not to lose to the forces of evil mis-education, and far wiser about my students' reading and study habits and learning methods. Perhaps release of the "Hot Coffee" documentary in the Fall will help.

If you have any suggestions to share, please post it in the comments. We can all hopefully learn from each other.

Fox news reports of Stella Liebeck that "a jury awarded her $2.7M," but not that the court's judgment was only $640,000:

Saturday, May 14, 2011

Law Music Video - A Legal Matter

This week's installment in the "Law Music Videos" series is A Legal Matter by The Who - another classic. Law music videos played before your class starts will positively contribute to learning.

Friday, May 13, 2011

Fabulous Tale - The Hipster and the Lawyer

This post is a little bit outside the classroom.  But if you do any pre-law advising, formally or informally, this is a great story to share with your students from Will Meyerhofer, JD LMSW.

Two guys from my high school. One year apart.

Hipster…and Lawyer.

Hipster plays in jazz band with Lawyer. They have the same academic advisor, and fall into a casual friendship.

Hipster has trouble in school. He plays drums and guitar, but struggles to maintain the grades. It’s nothing to do with behavior – everyone likes him. The academic advisor does his best, but after failing a few courses, Hipster’s expelled. He ends up bouncing from school to school, and manages to graduate, then heads to a halfway-decent state university known for partying. He spends most of his year there jamming with his buddies and soon drops out. They start a rock band, smoke dope, wear tie-dye, collect Grateful Dead tapes and call each other “dude.”

Lawyer thinks it’s a shame Hipster got kicked out of school. His own grades are A’s. He wins academic prizes, a scholarship to study in England, and advanced placement at Harvard, where he graduates magna cum laude. He heads to a first-tier law school, and places near the top of his class.

An offer arrives from a white shoe firm.

Stop the tape.

We know what happens next:

Hipster grows a beer belly, loses the tie-dye and winds up working in a call center. He moves into his old bedroom at home and turns morose. His parents mumble excuses about dyslexia.

Lawyer makes partner and earns a million six. He purchases a loft in SoHo, a little country place upstate and a vintage Porsche. His parents seek opportunities to smugly mention his doings to their friends, who hate them for it.

Read on to find out what really happens...

Wednesday, May 11, 2011

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

Tuesday, May 10, 2011

Law Lessong - Mixed Contract

The next installment in the “Law Lessong” series is Mixed Contract. This simple video and song from a Power Point presentation can help students learn and remember the need and means of distinguishing between a sale of goods contract under the UCC and a common law service or sales contract. When a mixed or hybrid contract is present, the predominant purpose of the contract must be determined.
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, May 9, 2011

Featured Website: Clipart, ETC.

Clipart, ETC is an online service of Florida's educational technology clearinghouse. The Consumer Math section of the site has a number of illustrations that I have found useful to exhibit various types of commercial paper and indorsements.  According to the licensing instructions, one may use up to 50 images per project, for educational purposes, without seeking permission.  The site should be credited when images are used.

Credit for the following images: http://etc.usf.edu/clipart

Bank Draft
Check for $10.50, Indorsed
Indorsed Promissory Note

Saturday, May 7, 2011

Law Music Video: Against the Law

This week's installment in the "Law Music Videos" series is Against the Law by Billy Bragg and Wilco. Law music videos played before your class starts will positively contribute to learning.

Friday, May 6, 2011

Featured Movie - WalMart: The High Cost of Low Price

WalMart: The High Cost of Low Price is a documentary that is not without an agenda.  Clearly the producers have set out to paint WalMart as an unethical behemoth of unbridled capitalism.  Although the evidence is principally anecdotal, the stories are evocative and persuasive. The movie provides students with an effective tool for examining ethical practice in business and the limits of government regulation and civil liability controls on conduct in the legal environment. It's pedagogical value is enhanced by the fact that the movie is available to be viewed on line for free. Reviews are available here.

I have been able to create an interesting assignment by having students view a second movie, Why WalMart Works and Why That Makes Some People C-R-A-Z-Y. This is the "WalMart is good" counterpoint to the High Cost movie.  There are some great scenes in here that challenge students basic understandings of business, capitalism, ethics and law, and the legal landscape upon which business operates. In one scene, an industry analyst confirms that WalMart has a fiducairy duty to maximize return on income. In another, an expert matter-of-factly points out that "there are winners and there are losers." In another scene, a teenager is heard to opine that if he worked at WalMart, he might be able to earn "thousands of dollars."  The one drawback is that this movie is not as readily available for viewing.

WalMart commercial - "Save Money, Live Better":

Anti-WalMart Commercial:

Thursday, May 5, 2011

Facebook Photo Facilitates Firing

Despite the best efforts of faculty, career centers, news media, parents and peers to educate college students about the ramifications of internet postings and images, students still seem to be surprised to learn that there are real life repercussions to their social networking behavior. Specifically, when your boss sees the drunken, inappropriate, embarrassing, photo of you that your friend uploaded to his facebook page, don't be surprised if you are asked to clean out your desk and are escorted out of the building by security. And those images may show up in internet searches for decades - affecting all your future job searches as well. There is an international legal debate going on over the "right to be forgotten."  Can search engine companies be ordered to prevent access to older posts in order to allow records of youthful indiscretion to fade?  I think that is a difficult argument to win.

Wednesday, May 4, 2011

Burden of Proof

It's simple, but it says it. I find it sometimes helpful to break up a lecture with a video - even if it is one that simply says what I would have said, myself. At least it is another voice.

Tuesday, May 3, 2011

Law Lessong - This Form is Your Form (Battle of the Forms)

The next installment in the “Law Lessong” series is This Form is Your Form (Battle of the Forms). This simple video and song from a Power Point presentation can help students learn and remember the UCC rules regarding additional rules in an acceptance. 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, May 2, 2011

Power Can Make You Go "Bananas!"

Sociological Jurisprudence theorists may debate the role of law as a means of social ordering. Law and Society scholars may debate the nature of the symbiotic relationship between the two. Those discussion may be relevant to considering what happens when the formerly weak and powerless become the law makers.  History gives us too many examples of a new regime forgetting its humbler beginnings and losing its ideological moorings upon achieving power. If the American Tea Party rises to  power will it protest against itself?

Click the picture below to see a clip from the classic 1970's Woody Allen movie, Bananas. This is what happens when the rebels win the revolution.