Law Music Video: Against the Law

Below are a few versions of Woody Guthrie's, Against the Law. I hope that you choose your favorite and use it in class.

Too Clever For Their Own Good

In 2012 a deadly meningitis outbreak was traced back to a drug compounding firm in Framingham Massachusetts called the "New England Compounding Center."  When indictments were handed down in 2014, in addition to the second degree murder charges were charges for fraud against government.  Apparently the company claimed to have filled prescriptions for fictitious patients and charged the federal government. The investigation unearthed an e-mail from the company's owner cautioning his employees that, "All names must resemble 'real' names...no obviously false names! (Mickey Mouse.)"

The clever employees conjured such fake customers as, "Chris Rock, Alex Baldwin, Michael Jackson, Fat Albert,Wonder Woman, Martha Stewart, Samuel Adams, Hugh Jass, Freddie Mae, Fannie Mac,Ned Flanders, Jimmy Carter, Bill Clinton, Harry Potter and Coco Puff, among others."

The "News of the Weird reports additional names of, "Baby Jesus, . . . L.L. Bean, . . . Mary Lamb, all of the Baldwin brother actors, and a grouping of Bud Weiser, Richard Coors, Raymond Rollingrock and,of course, Samuel Adams."

They would have called less attention to their crimes if they used the alias list from Psych. Criminals often suppose themselves to be more clever than they actually are.

Read the indictments here.

Click here or on the image below to see a CBS News report on how NECC customers supplied fake names to secure cheaper drugs from NECC rather than complying with the law.

In Finland, Criminals Who Earn More, Pay More

A millionaire in Finland was fined about $58,000 for driving 14 MPH over the speed limit. Finnish law imposes fines based on income to make sure that there is equality of deterrent effect across income levels. It's a scheme not without merit. Although, if you can claim you were speeding for business purposes, you might be able to earn a tax deduction.



Just for fun:

Fearing Legal Liability, Budweiser Does the Right Thing.

A recent Bud Light advertising campaign was scuttled over concerns of exposure to legal liability, but not before the bottles with a thoughtless slogan had been distributed. The Bud Light labels prominently identified the product as "THE PERFECT BEER FOR REMOVING "NO" FROM YOUR VOCABULARY FOR THE NIGHT." Fearing legal liability for promoting rape culture, the company has pulled the bottles and the slogan and has apologized.

Corporate decision-making can be siloed and fractured, but how many drunken frat boys must there be at this company to approve such an exquisitely callous and inappropriate public presentation of a product?  When students complain to me that businesses worry about getting sued my response is, "They are supposed to worry about getting sued."  Fear of being sued is what causes them to be more careful about safety and thoughtful about how their practices can negatively impact the rest of society.

At least once the online comments started to flow, the company responded appropriately instead of trying to stubbornly defend the indefensible. But what kind of "College Humor"-fueled, insular and thoughtless culture must permeate the social media marketing office at Bud that they were unable to comprehend the implications of adopting this slogan? Even if they were unable to recognize their callous disregard for the victims of sexual assault, they should have been able to recognize the obvious liability exposure.  I would hope that any 5th or 6th semester Legal Environment student would have caught that one.

Law Music Video: Chemical Worker's Song

This week is Employment Law including Worker's Compensation.  Choose your favorite version, below:













Singing Pirates:

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

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:

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:

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.

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):

Irony of Our Times Seen Through NY Times

In the Thursday, November 13, 2014 edition of the NY Times, the following two articles appeared on page 17:

In Death of Dogs, a Human Story of Loss and Intrigue; Dog owners were understandable upset when, after leaving their dogs for boarding last June, they died tragically holed up in a 9-by-12 foot room with no functioning air conditioner. "The community has been behind us on this," said one of the owners.

Florida Finds Tricky Balance Over Feeding of the Homeless: A 90 year old WWII vet started a charity in remembrance of his deceased wife through which he provides food to the homeless in Fort Lauderdale, Fla. As a result, he has been cited several times for violation of a city ordinance against feeding the homeless in public places. According to the article, local businesses and the chambers of commerce would like the homeless population to be less visible.

So, in one article, the community is understandably up in arms over the inhumane treatment of beloved family pets.  In the other article, the pillars of the business community are up in arms over the humane treatment of their fellow humans.  And in each case, the law supports "the community."

He Fades Away: Law's Remedy Too Little, Too Late

I know that I have posted this song before, but the video has been removed from YouTube, so I am re-upping, with options in case it happens again.

He Fades Away was written by Alistair Hulett and illuminates the position of a miners' wife as she watches her husband slowly die of mesothelioma. This was the fate of many who worked at the Wittenoom Blue Asbestos mine in Western Australia.

"There's  a man in my bed, they never told him,
The cost of bringing home his weekly pay.
When the courts decide how much they owe him,
How will he spend his money when he lies in bed and coughs his life away?"

To skip the introductions, start the video at 1:55:











Start this video at 0:35; end at 5:01:

Social Norms And Conduct

Social norms, like law, help to control conduct. Some people fear social ostracization perhaps even more than legal punishment. It is this fear that causes people to act within regularly acceptable social bounds of conduct.  Of course, one may be more interested in acting according to the social norms of a rogue group whose own norms of conduct may challenge the law.

In the video below, the guy chooses an unorthodox way to try to activate his key card - and pays the social price.

Can Law Control Conduct?

A man assaulted in the men's room of Levi's stadium in San Francisco is partially paralyzed and has had to have part of his skull removed. 

If the purpose of law is to maintain order by controlling conduct, then why does it fail so miserably so often? Although the law prohibits fraud and larceny, people still do it. The usual explanation is greed or financial desperation. But what is so valuable to be gained by beating another person senseless that one would risk the law's sanctions?  Is there any way to make the law more effective?

WARNING! Images of violence:

Unintended Consequences of Open Carry

After the tragic school shooting at Sandy Hook, a surburban New York newspaper published the names and addresses of gun permit owners in two suburban counties.  Backlash from gun owners was quick and vicious. Concerns were raised that the gun owners could now be easily targeted for break -ins by those seeking to acquire their valuable weapons.  As it turns out, pro-gun laws actually make gun owners more of a target than had been anticipated. According to a report from KOIN in Oregon, an Oregon man who had just purchased a .22 pistol was proudly displaying it in his waistband, exercising his open carry right, when a young man came by admiring the owner's new gun.  The young man then pulled out his own gun and demanded the pistol from the new owner, who promptly replied.

I guess having the legal right to advertise that you are carrying around an easily accessed expensive piece of weaponry can have unintended consequences.

Apparently, this has happened before:

As if we Needed More Evidence . . .

. . . that teenagers' brains are not yet fully developed.  yet, we still have twelve-year-olds hunting without supervision and teenaged drivers without any restrictions on front seat passengers.  Is it surprising when we get front seat passengers lighting a driver's arm pit hair on fire? Thankfully, the injuries resulting from the expected crash were not tragic.

The law cannot make teenagers control their own goofy impulses, but it can hopefully limit the opportunities for those impulses to be fatal.

Law Music Video: Citizens United

From Roy Zimmerman, a true satirist and social commentator:

"This just appears at this point in time to be an accident"

"This just appears at this point in time to be an accident," said the spokesman for a Utah school district after a 6th grade teacher's concealed firearm discharged in a faculty rest room injuring her lower leg with bullet and porcelain fragments. So much for the guns-are-safe-in-the-hands-of-law-abiding-gun-owners argument.  This should be a good discussion starter.

Honolulu the Latest to Criminalize Homelessness.

It has been said that law is, at best, a crude tool for solving social problems.  It cannot be wielded with the precision of a scalpel to excise the cancer from the body.  It has to apply to everyone, sometimes, in a way so as to grossly overreach without actually addressing the root cause of the problem. So it goes with criminalizing homelessness.  Honolulu has become the latest among a growing number of jurisdictions to deal with the social ills of homelessness by empowering law enforcement to arrest the victims and remove them from sight.  Out of sight, out of mind, I suppose.  It reminds me of the quote from Anatole France, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."

There Oughta be a Law . . .

...against texting and driving.  Oh, wait, in most places, there is. Yet the statistics of those who continue to engage in this deadly behavior are staggering:


source of image: http://www.miscfinds4u.com/blog/2012/08/26/glee-psa-text-while-driving-5-seconds-that-could-change-your-life/

But often, to be effective law must be paired with education.  Education in the form of PSAs or other public awareness campaigns have proven to be effective in curbing conduct.

This video is part of a recent campaign against distracted driving.  Warning: disturbing images!