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.