Thursday, September 29, 2016

The Charisma Matrix

With lawyering, as with many critical service professions like physicians, psychologists, nuclear scientists, pre-school teachers, accountants, etc. it is apparently far better to look good than to be good.  Impressions trump substance.  So, access the Charisma Matrix:


Wednesday, September 28, 2016

Thought Provoking Law Quote: What is the Statutory Interpretation Process?

The quote below from respected legal commentators on procedure is somewhat disheartening to those who seek absolute predictability and objectivity in the legal system.  As we know, those qualities run only so deep.

“Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”

-          Professors Hart and Sacks writing in The Legal Process.

In the case below, the Rule of the Last Antecedent may resolve the dispute, "if the Supreme Court decides to apply it."  Or the court may apply the Series Qualifier Cannon, which requires exactly the opposite interpretation from the Rule of the Last Antecedent. Or perhaps after failing to find clarity in the plain meaning of the text, the legislative intent or the public policy, the Court will just say, "Oh, the hell with it!" and apply the Rule of Lenity.  Or, maybe they won't. 

What is the difference between a statue and a statute?

Tuesday, September 27, 2016

The Political Context of Business Organizations

We spend a lot of time in our Legal Environment classes and space in our textbooks covering the law-making procedures of courts.  Likewise, the administrative rule-making process is well covered. Inexplicably, we spend little or no time and space teaching about legislative law-making. Is it because we are too squeamish about the sausage-making?

Business law educators are familiar with the AACSB guidlines for undergraduate education and have lauded their recognition of the need for business education on legal and regulatory topics.  But one subject among those AACSB topic guidelines is all too often overlooked:

General Business and Management Knowledge Areas
· Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society

· Social responsibility, including sustainability, and ethical behavior and approaches to management …
(emphasis added).

In very few business schools do we offer course work exposure to the political context of organizations in society. It would seem that some discussion of the political law-making process in our Legal Environment courses is not only justified but necessary.

Which brings up the topic of the  recently released publication, "The Confessions of Congressman X."  This 65 page pamphlet purports to be the candid inside disclosures of a longtime Congressman.  As reported in the New York Post, the pamphlet contains revelations such as:

“Business organizations and unions fork over more than $3 billion a year to those who lobby the federal government. Does that tell you something? We’re operating a f–king casino.” 


“I contradict myself all the time, but few people notice. One minute I rail against excessive spending and ballooning debt. The next minute I’m demanding more spending on education, health care, unemployment benefits, conservation projects, yadda, yadda, yadda.”

“The average man on the street actually thinks he influences how I vote. Unless it’s a hot-button issue, his thoughts are generally meaningless. I’ll politely listen, but I follow the money.”

The way that big business money affects public policy as expressed in law is as relevant to a Legal Environment class as a discussion of stare decisis.  Just because sausage such as this is sure to give one indigestion, doesn't mean our students shouldn't know about it.

Monday, September 26, 2016

Oral Argument Videos Are Hard to Find

The US Supreme Court does not allow cameras to record oral argument before the court. Audio files are available but are typically too boring for students.  In my experience, students' impression of oral argument is that it is in the form of a well rehearsed and practiced formal speech or presentation.  They don't understand that appellate oral argument is usually just the lawyer being peppered with pointed questions by the judges.  The judges have read the written briefs.  they don't need a re-hash. They want to explore the weak points and the edges of the lawyers' positions.

Thankfully, some state courts allow cameras so that we can show students what an oral argument looks like, instead of only what it sounds like.  The video below shows an oral argument before the Supreme Judicial Court of Massachusetts, the state's highest appellate court.

The video below shows part of the movie re-creation of the Supreme Court argument in the Hustler v. Falwell case:

The video below uses a couple of minutes of the audio recording of the Supreme Court argument in Heien v. North Carolina but the judges are played by adorable dogs:

Friday, September 23, 2016

Law Music Video: My Judge and My Jury

Classic Doo Wop with a classic legal theme. Play it before class as your students are getting settled.  Music stimulates brain neurons preparing your students to think.

Thursday, September 22, 2016

Companies' Fatal Failures to Warn of Product Dangers

The national press is reporting that after discovering a dozen serious infections in European hospitals resulting from the use of their medical scopes, Olympus Corp. notified European Hospitals of the risk.  At the same time, the company ordered its American executives NOT to warn American hospitals. Allegedly, thirty-five U.S. patients died after the European warnings and while American hospitals remained in the dark about the infection risk.

This same scenario seems to play out again and again - from exploding Ford Pintos to suddenly accelerating Toyotas to stalling Chevy Cobalts - and precious human lives were lost. Ultimately, the businesses suffered devastating fines, reputational damage and hyperinflated expense. Are executives always motivated to cash out on short term bonuses leaving subsequent executives to pick up the pieces?  Is there anything we can do in education America's future executives to break the pattern?

Conn. Senator Blumenthal touts his actions against GM's deceit:

Wednesday, September 21, 2016

Crash Course: SCOTUS Procedures

PBS has produced a series of Crash Course videos on Government that include many important topics relevant to a Legal Environment course. The video embedded below is an example.  They run between 6:00 and 10:00 long - which may be a little long to show in class, but are about the right length to assign for out of class viewing. They can provide a valuable resource for students who tend to eschew textbooks readings and note taking in lecture.

Tuesday, September 20, 2016

Judicial Selection by Election and the Rule of Law

A recent federal lawsuit challenges the Alabama electoral process for selection of state judges.  The allegation is that statewide judicial selection assures the failure of minority candidates for the bench. Think Progress reports:

The lawsuit notes that since 1994, every African American candidate that has run for any of the three top courts has lost to a white candidate. Only two black judges have ever been elected to the state Supreme Court, and zero have served on either the Court of Criminal Appeals or the Court of Civil Appeals in the entirety of the state’s history.

State Judicial elections were employed from the very founding of the nation as a way to ensure judicial accountability and counter elitism and political cronyism in judicial selection.  But judges are supposed to be accountable to the rule of law, not to popular sentiment. The string of videos of campaign ads below raise significant questions about judicial fidelity to the rule of law. They seem to use code phrases and images to portray a fidelity to political ideology or religious principles or popular "values."  Some promise "proper" interpretation of the Constitution - whatever that means.

What does it take to get elected to a judicial position?  Is the belief that judges adhere to a "rule of law" just a quaint relic of judicial philosophy?  Or is law inherently constituted of a judge's background, beliefs, upbringing, prejudices, "values," religion, education, political ideology and world view?  Do we know this, implicitly, and cling publicly to the "rule of law" to maintain legitimacy? What do we deduce from these ads?

"Proper" Constitutional Interpretation:

Judges and Faith and Values:

 Judges and Church Participation:

Judges and Life Experience:

Monday, September 19, 2016

Sheldon Cooper Seeks Circumvention of the Parol Evidence Rule

On the popular CBS sitcom, The Big Bang Theory, neurotic physicist Dr. Sheldon Cooper negotiates a "relationship agreement" with his girlfriend, neurobiologist Amy Farrah Fowler.  However, when Amy seeks to enforce one of its unambiguous provisions, Sheldon claims the "intent" of the clause was to achieve a result contrary to the plain meaning.

See the scene, below: