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.

Sad.

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

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

UConn

Asst. Prof. in Residence, BLAW

Immigrant's Son

Click here for source of image.

Add a Star Wars Rebel Alliance logo to your pin for additional symbolism:

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. 

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:

Standard 9: Curriculum content is appropriateto general expectations for the degree program type and learning goals.[CURRICULUM CONTENT] …

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.” 

and:

“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.”

And quoted in the Washington Post:

“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.

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

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:

(source: http://clickamericana.com/eras/1950s/now-open-cubas-habana-hilton-1958)

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:

Thought Provoking Law Quote: Mitt Romney

Should government regulate business? According to Mitt Romney, CEO and former (and future?) Republican candidate for President of the United States, the answer is that "regulation is essential." It's just that the devil is in the details.

Regulation is essential.  You can't have a free market work if you don't have regulation. As a businessperson I had to have regula[tions]. I needed to know the regulations. I needed them there.  You couldn't have people opening up banks in their garage (sic) and making loans. I mean you have to have regulation so that you can have an economy work.  Every free economy has good regulation. At the same time, regulation can become excessive.

- Mitt Romney, Presidential Debate, Oct. 2012


Clip with context (first 0:45):


Short clip without the qualifying hedge line at the end:

Appointed Forever

"I'm a federal judge and I'm smarter than you  - for all my life. . . "

Featured Article: NY Times - "Lobbyists, Bearing Gifts, Pursue Attorneys General"

Speaking of lobbying, the front page of the NY Times recently featured an article about active and effective lobbying efforts targeting state Attorneys General on behalf of business interest.  Investigations and prosecutions literally melt away in the face of campaign contributions and face to face influence. Although our textbooks ignore this issue, the Legal Environment of Business includes examination of the political influence of business and its effect on law-making, business regulation and, apparently, law enforcement.

AACSB standard #9 requires that our undergraduate business students understand:

Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society.  (emphasis added)

See also the Journal of Business and Politics.

Florida Attorney general Pam Bondi's contacts with lobbyists are described in the NY Times article.

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:

Law, Politics, Religion, and Irony

On Feb. 26th, ArizonaGovernor Jan Brewer vetoed the bill passed by the state legislature that would have authorized discrimination in the provision of services if providing such services offended a religious conviction. Since that time, a host of politicians and political commentators have rushed forward to protect Christians against what is alleged to be discrimination, bullying, and victimization for not allowing them to discriminate, bully and victimize others on the basis of a devout belief in the teachings of Jesus Christ.  Although the irony in such an argument was obvious, I was struck at the time by a more subtle, but equally evident irony found in the inability of another story to generate any similar Christian outrage.

Two days prior to the Arizona legislature's passage of the bill designed to protect Christians from government trampling their fervent beliefs to discriminate against people who are born with qualities deemed to be undesirable in the eyes of the righteous, a 84 year old devout Catholic nun and two equally devout companions were sent to prison by the federal government for practicing their deeply held religious conviction of advocating for peace.  The three activists broke into the federal facility known as the Fort Knox of uranium, where the nation's principal cache of weapons grade material is kept.  Once inside:

They hung banners, strung crime-scene tape and hammered off a small chunk of the fortress-like HighlyEnriched Uranium Materials Facility, or HEUMF, inside the most secure part ofcomplex. . . . They painted messages such as, "The fruit of justice is peace," and splashed baby bottles of human blood on the bunker wall.

At sentencing, one of the activists told the judge, "I was acting upon my God-given obligations as a follower of Jesus Christ." Federal officials acknowledge that they never posed an actual threat to anyone.

So, where is the outrage?  Where are the Michelle Bachmans and the Mike Huckabees and the other self-appointed defenders of religious ideology against tyranny clamoring for justice? 

Acting on deep religious conviction, three advocates for peace harm no one and are sent to prison. They are ignored by the Christian mouthpieces.

A bill that would have authorized the public shaming of persons whose innate traits are deemed undesirable by misguided and irrational religious fervor is vetoed and statements of religious persecution are shouted from every available political pulpit.

The legal lesson in this story is the role of politics in shaping policy. Law is what the government says it is. The government is a political process. We are selling our students short if we do not give them ample opportunity to explore the connection.

No high powered Christian mouthpiece outrage for devoutly religious peace activism:

)

Irrational, high-volumed Christian outrage for being denied the privilege of lawful discrimination:
)

Shocking Lack of Ethics in Politics

This story involves a shocking violation of any conceivable ethical standard.  But it involves politics, not business. Once again, if these are the people who make laws, then what hope do we have that they would give a hoot about using law to mandate ethical conduct.

Apparently, Republicans in Florida have made a website that looks like a site for Democratic Congressional candidate Alex Sink.  However, when you click on the button to donate, you are actually pledging money to her opponent.

As reported by The Cloakroom:

The Tampa Bay Times interviews one donor who thought he was giving to Alex Sink's (D) congressional campaign. It even used the same blue and green color scheme as the candidate's official website.
Said the donor: "It looked legitimate and had a smiling face of Sink and all the trappings of a legitimate site."
But he didn't see the small print, which said, "Make a contribution today to help defeat Alex Sink and candidates like her." 

See candidate Sink's actual website, here.  Read The Daily Kos report and see images from the fake site here.  See NRCC website  to defeat Sink here.

Image from Alex Sink's site:


Image from NRCC site:

Politics is Crazy and Politicians Make Law

According to their responses at a recent candidates forum, three candidates for the Republican nomination to run for the US Senate in Georgia would support a resolution to impeach President Obama if they had the opportunity to vote on one.  The most prominent among the candidates is Rep. Paul Broun. Rep. Broun,  was the subject of a post in this blog when, as reported by the Huffington Post, he famously opined:

"God's word is true. I've come to understand that. All that stuff I was taught about evolution and embryology and the big bang theory, all that is lies straight from the pit of Hell," said Broun, who is an MD. "It's lies to try to keep me and all the folks who were taught that from understanding that they need a savior."

Remember, these people make laws. When studying the Legal Environment of Business, it does a disservice to our student for us to focus entirely on the judicial process while ignoring the legislative process. The AACSB Accreditation Standard #9 requires as part of the Undergraduate Curriculum content:

• Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society (emphasis added)

  We are not so naive as to believe the Civic's Class maxim that the law is insulated from politics. Let's make sure our student get a thorough education as well.

Click here or on image to see video of Broun and others "voting" for impeachment:

Legal History Tribute to MLK

This is the day we celebrate the life of Dr. Martin Luther King, Jr.  Here are some images of legal history in his honor.






Related Post, here.

More Medical Marijuana Despite Federal Prohibition

As of October 1, 2012, Connecticut has become the latest state to thumb its nose at the federal government and pass a medical marijuana statute. That makes 18 states plus Washington, D.C. that have adopted statutes allowing possession and use of marijuana in limited medical circumstances despite the fact that such action is illegal under federal law.  After this November's election, half of all the states may be in conflict with federal law as seven states have medical marijuana ballot questions pending. Students may see that an inevitable clash of government powers looms and look to the Supreme Court for a solution.  The problem is that the court has already ruled in favor of the federal government in Gonzales v. Raich.  So what happens when the states act in contravention to federal law?  Isn't federal law supreme when there is a conflict? The last time the states refused to accept a Supreme Court decision (Brown v. Brd. of Education) there were riots in the streets and the US Army had to be called out.  Certainly, this conflict is not likely to result in that kind of drama. But something has to give at some point.

In November, Colorado (Oregon and Washington, also) faces a ballot measure legalizing the sale and possession of small amounts of marijuana - without medical need. Legal medical marijuana dispensaries there are concerned that passage of the law will bring unwanted federal enforcement. Ultimately this legal dilemma cries out for a political solution.  This is beyond the powers of the courts.

Political Appropriation, a Tort?

A New Jersey couple who posted their engagement picture on a personal blog were later mortified to learn that their special photo had been altered and used in political attack ads. As reported by ABC news, the gay couple's photo showing them holding hands and kissing with the New York skyline in the background was altered by an advocacy group targeting two Republican candidates in Colorado state legislative races.  Apparently, the candidates had not shown sufficient intolerance for prospective civil union legislation. The background of the photo was altered to show scenes that looked more like Colorado and statements attacking the candidates were affixed. Both targeted candidates lost in the primaries.

The couple has filed suit in US District Court for misappropriation.  The photographer has joined the suit for copyright infringement.  The Southern Poverty Law Center is providing counsel for the couple. While their image was most certainly appropriated, was it done for commercial purposes? What is the privacy expectation when you post an image on the internet?  Is there a political free expression defense?

The engagement photo:


One of the Colorado attack ads:


The other one:


TV news report:



See other posts on Commercial Appropriation involving:
Bette Midler
Vanna White, here and here
Tom Waits
Kim Kardashian
Lindsey Lohan

Exemplars or Exempt-Liars?

I find that my students are surprised to learn that false advertising regulations do not apply to political speech. I suppose this is an understandable revelation from the standpoint of a young person for whom the world is just beginning to expand. They learn (hopefully) at a young age that lying is wrong.  They learn, later, that false and fraudulent advertising or statements are illegal. (See posts here and here.) The logical conclusion is that false political ads would also be illegal.  Of course, such is not the case.  Choosing our policymakers is such an important matter that we choose to refrain from protecting the process by encouraging only truthful speech in favor of a "marketplace of ideas" where anyone can say any crazy thing and any one listening can believe any crazy thing."  At a concert recently, popular Country music star Hank Williams, Jr. spouted, "

"We've got a Muslim president who hates farming, hates the military, hates the U.S. and we hate him!" . Mr. Williams is not only protected in his free expression of his opinion, but is equally protected in his declaration of untruths.  Students, though surprised, are eventually accepting of the philosophy behind the legal protection.

But the stakes have been raised.  Recognizing that in the past when independent fact-checkers have pointed out the falsities in a political ad, the campaign responsible for the lies have pulled the ads off the air, the Romney campaign vows to continue lying.:

"We're not going to let our campaign be dictated by fact-checkers," Romney pollster Neil Newhouse said at a panel organized by ABC News.

Does this line of thinking create a new paradigm for political speech? If there is no legal penalty and no stigma, no shame, no downside to lying, then why should anyone ever tell the truth in the political realm?  Is there any wonder why it is so difficult to teach our students to act ethically?  Politicians, millionaires all, lie with impunity and, now as part of a strategy for success.  These exempt liars are the exemplars for our students to emulate. And we are merely seeing the tip of the iceberg of Superpac activity following the Citizens United case.

Where does law come from?  It is made by people who lie under the cloak of legal protection, with no shame while propped up by unlimited funds to spread their lies and achieve the American dream. Don't we deserve a better system than this?

Here is the link to factcheck.org. We are all going to need it far more often than we should.

Click on the image below to see a Colbert Report skit on Paul Ryan's RNC speech.

Are Courts Insulated From Politics?

Students learn in high school Civics classes that the courts are insulated from the affects of politics.  This issue has already been mentioned in this blog. But as states all over the country deal with serious budget issues, all aspects of state government, including courts, have been affected. Reporting on Budget cuts in the New Hampshire court system, the New York Times reports:

While most state agencies are feeling a squeeze, legislatures squeeze courts at the risk of violating the access to the courts guaranteed in criminal and civil matters by the Constitution, said Steven Zack, a former president of the American Bar Association.

The video embedded below reports on similar issues in Iowa.

Part of being college educated is being able to see through the mask of "Civics class" platitudes and maxims and to see the Legal Environment with all its warts and imperfections.

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

Power Can Make You Go "Bananas!"

Sociological Jurisprudence theorists may debate the role of law as a means of social ordering. Law and Society scholars may debate the nature of the symbiotic relationship between the two. Those discussion may be relevant to considering what happens when the formerly weak and powerless become the law makers.  History gives us too many examples of a new regime forgetting its humbler beginnings and losing its ideological moorings upon achieving power. If the American Tea Party rises to  power will it protest against itself?



Click the picture below to see a clip from the classic 1970's Woody Allen movie, Bananas. This is what happens when the rebels win the revolution.

Law and Politics - Separate or Inherently Intertwined?

The NY Times is reporting that the Wisconsin Supreme Court election has taken on a decidedly political tone with one candidate being aligned with union busting crusader Governor Scott Walker and the other being associated with the public employee unions. We do not have judicial elections in Connecticut (other than for local Probate Courts) and I have always been skeptical of the ability to insulate judicial decisions from the influence of politics where these elections exist. It is certainly a topic rich for discussison in class. The Georgia Civil Justice Foundation video referenced at this earlier post on Judicial Elections would be a useful classroom resource to trigger a discussion.

Breaking news of election fraud allegations!
Other news regarding election irregularities.