Monday, November 24, 2014

More Bad Lawyer Ads

Just to be clear, it's the ads that are bad.  I make no representations about the lawyers.

It's Thanksgiving break week, so there are no substantive posts this week. But in keeping with tradition, there are bad ads. Click here for earlier posts in the series.

It is basketball season, after all:

Friday, November 21, 2014

Let's Amend The Constitution

Social protest from the Rockport Maine Opera House, Nov. 9, 2014.

"Five old guys in judges' robes, sold our country down the road... Let's amend the Constitution"

Thursday, November 20, 2014

Thought Provoking Law Quote: Judge Jerome Frank

Federal Court of Appeals Judge Jerome Frank was one of the leading writers in the Jurisprudence of Legal Realism. His 1949 work, Courts on Trial, is still relevant today as a critique on the ability of our trial system to effectively dispense justice.  From Chapter 6 of that work, The "Fight" Theory vs. The "Truth" Theory:

In short, the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation.
                                      -Judge Jerome Frank, Courts on Trial, 1949

Wednesday, November 19, 2014

Irony of Our Times Seen Through NY Times

In the Thursday, November 13, 2014 edition of the NY Times, the following two articles appeared on page 17:

In Death of Dogs, a Human Story of Loss and Intrigue; Dog owners were understandable upset when, after leaving their dogs for boarding last June, they died tragically holed up in a 9-by-12 foot room with no functioning air conditioner. "The community has been behind us on this," said one of the owners.

Florida Finds Tricky Balance Over Feeding of the Homeless: A 90 year old WWII vet started a charity in remembrance of his deceased wife through which he provides food to the homeless in Fort Lauderdale, Fla. As a result, he has been cited several times for violation of a city ordinance against feeding the homeless in public places. According to the article, local businesses and the chambers of commerce would like the homeless population to be less visible.

So, in one article, the community is understandably up in arms over the inhumane treatment of beloved family pets.  In the other article, the pillars of the business community are up in arms over the humane treatment of their fellow humans.  And in each case, the law supports "the community."

Tuesday, November 18, 2014

He Fades Away: Law's Remedy Too Little, Too Late

I know that I have posted this song before, but the video has been removed from YouTube, so I am re-upping, with options in case it happens again.

He Fades Away was written by Alistair Hulett and illuminates the position of a miners' wife as she watches her husband slowly die of mesothelioma. This was the fate of many who worked at the Wittenoom Blue Asbestos mine in Western Australia.

"There's  a man in my bed, they never told him,
The cost of bringing home his weekly pay.
When the courts decide how much they owe him,
How will he spend his money when he lies in bed and coughs his life away?"

To skip the introductions, start the video at 1:55:

Start this video at 0:35; end at 5:01:

Friday, November 14, 2014

Citizen's United in Song

More social/legal/political commentary from Roy Zimmerman.

"Citizens United puts the 'mock' in democracy."

Thursday, November 13, 2014

Thought Provoking Law Quote: Mitt Romney

Should government regulate business? According to Mitt Romney, CEO and former (and future?) Republican candidate for President of the United States, the answer is that "regulation is essential." It's just that the devil is in the details.

Regulation is essential.  You can't have a free market work if you don't have regulation. As a businessperson I had to have regula[tions]. I needed to know the regulations. I needed them there.  You couldn't have people opening up banks in their garage (sic) and making loans. I mean you have to have regulation so that you can have an economy work.  Every free economy has good regulation. At the same time, regulation can become excessive.

- Mitt Romney, Presidential Debate, Oct. 2012

Clip with context (first 0:45):

Short clip without the qualifying hedge line at the end:

Wednesday, November 12, 2014

American Hustle Goes Libelous

In the movie American Hustle, Jennifer Lawrence's character claims that the source of her belief that microwave ovens take all the nutrition out of food is an article written by Paul Brodeur. The real Brodeur is a science journalist who wrote for The New Yorker. But he never wrote such a scientifically erroneous proposition as was ascribed to him in the movie.  He claims the false attribution damages his reputation and has filed suit for libel in California state court.

The "Science Oven" allegedly libelous scene:

Tuesday, November 11, 2014

Falwell v. Hustler Supreme Court Oral Argument

There is great movie clip from The People v. Larry Flynt portraying the oral argument before the US Supreme Court in Hustler v. Falwell.

Unfortunately, I can't find an easily accessed public video of the whole argument.  The following video has part of it:

The video below has the whole audio part set to images of dogs as Supreme Court justices:

Monday, November 10, 2014

Business Ethics: The Brotherhood of Man

I know that I have posted this before, but I just completed a unit on ethics and wanted to share.

I tell students that they have to get to the point where acting ethically is not a decision but instinct.  You have to inherently derive joy from doing the right thing.  Adam Smith in the Theory of Moral Sentiments, which preceded The Wealth of Nations, said that people will be inherently moral because it brings them joy to do so. Therefore, the basis of the free market economic theory is that everyone, inherently, as if "guided by an invisible hand," acts morally.

Ultimately, it is all about being part of the Brotherhood of Man:

Click image below:

Friday, November 7, 2014

Thursday, November 6, 2014

Thought Provoking Law Quote: Abraham Lincoln

How often do we read or hear people saying that NOW we need to pay attention to business ethics. The implication is that recent events and actions have given rise to inequities, injustice and social detriment. However, a strong argument can be made that ethical challenges exist in the very fabric of a capitalist society and these issues have been worthy of attention from the very beginnings of an industrial society.

As the Civil War was winding down in 1864, President Lincoln began to look ahead to what he perceived as the next great crisis facing the nation.

I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country.  . . .  Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. 

Wednesday, November 5, 2014

Featured Article: NY Times - "Lobbyists, Bearing Gifts, Pursue Attorneys General"

Speaking of lobbying, the front page of the NY Times recently featured an article about active and effective lobbying efforts targeting state Attorneys General on behalf of business interest.  Investigations and prosecutions literally melt away in the face of campaign contributions and face to face influence. Although our textbooks ignore this issue, the Legal Environment of Business includes examination of the political influence of business and its effect on law-making, business regulation and, apparently, law enforcement.

AACSB standard #9 requires that our undergraduate business students understand:

See also the Journal of Business and Politics.

Florida Attorney general Pam Bondi's contacts with lobbyists are described in the NY Times article.

Tuesday, November 4, 2014

House Committee on Science Once Again Called Out For Denying Science

Legislatures make law.  But what makes legislatures make law? Of what is their law constituted? Logic? Reason? Justice? Science?  Where does "law" come from?

Click here for a prior post about legislators proudly displaying their ignorance of the things upon which they legislate.

Click here or on the image below to once again be flabbergasted:

Monday, November 3, 2014

Guest Blogger: Haskell Murray - Van Halen on Reading Contracts!

Today's post is submitted by J. Haskell Murray at Belmont University.

Van Halen on Reading Contracts

This is a video clip I use near the beginning of our unit on contracts in my Business Law and Legal Environment class.  The clip is light, relatively short, and is an industry (music) that many Belmont University students understand.  Through a story about a buried contractual clause prohibiting brown M&M’s in the back stage area, David Lee Roth (Van Halen) highlights the important point that everyone should read contracts carefully before they sign. I sometimes couple this with directions like “skip question 4; if you answer question 4 you will lose 5 points” in the middle of my normal directions on a quiz or test, just to drive the point home.  Many of my students expect to have lawyers to rely on in business, but I hope to communicate to my students that clients need to read and understand contracts they sign.  I also share examples of lawyers making drafting mistakes and how much lawyers charge for their time.   

Click here or here for additional links to this video in case the embedded video should be removed.

Thursday, October 30, 2014

Thought Provoking Law Quote: Thomas Jefferson

Students often trivialize negligence claims as the overly aggressive machinations of greedy, self-interested ambulance chasers. But the quote below places such claims in a new light.  At the infancy of our republic, while  "We the people" were sorting out exactly how government could help maintain a healthy, just and robust society, our third president makes clear his views in his inaugural speech:

Still one thing more, fellow citizens -- a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.

                - Thomas Jefferson, First Inaugural Address, March 4, 1801

A governmental system that restrains men (and women, ostensibly) from injuring one another is necessary "to close the circles of our felicities."

Nice, huh?!

Wednesday, October 29, 2014

Business, Lobbying, Government and Policy

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made."
     -  John Godfrey Saxe University Chronicle. University of Michigan (27 March 1869)

How is law made?

Tuesday, October 28, 2014

Guest Blogger: Robert Prentice - The Role of Role Morality in the North Carolina Athletic Academic Scandal

The Role of Role Morality in the North Carolina Athletic Academic Scandal

            Here’s a teachable moment.  Both business professors and students should pay close attention to the academic scandal at the University of North Carolina where “paper” courses were offered in disproportionate numbers to mostly football and basketball players in order to keep them eligible to play without requiring them to attend class, read, write, or learn anything.  For years grades for independent study classes in the Afro-American Studies Department were handed out on a “need” basis rather than an “earned” basis by office secretary Debby Crowder and, to a lesser degree, by department chair Julius Nyang’oro.  Plagiarism was rampant.  The utter lack of academic standards was unconscionable and inexcusable.  It greatly damaged UNC’s reputation as a university that could balance successful athletic programs with high academic standards.
            The important lesson here is not so much what happened as why it happened.  A natural conclusion might be that Crowder and Nyang’oro were corrupt, or greedy, or just bad people.  But the recently-released 131-page Wainstein Report makes it clear that Crowder and Nyang’oro did bad things, but not to line their pockets, or even to promote their department.  Their primary motivation was to help the students.  Crowder’s background led her to do almost anything to help students who were struggling, as she had once struggled herself.  Nyang’oro had taught two students athletes early in his career who had become academically ineligible and been forced to leave school. One had soon been murdered and the other ended up in prison.  Nyang’oro wished to avoid similar future tragedies.
            Crowder’s and Nyang’oro’s motives mirrored those of the teachers and administrators at the center of the Atlanta public school scandal that is still playing out.  In Atlanta, smart and dedicated teachers changed exam answers so that their students could pass standardized tests and their schools could stay open.  They thought their students had worked hard and were doing the best they could, so they cheated to prevent the students from being labeled as “failures” and having their schools closed down.  The motivation was understandable, but people are going to jail for their actions and, like UNC, the Atlanta school system will be under a cloud for years to come.
            The notion of role morality provides some context here.  Oftentimes people will do unethical things that they would not ordinarily do because of a role they perceive that they are playing inside an organization.  They might never lie to put money in their own pockets, but find themselves stretching the truth so that their company can meet its profit goals.  In their role as a “loyal employee,” they give themselves permission to be dishonest.  They might never cheat to advance their own career, but they do to help their child get into a better school than the child deserves.  In their role as “loving parent,” they give themselves permission not to live up to their normal standards.
            It is obviously easier to rationalize wrongdoing if we are doing it not to help ourselves but to help someone else, such as our students, our friends, our family, or our co-workers.  If students understand how role morality can make them vulnerable to taking unethical actions, they can guard against such mistakes.   It might be helpful for them to view the educational video on role morality at my school’s website:  The video is easily-available, award-winning, and, best of all, free.

Robert Prentice
McCombs School of Business

University of Texas at Austin

Monday, October 27, 2014

The Supreme Court Has Gone to the Dogs

The legal profession can sometimes be a dog eat dog world. Legal cases can be dogfights and there are so many dogggone precedents and procedures.

Even the Supreme Court is not immune.  Click here or on the image below to see how:

Note: This video is almost an hour and a half long!

Thursday, October 23, 2014

Thought Provoking Law Quote: Theodore Roosevelt

The LSCB today introduces a new recurring feature. Though Provoking Law Quotes will hopefully provide an opportunity to spice up your PPT lecture slides or syllabi or suggest a discussion starter for your class.  I encourage readers to send me your favorite thought provoking quotes and I will be happy to share them for you on the LSC blog.

"Industry, therefore, must submit to such public regulation as will make it a means of life and health and not of death or inefficiency. We must protect the crushable elements at the base of our present industrial structure"
  - Theodore Roosevelt speech on Social and Industrial Justice, 1912

Hear Roosevelt in his own words advocate for a living wage and condemn courts that block social progress. The quote above comes up around the 2:05 mark.

Wednesday, October 22, 2014

FedEx Ground Drivers: Employees or Independent Contractors?

Companies that want a reliable workforce but don't want the expense and regulation inherent in an employer-employee relationship have been tuning in greater numbers to independent contractors. However, the status of a worker as an employee or independent contractor is not determined by the label slapped on the relationship by the employer or even the employer's chosen methods of compensation. The status is determined by how the parties actually interact.  The greater the degree of control maintained by the hiring party of the methods and manner of the work performance, the more likely that the worker will be deemed by law to be an employee.  This can be problematic for employers who want the payroll and regulatory flexibility of an independent contractor relationship but who also want to control the details of how and when the work is performed.

These issues should be front and center in the public view over the next couple of years as multiple lawsuits against FedEx Ground proceed through the system.  Former workers are suing for overtime pay and employer payroll contributions that were not made for many years.

See related posts here and here.

Legal advice from the Zellmer Law Group:

Tuesday, October 21, 2014

Lawyers Get Paid? I Thought They Were There to Help People!

According to Yahoo Sports, a Florida State football player is being sued by his lawyer for an unpaid fee. The player hired a lawyer to represent him in  disciplinary proceedings brought by the University, agreeing to pay a $2,500 fee.  The disciplinary proceeding resulted in a penalty of probation - but no suspension from either school or the team. But the lawyer's fee remains unpaid.

We don't have this problem at UConn.  Students are not allowed to be represented by counsel in disciplinary hearings.  Can anyone say "due process violation?"

This is how our students see the world: Meet Ken.  Ken is in a pickle.  He has a DUI arrest.  But Ken can rest assured that he has found the best lawyer to represent him.  And since this lawyer's ad says nothing about fees, he must be representing Ken for free!

Monday, October 20, 2014

Social Norms And Conduct

Social norms, like law, help to control conduct. Some people fear social ostracization perhaps even more than legal punishment. It is this fear that causes people to act within regularly acceptable social bounds of conduct.  Of course, one may be more interested in acting according to the social norms of a rogue group whose own norms of conduct may challenge the law.

In the video below, the guy chooses an unorthodox way to try to activate his key card - and pays the social price.

Friday, October 17, 2014

16 Tons

Folks in tuxedos snap their fingers to the plight of the working man.

Thursday, October 16, 2014

Wednesday, October 15, 2014

Can Law Control Conduct?

A man assaulted in the men's room of Levi's stadium in San Francisco is partially paralyzed and has had to have part of his skull removed. 

If the purpose of law is to maintain order by controlling conduct, then why does it fail so miserably so often? Although the law prohibits fraud and larceny, people still do it. The usual explanation is greed or financial desperation. But what is so valuable to be gained by beating another person senseless that one would risk the law's sanctions?  Is there any way to make the law more effective?

WARNING! Images of violence:

Tuesday, October 14, 2014

Unintended Consequences of Open Carry

After the tragic school shooting at Sandy Hook, a surburban New York newspaper published the names and addresses of gun permit owners in two suburban counties.  Backlash from gun owners was quick and vicious. Concerns were raised that the gun owners could now be easily targeted for break -ins by those seeking to acquire their valuable weapons.  As it turns out, pro-gun laws actually make gun owners more of a target than had been anticipated. According to a report from KOIN in Oregon, an Oregon man who had just purchased a .22 pistol was proudly displaying it in his waistband, exercising his open carry right, when a young man came by admiring the owner's new gun.  The young man then pulled out his own gun and demanded the pistol from the new owner, who promptly replied.

I guess having the legal right to advertise that you are carrying around an easily accessed expensive piece of weaponry can have unintended consequences.

Apparently, this has happened before:

Monday, October 13, 2014

How Can You Trademark "How?"

According to a Yahoo Finance article, "Dov Seidman, is in the business of helping companies create more ethical cultures. He has distilled that business to a single three-letter word: how. President Bill Clinton wrote the foreword to his book, How: Why How We Do Anything Means Everything.€ So when Chobani Yogurt began an ad campaign highlighting their special filtering methods of manufacturing, their choice of slogan "How matters" (as in "how it is made matters") they ran into a trademark infringement claim from Seidman.

According to Mr Seidman, he thinks Chobani is using the slogan to show that it is an ethical company  - and that is his expertise. Apparently the idea is to buy Mr. Seidman's ethics programs, but if they work, you are not supposed to let anyone know.

It will be interesting to see how "How" is handled by trademark law and how the whole "How" thing comes out.

I suppose if "Eat More Kale" can be deemed to cause consumer confusion with "Eat Mor Chikin" then anything is possible.

Friday, October 10, 2014

Take This Job and . . .

Not all oldies are goodies. But it does show us the employee side of employment-at-will.

Wednesday, October 8, 2014

The Flood Gates Have Opened

The recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. is described in this New Yorker article:

Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ”

Justice Alito, who pledged such fidelity to stare decisis during his confirmation hearings, apparently has no clue how the doctrine works.

The track record of judicial decisions since the Hobby Lobby decision show that Justice Ginsburg was likely right. A U.S. District Court judge in Utah has ruled that a leader of a religious sect was not required to answer U.S. Department of Labor questions about potential child labor violations because to do so would place a "substantial burden" on his "sincere" religious beliefs against publicly disclosing church business.  

It's hard to imagine what would not be protected at this point.  Remember the furor over the Catholic Church failing to turn in pedophile priests?  Now they can simply claim to do so would be a substantial burden. In states where teachers are mandated reporters of suspected child abuse, can religious school teachers claim an exemption from reporting severe physical abuse because of a sincere religious belief in corporal punishment? 

Put on your life jackets, folks because the floodgates are open. 

Tuesday, October 7, 2014

Have You Committed an "Improper Photography" Offense?

The Texas Penal Code section 21.15 states, in part:

(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person;

What exactly does that mean? That is apparently the question that was on the minds of Texas Appeals Court judges who have declared the law unconstitutionally vague.

If the state is going to criminalize activity, substantive due process requires that there be sufficient description of the conduct being criminalized so that people don't inadvertently engage in criminal conduct.  This statute clearly falls short. 

Monday, October 6, 2014

Faces of the Supreme Court

Thanks to the Slate website here is a fun 10 question quiz involving identifying parties to famous Supreme Court cases.  I think that it is useful for students to understand that the cases we talk about in class are not merely academic exercises. Real people were involved and real lives are affected.

Here are some additional faces of the Supreme Court;

Richard and Mildred Loving.
Loving v. Virginia 

Steve Garvey
MLBPA v. Garvey

Estelle Griswold
Griswold v. Connecticut

Jerry Falwell
Hustler Magazine, Inc. v. Falwell 

Larry Flynt
Hustler Magazine, Inc. v. Falwell 

L.B. Sullivan
NY Times Co. v. Sullivan

Fred Phelps
Snyder v. Phelps

Albert Snyder
Snyder v. Phelps

Thursday, October 2, 2014

Property Seized, But No Culpability Proven

Apparently it is legal for law enforcement officers to seize cash from suspected drug deals and then refuse to return it, even if no charges are brought against the parties.  Apparently, it is also legal for law enforcement to execute a civil seizure of a parent's home if a kid has been involved in drug violations in the house.  The parent's knowledge or culpability is irrelevant.

Aren't there Due Process issues here - substantive and procedural?

Wednesday, October 1, 2014

Those Pesky Terms of Use Provisions - How Bad Can They Be?

In conducting an experiment in the dangers of public Wi-Fi use, a security agency in London set up a free Wi-Fi hotspot.  Customers who signed on were prompted to agree to the terms of use.  One of the terms included was a so called "Herod Clause" where the user agrees to turn over to the Wi-Fi company their first born child for the duration of eternity.  According to the article in the Guardian, six people signed up for the child assignment.

While such a term is obviously not enforceable, this article raises awareness of the types of terms often contained in these contracts that may be enforceable despite being significantly detrimental to the consumer.

Tuesday, September 30, 2014

Proposed Administrative Rule: Take a Nature Photo, Pay a Fine.

The U.S. Forest Service has published a proposed rule requiring members of the press to obtain a $1,500 permit to take photographs in national forests or risk a fine of $1,000 for each photo taken. The Forest Service claims that the rule is required in order to carry out the mandate of the Wilderness Act of 1964, which aims to protect wilderness areas from being exploited for commercial gain. It's hard to imagine how sharing, or even selling, photographs of natural environment exposes the environment to exploitation. Not to mention, what would happen in the event of a news story such as a forest fire or a fugitive on the run or even forest service mismanagement of the land.  This sounds like infringement on freedom of the press, and I am not seeing the requisite compelling governmental interest.

According to this NPR story, the head of the Forestry Service says that the agency exercises its discretion to distinguish between real news coverage and commercial activity.

Depending where you're at in the country, whether you're a reporter, a journalist or a commercial filmmaker, when you would ask to be able to do your activity, you'd get a different answer.

That sounds to me like the opposite of how an administrative rule is supposed to work.  The rule should limit an administrator's discretion so that it applies across the board without being tainted by favoritism or abuse.

The comment period runs until Nov. 4, 2012.

The following pictures were taken in National Forests.

White River National Forest.

Bridger-Teton National Forest. 

Monday, September 29, 2014

As if we Needed More Evidence . . .

. . . that teenagers' brains are not yet fully developed.  yet, we still have twelve-year-olds hunting without supervision and teenaged drivers without any restrictions on front seat passengers.  Is it surprising when we get front seat passengers lighting a driver's arm pit hair on fire? Thankfully, the injuries resulting from the expected crash were not tragic.

The law cannot make teenagers control their own goofy impulses, but it can hopefully limit the opportunities for those impulses to be fatal.

Thursday, September 25, 2014

"This just appears at this point in time to be an accident"

"This just appears at this point in time to be an accident," said the spokesman for a Utah school district after a 6th grade teacher's concealed firearm discharged in a faculty rest room injuring her lower leg with bullet and porcelain fragments. So much for the guns-are-safe-in-the-hands-of-law-abiding-gun-owners argument.  This should be a good discussion starter.

Wednesday, September 24, 2014

Employment -at-Will on Crack!

There have been plenty of posts in this blog with examples of dodgy firings. Pretty much all of them are allowed under the employment-at-will doctrine. But here is an article with the accurately descriptive headline, "A Woman Told Her Boss About A Devastating Cancer Diagnosis.He Responded By Firing Her." Read it for yourself and fashion your lesson plan on employment law, ethics, employer responsibility, employee vulnerability, ADA (and when it does not apply) or humanity as the case may be.

This is not an isolated case:

Tuesday, September 23, 2014

Featured Website: YouTube Channel for Jason Mance Gordon

ALSB member Jason Mance Gordon from Georgia Gwinnett College maintains a YouTube site with a hundred or more short informative videos on BLAW topics. I find that sometimes it is important to stop prattling on in front of the class and show a video, even if it is just another professor talking.  It is at least something different that causes students to look up from their computers.  Also, links can be provided for students who need a quick explanation of a concept.  As always with YouTube videos, you should screen the video first to make sure it is consistent with your own teaching.

Example: What is a Tort?

Monday, September 22, 2014

Honolulu the Latest to Criminalize Homelessness.

It has been said that law is, at best, a crude tool for solving social problems.  It cannot be wielded with the precision of a scalpel to excise the cancer from the body.  It has to apply to everyone, sometimes, in a way so as to grossly overreach without actually addressing the root cause of the problem. So it goes with criminalizing homelessness.  Honolulu has become the latest among a growing number of jurisdictions to deal with the social ills of homelessness by empowering law enforcement to arrest the victims and remove them from sight.  Out of sight, out of mind, I suppose.  It reminds me of the quote from Anatole France, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."

Thursday, September 18, 2014

Student Evaluation of Teaching: "We Had to Learn it Ourselves."

The Student Evaluation of Teaching is always an interesting tool for evaluation of one's job performance. Thankfully, at my school administrators seem to pay attention to them, but not so much as to overemphasize the results.  I find them useful and pay special attention to the comments that students enter beyond the numerical rankings. Over the many years these comments have helped me to understand the undergraduate mind and make what I believe to be improvements in the content and presentation of material.

One comment that I received on SET form this past Spring semester has really been gnawing at me. When prompted for  comments about my teaching one student responded, "We had to learn many topics ourselves."  I had never seen a comment like this before. Apparently, these types of comments are not all that unusual. According to this article, today's students are inclined to complain that they are not being taught and have to think in order to learn the material.

As I thought about the comment and became introspective about my teaching methods, I realized that I was surprised that I had not seen comments like this before. Indeed, I can teach material, but students always must learn on their own.  I have developed methods over the years where I intentionally lead student far down the path through the woods to the cool clear lake, but stop short of pushing them in - assuming that they can take that last leap into the water on their own.  The journey is the learning process.

But for today's students, these methods may begin to negatively affect my SETs. I can speculate about the causes. First, students are distracted by their phones and laptops during class. Consequently, they are not participating in the learning journey.  They just look up to see the destination.  Having no idea how they got there, it is impossible to extrapolate the learning experience to other concepts. They don't have to use maps to get places, they follow GPS instructions while simultaneously listening to an i-pod.

Second, researchers tell us that today's generation of students are less intellectually curious.  They are less interested in acquiring knowledge than in obtaining information necessary to complete a specific task (i.e. earn an exam grade). Millennials are much more interested in "checking a box" as done and moving on.

Finally, our students are digital natives. They always have information at their fingertips. Everything is "breaking news."  Anything and everything they want to know comes to them automatically without effort through Facebook, Twitter, and other social media even as they are sitting in your class. Consequently, it is disconcerting to them that they might have to put together a string of thoughts and carefully analyze alternatives to arrive at a conclusion.

I don't plan on making any radical changes in teaching methods in the near future.  But I am interested in watching for these types of comments in future surveys to determine if a change is necessary. On a larger scale, these considerations go right to the core of the purpose and effectiveness of higher education.  I encourage my students to see themselves as life long learners.  I hope that I can remain one as well and will try to learn as much about how my students learn as I can. But right now I have to go to click on the Facebook link I just got to see the latest adorable kittens video.

Wednesday, September 17, 2014

Was Daniel Shays Right?

Democracy is more or less accurately described as “rule by the majority.”  The drafters of our Constitutional scheme of government were concerned that a majority could become despotic and trample upon the rights and interests of minorities. We have seen ongoing example of this phenomenon throughout American history, particularly in the area of race relations.  American law in many states denied basic civil rights to persons based on the color of their skin - the majority races tyrannizing the minority races.  Public referendums enacting bars to same sex marriage would also seem to fall into this category.  

There is ample evidence that our founders’ concerns over the potential for “tyranny by the majority,” were not animated by a desire to protect the kinds of minorities that history has since borne out to be the victims of these injustices.  Their concern was for potential oppression of the numerically inferior but vitally important commercial interests of the nation. Shays’ Rebellion in Massachusetts caused our founders to fear that mass public uprisings and a legislative appetite for popular policies could thwart commercial interests and stifle the development of a nation.

Whether intended or not, in our Constitutional scheme, the courts have become the havens for oppressed minorities seeking relief from an overzealous oppressive majority.  As Judge Richard Posner wrote in his Federal Appeals Court opinion striking down same-sex marriage bans in Indiana and Wisconsin, “Minorities trampled on by thedemocratic process have recourse to the courts; the recourse is called constitutional law.”

That background brings us to consideration of the Supreme Court’s decision in Citizen’s United v. FEC. Laws enacted with the support of the majority limited the amount of money that corporations could spend on political election campaigns. Was this Shays’ Rebellion all over again? Was this not oppression of our nation’s vital economic interest by a self-serving and greedy majority? The court rescued the victimized corporations by declaring such restrictions constitutional. As Senate minority lead Mitch McConnell stated when he thought no one would catch him, the court had simply “level[led] the playing field for corporate speech.”  Oh, those poor oppressed corporations!

In Congress now, Senate Democrats have proposed a constitutional amendment that would undo Citizens United and allow the federal and state governments to regulate corporate monetary influence in campaigns. As is clear from this NPR report, the amendment has overwhelming public and bi-partisan support outside of Congress.  Yet, there is absolutely no chance that Congress will pass it.

When our Founders sought to protect economic interests from the political influence of the masses, they were concerned that commerce and the national economy would be stifled, financially strangling the new nation in its infancy.  The modern protectors of corporate interests from public sentiment seek to preserve the power of money – not to advance national economies and international trade –but to influence elections.  Many of those who seek to protect this corporate influence often purport to embrace the ideals of the founders for their political ideology. Somehow, I don’t think that preserving the influence of the affluent in elections was a founding ideal.

Here are some questions for our students:

What is the nature of this complex and complicated institution of democratic law-making?  Is the Supreme Court protecting huge multi-billion dollar corporations from oppression by the massed majority?  Is this the kind of “tyranny by the majority” that concerned our founders?  Is the majority always right? What should be the role of public opinion in law-making?  What should be the role of unlimited money in elections? How does that affect public policy as expressed in law?

Did Daniel Shays actually have the right idea in the first place? 

Shays' Rebellion:

Tyranny by the Majority:

Citizens United:

Constitutional Amendment:

Tuesday, September 16, 2014

Featured Website: USLawEssentials YouTube Site

According to his USLawEssentials Blog, New York Attorney Daniel Edelson teaches United States Law at Soongsil University College of Law in Seoul, S. Korea.  I stumbled upon his YouTube site while looking for some resources on jurisdiction. Attorney Edelson has produced a number of videos based on questions that he has been asked by his international students.  I thought the videos that I had an opportunity to smaple were simple without being simplistic.  They are short (3-4 minutes) and limited to a single topic.They strike me as being at just about the right level of depth of analysis to assist undergraduates in understanding basic law concepts.  The site includes about 70 videos on a wide range of topics relevant to BLAW, all posted since about April of 2014 with more being posted daily.  Below is a sample on Long Arm Jurisdiction.

Monday, September 15, 2014

Can You Be Canned For Trying to Stay Alive? Shared by Konrad S. Lee

Thanks goes out to Konrad S. Lee, Associate Professor in the Practice of Law, Ethics and Management at Jon M. Huntsman School of Business at Utah State University for submitted this resource for the discussion of public policy exceptions to the employment-at-will doctrine.

Under the common law doctrine of employment-at-will, in the absence of an employment contract stating otherwise, an employee may be dismissed at any time, with cause, for no cause and even in many cases for a cause that seems unfair. here are certain exceptions to the rule.  For instance, there are statutory exceptions for discriminatory discharges based on protected characteristics or retaliation for whistle-blowing, The NLRA prevents discharges from employment for union activities.  Most states also recognize some level of common law exceptions.  the most common being a public policy exception.  That is, when the employment discharge interferes with or discourages some activity that is otherwise beneficial for society, the discharge may be deemed wrongful.

With this background comes the incident described in this news report from

A video posted to YouTube showed (ex WalMart employee Gabriel) Stewart, then an assistant manager, and several "asset protection" employees inside a small room with a man suspected of shoplifting. The suspect, at one point, pulled out a handgun, prompting at least two workers to restrain him, and take away the weapon. 

The workers were fired by WalMart following the incident and have filed suit claimimg wrongful termination. 

"Our number one concern is always the safety of our customers and associates," said Randy Hargrove, Walmart corporate spokesman. "Our policy is for associates to disengage, if a suspect has a weapon. . . ."We don't want to escalate a dangerous situation further," said Hargrove.  

So WalMart would have their employees "disengage" with an armed and angry suspect and face likely death rather than defend themselves by taking the instinctive action to overpower the gunman. Watch the video below and decide for yourself. Should you be fired for trying to stay alive?  

Video news report:

Raw surveillance video:

Wednesday, May 7, 2014

Code Duello, Troglodyte Style

The videos available at this Huffington Post site nearly defy description by rational humans. The headline for the post is: "Girls' Fight Ends With Shovel to the Head." True to the headline, an 8 second video clip is shown where a girl gets a shovel to the head.  It looks like a classic case of civil battery.  But the 8 second clip is an outtake from an 8 minute video, also shown, where these two fine examples of American youth conspire to engage in a duel of fisticuffs while their earnest "seconds" stand outside the circle videotaping the exhibition for sharing on the internet.  The longer video has been taken down from youtube but is still available on the Huffington Post site. The longer video raises questions of consent that may provide a defense to a battery claim. How far does the consent go?  Does agreement to a duel with fisticuffs include use of a weapon? (one of the "seconds" even makes a similar query on tape).   It appears that the shovel wielder was earlier surprised when she was kicked by the shovel-to-the-head victim.  Did the kicking escalate the level of consent beyond the implied agreement upon fisticuffs?

What do these videos teach about the use of videos in court?  The 8 second video and the 8 minute video tell very different stories. Does the comparison of the two videos give support to the concerns expressed by law enforcement officers when they are videotaped - that the video shown or taken may not accurately portray the context of what is shown?

Warning! There is saucy language in the longer video!  As you might imagine, the verbal discourse between these aspiring Rhodes scholars and their friends may not be suitable for a classroom.  But, the language does impact upon the issues.

 UPDATE: The 8 second video has been removed from the Huff Post site, but click here to see a re-posting at vine.

Click here or on the image below to be taken to the Huffington Post report:

Thursday, April 17, 2014

Guest Blogger,Henry Lowenstein: Yes, We Have No Bananas!

Appellate Court Goes Bananas!:   Banana Lady "Slips" In Credit Union Lawsuit

Our students in the Legal Environment of Business courses often ask us if there is any control to what appears to be frivolous, abusive litigation against individuals and firms, often merely to simply try and pressure money settlements to avoid the expensive legal fees involved in litigation.  Every now and then, a litigant crosses the line such that a court rises to protect the integrity of the judicial process and halt for that moment abuses of the system.   Such was the case this week from the U.S. Seventh Circuit Court of Appeals in the matter of Conrad (aka “Banana Lady’) v. AM Community Credit Union (Case No. 13-2899, April 14, 2014.   Click here for the link to the story as reported by the Chicago Sun-News with link to the opinion by the Chief Judge, Richard Posner.

The “Banana Lady” represents an extreme example of abuse of the judicial system that not only was costly to defendants but in clogging the courts and impeding the effectiveness of the judicial system.  It also points out the growing intolerance of Federal courts to questionable if not de minimus attempts to improperly use intellectual property law (in this case copyrights) as a tool to bully questionable settlement payments rather than protect legitimate intellectual property values.  This case can be used in classes to emphasize both points and the costs to business of succumbing to settlements that encourage simply more litigation.

In the case of the “Banana Lady,” the Court of Appeals signals its intolerance and opinion (complete with pictures) that such suits will receive from the court the old song, Yes, We Have No Bananas and intolerance for like frivolous and vexatious lawsuit behavior in the future.  Those who try in the future will find Federal judges….well… .going bananas!  

I hope you enjoy this story and the serious lesson it leaves other than a judicial banana peel on the judicial floor.

Editor's Note: I have previously expressed the opinion that "frivolous lawsuits" typically share 3 common characteristics: 1) They are filed without the aid of counsel, 2) there is likely some level of mental illness exhibited by the Plaintiff, and 3) they are flushed out of the system without causing millions of dollars in taxpayer and/or defense expenses.

With respect to the "Banana Lady" case: 

1. From Judge Posner's decision:  "Proceeding pro se, Conrad has sued several credit unions in this case."

2. From the Chicago Sun-News Article: Banana Lady . . . has a history of making wild claims in her court filings, including comparing her legal opponents to the Unabomber and alleging that they hung out at the Kennedy Compound in Hyannis Port, Mass.

3. From Judge Posner's decision:  The district judge granted the defendants’ motion to dismiss the case.

Although the case did go on appeal to the Court of Appeals, it still was disposed of in a reasonably expeditious fashion without closing the courthouse doors to people who believe they have legitimate grievances. Frivolous lawsuits do have the effect of ameliorating what might otherwise become dangerous expressions of rage and frustration. Given the plaintiff's history in this case, Judge Posner's orders are absolutely justified.

Banana Boat Song:

Thursday, April 10, 2014

Heigl Harried By Pilfered Picture

If the reported facts are correct, it looks like former Grey's Anatomy star, Katherine Heigl, has a slam dunk of  a commercial appropriation suit.  Apparently the actress was photographed, without her authorization, by papparazzi standing in front of a Duane Read Pharmacy Store.  The chain apparently then used the photograph in digital marketing schemes through Facebook and Twitter.