Thursday, March 27, 2014

Street Level Legal Interpretation

Criminal law is statutory.  Sometimes circumstances requires street-level analysis and legal interpretation by the hard working public servants entrusted with the first line enforcement of these laws.  Thorny gray areas become evident, as this video suggests:

Wednesday, March 26, 2014

Contempt of Court

Students who watch the movie, My Cousin Vinny, are sometimes surprised by the contempt rulings against Vinny for failing to comply with courtroom decorum and question whether that is merely a fictional device to garner laughs.  Well, here is Judge Joe Brown, formerly of TV curt show fame, found in contempt of court and sent to jail as a result of his courtroom conduct. It happens.

Raw audio:

Monday, March 24, 2014

Pay The Piper, or He Sings

From the fable of A-Rod and the MLB:

If you into a serious legal dispute, you need a lawyer.  If you need a  lawyer, then you need to pay a lawyer's fee.  If you don't pay the fee, then you get into a legal dispute with the lawyer who helped you with your legal dispute.  If you get into a legal dispute with the lawyer who helped you with your legal dispute, then your lawyer will disclose all the secrets that he hid for you in order to prove that you needed a lawyer's help with your legal dispute. To try to safeguard those secrets, you will need a lawyer to help you with the legal dispute with the lawyer who helped you with your legal dispute. And the carousel spins round and round again, etc.

Thursday, March 13, 2014

Law, Politics, Religion, and Irony

On Feb. 26th, ArizonaGovernor Jan Brewer vetoed the bill passed by the state legislature that would have authorized discrimination in the provision of services if providing such services offended a religious conviction. Since that time, a host of politicians and political commentators have rushed forward to protect Christians against what is alleged to be discrimination, bullying, and victimization for not allowing them to discriminate, bully and victimize others on the basis of a devout belief in the teachings of Jesus Christ.  Although the irony in such an argument was obvious, I was struck at the time by a more subtle, but equally evident irony found in the inability of another story to generate any similar Christian outrage.

Two days prior to the Arizona legislature's passage of the bill designed to protect Christians from government trampling their fervent beliefs to discriminate against people who are born with qualities deemed to be undesirable in the eyes of the righteous, a 84 year old devout Catholic nun and two equally devout companions were sent to prison by the federal government for practicing their deeply held religious conviction of advocating for peace.  The three activists broke into the federal facility known as the Fort Knox of uranium, where the nation's principal cache of weapons grade material is kept.  Once inside:

At sentencing, one of the activists told the judge, "I was acting upon my God-given obligations as a follower of Jesus Christ." Federal officials acknowledge that they never posed an actual threat to anyone.
So, where is the outrage?  Where are the Michelle Bachmans and the Mike Huckabees and the other self-appointed defenders of religious ideology against tyranny clamoring for justice? 
Acting on deep religious conviction, three advocates for peace harm no one and are sent to prison. They are ignored by the Christian mouthpieces.
A bill that would have authorized the public shaming of persons whose innate traits are deemed undesirable by misguided and irrational religious fervor is vetoed and statements of religious persecution are shouted from every available political pulpit.
The legal lesson in this story is the role of politics in shaping policy. Law is what the government says it is. The government is a political process. We are selling our students short if we do not give them ample opportunity to explore the connection.
No high powered Christian mouthpiece outrage for devoutly religious peace activism:

Irrational, high-volumed Christian outrage for being denied the privilege of lawful discrimination:

Wednesday, March 12, 2014

Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas
4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas
6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules? 

Tuesday, March 11, 2014

Quick Settlement; When and Why?

One of the themes we flesh out in our Legal Environment class is the characteristic of litigation as a "War of Attrition."  The quote comes from one of the lessons in The Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed by Richard Zitrin and Carol Langford. I also like the image as it helps to bust the myth of the quick settlement.  The myth of the quick settlement is the second half of the myth of the frivolous lawsuit. The legend goes something like this:  In America, people regularly file frivolous lawsuits and businesses quickly pay off the plaintiffs with a lucrative settlement to avoid bad publicity.  The legend/myth/folklore makes no sense on so many levels. But here, I just focus on the quick settlement part.

Why would any business or insurance company pay a plaintiff who files a frivolous lawsuit and earn a reputation as a source of easy money? Why would businesses fear embarrassment from frivolous lawsuits that, by definition, have no merit and probably make the plaintiffs look stupid? Why would businesses worry about the costs of defending a lawsuit that is likely to be dismissed immediately upon filing of a motion? Doesn't it make more sense for a business/insurance company to vigorously defend a frivolous case?

So, when would we expect a quick settlement of a lawsuit?  How about when there is an absolutely bona fide case that has the capacity to embarrass a company to such a degree as to affect revenue?  Up until discovering the article below, the example that I used to use was the sexual harassment lawsuit filed against Fox News and Bill O'Reilly by one of O'Reilly's young female producers.

The Smoking Gun website has posted the complaint which is too sexually explicit to show in class, but which seems to include allegations just a bit too specific and unusual to be made up. O'Reilly and Fox initially denounced the suit as an extortion attempt and filed their own complaint against the plaintiff.  Yet, surprisingly, the case was settled in two weeks. Why? Apparently, the plaintiff had most of the alleged harassing comments recorded on her phone answering machine. So, far from being a frivolous lawsuit, it was a bona fide lawsuit with the unquestioned ability to cause significant damage to Fox and their standard-bearer, O'Reilly.

However, now there is new example that may be more appropriate for full disclosure in class.  Following the unfortunate death of Philip Seymour Hoffman, The National Enquirer published an article purportedly quoting David Bar Katz, Mr. Hoffman’s friend, as saying that he and Hoffman were lovers who free based cocaine the night before Hoffman’s death.  The problem, of course, was that the factual statements were completely false and the Enquirer apparently made no effort to determine if the person whom they quoted was actually David Bar Katz.

The ensuing lawsuit was settled within a few weeks with the creation of a foundation that will award an annual playwriting prize. Was the lawsuit settled so quickly because it was frivolous or because it was absolutely bona fide?

Thursday, March 6, 2014

Student Engagement

Today, I am giving a presentation at the Business Educators conference in San Diego on using Music and Humor to foster student engagement.  Regular readers will know that I have long advocating for bringing music into the classroom in many forms and I have made presentations on this subject before at regional and national conferences.

Coincidentally, just this last week, CBS ran a report on a "super teacher" in South Korea.  Watch the video below to see some of the teacher's methods.  (The rest of the report is interesting, too)

Wednesday, March 5, 2014

Law and Ethics

From Robert Emerson:

Visit Prof. Emerson's YouTube channel, here, for more videos.

From the Ethics Guy:

Visit the Ethics Guy YouTube channel, here.

And don't forget the Ethics Unwrapped site from Univ. of Texas, here.

Tuesday, March 4, 2014

Snarky Facebook Gloat Costs Papa Cash

Yesterday's post was about an arrogant snarky franchise manager taking advantage of an employee and getting whacked for a big settlement.  Today's is about the arrogant snarky daughter of a successful plaintiff who likely cost her dad his compensation in an age discrimination claim by posting about it on facebook - proving her dad had violated the confidentiality agreement.

According to the report in the Miami Herald, a 69 year old headmaster at a private preparatory school was denied contract renewal and sued claiming age discrimination.  The case eventually settled with the plaintiff receiving approximately $90,000 and with a confidentiality clause.  However, the plaintiff's college aged daughter posted the following on her facebook page:

“Mama and Papa Snay won the case against [the prep school],” Dana Snay posted days later to her 1,200 Facebook friends. “[The school] is now officially paying for my vacation to Europe this summer. SUCK IT.”

When her former prep-mates/facebook friends saw it, word got back to the school. The Florida Appellate Court has set aside the settlement.

According to Yahoo Shine, this is an image from the daughter's facebook page:

Read more here: page:

Monday, March 3, 2014

Contest Winner Gets Toy Yoda Instead of Toyota

Here's one from the archives.  Back in 2002 a Hooters franchise in Panama City Beach, Florida ran a beer selling promotion contest for their employees.  The prize? From USA Today:

Those cutups at Hooters are always good for a few laughs!  Hooter's defense?  It was an April fool's joke!  Of course, a contract offer must be evaluated from the standpoint of a reasonable person based on manifestations of intent, not from the subjective, unexpressed intent of the offeror.

What was the settlement worth?

Good for her.