The Flood Gates Have Opened

The recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. is described in this New Yorker article:

Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ”

Justice Alito, who pledged such fidelity to stare decisis during his confirmation hearings, apparently has no clue how the doctrine works.

The track record of judicial decisions since the Hobby Lobby decision show that Justice Ginsburg was likely right. A U.S. District Court judge in Utah has ruled that a leader of a religious sect was not required to answer U.S. Department of Labor questions about potential child labor violations because to do so would place a "substantial burden" on his "sincere" religious beliefs against publicly disclosing church business.  

It's hard to imagine what would not be protected at this point.  Remember the furor over the Catholic Church failing to turn in pedophile priests?  Now they can simply claim to do so would be a substantial burden. In states where teachers are mandated reporters of suspected child abuse, can religious school teachers claim an exemption from reporting severe physical abuse because of a sincere religious belief in corporal punishment? 

Put on your life jackets, folks because the floodgates are open. 

No Wonder Our Students Get Confused About How Law Works.

Recent inconsistent and perplexing decisions by the NCAA regarding the eligibility of college athletes have been in the forefront of college sports reporting. We all know that the NCAA is not a law-making body.  It is a private membership organization. However, it does make rules for its membership and it enforces those rules. Given the number of questions that I have received over the years from my students asking, "Can the NCAA do this or that?" I am pretty sure that many of my students are confused about the role of the NCAA.  many see their rules and regulations and enforcement decisions as "law." And, of course, within the organization, and for the college athletes governed by these rules, they do have the effect of law on college athletics.

So, that is why the recent spotlight on the NCAA's historical pattern of acting without reference to precedent presents a teaching moment for us. As reported by SB nation, several seemingly similar cases have been decided inconsistently. Cases that seem to fall well within the spirit of a rule are denied over seeming technicalities. And, in all this, the NCAA acts without explanation.  Imagine if a court justified its ruling on the basis of "because I said so."

This recent NCAA publicity gives an opportunity to use news events that your students already know to make comparisons to law and the legal system and enhance learning.

Click the NCAA logo below to go to a video report:

Judicial Decisions Are Based on the Rule of Law. Right?

In the video below, Federal Appeals Court Judge Richard Posner talks about judicial decision-making. Students might be surprised to hear that judges often decide cases based on their feelings; political feelings, moral feelings or emotional feelings. A judge may be more inclined to decide a case based on the social outcomes of the decision rather than "fancy theories about the Constitution."

Is this the way our BLAW texts describe judicial decision-making?  If not, why not? This isn't really controversial thinking among those who study and write about the topic. Do we continuing to perpetuate myths about the law in order to preserve its legitimacy?

To be educated people, our students need to to be exposed to the nuance of judicial decision-making. The Legal Environment class that we teach them is likely the only law class that they will ever take. These issues must be raised.

Half as Much: Musical Analogy of Interpreting a Statute

In prior posts (see list below) I have suggested the process of musical interpretation is an apt analogy for the process of legal interpretation.  A musical composition is created and contains principles of melody, rhythm, tempo, and lyrics.  These principles represent the law of the song much the way the words and intent expressed by a legislature are the law of the statute.  But if the legislature is the composer, it can never be the performer.  That role is left to the courts to interpret the law of the statute - much as musical performers interpret the law of the musical composition in their own performances.

Below are several interpretations of the song Half as Much. The song was written by Curley Williams in 1951 and became a huge hit for country star Hank Williams, Sr. in 1952.  That same year it was recorded by Rosemary Clooney with an entirely different interpretation that was a hit with an entirely different audience. When judges consider public policy effects of their interpretations, one could say they are interpreting the law to appeal to different audiences. The versions recorded by Ray Charles and Sharon Redd are more different still. In law, fidelity to precedent is desirable, but strict adherence in all circumstances is not. Roscoe Pound's famously stated principle that the law must be stable but must not stand still is achieved through the talented interpretations of judicial performers.

Other posts incorporating music analogies:  
Judicial Interpretation Illustrated, 
This Land is Your Land: Judicial Interpretation Illustrated #2,
My Favorite Things: Judicial Interpretation Illustrated #3, 
Statutory Interpretation Illustrated,
Over the Rainbow.

Featured Case: Bigelow v. Bullard - Legally Fired for Racial Tolerance

The Nevada Supreme Court decision in Bigelow v. Bullard  may be used to illustrate two important concepts in a Legal Environment course. Michael Bullard was an employee of Bigelow Holding Company.  According to the court's decision:

It could be inferred from the evidence in this case that the Bigelow company had in fact adopted a rental policy of discriminating against African-Americans. It has been claimed that agents of Bigelow were instructed to use deception and subterfuge to prevent African-Americans from becoming tenants in Bigelow rentals.

Testimony of the plaintiff Bullard revealed the following incident:

Q. How were you terminated? A. We had three black males came [sic] on the property. Carol Swenson radioed Donna Dollman [sic] on her radio — ... I told Carol that blacks had rights, too. Approximately five to ten minutes passed. Donna came into the office. Carol and Donna conversed. I don't know what they said. Donna walks up to where I'm sitting, picks up the piece of paper that I'm writing on, and she said, "What's your f--king problem?" I said, "I don't have a problem." She said, "I think you do." She said, "I think you're a f--king ni--er lover. Sit your God damn ass down on that f--king stool, shut your mouth, and do your f--king work." Q. What happened next? A. Then she said, "On second thought, get your f--king ass out of here. I don't want you working for me anymore." Q. And what was the time span between those two statements by Mrs. Dollman [sic]? A. Not even 30 seconds. Q. Why did you make the statement, "Blacks have rights, too"? A. Because I knew that they were fixing to physically assault the black males to get them off the property. 1. Wrongful Termination:  Bullard claimed that his discharge should be deemed wrongful under the public policy exception to the employment-at-will rule. The court disagreed, overturning a jury award of compensatory and punitive damages: In sum, then, we do not deem it to be consistent with the employment law of this state to hold that an employee's merely expressing to a fellow employee or some third person disapproval of or "objection" to company policy that is claimed to be contrary to pubic policy (as distinguished from refusal to carry out that policy) can be the predicate for a tortious discharge action. Dallman fired Bullard not for what he did (such as refusing to carry out ugly and unlawful racist policies for the company or even for "objecting" to such policies) but rather, at worst, for what, in her mind, Bullard was, namely a person she deemed to be unworthy of further employment because of an expressed sympathy for black tenants. Dallman had, under our at-will employment law, the right to fire Bullard because she did not like people like him, people who are sympathetic to African-Americans. She had the right to fire him for any reason. 2. Stare Decisis: The court considered a precedent (Western States v. Jones) that recognized a public policy exception to at-will- employment. In that case, an employee who had recently undergone surgery and returned to work with a bandaged surgical wound was fired after he refused to follow his employers direction to enter an area where hazardous fumes had been released. The court distinguished Bullard's case on the facts, since Bullard had not refused an order from his employer, but rather, had merely expressed his opinion. The court's opinion may be characterized as a choice to read the public policy exception narrowly. Had the court been inclined otherwise, the  Western States case could have been used as precedent to support the finding of a broader public policy exception. Merely having a precedent did not require the court to  find either for or against Bullard. Interpretation of law can be, ultimately, a matter of choice. The dissenting opinion relies on persuasive precedent from California. CASE NOTE: Public Policy and Wrongful Discharge: The Continuing Tragedy of Bigelow v. Bullard The case was also featured in Ruth Colker's, American Law in the Age of Hypercapitalism; The Worker, The Family and the State - a highly recommended read. Robert Bigelow, Defendant:

image source: http://materialintangible.blogspot.com/2011/09/robert-bigelow-wings-over-worldand.html

This land is Your Land: Judicial Interpretation Illustrated #2

In an earlier post, I advanced the position that the process and results of judicial interpretation can be illustrated by making analogy to the process of music interpretation. Popular music can be a particularly effective device to illustrate complex legal principles. Since students already know and understand popular music and how it works, making proper analogy between what is well understood and what needs to be learned promotes understanding.

Below are six videos of the song, This Land is Your Land, beginning with a version by author/composer/performer, Woody Guthrie. If Guthrie's version is "the law," then what happens when the law is interpreted by other judges.  The song maintains certain consistency of melody and lyrics, but problematic verses are removed and tempo, arrangement and overall effect vary significantly.

This progression of videos may also be used to illustrate, more specifically, the topic of statutory interpretation along the lines as described in this earlier post.
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Click on the image below to view the energetic performance of the Fabulous Echoes:

Judicial Interpretation Illustrated

I favor using popular music to illustrate legal principles.

Prof. David Skover of Seattle University Law School has been quoted as saying that "all law is interpretation."  I am in complete agreement.  The following exercise illustrates this principle.

Folk music is an apt analogy for Common Law principles. Consider the legal principle such as, "a person who is negligent is liable for the damages that proximately result." Like a folk song, this principle is well known and accepted, but its precise origin may not easily be determined. Also like a folk song, the principle has been repeated and passed down through the oral tradition. And, also like a folk song, each "performance" of the legal principle (judicial decision) is the result of the performer's own particular interpretation of the song. The ultimate performance of a folk song depends on a number of factors including the versions of the song with which the performer is familar, the performer's own talents and abilities, and the effect that the performer wishes to create for the audience.  I would argue that a judicial decision is like a folk song performance. It  is a product of, among other considerations, the judge's understanding of the legal principle, the judge's talents in seeing the implications of the ruling for society, the judge's ideology regarding the proper role of judges and the impact that the judge intends the ruling to have on society (the audience).

Consider the three following performances of the old Irish folksong, Whiskey in the Jar.  They all come from a common melody and common lyrics - constituting "the law" of the song, if you will. But the performances are significantly different in tone, feeling and impact on the audience. So it is also with the law.

When I use these videos in class, I play about a minute of each for comparison purposes.








This one is extra just for fun. Who can resist Ireland's self-professed #1 Elvis impersonator?

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:

Law Lessong: "It's Not Certain, It Depends"

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the inherent nature of law. This song helps bust the popular myth that law is predictable and certain. I use it along with the discussion of stare decisis in the Legal Environment course. The melody is based on "Blowin' in the Wind" written and recorded by Bob Dylan. No copyright infringement is intended. This song is offered and intended for educational use only and has no commercial value.

The old story goes something like this:
The law professor addressed the class of law school graduates - "Three years ago, if you were asked, 'What is the law?' on a particular subject, you could only answer, 'I don't know.' Now, after three years of legal education you can answer with great confidence, 'It depends!'"

Learn more about Law Lessongs from the post found here. More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Is it "Precedent" or "Prece-Don't"

In my opinion, stare decisis is one of the most difficult concepts for undergraduate law students to master.  As law students and lawyers know, the concept is so much more nuanced than simply, "a court must follow prior rulings." But it is difficult to sufficiently explore the complexities of this concept in the limited framework of a Legal Environment course. Stephen Colbert has provided this video resource. In response to the SCOTUS decision in Citizens United, Colbert explores the depths of precedent by establishing the word of the day as "Prece-Don't."


CLICK HERE FOR VIDEO

What is the True Nature of Precedent?

This clip is actor Frank Caliendo impersonating William Shatner.

T.J. Hooker as precedent?