Wednesday, February 29, 2012

Lessons on Law, Ethics and Life

Two stories, beginning with similar facts but ending very differently provide opportunities to discuss important issues about the nature of law and education.  Which is more important, strict interpretation of legal language or fidelity to the spirit of the law? Is enforcement of a legal right always justified or are there situations where ethics dictate declination of rights enforcement? What lessons do our students learn about law and life from teachers, parents, coaches, media, and other sources prior to getting into our college classrooms?

As reported by Yahoo sports, this February, the Omaha, Nebraska Burke High School girls basketball team wore pink uniforms for a home game in order to raise money for the Make-A-Wish Foundation. The uniforms were to be auctioned off after the game. At halftime, the athletic director of the visiting team reminded his coach, who in turn advised the referees that the league rules require that the home team wear white uniforms. A technical foul was assessed against Burke and the visitors sank two fouls shots to give them a one point lead at the start of the second half.  Ultimately, Burke lost the game by a margin that made the free throws irrelevant.  But at the time that the visitors insisted on enforcement of the rule, the game was close. What did these students learn about "law" from this incident?

When I first read this article, I thought about all the issues raised in the opening paragraph above.  But I also had a vague recollection of a similar scenario that sent a far different message.

As reported by ESPN sports, in 2009, Dekalb, IL High School boys basketball team travelled to Milwaukee to play Madison High.  A few hours prior to the game, the mother of Madison's senior co-captain Johntell Franklin succumbed to a lengthy battle with cancer. Believing that Franklin was not going to play in the game, Madison's coach did not enter Franklin's name into the scorebook as a possible participant for the evening.  However, during the second quarter, Franklin arrived suited up to play and telling his coach that he wanted to participate.  The situation resulted in the assessment of a technical foul due to a rule requiring player's names to be listed in the scorer's book prior to the game.  The DeKalb coach told the referees that they didn't want the foul.  The referees insisted that they had no choice but to shoot the foul shots. DeKalb senior guard Darius McNeal asked his coach to allow him to take the shots. McNeal strode to the foul line and, in accordance with his coach's instructions, surprised the crowd as he intentionally heaved consecutive air balls, extracting a just result from an otherwise unyielding law of the game.

Rules are rules. They maintian order by confining conduct within predictable ranges. But the environment created by these rules must be tended by thoughtful and competent caretakers. The laws only lay out the landscape upon which the game of life is played. Ultimately, the way you play the game is more important than whether you win or lose.

See also, "Ethics - '...But it's Legal'"

Tuesday, February 28, 2012

Do I Really Need That Prescription Drug?

Food and Drug Administration (FDA) regulations require that if prescription drug manufacturers make representations in advertisements about what their products can cure, then they must also make disclosure about the potential side effects of the drug.  This is one way that the regualtory system works to protect the consumer.  Commercials, such as the examples below, make a viewer understandably cautious about their prescription drug intake.

The Celebrex commercial below is an example of the other kind of ad - one that makes no positive claims  and therefore need not disclose potential side effects.

Unfortunately, I was not able to find a video of the more recent Celebrex ads to exhibit the category of "language butcherng ads." The new ads warn that "patients taking aspirin and the elderly are at increased risk of stomach bleeding and ulcers." Where are those patients taking the elderly?

Monday, February 27, 2012

A Public Policy-Making Fairytale? Egg-xactly!

In a prior post I have expressed a healthy criticism for the effect of interest group politics on the  legislative law-making process.  I think that is why this story reported by NPR resonated so deeply. It is a real life fairy tale of cooperative, sensible public policymaking for the common good.

The video below reports the results of the historic cooperation between the Humane Society and the United Egg Producers to recommend new egg production regulations meeting the needs of both organizations.  But the NPR audio report is a more compelling story of how dedicated advocates came together to put extreme self interest aside to pursue the public good.  My summary could not do it justice.  Listen here.

Saturday, February 25, 2012

Law Music Video: Will Your Lawyer Talk to God for You?

This week's installment in the "Law Music Videos" series is Will Your Lawyer Talk to God For You? by Kitty Wells. Law music videos played before your class starts will positively contribute to learning.

Friday, February 24, 2012

The Day They Took the Laptops

I wish I could ban laptops. But since business students are required to have laptops, I cannot rely on support from the school administration.

Thursday, February 23, 2012

Legal Jargon

If you are looking for a video to illuminate the concept of proximate cause for your class, this isn't it.  But it is a fine example of how lawyers can fall into the habit of speaking in legal jargon without even realizing it. It is a trap that we must all work to avoid in class.  A couple of good videos for addressing proximate cause are the one suggested by Henry Lowenstein and posted here, and one suggested by Donno Steslow posted here.

Wednesday, February 22, 2012

Guest Blogger, Janine Hiller: Google Trespass Case

ALSB member Janine Hiller from Virginia Tech shares the following case for use in class:

It occurred to me that one of the cases that I have long used in Internet Law actually resulted in a final verdict that illustrates trespass to land quite well, and relates to Streeview, of which students of course are well aware. It is not a brand new case, Boring v. Google settled in 2010, but I recently came across the website of the plaintiff's attorney chronicling the case which provides interesting and impassioned commentary on the power of Google and the rights of individuals. So other discussions can also be interesting.

Editor's note: The plaintiff's attorney's website is quite detailed.
Below is a news video from early in the life of this lawsuit:

Tuesday, February 21, 2012

Featured Movie: The Verdict

TheVerdict is probably my favorite law movie of all time. I am enamored with its ironies and thoughtful inquiries into the civil justice system.

Frank Galvin (Paul Newman) is a one time promising lawyer, now down on his luck after being victimized by ethically challenged legal employers. He has a case that is sure to get him back on his financial feet - a malpractice case against a hospital run by the powerful Archdiocese of Boston. A young mother is given a general anesthetic during childbirth and aspirates into her mask. The oxygen deprivation leaves her comatose. A settlement is all but assured, until Frank decides that he has an obligation to pursue the case to a verdict to expose the wrongdoers. But is it justice that Frank seeks or his own personal redemption?

In the eyes of many, it is usually the lawyer who wants the settlement money and the client that wants justice. In a beautifully designed reversal of roles Frank's clients, the victim's sister and her husband, are seeking a settlement to set up a perpetual care fund for their loved one before departing to Arizona to pursue work and better health.  In a key scene, Frank, who is initially portrayed as a low life, turns down the substantial settlement offer to pursue "justice."  It is the first time that Frank exhibits any redeeming qualities.  Of course, it is also the moment when he breaches his professional obligation to his clients.

The movie examines issues of disparity of resources in civil litigation, professional ethics, civil settlements, the adversarial system, and the very nature of justice in the civil system.  In a final irony, the only way justice can be acheived in court, is to ignore the law. Galvin's summation is a signal cinematic moment.

The Verdict earned 5 academy award nominations including best picture, best actor (Newman) and best supprting actor (James Mason as insurance counsel Ed Concannon).

The movie is based on the novel of the same name written by Boston attorney Barry Reed.  For legal popular culture buffs, it is interesting to note that Reed is the lawyer who referred to Jan Schlictmann the Woburn, MA leukemia case that was the subject of the book and movie, A Civil Action.

Read Reviews. I have guided viewing questions available to share for educational purposes if you e-mail me at

Other law movies featured in this blog: The Rainmaker; My Cousin Vinny

Watch the trailer:

Watch Galvin's summation at the American Movie Speeches site.

Monday, February 20, 2012

Unrealistic and Realistic Portrayals of Court Proceedings

This blog previously featured a guest post from Eve Brown where she featured clips of court scenes from popular culture that give false impressions about the drama of court proceedings juxtaposed against a clip of a real trial.  Unfortunately, not all of those videos are still available on youtube.  Below I have embedded two new video clips featuring an unrealistic portrayal and a realistic potrayal of courtroom proceedings.



Saturday, February 18, 2012

Friday, February 17, 2012

How Lawyers Look at Hourly Billing

We all recognize the truth in this. Luckily, most of us can put this in the category of "been there, done that."

The first video below has been particularly effective in illustrating for students the "insider's view" on hourly billing.

Wednesday, February 15, 2012

Business Entities

The Mahalo channel on youtube includes a grouping of 7 videos on "Business Entities" all hosted by CPA Keith Hall.  In a comfortable, folksy, tie-loose-at-the-neck style, Hall competently describes the characteristics of the principal forms of business organizations.  There is a video on Sole Proprietorships, Partnerships, Corporations, S Corporations and Limited Liability Companies.  There is also the overview video embedded below.

Tuesday, February 14, 2012

Featured Website: Top Documentary Films

Top Documentary Films features an impressive list of full length documentaries available on-line free of charge. What a great way to extend the classroom by assigning movies for students to watch outside of class!  The list of movies available is quite extensive and diverse. I pulled out a few relevant examples:

Big Brother, Big Business

Enron: The Smartest Guys in the Room

WalMart: the High Cost of Low Price

Consuming Kids

Capitalism: a Love Story

Monday, February 13, 2012

The End of Civility...or the End of Civilization?

Below is an ad for the reality TV show, Celebrity Apprentice.  Pardon me for being cynical, but I don't think that the fact that the show will raise money for charity is enough to redeem the cultural damage this show inflicts. How can we teach ethics, when the "cheat to win" culture is so famously celebrated . . . and even justified as "doing good?" Do our student dismiss us as out-of-touch sentimentalists when we promote ethical behavior? What about all the multi-millions of TV viewers who are never even exposed to the suggestion of ethical conduct in business? Are ethics even relevant, anymore?

Saturday, February 11, 2012

Thursday, February 9, 2012

Tuesday, February 7, 2012

City Tells Police Office CPR Injury Not Job Related

The Hartford Courant reports (1/19/12) what can only be characterized as a bizarre legal opinion from the New Britain, Connecticut city attorney.  My apologies to the Courant for quoting so extensively from the article, but unfortunately, the Courant does not allow access to its archive for long. According to the article:

On Nov. 11, [New Britain police officer Frank] Barbagiovanni was dispatched to a house where a 10-year-boy had stopped breathing. As soon as he got out of his patrol car, the mother ran to him with the unconscious boy, and Barbagiovanni began CPR until paramedics arrived and took over. The boy later died at the Hospital of Central Connecticut.

Because the boy vomited on the officer's face and in his open mouth during CPR, supervisors directed Barbagiovanni to file a report documenting that he had potentially been exposed to communicable diseases.

City attorneys later notified him that the incident was not "causally related to a work-related condition" – and that they would contest workers compensation if he applied for it.

Officer Barbagiovanni, understandably upset, commented, "I thought the city would want me to try and save a life, they trained me in the skills to do so... The city on one hand cannot demand and acknowledge we expose ourselves to threats of injury and then state that we do not have to."

The city attorney's inexplicable letter and opinion is bad enough, but a spokesman for the New Britain mayor managed to compound the embarrassment.  In a follow up story (1/20/12) reporting that the mayor called Barbagiovanni to his office to apologize to him, the Courant reports:

The section of the city's attorney's letter was merely "boilerplate," language common in any worker's compensation correspondence, said Phil Sherwood, an aide to [the mayor].

"Any reasonable person would understand that the attorney wasn't saying CPR isn't part of a police officer's duties," Sherwood said, who said the mayor applauds Barbagiovanni's work at the emergency call.

So, if you read the two articles together, it is clear that the policy of the City of New Britain is to deny and challenge ALL workers' compensation claims, regardless of reason, justice, the law and, of course, the facts that should have been understood by "any reasonable person." Isn't this a plot line right out of a Grisham novel (The Rainmaker)?

Truth is stranger than fiction.

Monday, February 6, 2012

Featured Case: Bad Frog Brewing Co. v. New York State Liquor Authority

According to the 2d circuit's opinion:

A picture of a frog with the second of its four unwebbed "fingers" extended in a manner evocative of a well known human gesture of insult has presented this Court with significant issues concerning First Amendment protections for commercial speech. The frog appears on labels that Bad Frog Brewery, Inc. ("Bad Frog") sought permission to use on bottles of its beer products. The New York State Liquor Authority ("NYSLA" or "the Authority") denied Bad Frog's application.

fn 1. The gesture, also sometimes referred to as "flipping the bird," see New Dictionary of American Slang 133, 141 (1986), is acknowledged by Bad Frog to convey, among other things, the message "f**k you." The District Court found that the gesture "connotes a patently offensive suggestion," presumably a suggestion to having intercourse with one's self.

The court applied the Intemediate Scrutiny test applicable to Commercial Speech cases as determined by the Central Hudson case. The question for the state, then, is "What is your substantial governmental interest in prohibiting this label?" The state of New York says that it has a substantial interest in protecting children from exposure to vulgarity.

If those are appropriate ends, then what are the means that New York has chosen to protect children from vulgairty? New York responds that the way it has chosen to protect children from vulgarity is to ban the friggin' frog label. Does this action directly advance the stated substantial governmental interest?


Our point is that a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.

Therefore, the state's interference with Bad Frog's commercial speech is an unconstitutional infringement.

The Bad Frog label:

Connecticut had a similar problem when it banned the use of Seriously Bad Elf beer's label on the grounds that it appealed to children.  Connecticut relented when Bad Elf threatened suit.

Saturday, February 4, 2012

Friday, February 3, 2012

How to Give Testimony on a Witness Stand

The video embedded below gives advice on how to testify in court.  I must admit that it struck me at first as a joke. But, the advice given in the audio track is sound. And that witness sure did clean up pretty nicely!

I think that this video can be useful in introducing students to the idea that HOW a witness testifes is as important, if not more so, than WHAT the witness says. And also to the concept that witnesses can and should be prepared to give their testimony.

Wednesday, February 1, 2012

Seize the Teachable Moment: Rape "Comedy" Deja Vu

When a teachable moment presents itself, we must not let the learning opportunity pass.  It is so difficult to get college students to pay attention to anything outside of what is on their computer screens at the moment that when an event occurs to which their attention is drawn, we should employ it for its maximum educational value. Consider the opportunity created by the event described below to talk to students about the Liberty of Free Speech and the responsibility that is inextricably tied to the exercise of liberties.

The University of Connecticut (UConn) student-run TV station (UCTV)  recently ran a "comedy" skit of questionable taste and social value. The skit, part of the Shenanigans show, may be viewed below. WARNING! - the language is sexually explicit. As objectionable as the prurient tone of the skit may be, its crudeness is dwarfed by the offensive overall premise of this poorly considered endeavor. As described in this editorial and in this news report (also including access to a video copy of the skit) the skit shows a frightened and frantic female student being chased at night down a path in a remote part of campus. Upon reaching one of the emergency contact devices installed by the university for use in these situations, her pleas for help are met by derision and ridicule from the computerized system. As the frightened student yells at the unhelpful device, "What the hell is wrong with you? I'm going to die," the mechanical voice berates her as a "stinky bee-otch." Getting transferred to a different computerized operator is no better as the frantic student is scolded, "You dumb blonde bi*ches don't ever understand, always crying about rape. Suck it up."

In 2007, the student newspaper at Central Connecticut State University (CCSU) ran a purportedly satirical, student-authored "opinion" piece entitled "Rape Only Hurts If You Fight It."  The insensitive discourse is too patently offensive to be quoted in this post (but a transcription is available here). One among many points of limited social value was the suggestion that rape afforded ugly women an otherwise unavailable opportunity to experience sex with a man who was not drunk. This editorial was roundly criticized in the press and the target of public protests by students.  It was headline news for weeks in the state's newspapers, news services and on-line forums. Yet, when I talk about this incident in class, my students have never heard of it.

"Those who cannot remember the past are condemned to repeat it." Never have these insightful words of philosopher George Santayana been more appropriate and relevant than when applied to undergraduate college students. Although, in this instance, it doesn't appear so much an issue of failing to remember the past, but rather of being oblivious to what happens around them.  I suppose if the earlier incident had involved Kim Kardashian or LeBron James, it would have been well known and remembered and the lessons learned. But it's not as if the CCSU incident was reported only in the mainstream media. Rather, it was a hot topic ("viral" seems to be the new term) in the social media and internet world to which our students are purportedly so closely connected.  Yet, nothing was learned.

If we are to accept as an excuse that today's college students were merely clueless teenagers four short years ago, then let it serve as a reminder to us as educators that there is significant and vital work to be done. The people sitting in the seats in front of us may look like adults, but in many ways they are so naive in their understandings of the world around them. References to Watergate, Monica Lewinsky, Enron and even, as I have discovered, the nomination of Supreme Court Justice Samuel Alito are as far removed from their consciousness and understanding as the Fall of the Roman Empire or the Crusades. We must seize and utilize every available teachable moment, for their value is as fleeting as a teenager's Facebook status.

A blue emergency phone:

With great trepidation, but in the greater interests of education, I have embedded a video of the offensive skit below.

SOPA/PIPA Protest: The Day The LOL Cats Died - And More

What happens when you piss off the intelligent, creative, and tech savvy?  These protests are appealing to me as they draw on two of my favorite dynamics: 1) musical parody/social commentary, and 2) critical examination of the legislative law-making process which is too often passed off in civics classes as benevolent public policy making for the common good.  Pick your favorite version!

LOL Cats:

 Posted 1/17/12:

posted 1/18/12:

posted 1/19/12:

posted 1/20/12 - the folk song version?

More SOPA protest:

WARNING! This one uses the F-word, as in "Don't f**k with the internet!"  But it is really very good and I think speaks to undergraduate students in their own idiom.

WARNING! This one also includes the F-word. For better or worse, it is part of the lexicon of protest.

. . . and too many more to include here. Go to youtube and search "SOPA song."