Thought Provoking Law Quote: Hermione Granger

The popular Harry Potter book series featured the exploits of a group of teenage wizards as they navigate the travails of life, friendship, evil forces, and magical education at the Hogwarts School of Witchcraft and Wizardry. An ongoing theme throughout the series focuses on the forces of dark magic and the danger presented to society by a particularly powerful dark wizard known as Voldemort. Harry and his friends, including the very bright Hermione Granger, have discovered that Voldemort’s presence was once again threatening danger to society and they had reported it to the appropriate governmental authorities. However, in order to avoid a public panic, the government has not merely ignored their entreaties to take action, but has engaged in an aggressive campaign to discredit the young wizards and their statements. In this setting, the following exchange takes place between Hermione Granger and Minister of Magic Rufus Scrimgeour:

"'Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour. ‘No, I am not,’ retorted Hermione. ‘I’m hoping to do some good in the world!'"

From her point of reference in the eternal struggle between good and evil, Hermione conceptualized law as an impediment to the accomplishment of good.  In her eyes, law was bad and to “do good” one had to do something other than law.  Considering law through Hermione’s eyes introduces us to the complexity of the question, “What is law?”

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:

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.

Law School Songs

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

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:

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":

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?

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. 

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.

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.”

"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.

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."

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.

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:

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:

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?

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.

Halloween is Tort Night

Last week featured a post on civil assault.  Click here to read the article: Police: 2 'Idiots' Dressed as 'Creepy Clowns,' Arrested AfterTerrorizing Teens. Halloween is indeed a night of torts.

Although the two clowns in the video below apparently were arrested for "Standing while looking creepy."

Law Song: Insurance Fraud #2

"There's a lot of ways to make money in this world. But I can't recommend insurance fraud."  Words to live by.

Thought Provoking Law Quote: Anatole France

Nineteenth-century French author Anatole France had this to say of the equal application of law,

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

While the rules in civil litigation may be the same for both parties, are both equally well equipped to carry on the protracted conflict envisioned by the adversarial system? If a high school football team played a game against an NFL team, the rules might be the same for both teams, but what is the likely outcome?

Assault (Civil)

The following is quoted in full from the FindLaw website:

Assault Basics

Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

Assault vs. Battery

Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position atop the hill.” Violence, or at least some sort of physical contact, is generally implied in the term.

However, while state laws sometimes differ, assault generally doesn't require that physical contact actually occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another.

Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact: “battery.” You may have heard the term “assault and battery.” This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.

Below is a movie clip of a tortious assault without a battery:

Trump Seeks to Exclude His Prior Statements From the Trump U Trial

Donald Trump's lawyers have filed a motion in the pending class action case over Trump University to exclude from evidence any statements made during the presidential campaign, including his own. The case is scheduled to go to trial in November and Trump's lawyers argue that all the negative statements about Trump made by political rivals, and apparently all of his own statements in defense, are irrelevant and prejudicial.  Most legal commentators agree that the judge is unlikely to enter such a sweeping order and will likely wait to rule on individual offers of proof during trial.

Certainly, juries should not have to wade through irrelevant material and undue prejudice must be avoided in every trial.  But isn't a party's motion to exclude his own prior statements a bit of a red flag?

Ironically, Trump previously tried to keep evidence from the Trump U case from being released into the presidential campaign.  It was the judge's order allowing the release that caused Trump to attack the judge's impartiality because of his Mexican Heritage - a ploy that harmed his political fates.

Is KFC up to No Good, Again?

Back in 2004, KFC got into a jam with the FTC over claims that its chicken meals were healthier than Burger King Whoppers. That factual claim turned out to be a whopper of its own.

Now TMZ is reporting that a woman has sued KFC for $20 M because the $20 "Family Fill Up" bucket of chicken she bought looked nothing like the visual presentation of the product in the advertisements. In the advertisements, some of which are reproduced below, the meal includes an overflowing bucket of large chicken pieces. The unhappy customer quipped of her purchase:

“They say it feeds the whole family … They’re showing a bucket that’s overflowing with chicken.” . . . “You get half a bucket! That’s false advertising, and it doesn’t feed the whole family. They’re small pieces!”

At the time of publication of this post, no details about the form or make-up of the lawsuit were available.

Law Music Video: Jury Duty

Most songs about jury duty are about miscreants trying to get out of it.  This one is different. It may be the most thoughtful one on the topic that I have heard.

Jury Duty

I took a bus all the way downtown,
where 100 of us sat around,
I waited till they called my name,
& they asked if I could fix the blame?
but I know I’ll be judged the way that I judge,
and that’s not usually pretty,
‘cause the measure that I choose is the 1 that they’ll use
when they face me for jury duty, jury duty..

so raise your hand if you recognize
the defendants in their Sunday ties,
as they try to shake the sins of youth,
while the lawyers tug-o’-war the truth,
but we know we’ll be judged the way that we judge,
and that’s not gonna be pretty,
‘cause the measure that we choose is the 1 that they’ll use
when they face us for jury duty..
once I found mercy sweet,
I threw myself at her feet,
& when I asked “am I cursed?”
she laughed: “you’re not the first, you’re not the first.. “

take the worst thing you’ve ever done,
make that moment your defining one,
who of us would get off Scot free?
I’ll tell you now, it sure as hell ain’t me,
‘cause I know I’ll be judged the way that I judge,
that can’t hardly be pretty,
‘cause the measure that I choose is the 1 that they’ll use
when they face me for jury duty,
we all know we’ll be judged the way that we judge,
(I need you to remind me),
that the measure that we choose is the 1 that they’ll use
when they face us for jury duty..

I took a bus all the way downtown
to the courthouse, where we sat around,
I waited till they called my name,
& they asked if I could fix the blame…

Crash Course: Judicial Review

Here is the latest feature in the PBS series on Government. These videos cover a lot of ground in a short clip.  Maybe too long to show in class, but not too long for an out-of-class assignment.

Is Civil Litigation a Level Playing Field?

Click on the link here to watch a Yahoo Finance reporter suggest that the employee lawsuit filed against Wells Fargo for enforcing unrealistic sales goals necessitating unethical conduct is likely bogus because "It was filed by a one-man law firm."  If the rules of civil litigation made a level playing field, then this would not be relevant.  If courts were really the great levellor where any person can take on a powerful party and have a real chance at justice, this would not be relevant.

Since it is apparently relevant, then maybe those other things are not true.

In the movie clip below from "The Rainmaker," sole practitioner Rudy Baylor tries to take a corporate deposition of the defendant insurance company represented by a "big" law firm.

One Case, Three Law Lessons

Sexual assaults on college campuses are a matter of great concern. Changes in the way that colleges and universities handle campus disciplinary proceedings based on allegations of sexual assault have changed radically in the last few years.  Those teaching law in universities are likely well aware of the panoply of legal issues raised by lowering the evidentiary standards for proof of guilt, barring cross examination or witness confrontation and other issues. (Click here to read an article on the topic by ALSB member, Audrey Wolfson LaTourette.)

Brown student, John Doe, had been found "responsible" for sexual misconduct by a University tribunal and was suspended.  The case hinged on a factual dispute regarding consent. At the time of the incident, the University had no clearly defined definition of consent, although one was later adopted.  Doe was suspended based on the retroactive application of the definition.  Also, he was barred from presenting evidence in his defense.

Doe challenged the faulty procedure in federal court. Because Brown is a private university, Doe did not have a due process claim.  He filed suit for breach of contract. Recently, Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, ruled in Doe's favor and ordered his reinstatement at Brown.

Lesson 1: Disputes must be resolved by a fair procedure of which both parties have had prior notice.

Sexual assaults on college campuses trigger deep emotions.  Victims deserve sympathy, support, validation and ultimately, justice. But the accused must also not be denied the legitimate opportunity to defend against the claims. The criminal justice system, with its Constitutional protections for the accused has been developed and fine tuned over the last two centuries. Finding and developing a completely different private adjudicatory system in colleges and universities that gives adequate consideration to the legitimate interests of victims and accused alike is a minefield of litigation.

Lesson 2: Federal judges cannot be lobbied like legislators.  They are appointed for life specifically to be less influenced by public opinion and passions.  The same principles may or may not apply to elected state court judges.

Judge Smith had been the target of a substantial e-mail lobbying campaign intended to affect his ruling.  In blasting the effort, Judge Smith explained: 

[T]he court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

Before the court was only the issue of the procedural propriety of the tribunal - not the issue of guilt or innocence.

Lesson 3: The law is not just a set of predetermined rules that are mechanically applied to achieve justice. There is a lot of trial and error and experimentation and evolution. And in that process, real people's lives are affected.

Cases are not just academic thought exercises. They are the legal outcomes of real, often tragic, events affecting real people. Courts do not have the advantage of legislators who can pass a law and send it out into society to  see what happens.  Judicial rulings apply immediately to affect the lives of the litigants in often profound ways.

True Facts, Bad Deal

Here is an interesting, and true, fact pattern to discuss the issues of title under the UCC.

Under the UCC, one who has acquired possession based on a voluntary transfer of the goods by the title holder, acquires voidable title if the goods where obtained by fraud or deceit. While the goods are in the hands of the defrauder, the title holder may void the title and retrieve the goods. But under Article 2-403, a person with voidable title may transfer good title to a good faith purchaser for value. So if the defrauder has already sold the goods to a good faith purchaser for value, the title holder may not recover the goods from the buyer.

To be sure, the defrauder is liable to the title holder for the value of the goods. But thieves, even when apprehended, rarely have the means to pay damages.

According to the Daily Beast:

Two young men, identified as Kaleb Louis, 22, and Maurice Lewis, 20, flew from Houston, Texas, to Nashville on March 14. While still in the airport, the pair allegedly used a fake driver’s license and a stolen credit card to rent [a late model Chevy Suburban.]

After driving off the lot with the rented Suburban, Louis and Lewis allegedly set about making the car look like their own. They outfitted the rental with a license plate ripped from a Toyota Camry in a nearby apartment complex, and forged documents to indicate that they owned the car. Then they listed the Suburban on the Nashville Craigslist page.

A Lafayette, Tennessee, man thought he’d struck Craigslist gold. The Chevrolet Suburban, normally valued at around $60,000, was selling for half its normal price. All he had to do was bring $30,000 in cash to a McDonald’s parking lot in Nashville, and the new vehicle would be his.

But Kyle Whitlow, the would-be Suburban owner, grew suspicious of the deal when he forked over the $30,000. The 28-year-old handed the cash to two young men, who gave him the Suburban and sped off in their own car without even counting the money. Whitlow’s suspicions grew when he attempted to register the car later that day and found another name on the registry: EAN Holdings LLC, the parent company of Enterprise Rent-a-Car.

After selling the vehicle to Whitlow at McDonald’s, the pair boarded the next flight to Houston. According to police, they remain at large.

May Enterprise Rent-A-Car, the title holder obtain the car back from Whitlow or did Louis and Lewis pass good title to Whitlow in the parking lot sale?  Was Whitlow a good faith purchaser for value?  Why or why not?

Spoiler Alert from the Daily Beast:

An Enterprise representative declined to comment on the Suburban theft, or the frequency of other thefts from their lots. But with the exception of the license plate removed from the back of the Suburban, the company saw the car returned in one piece, police said.

Law Song: So Sue Us

Not only is this an upbeat song to get students' brains going before class, it is actually a law lesson. Students don't often realize that having a cause of action doesn't mean much if the defendant is judgment proof.

Thought Provoking Law Quote: Frank Galvin in, "The Verdict"

In this blockbuster movie from the 1980's based on Boston lawyer Barry Reed's novel, an alcoholic lawyer mired in hard times thrust upon him by a legal system that rewards cronyism tries to redeem himself by winning a medical malpractice case.  See the post here.

In one scene, the lawyer, Frank Galvin (played by Paul Newman and earning an Oscar nomination) gives us a glimpse of what lies inside the gritty exterior and beyond the grimy practices.

The weak, the weak have got to have somebody to fight for them.... That's why the court exists. The court doesn't exist to give them justice, eh? But to give them a chance at justice.

See the scene below, beginning around :30:

ADA Chronicles: Common Sense Saves Many Dollars

Click on the headline to read the Washington Post story titled, "A diabetic gets fired over a $1.69 (plus tax) drink and Dollar General must now pay her $277,656."

And some people question whether managers should have to take courses in law?  It would have been cost effective for Dollar General to pay the tuition for that district manager to take a Legal Environment course. Smart business judgment avoids costly court judgments.

EEOC press release.

Diabetes Discrimination:

What is Congressional Legislation Made of?

In May of 2016, Texas Congressman Louie Gohmert addressed his colleagues in the House of Representatives on a matter of pressing concern. He posited that in the instance of earth being destroyed by an asteroid, the spaceship containing the 40 people chosen to rocket to Mars to set up a colony to preserve humanity should not include same-sex couples. This is apparently what he and his staff have been hard at work researching on behalf of the public interest.

For other blog posts questioning the rationale that underlies Congressional law-making, click here. 

See the video except of Representative Gohmert's speech below:

"Our Rights Come From God . . . As Determined by Law-Makers."

According to Senator Ted Cruz's message for Constitutions Day 2016, one of the two transformative premises set out by the US Constitution is that, "Our rights come from God."



I didn't recall that part of the Constitution, but Ted is a Harvard Law School grad, so I thought maybe I missed something.  So I googled up a transcript of the Constitution at the National Archives site. Then I executed "find" functions for "God," "Creator," and "supreme being." I didn't get any hits. I didn't think I would.

At least one authoritative legal scholar says that the determination of what rights God has given us is a decision that is made by people.  So if people are deciding what rights come from God, then don't our rights ultimately come from people?




And when some people say that their God-given rights to refrain from assisting in the marriage of two women allow them to ignore the God-given human dignity of the wedding couple to be free from unwarranted discrimination, won't people (judges) have to make a decision based on what makes for a civil and orderly society? These seem much more like earthly matters than heavenly ones.

This all seems a bit more complex and nuanced than simply stating that "our rights come from God."

Law Music Video: Swear to Tell The Truth

A rockin' and rollickin' blues number to get the feet tapping and heads wagging (signs of increased brain activity) before class starts.

Crash Course: Judicial Decisions

Another video from the PBS Crash Course Series on Government. I am assigning some of these as in, "They will be on the test."

Loving v. Virginia, The Movie

Click here (or see below) to see the trailer for the upcoming movie release (November) of "Loving," the story of Richard Loving and Mildred Jeter and their case that made Constitutional history.

For more resources on Loving v. Virginia, see this earlier post and the music videos below.

Trailer:



Music videos:

The Hot Coffee Case Comic Book

The Liebeck v. McDonald's lawsuit is now drawn up as a comic book. We can lecture about it. We can show the movie. We can show any of a number of videos. Now, see the comic book.  Next,
maybe the song?

Anything to get the point across.

Video Evidence

Cellphones are everywhere. But to what extent should cellphone videos be admissible as evidence in court? How do we guard against editing, enhancement and modification?  What do we see in these videos?

Justice Scalia's Dissents Put to Music

Somehow, I think that Justice Scalia would have been amused.

The Charisma Matrix

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

 

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

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

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

-          Professors Hart and Sacks writing in The Legal Process.

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

What is the difference between a statue and a statute?

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.

Oral Argument Videos Are Hard to Find

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

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




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




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

Law Music Video: My Judge and My Jury

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

Companies' Fatal Failures to Warn of Product Dangers

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

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

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

Crash Course: SCOTUS Procedures

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

Judicial Selection by Election and the Rule of Law

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

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

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

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

"Proper" Constitutional Interpretation:

Judges and Faith and Values:


 Judges and Church Participation:






Judges and Life Experience:

Sheldon Cooper Seeks Circumvention of the Parol Evidence Rule

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

See the scene, below: