To help create an atmosphere of respect and legitimacy for the court, we use formalities and traditions that give the court a near religious aura. The judges wear robes. The courtrooms are typically formal with liberal use of rich woods and stone. The judge sits higher than anyone in the room. Only certain people may proceed forward beyond "the bar." The parties speak a legal language that sounds foreign to the untrained ear. And, of course, there are the formal opening words, barked out by the appropriate court officer. How many of your students have heard the formal opening words of court?
Click here to go to an audio recording of the opening words of the U.S, Supreme Court sessions.
Click here to go to an NPR report on the sounds of a North Carolina courtroom.
Monday, February 11, 2013
Friday, February 8, 2013
Law Music Video: Liberty Song
This week the law music video is Liberty Song by Jordan Page. I love his call to advocacy. But I am not as enamored with his Libertarian ideology. Doubtless, Mr. Page would agree with this quote from Woodrow Wilson:
“So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law: but freedom is not, as we are told, liberty for every man to do what he lists (for who could be free when every other man’s humour might domineer over him?), but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”
What do your students think?
“Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of government is a history of resistance. The history of liberty is the history of the limitation of government, not the increase of it.”
I prefer this one from John Locke:“So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law: but freedom is not, as we are told, liberty for every man to do what he lists (for who could be free when every other man’s humour might domineer over him?), but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”
What do your students think?
Thursday, February 7, 2013
Caveat Emptor - on Crack?
Legal rules sometimes serve a logic that is not readily evident and can seem downright cruel. It's likely that is what a Pennsylvania homeowner is thinking today. Janet Milliken purchased a Thornton, Pa. house for herself and her children in June 2007 for $610,000 from the Jocono family. The Joconos had owned the house for about a year, having purchased it from the estate of Konstantinos Koumboulis - about 8 months after Koumboulis murdered his wife in the house and then committed suicide there. The Joconos knew of the murder-suicide, but neither they nor their real estate agent ever disclosed the incident to Milliken. While the incident was well publicized in Thornton, Milliken had moved from California and had no knowledge of the history of the house. The case raises issues similar to those found in the well-known Rye, NY haunted house case of Stambovsky v. Ackley - except for the result. In a split decision, an appellate panel of the Pennsylvania Superior Court ruled that caveat emptor applied.
The court first reviewed statutorily mandated disclosures and determined that murder-suicide was not among the categories of required disclosures. The court then dispatched with the common law fraud claim by determining that the fact was not "material." Because the defect was essentially a matter of the psyche for which a monetary value could only be subjectively determined, it could not be considered a material defect.
In making a pragmatic decision applying a logical desire to limit the law to matters of certainty and objectivity, the court seems to ignore the very human elements of the case. As a result, the law looks unreasonable and its legitimacy to the public eye is compromised. And while the court may have justified the result on legal reasoning, it could just as easily have found the other way with sufficient legal precedent (the court rejected persuasive precedent from Ohio on similar facts) as was pointed out by the dissent.
The majority did mention in a footnote that their support of caveat emptor was in some way justified given that the tragic incident would likely have turned up on an internet search. Unfortunately, the house address was never given in the decision so I could not repeat the search to see what turned up. The court did not specifically tie the internet search rationale to the justifiable reliance element of fraud, but referred to it generally as an argument to ameliorate the apparent harsh effects of caveat emptor.
Connecticut has a statute that covers this situation, but it hardly seems more helpful to the innocent buyer. The statute puts the burden on the buyer to notify the seller in writing that the fact that someone has died in the house is a material fact. Failing to do so is conclusive in shielding the Seller from a fraud claim for failure to disclose. At least the statute gives the buyer a chance. Apparently, in Massachusetts the fact of commission of a homicide in a house is defined by statute as not being a material fact.
The Thornton, PA house:
The court first reviewed statutorily mandated disclosures and determined that murder-suicide was not among the categories of required disclosures. The court then dispatched with the common law fraud claim by determining that the fact was not "material." Because the defect was essentially a matter of the psyche for which a monetary value could only be subjectively determined, it could not be considered a material defect.
In making a pragmatic decision applying a logical desire to limit the law to matters of certainty and objectivity, the court seems to ignore the very human elements of the case. As a result, the law looks unreasonable and its legitimacy to the public eye is compromised. And while the court may have justified the result on legal reasoning, it could just as easily have found the other way with sufficient legal precedent (the court rejected persuasive precedent from Ohio on similar facts) as was pointed out by the dissent.
The majority did mention in a footnote that their support of caveat emptor was in some way justified given that the tragic incident would likely have turned up on an internet search. Unfortunately, the house address was never given in the decision so I could not repeat the search to see what turned up. The court did not specifically tie the internet search rationale to the justifiable reliance element of fraud, but referred to it generally as an argument to ameliorate the apparent harsh effects of caveat emptor.
Connecticut has a statute that covers this situation, but it hardly seems more helpful to the innocent buyer. The statute puts the burden on the buyer to notify the seller in writing that the fact that someone has died in the house is a material fact. Failing to do so is conclusive in shielding the Seller from a fraud claim for failure to disclose. At least the statute gives the buyer a chance. Apparently, in Massachusetts the fact of commission of a homicide in a house is defined by statute as not being a material fact.
The Thornton, PA house:
Wednesday, February 6, 2013
Saying One Thing in Public; Saying Something Different in Court
News organizations are reporting ironic circumstances that might be a good discussion starter in class on the issues of law, justice, or the lawyer's role as advocate. A plaintiff filed a medical malpractice claim in Colorado state court against a Catholic Hospital following the death of his 7-month pregnant wife and the loss of the twin fetuses that she was carrying. The Catholic Hospital's lawyers have defended the claim based on the loss of the fetuses on the basis that the fetuses do not have any rights recognized by law. This position has been upheld by the trial court and on the initial appeal. Of course,the position espoused in court by the lawyers for the Catholic Hospital is contrary to the teachings of the Catholic Church regarding fetuses.
After allegations of sexual abuse of children by Catholic priests came to light, church administrators apologized for facilitating and covering up the abuse and expressed concern for the well-being of the victims. At the same time, the church's lawyers were in court admitting no wrongdoing and dragging plaintiff victims over the coals in discovery in the hopes they would fold their lawsuits.
The Catholic Church must certainly not be the first or only organization or entity to argue a position in court that contradicted its own moral position. But then, that is the lesson.
Judgment Against Catholic Diocese after aggressive cross examination of plaintiff:
After allegations of sexual abuse of children by Catholic priests came to light, church administrators apologized for facilitating and covering up the abuse and expressed concern for the well-being of the victims. At the same time, the church's lawyers were in court admitting no wrongdoing and dragging plaintiff victims over the coals in discovery in the hopes they would fold their lawsuits.
The Catholic Church must certainly not be the first or only organization or entity to argue a position in court that contradicted its own moral position. But then, that is the lesson.
Judgment Against Catholic Diocese after aggressive cross examination of plaintiff:
Tuesday, February 5, 2013
Will Lawsuit Trump Maher's Joke?
National news services are reporting that Donald Trump plans to sue Bill Maher because Trump "accepted" Maher's "offer" to pay $5 M if Trump provided proof that he was not the offspring of his mother pro-creating with an orangutan. Apparently anticipating Maher's defense, Trump insists:
"I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact he was nervous when he said it. It was a pathetic delivery, but he said, 'I will give' and I said I will accept, so let’s see what happens."
The legal standard, of course, is intent to contract - not the level of joviality or vengeance contained in the purported offer. So, see the video clip below and judge for yourself. Is it a contract offer or not?
update: Lawsuit withdrawn (to be re-filed later?)
"I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact he was nervous when he said it. It was a pathetic delivery, but he said, 'I will give' and I said I will accept, so let’s see what happens."
The legal standard, of course, is intent to contract - not the level of joviality or vengeance contained in the purported offer. So, see the video clip below and judge for yourself. Is it a contract offer or not?
update: Lawsuit withdrawn (to be re-filed later?)
Monday, February 4, 2013
The Nuance of Judicial Decision-Making
Below are two videos about Judicial Decision-Making. The first is from Supreme Court Associate Justice Samuel Alito's confirmation hearings. In it, he describes how justices are bound in their decision-making to follow the rule of law as expressed through precedent. The second video features U. of Maryland Law Professor Sherrilyn Iffel explaining how diversity in a court's make-up is important to the decision-making process.
Students may wonder if the views expressed in these videos are inconsistent. If there is a "rule of law" and judges are bound to follow it, then why would diversity on a court make a difference? Of course, these videos are not inconsistent. But it is this nuance of what a "rule of law" means and what goes into judicial decision-making that is often difficult to convey to undergraduate students.
One of the most rewarding aspect of teaching undergraduates is feeling a part of this process where students evolve out of their "civics class" type understandings of the legal system into educated adults with a more mature understanding of the relationships between law and society.
Students may wonder if the views expressed in these videos are inconsistent. If there is a "rule of law" and judges are bound to follow it, then why would diversity on a court make a difference? Of course, these videos are not inconsistent. But it is this nuance of what a "rule of law" means and what goes into judicial decision-making that is often difficult to convey to undergraduate students.
One of the most rewarding aspect of teaching undergraduates is feeling a part of this process where students evolve out of their "civics class" type understandings of the legal system into educated adults with a more mature understanding of the relationships between law and society.
Friday, February 1, 2013
Law Music Videos: Contract Law Sea Shanties
This week's edition of the law song video series features two sea songs about contract cases. First, from Stanford Law Professor R.B. Craswell, comes Sailing to Pyramid Harbor. More contract law songs are available at Prof. Craswell's YouTube channel. The second song is my own, The Bonnie Ships Peerless. Other law songs can be found at my YouTube channel. I hope that you enjoy these learning resources and find a way to work them into your curriculum.
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