Saturday, September 29, 2012

Law Music Video: The Loving Kind

This week's law music video post is The Loving Kind by Nanci Griffith.  See related posts here and here.

Nanci Griffith writes, "They changed the hearts of my nation, with their wedding vows." Would this have been true if the Supreme Court had upheld the Virginia Law? In other words, was it their wedding that fostered change or was it the court's willingness to embrace their wedding that changed the hearts (and minds) of the nation?

The award winning book, The Hollow Hope, argues that the Court's decision in Brown vs. Board of Education actually set back the cause of integration - that time and education would have brought quicker and more effective integration. Do you agree or disagree?  What, if anything, is the value of a Supreme Court decision on changing the "hearts and minds" of Americans?

More than 50 years after the Loving decision, there is still a durable belief among some that interracial marriage should be illegal. (This poll ascribes that position to 29% of likely Republican voters in Mississippi) Is this the best consensus that we can hope for in a pluralist society?  Do those who disagree with the Court's decision nevertheless acquiesce to it - or do they strive to change it?

Friday, September 28, 2012

Caps on Damages and Mandatory Arbitration

The video below shows former Alabama Supreme Court  Chief Justice Sonny Hornsby briefly outlining two issues that are explored in more detail in the movie Hot CoffeeCaps on Damages and Mandatory Arbitration. It is nice and short and might make a nice discussion starter in class.

Thursday, September 27, 2012

"Caveat Emptor," Law Students

So, you are thinking about attending law school.  You do your "due diligence" by investigating schools, including reviewing placement statistics reported by the school. Three years later, $100,000 in debt and unemployed, you make a more critical examination of those placement statistics and find them to be . . . misleading, at best. Can you sue?

Some Cooley Law School graduates did - and lost. A U.S. District Court judge in Michigan dismissed the case on the grounds that no reasonable person could have relied on the placement statistics compiled and reported by the school.

With red flags waiving and cautionary bells ringing, an ordinary prudent person would not have relied on the statistics to decide to spend $100,000 or more [on law school tuition and fees].

Barring no holds, the opinion continues, Sometimes hope and dreams triumph over experience and common sense.  Nevertheless, it would be unreasonable for Plaintiffs to rely on two bare-bones statistics in deciding to attend a bottom-tier law school with the lowest admission standards in the country.  

Ouch! Although, the plaintiffs may have doomed their case by alleging in the amended complaint: Cooley publishes its own law-school rankings, which have been met with “great skepticism, if not outright ridicule, and no reputable academic or legal commentator takes it serious.”

The decision concludes, "The bottom line is that the statistics provided by Cooley and other law schools in a format required by the ABA were so vague and incomplete as to be meaningless and could not reasonably be relied upon.  But, as put in the phrase we lawyers learn early in law school–caveat emptor.

Law schools, apparently, should be placed in the category with used car salesmen. A prospective "buyer" should expect to be guarded against a healthy dose of "puffing."

Legal employment is a difficult market:

Wednesday, September 26, 2012

Male Vice Principal Spanks Young Teen Girls... And It's Legal!

In the first part of my Legal Environment course, I challenge students to think about the nature of law, leading to the ultimate determination that law is made up by people. The law is not inherently just, it is just inherently human.  It suffers, as all man-made systems do, from imperfections and the results of human frailties, prejudices, mistakes and beliefs.

As an example is this news story.  Texas is one of 19 states allowing corporal punishment in schools with parental permission.  So when a sophomore girl was caught helping another student cheat, she was given a paddling by her male vice-principal. And this was not the first example.  The school system's response? It's all perfectly legal.  Which apparently, it is! But, the school system's own regulations require paddling only by an administrator of the same sex as the student. So, to make sure this doesn't happen again, the superintendent proposed to change the regulation to allow cross-gender paddling!

So, first the law is in contradiction of all science regarding child discipline, brain function and behavior modification. Second, the law ignores the inappropriate quasi-sexual elements of what would be a clear sexual assault if it was conducted by any other authority figure, say a stepfather, outside the school (or in most  anyplace outside of the state of Texas). And then, the minimal regulations that exists to temper the sting of the law are changed to encourage pseudo-sexual assault because to protect against it is inconvenient!

I don't know what is in the water in Texas, but this story on the heels of the highly publicized state Republican platform to ban the teaching of critical thinking skills in schools create for us a great teaching resource on the issue of the nature of law.  It's made up by people. And there are no requirements for lawmakers to be rational, fair, just, kind, forward thinking, intelligent, educated, or even interested in the public good.

Tuesday, September 25, 2012

Process Serving - It's Not for Everyone

In a prior post we considered the business of process serving. Below are a couple of videos that illustrate some of the difficulties that a process server may encounter.  I can't recall the name of my first year Civil Procedure professor. But I do recall the story he told about a NY process server who, in order to complete "personal" service, practiced for weeks before successfully tossing a sheaf of legal papers across an alleyway and through the open window of an apartment into a bowl of potatoes being peeled by the defendant. I think that Byran (below) would consider that job easy money.

Monday, September 24, 2012

Guest Blogger,Henry Lowenstein: King Richard's Candle Standard Still Prevails

ALSB member Henry Lowenstein from Coastal Carolina University graciously shares the following post:
Here is an interesting situation published in the April 19, 2012 edition of Bloomberg Business Week Magazine over the impact of a 12th Century Law in London, England as it affects commercial builders in the city.
While the article talks about the impact on builders, it would pose an interesting discussion for business law students as to what happens in our 21st modern world when your company or house, installs (or sells) alternative energy, such as solar power, a developer (perhaps not even directly adjacent) then builds a structure that shadows or otherwise obstructs the solar cells and diminishes the energy output and hence value of your solar power system. That becomes more interesting where the state or locality has never established a view or light easement in law as they have in some states (California for example has view easements).
Would a court in the absence of a statute accept a common law claim of a right to light?
What would be the legal ramifications of such a situation?
An article by Dr. Peter S. Defoe of Anglia Ruskin University, "The Validity of Daylight Calculations In Rights To Light Cases," RICS (undated) contains a nice summary of the history of the English situation.
The London statute in question is rather interesting. The "Right to Light" is considered in English law to be a negative easement acquired by either:
-existing since time immemorial (prescription under common law)
-prescription by modern grant, or
-prescription by statute (in UK Prescription Act of 1832)
The law in question in London dates back to 1189 under King Richard I and codified in the Statute of Westminster in 1275. It literally requires that a structure cannot block light any more than "one candle's worth of natural light, which should be bright enough to read a newspaper during the day."
How does one determine the amount of light that meets the legal requirement? In 1921 an engineer named Percy Waldram estimated that during the Winter the English sky produced 500 candle power of ambient light. Thus, to meet the legal requirements of English law 0.2% of the sky must be viewable from half a room with a window. (Charles Semon and Company, LTD v. Bradford Corp., 1921)
This standard was adopted by the (UK) National Physical Laboratory in 1928. Defoe charts a line of English cases that upheld the Waldram Method through 2006.
Engineering arguments over light aside, the London situation poses some interesting business law aspects for students to contemplate in the U.S.A. Among the points:
  • What happens when a 12th century law remains on the books and is never repealed?
  • How does a company assure that its "green energy investment" is not negated by nearby development (solar power: obstructions of the sun; wind power: obstructions to air flows).
  • In the U.S. what laws will govern such easements? state common law interpretations, state statutes? or, will the push for green energy cause Congress to use its Commerce Clause authority to develop nationalize easements for "green" energy?
Technology has moved from the candle to oil lamp to incandescent light bulb, to CFL and now LED lighting. Yet, at least for London, King Richard's candle standard still legally prevails.

Saturday, September 22, 2012

Scary Law Music Video: We Both Reached For The Gun

This week's law Music Video is the showtune, We Both Reached For the Gun from the musical production, Chicago.

For me, this is the scariest law video I have ever seen.

Does the press influence the judcial process?
Do lawyer manipulate the press?
Do lawyers manipulate what their clients say?
How confident are you in the belief that courts can find the truth/dispense justice?
Is a trial a "truth seeking process?"

Friday, September 21, 2012

How Many Civil Batteries Can You Find?

Among the multiple occurrences of wrongful conduct, here, how many civil batteries have been committed?  How many assaults?

Thursday, September 20, 2012

Tax Evasion Graphic

I cannot vouch for the sources on this graphic but I do think the graphic is an interesting way to raise an issue that is certainly worth discussing.  The link for the graphic was sent to me by Sarah Wenger at

See related post, here.

Masters of Tax Evasion
Created by:

Wednesday, September 19, 2012

Did Jerry Garcia's Drug-Induced Haze Compromise His Contractual Capacity?

Our textbooks still include voluntary intoxication as a basis for proving lack of contractual  capacity. However, I haven't seen an illustrative successful case based on the theory in the last several decades. The case featured below acts as a provocative entry point to presentation of the doctrine in class. 

The late Jerry Garcia of Grateful Dead fame apparently divorced second wife, Mountain Girl Garcia, in 1994.  There was a settlement agreement. Details are a bit unclear about the nature of the contract and the role of the court in judicially approving a settlement agreement. In any event, after Garcia's death, wife #3 sought to invalidate the contract.  According to the news report below, the principal legal argument was that Garcia was in a drug-induced haze when he was presented with the contract.  In the video, the lawyer for the estate argues:

“This man consumed, ingested, Persian heroin, cocaine, LSD, things I can’t even think of or remember – and more than anything else, it made him say, ‘The hell with it.’”
I'm pretty sure that argument does not meet the legal standard for voiding a contract. That sounds more like an argument that in his condition, "he didn't care" than "he couldn't comprehend."

Apparently, the hazy condition was contagious.  Bandmate Phil Lesch explaining during his testimony that he was sketchy on the details offered, “The last thirty years are one big smoky haze.”

How did the case come out?  You have to come to class to find out! (Or, watch the video, below.)

Classic Dead:

Tuesday, September 18, 2012

What Doesn't Kill You Makes You . . . Wish You Didn't Do It.

FDA regulations on prescription drug advertising requires that the potential risks from taking the drug be presented in balance with the potential benefits. An informed consumer can then make a rational decision whether or not to risk those "oily fecal discharges" as a tradeoff to curing some other malady.  See this related post.

Below are two ads for anti-depressants that have got to give one pause.

Monday, September 17, 2012

Exemplars or Exempt-Liars?

I find that my students are surprised to learn that false advertising regulations do not apply to political speech. I suppose this is an understandable revelation from the standpoint of a young person for whom the world is just beginning to expand. They learn (hopefully) at a young age that lying is wrong.  They learn, later, that false and fraudulent advertising or statements are illegal. (See posts here and here.) The logical conclusion is that false political ads would also be illegal.  Of course, such is not the case.  Choosing our policymakers is such an important matter that we choose to refrain from protecting the process by encouraging only truthful speech in favor of a "marketplace of ideas" where anyone can say any crazy thing and any one listening can believe any crazy thing."  At a concert recently, popular Country music star Hank Williams, Jr. spouted, "
"We've got a Muslim president who hates farming, hates the military, hates the U.S. and we hate him!" . Mr. Williams is not only protected in his free expression of his opinion, but is equally protected in his declaration of untruths.  Students, though surprised, are eventually accepting of the philosophy behind the legal protection.
Does this line of thinking create a new paradigm for political speech? If there is no legal penalty and no stigma, no shame, no downside to lying, then why should anyone ever tell the truth in the political realm?  Is there any wonder why it is so difficult to teach our students to act ethically?  Politicians, millionaires all, lie with impunity and, now as part of a strategy for success.  These exempt liars are the exemplars for our students to emulate. And we are merely seeing the tip of the iceberg of Superpac activity following the Citizens United case.
Where does law come from?  It is made by people who lie under the cloak of legal protection, with no shame while propped up by unlimited funds to spread their lies and achieve the American dream. Don't we deserve a better system than this?
Here is the link to We are all going to need it far more often than we should.
Click on the image below to see a Colbert Report skit on Paul Ryan's RNC speech.

Saturday, September 15, 2012

Law Music Video: First Amendment Kareoke (sic)

Today's installment in the weekly Law Music Video series is the First Amendment Kareoke (sic) from  Rev. Billy and the Church of Stop Shopping Choir.  The lyrics are nothing more than the words of the First Amendment to the Constitution.  But the presentation affords opportunity to explore some issue with your class.

How are law and religion similar/different?
Why do we cloak our judges in robes and our legal proceedings in arcane language, symbolism and customs?
Is the First Amendment reflective of an American "Civic Religion?"
What are the similarities/differences in how religious doctrine and law is determined/interpreted?

Friday, September 14, 2012

Depositions Can Tell You Alot About a Witness

Depositions are an effective way to gather information.  But they also serve the important function of allowing the lawyers to evaluate a witness' demeanor and presentation - important elements affecting a jury's impressions of credibility. The deposition clips below may be considered revealing about the potential value of these witnesses in the courtroom.

Thursday, September 13, 2012


. . . by means of destruction of personal property.  What are the remedies?

Justification defense?

Wednesday, September 12, 2012

Connecticut Courts Confront Eyewitness Testimony

The Connecticut Supreme Court recently ruled that expert testimony on the reliability of eye witness testimony is admissible to challenge the credibility of a witness.  Connecticut joins a growing number of jurisdictions reforming identification and testimony policies in consideration of the science of eyewitness identification.

This post illustrates one inherent problem in eyewitness perception.

The videos below illustrates another:

Tuesday, September 11, 2012

Do We Need a Law That Says That the Law is The Law?

NPR recently reported on growing fears in Tennessee that Sharia would become the law of the land.  Apparently, the governor hired a Muslim worker in the state's Economic Development office.  This apparently set off a firestorm of protest that even figured into the Republican primary for a Congressional seat.  the incumbent, Rep. Diane Black, was apparently criticized for not taking a strong enough stand against Sharia law. The criticism prompted Black to offer, "I understand the devastation that Shariah law could mean here in our country, and I'm a sponsor of a bill that will once again say that the United States Constitution is our law and that it is the supreme law."

The law will say that the law is the law. Perhaps Black is positioning for an appointment in the Department of Redundancy Department.

Is opposition to Sharia law akin to saying, "I am against the government making currency out of ice cubes?"

This report prompted me to ask my class, "Is there widespread understanding of how law is made/where it comes from?"

Monday, September 10, 2012

Federal Judge Declines to Enforce "Gibbebrish" in Insurance Contract

How many times have we had difficulty parsing the incomprehensible language of an insurance policy?  Now there is judicial validation for our struggles.

The Travelers Insurance Company is one of several carriers providing General Liability and Hospital Malpractice Coverage to the St. Francis Hospital in Hartford, Conn. over a period of years during which it was alleged a doctor at the hospital sexually assaulted children. In a related case in Federal District Court, insurers are litigating the extent of their respective liabilities and, even within single policies, the extent to which defense costs should be allocated to reduce General Liability exposure limits or Malpractice exposure limits. Complex suits such as these present no small challenge even for the most dedicated jurist. Verifying what many of us have had numerous occasions to suspect, Judge Mark Kravitz, calls it as he sees it.  Referring to the principal argument of the insurer, Kravitz opined,

The Court remains unconvinced. For one thing, Travelers' reading runs up against the fact that the Special Endorsement No. 1, specifically Section B.2, is written in gibberish.... Suffice it to say that the Connecticut Supreme Court must not have encountered Special Endorsement No. 1 when it observed, in reference to insurance contracts, that "parties ordinarily do not insert meaningless provisions in their contracts." (citations omitted).

How does this implicate the well established principle that ambiguous provisions in an insurance contract should be interpreted in favor of the insured? Judge Kravitz rejects that rule on the basis that the language is not ambiguous - it is nonsense.

When a provision is incomprehensible rather than simply vague, the more applicable interpretive principle is to give operative effect to every provision of an insurance policy that is susceptible to a reasonable construction (citations omitted). Provisions which are meaningless - despite having been negotiated and accepted by two sophisticated parties, as here - must necessarily be ignored. Rather than drawing inferences for any party based on phrases that are unparsable, the Court will simply give operative effect to as much of the policy language as it can.

Here is the gibberish:

Special Endorsement No. 1 section B.2
 For all reasonable expenses incurred in connection with the investigation, settlement, or defense of such claims or suits and the Company's reimbursement obligation for the settlement of all damages imposed on and expenses incurred by the insured shall be limited to the amount stated in the policy as the applicable limit of the Company's liability for damages that the company may, at its discretion, participate, in, in the defense or settlement of such claims or suit. (emphasis added).

Read Judge Kravitz's full opinion, here.

Video regarding the underlying sexual abuse claims against St. Francis Hospital:

Saturday, September 8, 2012

Law Music Video: I'm Billing Time

This week's law music video is I'm Billing Time by the Bar and Grill Singers.

Students might be prompted to consider:
What will it cost me to hire a lawyer?
How do lawyer's charge for their time?
Is litigation cost effective?
What are the pros and cons of hourly billing?

In my opinion, this song helps students become better informed consumers of legal services.

I hope you enjoy . . .

Friday, September 7, 2012

"Discovery is Very, Very Important."

Sometimes I feel that no matter what I say or how many times I say it, students can too easily tune me out.  That is why I sometimes assign videos that simply reinforce what I say in class.  Or, just play the videos in class to introduce, supplement or replace lecture on the topic.  In my experience, it is an opportunity to break the monotony of lecture; to have students look up from their laptops (I require that laptops be closed when a video is being shown) and increase the possibility of engagement.

The video below is not particularly interesting or exciting in and of itself, but it accomplishes the desired break in lecture - and the mountains are nice to look at.

Thursday, September 6, 2012

What is a "Statute of Limitations?'

Sometimes, a straightforward video explaining a straightforward concept, can replace a class lecture explanation and support textual material.

Wednesday, September 5, 2012

Service of Process - You Can't Get Civil Justice Unless the Papers are Served

Below are a couple of videos that I use in class to describe what I consider to be an often overlooked yet crucial element of the judicial system - serving process. Our concept of "due process" includes, at a minimum, notice of a pending claim and an opportunity to be heard in your own defense.  That grand concept, a cornerstone of a just society, is entrusted to the folks who are in the business of serving legal papers.  In some states and in certain instances service is conducted by government employees from a public safety agency or legal system.  But in many states and in certain instances, process servers - much like lawyers, accountants, financial planners, etc. - are business people providing a service to a customer (plaintiff) for a fee. This link will take you to a site for the Process Server Institute, described as being "dedicated to the study and teaching of the art and business of process serving."

"We are 100% committed to the service of process business."

This is how it is done (in Seattle, WA):

Tuesday, September 4, 2012

Those Who Lie With Dogs May Get Fleas, But They Stay Out of Jail.

One of the exercises that I use at the start of the Legal Environment class is to have the class list various characteristics of law. Then, we compare our list of characteristics to academic "definitions" of law in order to develop an overall sense for law without really defining it.  One of the definitions of law that we use refers to law, in part, as "the government controlling the conduct" of people. I consider this statement generally true but I am uncomfortable with the crude connotation created by the word "control."  I think a fuller understanding of law is better presented as the concept of law "shaping" or encouraging conduct.  The analogy that I use is that of a border collie sheepdog herding its sheep to a place of safety.  With hard work, energy and enthusiasm, the working dog constantly directs the sheep away from danger and ultimately to a place of safety.

Does this makes sense or am I "out there?"

We watch this video:

This one is fun, too - especially for those of us old enough to remember the original video game "Pong.":

Monday, September 3, 2012

Unions and the Law

It's Labor Day!  Here's a Law Song to celebrate and stimulate a class discussion about how law can be affected by advocacy.

Saturday, September 1, 2012

Law Music Video: Jury Duty Girlfriend

For the next several weeks the Law Music Video feature on Saturdays will present songs that I have previously posted. I am bringing them back for a second look with renewed encouragement for their use directly in your course curriculum (as opposed to being used simply for a musical interlude).

Today's song is one of my true favorite law songs, Jury Duty Girlfriend by D.C. Anderson.

In his light and engaging style, Anderson causes us to ask some important questions:

What is the nature of jury service?
Is it a pleasent or unpleasant experience? Why?
Should we expect that jurors are always focused closely on the evidence?
What is it about human nature and human behavior that reflect positvely/negatively on the jury function?