Thursday, April 30, 2015

Thought Provoking Law Quote: The Devil's Dictionary

American Writer Ambrose Bierce must have had some difficult dealings with the legal system.  His Devil's Dictionary published in 1906 includes the following definitions of legal terms:

LITIGATION, n. A machine which you go into as a pig and come out of as a sausage.

LITIGANT, n. A person about to give up his skin for the hope of retaining his bones.

LAWYER, n. One skilled in circumvention of the law.

CORPORATION, n. An ingenious device for obtaining individual profit without individual responsibility.

There are many more.  Click here to browse for your favorites.

Wednesday, April 29, 2015

Marijuana and the Commerce Clause

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich since the Supreme Court came to the opposite conclusion. States continue to legalize marijuana, for medicinal purposes or otherwise, despite Supreme Court affirmation of Congressional criminalization. Is this a state or federal matter?

Tuesday, April 28, 2015

Monday, April 27, 2015

Is it Statue or Statute?

Thanks to my colleagues at NEALSB this past weekend.  It was another enjoyable weekend of law and laughter. At dinner we talked about this Seinfeld clip and the 2000 vocabulary words that Robert Wiener's students at Pace are required to spell (OK, it was "2 dozen," but we all heard "2 thousand.")

Vocabulary lesson #1: Is it STATUE of limitations or STATUTE of limitations?

Friday, April 24, 2015

Brotherhood of Man

I know that I have posted this before, but I have found a few new videos and thought they might be useful.  I see a lot of smiling faces when I play one of these videos in class or before class starts.

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:

Thursday, April 23, 2015

Teaching Evolution to Creationists; Is it Relevant to Business Law?

I am sharing today a link to an enlightening essay by James J. Krupa entitled Defending Darwin.  Krupa's subtitle gives you the gist of what to expect: "I teach human evolution at the University of Kentucky.  There are some students I will never reach."

In reading the essay I immediately made a connection between Krupa's experience with students whose religious beliefs cause them to reject the science of evolution out of hand, and my own experience with students whose political ideology causes them to dismiss, out of hand, the logic that disproves the fallacy of frivolous lawsuit abuse.

There are students that are convinced that our legal system is plagued with tens of thousands of meritless lawsuits that have been brought against major corporations by unscrupulous lawyers secure in the knowledge that the corporation would rather settle the case immediately for hundreds of thousands of dollars, if not $1M or more, rather than suffer the cost of defense or the "embarrassment" of the lawsuit.

I recently posited for my students, the facts of two cases brought against TV networks.  One was based on the sexual harassment lawsuit filed against Bill O'Reilly and Fox News. After being accused of inappropriate solicitation of a female producer O'Reilly vociferously denied any such conduct and called the lawsuit "extortion."  The plaintiff's lawyer produced taped recordings of O'Reilly's lewd, suggestive and solicitous phone messages.

The other case was the "Fear Factor Rat Eating Episode" law suit.  A viewer of this episode of NBC's "Fear Factor" show, suddenly feeling nauseous and dizzy suffered injuries by running into a door jam during a desperate attempt to leave the room where the TV was located.

At this point, I asked the students in which of the two cases they would consider representing the plaintiff.  Overwhelmingly, students chose case #1 and rejected case #2.  However, there were a staunch few students who insisted that case #2 was just as likely to result in a quick and extremely lucrative settlement as case #1.

We then discussed the actual outcome of the cases.  #1 settled within a few weeks for an undetermined sum in the millions of dollars.  Case #2 was summarily dismissed on motion to the court.

For the benefit of the students convinced of the a ubiquity of quick, lucrative settlements of meritless cases,  I asked the following question;  What would happen to a corporation that developed a reputation of paying large sums of money in settlement of meritless lawsuits?  The logic was obvious as was the response from most of the students.

Still, much like Krupa's students who followed up with him to confirm what their religion tells them is true, I heard from a handful of students who were convinced, without evidence, that major corporations regularly pay out millions of dollars in settlement of meritless lawsuits. Likewise, lawyers regularly pursue these meritless lawsuits because they are a lucrative source of revenue for them.

It is possible that we fail to communicate over the definition of the term "meritless."  For instance, perhaps these students consider the McDonald's coffee case as meritless, while I consider it a bona fide claim.  However, should we be disagreeing over the Rat Eating Episode lawsuit?

As Krupa states with regard to a former student who came to see him years later, "Now a doctor, he explained to me that, at the time, he was so upset with my seminar that he attended a number of creationists’ public lectures for evidence I was wrong. He said he found himself embarrassed by how badly these individuals perverted Christian teachings, as well as known facts, to make their argument. He wanted me to know that he came to understand he could be a Christian and accept evolution. Then he did something that resonates with any teacher: He thanked me for opening his eyes, turning his world upside down, and blurring the line between black and white."

Like religious beliefs, political ideology can interfere with a student's ability to embrace the evidence and logic of the lesson. As it is possible to be a Christian and accept evolution, it is possible to maintain a political ideology and understand the legal system as it actually functions. You just have to be open to understanding both.

Click here to read a related story about what would appear to be unnecessary tensions between academia and evangelicalism.

Related posts at LSCB: Quick Settlement: When and Why?
Frivolous Lawsuits Are Good For America
Spotlight on Frivolous Lawsuits

Wednesday, April 22, 2015

Why Don't More Companies Offer Flexible Working Arrangements?

Ask my UConn colleague, Robert Bird. Click here to read about his upcoming articles on this topic. Yes, business can have a positive affect on society - but it has to be a conscious choice.

There seems to be agreement.  In the US:

In the UK:

In Australia:

Tuesday, April 21, 2015

It is Dangerous to Ignore Legal Papers

The video below documents a story illustrating why it is important to pay attention to legal papers.  A family sued over a neighbor's alleged emotional distress caused by the family's barking dog thought it was a joke and ignored the summons.  Now, with a default judgment against them, they are facing losing their home.

Students should understand the power of the law and its process.

Monday, April 20, 2015

Sorting Out Jury Verdicts

Students are used to popular cultural representations of jury verdicts as "simple" pronouncements of guilt of innocence.  However, as factfinders, the jury's duty in a civil case can be quite complex.

A jury in California recently ruled against Ellen Pao in her highly publicized sex discrimination lawsuit against Kleiner Perkins,a powerful silicon valley venture capital firm. The case is certainly interesting as a teaching tool on a number of fronts.  But I am particularly interested in bringing to you a link to the jury verdict form from the case, courtesy of the New York Times.  Students viewing the verdict form sent into the deliberation room will be surprised to learn that it contains 7 pages of detailed questions for the jury to answer.  The jury answers the fact-specific questions and, from their answers, the court (judge) fashions the judgment. There are also 14 pages of written instructions. Release of the verdict form sheds light on a part of trial procedure about which our students are mostly in the dark

It's not exactly as simple as "We find for the defendant."

News report on Pao verdict:

Thursday, April 16, 2015

Thought Provoking Law Quote: Abraham Lincoln

Whenever there is a conflict between human rights and property rights, human rights must prevail.
--Abraham Lincoln

The thought provoking law quote this week is attributed to Abraham Lincoln, although its provenance is sketchy. The attribution comes from the Congressional Record of May 12, 1944. "Human Rights" is a term that was emerging in the WWII era, but was not commonly used in Lincoln's time. While the provenance may be unclear, the sentiment is not.

I use this quote in class to introduce the eminent domain case of Kelo v. New London.  In Kelo, the US Supreme Court approved a city's use of the eminent domain power to condemn an entire neighborhood of privately owned homes in order to turn the property over to a developer for a proposed hotel/conference complex.  The complex was part of an economic development plan which, according to the court, qualified as a public purpose category of "public use."  Prior to this case, the "public purpose" definition had been used to justify takings only where the existing ownership condition had created some detriment or other public harm.  But in Kelo, the court readily admitted that the houses were not blighted and no public detriment existed - except that the city could increase its tax base if the property was in the hands of someone other than the regular working class tax paying owners who occupied the houses.

At first glance, this may seem to be merely a battle of property rights.  And that is certainly how it was seen by the chairwoman of the New London Redevelopment Authority as expressed in this competing quote:

There are circumstances in which the one gives to the many.

Clearly to New London officials, this dispute was just a matter of economics - get paid for your property and move somewhere else. But almost everyone else sees the City's action as an insensitive violation of the "pursuit of happiness," one of Jefferson's famously enumerated inherent human rights.

Work your whole life, save for your retirement, use your hard earned money to buy a modest property with a water view to which you can retire for your remaining sunset years in peace and happiness. The City can take it from you to turn it into a tourist attraction for yuppies yearning to shed their disposable income. Lincoln's sentiment was lost on the Supreme Court.

Wednesday, April 15, 2015

Tuesday, April 14, 2015

. . . It's What you Can Prove in Court.

An earlier post employed a movie clip from the movie, Law Abiding Citizen, featuring a prosecutor's explanation that, "it's not what you know, it's what you can prove in court" to explain to a victim's father the agreement to a plea bargain for her accused killer.  That story was fiction.  This story is fact.

In Kansas, a man originally charged with murder for severing the head of an acquaintance with a guitar string was sentenced to just over 4 years in jail following a plea agreement to a reduced charge of involuntary manslaughter.

According to the Topeka Capital Journal:

On March 14, 2014, a former girlfriend of [the defendant] testified he told her he killed [the victim], by using a guitar string to sever the victim’s head, then disposed of the body and kept the head in a bag. A part of the victim’s skull was discovered March 24, 2012, at a house in rural Carbondale in Osage County when [a woman] who lives with . . . the defendant’s father, said she was searching for mushrooms. Instead, she found the top of [the victim’s] skull. 

However, as it came time to proceed to trial: 

Other than a portion of the victim’s skull, prosecutors didn’t have the victim’s body, the murder weapon hadn’t been recovered, not all the prosecution witnesses were available, and prosecutors faced “credibility issues” with a major witness, [the prosecutor] said.

Not suprisingly, the family of the victim was outraged.  But, "it's not what you know, it's . . . "

Monday, April 13, 2015

Guest Blogger, Henry Lowenstein: Valuable Lessons in "Woman in Gold"

Today's post is generously shared by Henry Lowenstein, Professor at Coastal Carolina University.

This week premieres a new movie in theaters nationwide, Woman In Gold.  You may have seen the ads on TV, the true story of Maria Altman, a Jewish Austrian survivor of WWII's Holocaust and her decades-long efforts to retrieve fine art paintings looted from her family by the Nazis. Post War the Austrian government improperly laid claim to them.  Altman pursued the matter to the U.S. Supreme Court which ruled in her favor in 2004.  Austria then agreed to arbitration and returned the paintings (today on display in New York).

For students interested in international business Ms. Altman's story and the U.S. Supreme Court ruling on when a U.S. citizen (or business) can get relief from property stolen overseas prior to 1976 by bad acts of governments is instructive.  In Republic of Austria v. Altman 541 U.S. 677 (2004), the Supreme Court ruled the U.S. Foreign Sovereign Immunity Act of 1976 (28 U.S.C. sec. 1330 et. al) can be applied retroactively to conduct or wrongdoing that occurred prior to enactment of the law; that being a clear intent of Congress.   This cleared the way for Altman to sue Austria in U.S. courts to retrieve paintings rightfully belonging to her and her family stolen by the Nazi's in 1938, then allegedly owned by Austria's national museum.

Implications For Business:    There are markets now opening to China, Cuba Vietnam, Venezuela (previously Russia and former Soviet states) and other nations in which private/personal business property and assets were illegally seized by governments or revolutionaries.  

There is now a strong precedent.  The Supreme Court in its opinion stated that governments enjoy sovereign immunity (i.e. protection from private lawsuits) for public acts.   That is acts of normal functions of the state (jure imperil).  However, they are not exempt from suits for private bad acts under color of state law (jure gestionis).  What could this precedent mean today to business?
Let's take for example, Cuba.   In 1958 Conrad Hilton and the Hilton Hotels built in Havana, Cuba, the premier hotel, Habana Hilton; 572 rooms, 4 restaurants at a cost of $24 million (approximately $197 million in 2015 dollars).  In October 1960, revolutionaries led by Fidel Castro overthrew the elected Batista government of Cuba and seized the hotel (actually making it for a time Castro's headquarters).   The hotel was then renamed Hotel Tryp Habana Libre and continues to be run by and for the benefit of the Cuban government.  Hilton Hotels was never indemnified by the "new" Cuban government for the illegal taking of its property and had to long ago write off the loss on its books.
The Habana Hilton:

Now over half a century later, the Obama Administration is slowly opening relations with Cuba.  Fidel Castro is still alive but the Castros still run the country.  It is conceivable at some point that full tourism will resume to Havana (prior to 1959 a top tourism destination) and world hotels will try to come in.  What happens if the former Havana Hilton is sold?  Like Altman's Klimt paintings, Hilton might have a claim for the original value of the hotel stolen from it, or perhaps even a claim to have the hotel returned to them.   Many American corporations such as the sugar and mining industries might have like claims. 

In our global world of business today, many "businesses" in which you will do commerce are "state owned."  In some cases they will be covered by treaties as is the case in the European Union.  However, in many others, particularly emerging nations, "Jurisdiction" of disputes will be a constant battle and business risk as commerce expands with these entities.

Something to keep in mind as you watch the movie and move on in your business career.

An historical aside about the case;  Altman found it impossible to sue in Austrian courts because the rules of civil procedure there assess a "filing fee" as a percentage of the value of the property in dispute.  In her case, it would have originally cost over $1.3 million filing fee to file the case (the painting in dispute was worth $135 million)!!  The Austrian government agreed to lower the fee to around $300,000 but was still far above an individual’s means to pay.  That's when she (then a U.S. citizen) turned to the U.S. Courts!   Such a system in the US certainly would have a chilling effect and substantially reduce lawsuit volume, but also deny far too many due process.    

Woman in Gold Trailer:

Friday, April 10, 2015

History, Law and Originalism

It seems appropriate to follow up the day after the 150th anniversary of the end of the Civil War with a story about South Carolina.

History and the advancement of thought can be difficult concepts for the proponents of originalist interpretation of the Constitution.  Legal instructors have regularly shared with their students the fact that the same Congress who passed the 14th Amendment demanding "equal protection of the laws" also segregated the Washington DC schools on the basis of race.  These kinds of dichotomies in judicial interpretation and modern social thought are fascinating.  The blog post linked below does more than ample justice to its provocative title.  I would not attempt to summarize it or otherwise diminish its concise and powerful message on history, law and originalism.  I hope you enjoy:

South Carolina to SCOTUS: We Can Dsicriminate Against Women, So Why Not Gays?

Click here to read the South Carolina brief for yourself.

Click here to read a related post where Justice Scalia, orginalist-in-chief, confirms that the 14th Amendment should not prevent discrimination against women.

Thursday, April 9, 2015

A Post-Racial Legal System?

Today is the 150th Anniversary of the surrender of the Confederate Army of Northern Virginia to the Union Army of the Potomac in the American Civil War.  So it seems that a Civil War themed post is appropriate.

Millenial students are fond of espousing this country's ascension to a state of post-racial relations. Certainly recent events involving fraternity chants and disputes over the interactions of white police officers and black suspects have elevated race back into the social justice consciousness.  But surely these issues must have been scrubbed from the interior of the halls of justice?  It is there that highly educated lawyers and judges interact with the single-minded ideals of the pursuit of justice.

Then how does this happen? The Idaho Appeals Court overturned the conviction of a black defendant on charges of sexual assault of a minor after the prosecutor quoted lyrics from the song "Dixie" in her closing argument.  Written as  minstrel song before the Civil War, "Dixie" became the unofficial anthem of the Confederate States during the war and has been associated ever since as a glorification of the society that enslaved African Americans.  According to the Idaho Statesman, Prosecutor Erica Kallin's address to the jury included the following:

" 'Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,' " Kallin said. "And isn't that really what you've kind of been asked to do? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse and her medical opinion. Look away. Look away."

Click here to listen to an audio clip of this section of the closing argument.

The Appeals Court took judicial notice of the history and connotations of  "Dixie":

This Court does not require resort to articles or history books to recognize that “Dixie” was an anthem of the Confederacy, an ode to the Old South, which references with praise a time and place of the most pernicious racism. The prosecutor’s mention of the title, “Dixie,” as well as the specific lyrics recited by the prosecutor, referring to “the land of cotton,” expressly evoke that setting with all its racial overtones.

Because of the circumstances - a black defendant with charges of a sexual nature - the Appeals Court erred on the side of caution, setting the bar low for the defendant to show that the prosecutor's comments constituted reversible error, stating:

In this circumstance, both the constitutional obligation to provide criminal defendants a fundamentally fair trial and the interest of maintaining public confidence in the integrity of judicial proceedings weigh against imposing a stringent standard for a defendant’s demonstration that the error was harmful. Although the State’s case here was a strong one, it was not so compelling that no rational juror could have voted to acquit.

"Dixie" (in case you are not familiar with the song):

Wednesday, April 8, 2015

An IP Conundrum - How Many Different Country Songs Are There?

Students are often perplexed by the application of copyright in certain areas of the music industry.  For instance, at its core "the blues" shares a persistent three guitar chord progression and similarity of melody throughout the entire genre of music. There is a wealth of internet resources of material for songs that sound like other songs.  Sometimes lawsuits are brought and sometimes they are not. I am not an expert in this area of the law, but it seems to me that the distinction rests on the uniqueness of  the allegedly copied musical pattern. 

Below is a video comparing 6 Country Music songs. As it cleverly and indisputably establishes, they are the same song even to the point of being performed in the same musical key. Despite the song coming from different performers, different studios, different producers, etc. - the song are all one song. The melody is the same, the musical progression is identical, the songs are musically indistinguishable. I expect that the reason why we don't see lawsuits in this genre of music is because there is no unique quality to the music.  If you claim a copyright infringement by one artist, there are thousands of others who have the same claim against you. What are your thoughts?