Tuesday, January 31, 2012

Featured Case: Bigelow v. Bullard - Legally Fired for Racial Tolerance

The Nevada Supreme Court decision in Bigelow v. Bullard  may be used to illustrate two important concepts in a Legal Environment course. Michael Bullard was an employee of Bigelow Holding Company.  According to the court's decision:

It could be inferred from the evidence in this case that the Bigelow company had in fact adopted a rental policy of discriminating against African-Americans. It has been claimed that agents of Bigelow were instructed to use deception and subterfuge to prevent African-Americans from becoming tenants in Bigelow rentals.

Testimony of the plaintiff Bullard revealed the following incident:
Q. How were you terminated?
A. We had three black males came [sic] on the property. Carol Swenson radioed Donna Dollman [sic] on her radio — ... I told Carol that blacks had rights, too. Approximately five to ten minutes passed. Donna came into the office. Carol and Donna conversed. I don't know what they said. Donna walks up to where I'm sitting, picks up the piece of paper that I'm writing on, and she said, "What's your f--king problem?"
I said, "I don't have a problem."
She said, "I think you do." She said, "I think you're a f--king ni--er lover. Sit your God damn ass down on that f--king stool, shut your mouth, and do your f--king work."
Q. What happened next?
A. Then she said, "On second thought, get your f--king ass out of here. I don't want you working for me anymore."
Q. And what was the time span between those two statements by Mrs. Dollman [sic]?
A. Not even 30 seconds.
Q. Why did you make the statement, "Blacks have rights, too"?
A. Because I knew that they were fixing to physically assault the black males to get them off the property.

1. Wrongful Termination: 
Bullard claimed that his discharge should be deemed wrongful under the public policy exception to the employment-at-will rule. The court disagreed, overturning a jury award of compensatory and punitive damages:

In sum, then, we do not deem it to be consistent with the employment law of this state to hold that an employee's merely expressing to a fellow employee or some third person disapproval of or "objection" to company policy that is claimed to be contrary to pubic policy (as distinguished from refusal to carry out that policy) can be the predicate for a tortious discharge action. Dallman fired Bullard not for what he did (such as refusing to carry out ugly and unlawful racist policies for the company or even for "objecting" to such policies) but rather, at worst, for what, in her mind, Bullard was, namely a person she deemed to be unworthy of further employment because of an expressed sympathy for black tenants. Dallman had, under our at-will employment law, the right to fire Bullard because she did not like people like him, people who are sympathetic to African-Americans. She had the right to fire him for any reason.

2. Stare Decisis: The court considered a precedent (Western States v. Jones) that recognized a public policy exception to at-will- employment. In that case, an employee who had recently undergone surgery and returned to work with a bandaged surgical wound was fired after he refused to follow his employers direction to enter an area where hazardous fumes had been released. The court distinguished Bullard's case on the facts, since Bullard had not refused an order from his employer, but rather, had merely expressed his opinion. The court's opinion may be characterized as a choice to read the public policy exception narrowly. Had the court been inclined otherwise, the  Western States case could have been used as precedent to support the finding of a broader public policy exception. Merely having a precedent did not require the court to  find either for or against Bullard. Interpretation of law can be, ultimately, a matter of choice.

The dissenting opinion relies on persuasive precedent from California.

Monday, January 30, 2012

State v. Federal Power: Conflict Over Legal Marijuana Dispensaries

Under the Supremacy Clause of the Constitution, where state and federal law conflict, the federal law is supreme.  However, that presumes that the federal government is acting within its enumerated powers rather than intruding on the police powers of the states. As discussed previously in this blog, over two hundred years has passed since the ratification of the Constitution and we are still trying to figure these issues out.

Recently, the Departmentof Justice has sent leters to marijuana dispensaries in Colorado that are located within 1000 feet of schools, they they must immediately shut down or face federal prosecution. The dispensaries are selling marijuana legally under Colorado state law and operate out of facilities licensed and permitted by the municipalities in which they are located. This is another symptom of an ongoing state vs. federal conflict that shows little sign of being resolved anytime soon - and which makes for an outstanding opportunity to discuss the parameters of state and federal power in class.

Saturday, January 28, 2012

Law Music Video: So Sue Us

This week's installment in the "Law Music Videos" series is So Sue Us by Dance Hall Crashers. Law music videos played before your class starts will positively contribute to learning.

Friday, January 27, 2012

Shot Girls: Employees or Independent Contractors?

You are in a bar, enjoying an evening with some friends. One friend has clearly had too much enjoyment and is loudly calling attention to himself and his condition. He is approached by a young woman, barely 18years old, who you have seen many times during the evening carrying a tray of brightly colored shots through the bar, selling them to customers.  She approaches your friend and in a matter of a few minutes, she manages to sell him 3 shots at $6 each, which he downs in succession.  He slips the "shot girl" a generous tip as she moves on to approach another group of revelers. Later that night, your friend drives his car into an intersection against a red light and paralyzes the driver of another car. Certainly, there must be dram shot liability under these circumstances! But wait - the bar owner says that the "shot girl" was not his employee.  Rather, she is an independent contractor - an entrepreneur - earning tips for her services. Is this a scam to avoid liability or is it a legitimate "yellow cab" arrangement? As with most situations in law, it depends . . . on the details of the relationship.

Some of these arrangements sound a but sketchy from a liability standpoint.  Others seem to be better organized from a legal standpoint to take advantage of the independent contractor liability rules. Do the shot girls have to carry dram shop insurance?

The Legal Environment of Business is indeed a landscape of craggy hills, leaving a cache of caves and crannies for the clever to covet.

Thursday, January 26, 2012

Contract Cases and Lyrical Learning

R.B. Caswell's youtube channel features songs about cases in Contracts Law. What a great way to introduce or wrap up a concept or case discusssion!

Here is another youtube channel with a similar idea.

Wood v. Lucy, Lady Duff Gordon from R.B. Caswell's perspective:

Wednesday, January 25, 2012

"Frivolous" Lawsuit Stories Exposed by Cracked.com

The website Cracked.com reports on 6 Famous "Frivolous Lawsuit" Stories That Are Total BS. Undergraduate students are very familiar with the Cracked website which provides a healthy dose of humor and sarcasm to the youger generation.  Warning! Cracked does not hesitate to express its ideas in language that you would otherwise try to avoid in class. So, I wouldn't put this up on the projector, but I might assign it on a syllabus.

A sampling of other Cracked articles of interest:
5 Awesomely Sarcastic Supreme Court Decisions
7 Bullshit Police Myths Everyone Believes (Thanks to Movies)
The 5 Most Wildy Illegal Court Rulings in Movie History
7 Brilliant Movie Lawyers (Who Suck at Their Job)
6 Judges Who Went Completely Insane on The Bench

Tuesday, January 24, 2012

Guest Blogger - Henry Lowenstein: Proximate Cause or Cable Remote?

Henry Lowenstein from Coastal Carolina University shares the following video resource:

A colleague of mine (Professor Mark Mitchell, Marketing) passed on some of the new TV ads being run by DirectTV to encourage consumers to switch from cable TV to their direct service.  They are hilarious.  The one below had me thinking on the issue of "proximate cause" when we teach about torts in our legal environment classrooms.  Who really is responsible for injury?  Who really should pay?  What are the limits of the logic?  Is the cell phone company responsible for the distracted driving that leads to an accident or is it the maker of the device itself, or the road, or the car company who didn't warn not to look at the GPS screen while driving?  The road to netting potential tortfeasors could be endless and only the courts, juries and legislators put some limitations on it.  Common sense and personal responsibility often get lost in the legal "static." 
The big complaint about the U.S. legal system and raised in debates on tort reform is the expansion of tort theories, by plaintiff attorneys seeking new ways of making cases and cashing-in for "victims" and themselves.  So the DirectTV might be a funny way to approach the topic.   Is the cable tv company the proximate cause of this individual's "assault."  Does he have a cause of action against his cable company for various forms of tort liability and compensation?
Editor's Comment: Maybe this guy could sue Direct TV for not speedily convincing him to switch from cable?

Monday, January 23, 2012

Mildred and Richard Loving Photos Released

Newly discovered photos of Mildred and Richard Loving taken in 1965 have been made public. The Lovings were the plaintiffs in the Supreme Court case that struck down Virginia's anti-miscegenation laws. The photos were discovered during the making of a documentary, The Loving Story, due for release in February.  Click here to see the newly released photos.

Featured case: Loving v. Virginia.

The video below is a new release of a live performance of Nanci Griffith's musical tribute to the Lovings.

Saturday, January 21, 2012

Law Music Video: We The People (Constitution Song)

This week's installment in the "Law Music Videos" series is We the People (Constitution Song) written and produced by Sandy Wilbur and performed by sonme talented youngsters from Cambridge Central School (NY?). Law music videos played before your class starts will positively contribute to learning.

Friday, January 20, 2012

The Negotiable Paper Bunch

It's a writing
Pay to order or bearer
Signed by the maker or the drawer
An unconditional promise to pay
A sum certain
In currency
On demand or at a definite time

It's a writing
Pay to order or bearer . . .
Oh, well - you'll get it after you watch the video.

Thank you, Sabrina Ursaner, for sharing you ditty with us on the internet.  Please visit Sabrina's YouTube channel and her Blog.

Brday Bunch theme:

Another Negotiable Instrument Song:

Thursday, January 19, 2012

Law Lessong - Employment-at-Will

The next installment in the “Law Lessong” series is Employment -at-Will Song.  This simple video and song from a Power Point presentation helps students consider the issues of the Common Law doctrine of employment-at-will. Reference is made to the limited whistleblower protection under the Common Law  and the public policy exception to Employment-at-Will.

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.

Wednesday, January 18, 2012

"Judicial Activism:" Overreaching Courts or Protection Against Tyranny of the Majority?

The election season has the potential to provide a trove of video clips raising issues about the proper role of courts in America. In the clip below, Republican Presidential hopeful, Rick Santorum criticizes the US Supreme Court decision in Griswold v. Connecticut as inappropriate "judicial activism."  This clip can be a good discussion starter.

After students learn the case, what is their reaction? Is it, "Good grief, where does the Supreme Court get off creating a right of privacy!"  Or is it, "Thank goodness that the Supreme Court recognized that there is a right of privacy!" When the "people" of the great state of Connecticut (in the body of the elected representatives in the state legislature) vote to criminalize the use of contraception, is this an example of the "people" properly establishing the limits of acceptable conduct or is it the government overreaching into the very places where government should never venture? Should the Court have deferred to "the will of the people" of Connecticut or did it properly act to protect the people of Connecticut from the tyranny of its elected officials?

Does the Ninth Amendment's  reservation of rights to the people mean that only legislatures may determine the extent of those rights or is this the inherent function of the courts?

Tuesday, January 17, 2012

More Law/Justice Disconnect

In 1998, David Messenger of Chaplin, Connecticut bludgeoned his pregnant wife to death in front of their 5 year old child. He was subsequently found not guilty of manslaughter by reason of insanity and committed for 20 years to the custody of the State of Connecticut Psychiatric Security Review Board.  As the PSRB considers releasing Messenger into a halfway house to complete his sentence, the Hartford Courant reveals that Messenger posseses significant financial assets; including, incredibly, a portion of the $425,000 proceeds from the settlement of the wrongful death case filed against him by his wife's estate!  In the loopiest of legal loopholes:

State Probate Court Administrator Paul Knierim said there is nothing in the probate statutes that prohibits people found not guilty by reason of insanity from remaining as beneficiaries of the estates of their victims.

Is the court devoid of equitable powers to remedy this travesty?  The Courant article reports further:

And because David Messenger voluntarily gave up his parental rights to his son, after he killed his wife, the boy wasn’t eligible to challenge Messenger’s standing as the beneficiary of the estate.

Once again, how can this be?  The son is still a beneficiary of his mother's estate.  Why can't he challenge the status of other beneficiaries? If this article and the scenario that it paints is perplexing to legal professionals, how must it be perceived by the general public?

The law is not inherently equal to justice. Justice must be avidly pursued by a vigilant society.

The following video was posted on YouTube in 2008 by the family of Messenger's victim:

Monday, January 16, 2012

Civil Disobedience Exposes Law's Injustice

In honor of Martin Luther King, Jr. Day, below are a couple of videos celebrating the acts of civil disobedience performed by the Freedom Riders in Jackson, Mississippi in 1961. These, and other acts of peaceful civil disobedience help expose and publicize the injustice of segregation law to the nation and its national government.

The law is not inherently equal to justice. Justice must be avidly pursued by a vigilant society.