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. 
source: http://www.fs.fed.us/wildflowers/regions/intermountain/ 

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 KSL.com.

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: