Tuesday, November 29, 2016

President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.


Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

Monday, November 28, 2016

Blaming the Trial Lawyers

This  syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The cartoon above erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.

Friday, November 18, 2016

Law School Songs

Stressed, worried, impoverished, insecure, feeling inadequate, intimidated, exhausted, disappointed, overworked . . . welcome to the law, young people..

Thursday, November 17, 2016

US Law Essentials: Court Systems

The US Law Essentials YouTube channel has been uploading a new set of animated videos.  They are generally short enough to show in a class lecture if desired.  Check out the video below on court systems as an example:

Wednesday, November 16, 2016

14 Ways to Interpret the Constitution

Well, it isn't exactly "50 Ways to Leave Your Lover," but this Huffington Post piece does give a nice concise explanation of the breadth of Constitutional interpretation.  In my Legal Environment class, I think it is important for students to understand that there is no one, single, right way to interpret the Constitution (despite the statements in the judicial election ad below).  However, I don't have a lot of class time to devote to the details.  It is always a question of how many layers of the onion should be peeled back to explore a legal principle in a survey law course. This article gives the opportunity to expose students to the concept - Constitutional interpretation is broad, complex, nuanced and uncertain - without overburdening them with details and without taking up other valuable class time.

"Commitment to properly interpreting the Constitution":

Tuesday, November 15, 2016

Victim of Racial Discrimination? You Take 'Em to . . . Arbitration?

The old People's Court with Judge Wapner featured commentator Doug Llewelyn coining a phrase that became iconic in American legal culture:  "If you're involved in a dispute such as this with another party and you just can't seem to work it out, don't take the law into your own hands - you take 'em to court."

See video below at :30:

When an African-American man sued Airbnb over racial discrimination, he discovered that he can't "take 'em to court."  His Airbnb account contract included an enforceable mandatory arbitration clause.  So instead of presenting his evidence to an impartial, competent judge or jury, he will have the opportunity to present his case to non-judicial decision-maker who makes a living out of deciding cases for Airbnb and similar parties.  Could such a decision-maker likely have some innate partiality toward a business or industry that provides his/her livelihood?

What do you think?

Monday, November 14, 2016

MacGyver Can Save the World With a Safety Pin. Will You?

Last Wednesday morning, millions of young people arose from bed in a new America that targets them for harm. In New America, they will be subjected to increased overt ridicule and violence because of their color, or their parentage, or their gender, or how they worship, or who they love. Emboldened by the overt racism and sexism expressed by the leader of New America, the worst forms of schoolyard bullying have been implicitly encouraged. Formal government policy will soon threaten the very hearths and homes of families who do not match the narrow white, rural, christian mold of New America.

For those young people who are our students in colleges across New America, their concerns about whether they will be able to turn in a quality term paper by the due date must now give way to present and tangible fears that their parents will be deported, their scholarships will be revoked, they will be sexually assaulted with impunity or they will be physically beaten because of who they are.

College educators across New America have begun to make conspicuous pronouncements that the values of diversity and inclusiveness will not be compromised in their domains.  Hopefully, college and university administrators will soon follow suit. But each of us must not hesitate to act individually to maintain a culture of safety and inclusion for the emotional and educational well-being of the young people who look to us for guidance.

The Brexit vote in Great Britain created similar dangers for immigrants in the UK. To send a message of support for those who had been suddenly further marginalized, some Britons took to wearing safety pins to express their support.  The pin says to those who now must fear attack from all quarters, “You are safe with me.  I will support you.” The movement has begun here as well.

Wearing the pin is not about making ourselves feel better. It is integral to the fulfillment of our obligation as educators and nurturers. We must allay the anxieties of our students who are fearful and threatened and wondering if they will ever again be safe.

Wearing a pin is no substitute for the advocacy, vigilance, awareness, agitation, and determination that must support any social movement.  It is a gesture of trifling effort providing potentially life-saving comfort to those whose lives have been thrust into turmoil. Wear your pin with commitment to the values of equality and inclusion that were among Old America’s greatest aspirations . . . and share this with a friend.

Mark DeAngelis
Asst. Prof. in Residence, BLAW
Immigrant's Son


Add a Star Wars Rebel Alliance logo to your pin for additional symbolism:
Image result for star wars rebel logo with safety pin

Click here for source of image.

And it begins: Click here to see confederate flags at a California Veteran's day parade.  And here to read about the overt incidents of hate, racism and intolerance spreading across the nation like blood draining from its veins. 

Friday, November 11, 2016

Veteran's Day! Revolutionary War Veterans Gave us More Than Independence

Excerpted from "The Legal and Ethical Environment of Business" by DeAngelis, M; Great River Learning (2016):

The gravel crunched beneath their feet punctuating the rhythmic tramp of their gait as the grim band sturdily marched through the Western Massachusetts countryside. Hundreds of men, their numbers swelling as they passed through each village and crossroads. Most were former soldiers, veterans of the fight for American freedom from the tyranny of Great Britain. All were friends, neighbors, farmers and tradesmen, unafraid of hard work but brought low by hard times.  While they patriotically fought for their new nation, their families secured credit from the local merchants in order to sustain. The merchants in turn borrowed from European lenders to maintain their businesses. When the soldiers returned home from the war, their pockets were full of nothing but paper promises from the government that they would be paid someday when the government could get the states to cough up their shares of the war debt. The merchants’ European creditors were less patient than the American veterans and with the end of the war called in their notes of debt. The American merchants followed suit and called in the debts owed by the hapless farmers and rural tradesmen to whom credit had been extended.  Hopelessly unable to pay, these veterans watched helplessly as the merchants obtained judgments against them in the state courts and their farms and homes and property were sold out from under them to satisfy the court orders.

But they would stand by helplessly no longer. They marched now with their well-worn flintlock muskets on their shoulders and their cartridge boxes on their hips. These weapons had already been leveled in deadly measure against the forces of foreign tyranny. What difference now that tyranny’s treachery was cast upon them by their own judges and statesmen? They were determined to shut down the courts at Springfield by force if necessary to end the foreclosures. They gave little thought to their actions as treason. After all, they were patriots, sorely used and discarded by the country in whose favor they suffered years of privation, hardship and the fear of death.

As the rutted wagon paths of the countryside gave way to the manure-fouled city streets they closed ranks and assumed the best military airs of their training. Ahead, within sight now, surrounding the courthouse stood a merchant’s militia of mercenaries, paid with the very money the loathsome creditors had eked from the land and homes stolen from their neighbors. As the rebels marched past they saw former comrades-in-arms and neighbors standing among the mercenaries, some of whom blanched and to the chagrin of their well-paid officers, defiantly bolted and swelled the ranks of the army of the disgruntled. 

A show of force and determination coupled with demonstrated military tactics and training from maneuvers throughout the day were sufficient to convince the court to adjourn without conducting any business.  No shots were fired that day in 1786. No more farms were lost. But the fate of the nation had been thrown into uncertainty. Americans marched in armed rebellion against Americans. Something had to be done.

The scene described above was part of an incident that has come to be known as Shays’ Rebellion, named after former colonial militia captain, Daniel Shays. Shays had been among the grim band that closed the court in Springfield and he would march with them five months later in an assault on the federal armory that resulted in rebel fatalities. Shays’ rebellion subsequently dissolved, but without decisive action, the issues that it illuminated would not. . . .

While Shays’ rebellion . . .  served notice that the Articles of Confederation were unworkable, the events also illuminated a conundrum facing those who sought to craft a workable governing structure. A strong national government was necessary to pull the states together financially but a strong national government if controlled by persons of like mind, could wield tyrannical power. In order for the US to survive, let alone thrive, the country’s commercial classes and practitioners could not be placed in danger from marauding rebels and small-minded legislatures, alike. The repulsive tyranny of the British monarch must not be replaced with the specter of a tyranny of a rabble-rousing majority. The educated class, the merchants, the men of commerce, the statesmen, who knew the economic matters necessary to build a strong national economy were a decided numerical minority. These elite thinkers surmised that if “the people,” that is the farmers who owned land but knew little about how to run a country or an economy, elect themselves into the legislature, as in Rhode Island, then they could make laws that would suppress the good works of the merchants that were necessary for national success. 

[Earlier in the text] we discussed the countermajoritarian difficulty and exposed the need, in a democracy, for protection of minority rights even while respecting the will of the majority. Thomas Jefferson said, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.” James Madison wrote of his similar concern, “Wherever the real power in a Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” The minority that our thoughtful, educated forefathers sought to protect from the tyranny of the majority were not the same minorities that we, today, see as vulnerable. Madison and his like-minded contemporaries wanted to protect the businessmen of the day from oppression by the numerically superior farmers and tradesmen. Our Constitution in great part was written to protect the liberty of businessmen from the tyranny of government.

Thursday, November 10, 2016

Thought Provoking Law Quote: Alan Dershowitz

It has often been said that a trial is a search for truth. However, is there only one truth in a complex dispute? In 1995, former NFL star O.J. Simpson went on trial for the murder of his ex-wife and her friend. The criminal trial was broadcast on TV from the courtroom and captivated the nation’s interest. The “search for truth” was placed front and center in the American conscience. Harvard law professor Alan Dershowitz describes the scene in his article, Is a Criminal Trial a Search For Truth?:

A review of the trial transcript reveals that this phrase was used more than seventy times. The prosecutors claimed that they were searching for truth and that the defense was deliberately obscuring it. . . . The defense also claimed the mantle of truth and accused the prosecution of placing barriers in its path. And throughout the trial, the pundits observed that neither side was really interested in truth, only in winning. They were right – and wrong.

Simpson was acquitted of the criminal charges against him by the jury. The victims’ families also filed a civil lawsuit against Simpson for wrongful death of their loved ones. In the civil trial that took place immediately following the criminal trial, the jury found Simpson liable for the deaths. One incident, two trials, and two different “truths.”

Wednesday, November 9, 2016

"One [pot] plant in the backyard should be like growing squash."

Click here to read the Boston Globe report headlined, "Never come between an 81-year-old and her marijuana plant."   The Amherst, Mass. resident whose plant was confiscated was incensed that the police used a helicopter to locate her backyard plant.  "Plain view" includes "plane view."

Apparently, medical marijuana use is legal in Massachusetts, but growing it yourself is not.

Tuesday, November 8, 2016

Election Day!

It's election day!

 In the words of President Gerald Ford after he pardoned Richard Nixon:
“My fellow Americans, our long national nightmare is over.”

And in the words of another Republican President:
"I believe the mood and the time is now right for all Americans . . . to join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength."

Monday, November 7, 2016

Crash Course: Structure of the Court System

Another video from the PBS "Crash Course: Government and Politics" series. Another resource for some basic but important topics.

Friday, November 4, 2016

Law Music Video: Chemical Workers' Song

Industrial workers may be at risk for serious health injuries due to long term exposure to dangerous chemicals.  The workers know this inherently, yet need to make a living. What is the social response through law?

Pick your favorite version:

A Capella lads from UConn:

The dance version:

Thursday, November 3, 2016

Employment Discrimination Based on Sexual Orientation

I recently came across an article at Think Progress describing an employment discrimination case pending before the Seventh Circuit . Click here for: The Most Important Gay Rights Case Since Marriage Equality Was Won. I found it to be a very readable description of the state of the law on employment discrimination based on sexual orientation that our students may be able to digest.

I find students to be quite interested in this topic.  When I do an exercise asking them to write a modern Bill of Rights, protection against discrimination in all forms based on sexual orientation or gender identity usually appear in their list of most cherished liberties. But getting into the details of the law in this area often involves peeling back more layers of the onion than would be prudent or understandable in a basic legal Environment course.  This article linked above can help.

A brief summary of the Hively case:

Wednesday, November 2, 2016

Trump is the Pedagogical Gift that Keeps on Giving

Some people, events and sources seemingly never cease to provide teaching opportunities and materials for our courses on law and ethics.  I have previously credited Lindsay Lohan for the treasure trove of litigation that her travails have provided.  But I think that Donald Trump has, and will for many years, provide us with a wealth of teachable moments.

Today's example comes from his comments in the presidential debate. First, when challenged by Secretary Clinton over his failure to pay income taxes, Mr. Trump responded as indicated in the video clip below from the second debate:

In the first :50 of the clip below from the first debate, Mr. Trump gave his view on business regulations:

So, placing Mr.Trump's positions side by side, we hear:

"Don't rely on business people to do the right thing on their own.  Socially responsible conduct must be enforced by law.  But laws that seek to enforce socially responsible conduct are bad for business and government should reduce or eliminate them."

Is this just another iteration of the narrative of: "Regulations that protect me from that other guy are good, but regulations that protect the other guy from me are oppressive."?

Regardless of what happens in the election, Donald Trump has now become the most visible example of American business culture and conduct.  Students may see a failure to counter these examples in a business ethics course as affirmation of their value. Is this the business culture that we seek to foster in our students?

Tuesday, November 1, 2016

Thought Provoking Law Quote: Peter Thiel

Peter Thiel, the billionaire founder of Pay Pal who famously financed Hulk Hogan's invasion of privacy lawsuit against the sleazy Gawker website that resulted in a $130 M verdict, recently explained his support for Donald Trump by detailing the great economic inequities constituting our national crisis:

“If you’re a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system.” 

- Peter Thiel addressing the National Press Club 10/31/16

How many times have we told our students that the civil justice system was the great social leveler?  Any "regular Joe" could find justice against powerful wrongdoers simply by accessing the court system.  Right? Is this still true, or has it become one of those quaint civics class myths like "the law is insulated from the influence of politics."

See the video here.