Sunday, September 30, 2012
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
Friday, August 10, 2012
In a revealing and candid essay, and review of the sparse literature on mental illness among law professors, Gregory Duhl (Law, Wm. Mitchell) includes a narrative from the "outsider" experience of his own issues with borderline personality disorder. Among many interesting aspects is his contention that his success is in some senses because of his illness and not despite it--and in that way criticizes some aspects of the pathbreaking book by Louiville's James Jones, A Hidden Madness. Duhl's article is new on SSRN and is entitled "Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life." His abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
Thursday, June 7, 2012
The service issue involved a rafting guide who lived a "transient" lifestyle. In response to a summons left at his parent's house in West Virginia, he filed an affidavit claiming not to live there but rather on a boat docked in East Greenwich, Rhode Island. The plaintiffs responded that the self-serving affidavit failed to establish that service was defective.
The court agreed with the plaintiff, noting that the defendant guide claimed the parent's house as his residence on multiple forms filed with the West Virginia motor vehicle authorities.
In an unrelated matter, the New York Appellate Division for the Third Judicial Department affirmed dismissal of an estate's wrongful death action against New York State in a matter in which a visitor to Taughannock Falls State Park had walked past warning signs and was killed by falling rocks.
The incident that led to the litigation can be best understood through this photograph and story at NY Falls.com. (Mike Frisch)
Wednesday, June 6, 2012
The New Jersey Appellate Division has reversed a domestic violence conviction of a defendant who had assaulted another person while on a "birthright" trip to Israel.
The defendant had not known the victim prior to the trip. They "hung out" together on the evening in question at a bar with others and danced together. The "atrocious assault" took place later that evening in the victim's room. The defendant was convicted in Jersalem District Court.
The court here held that the interaction between the victim and defendant may have been a "date" but that they were not in a dating relationship, which is an element of the offense. (Mike Frisch)
Friday, May 18, 2012
The Maryland Court of Appeals has ruled that the courts of the state have authority to adjudicate a petition for a divorce in same-sex marriages. The parties involved were married in California.
The court described the approach of the Maryland Legislature to same-sex marriage as akin to a patient that in its "lay diagnosis" is suffering from a "multiple personality disorder." (Mike Frisch)
Tuesday, May 8, 2012
The New York Court of Appeals has declined to extend the Wieder exception to the doctrine of at-will employment and affirmed the grant of summary judgment to a defendant hedge fund company and its president, who had fired its chief compliance officer.
The plaintiff had claimed he was fired for reporting misconduct.
The Wieder exception involved an attorney who had been fired from his law firm for reporting unethical conduct.
Chief Judge Lippman dissented:
In the wake of the devastation caused by fraudulent financial schemes - such as the Madoff ponzi operation, infamous for many reasons including the length of time during which it continued undetected - the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscupulous financial services companies in violation of the public trust and law. In the absence of conscientious efforts by those insiders entrusted to report such abuses of investors, such behavior can run rampant until a third part outside the company discovers it and takes action. The message that will be taken from the majority's decision is self-evident: if compliance officers (and other similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employer's clients. The majority's conclusion that an investment advisor like Peconic has every right to fire its compliance officer, simply for doing his job, flies into the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of the Court's precedent, and facilitates the perpetration of frauds on the public.
Thursday, May 3, 2012
The South Dakota Supreme Court has reversed and remanded in a matter where the trial court granted summary judgment to the defendant in an alienation of affection suit.
The plaintiff's spouse had become friendly with the defendant. They talked often on the phone and ran together in marathons. He got divorced in 2005.
The spouse told the defendant that she had filed for divorce at some point over the 2009 Labor Day weekend. They had sex that weekend. In fact, the divorce proceedings were not started until October 2009.
The defendant's summary judgment motion "asserted that [the spouse] had no affections for [the husband] that [the defendant] could have alienated."
The court here found sufficient evidence of affection to defeat the motion.
While the spouse testified at deposition that she had stopped loving her husband in the late 1990s, she had sent him a 10th anniversary card that said "These have been the best 10 years of my life. I'm so blessed to have you for my husband. I love you. Love your wife."
She also told a marriage counselor in 2006 that the marriage had "improved greatly," told another therapist in 2008 that she still loved her husband, and underwent breast augmentation surgery because she thought it would make her more attractive to him: "These facts are inconsistent with the loveless relationship [she] depicted in her deposition." (Mike Frisch)
Tuesday, May 1, 2012
The Maryland Court of Appeals sustained convictions against a defendant for both common law indecent exposure as well as a statutory offense contained in the Corrections Services Article.
The defendant was incarcerated at the Montgomery County Correctional Facility. He "masturbated in sight of a female corrections officer, while smiling and making eye contact with her, in spite of her orders to stop."
The court majority found that the statute did not preempt the common law offense. Two judges dissented. (Mike Frisch)
Thursday, April 26, 2012
A divided Maryland Court of Appeals has held that a premises owner with the right to control a pit bull or cross-bred pit bull dog is liable for damages caused by the dog's attack notwithstanding the absence of prior notice of the dog's attacking nature: "When an attack involves pit bulls, it is no longer necessary to prove that the particular pit bull or pit bulls are dangerous."
The holding in essence creates strict liability for owners of dogs with some amount of pit bull in them. Among the cases cited by the majority is a bar discipline matter from Florida involving the use of pit bull imagery in lawyer advertising.
The court declined to opine on the impact of the opinion on Rottweiler attacks.
There is a dissent of three judges:
Today, the majority holds that a pit bull or any dog with a trace of pit bull ancestry (determined by what means the majority leaves us entirely in the dark) shall be deemed hence forth vicious and inherently dangerous as a matter of law.
A footnote in the dissent:
The majority opinion delivers an unenlightening and unworkable rule regarding mixed-breed dogs. How much "pit bull" must there be in a dog to bring it within the strict liability edict? How will that be determined? What rationale exists for any particular percentage of the genetic code to trigger strict liability?
The dog at issue here was named Clifford (earlier Maryland pit bull cases involved dogs named Trouble and Rampage). Clifford escaped from a pen and attacked two boys. (Mike Frisch)
Wednesday, April 18, 2012
The New Jersey Appellate Division has reversed an order of summary judgment as to two of three defendants sued under the New Jersey Law Against Discrimination ("LAD").
The plaintiff (a truck driver) had claimed to be subject to regular anti-Semitic comments from the defendants, who mistakenly thought that he was Jewish. The trial court held that the fact that the plaintiff was not in fact Jewish barred the action.
The court here found that conclusion to be erroneous as a matter of law:
...the individual defendants, all of whom were plaintiff's supervisors, were motivated by their belief that plaintiff was Jewish, and thus engaged in "real discrimination and harassment" of the kind that the LAD seeks to eliminate...That their target happened not to be Jewish should not serve to excuse their conduct.
The defendants had initially denied the comments had been made until a DVD was produced by the plaintiff that had such expressions as "Jew Bag," "F... you Hebrew," "Jew Bastard," "If you were a German, we would burn you in the oven," and "Only a Jew would argue over his hours."
At his deposition, one of the defendants admitted that the DVD was accurate and that he "used the song Hava Nagila as the ring tone for calls on his cell phone from plaintiff." (Mike Frisch)
Wednesday, April 11, 2012
Cynthia Fuchs Epstein (CUNY, Sociology) has republished her classic and foundational study Women in Law as part of the Quid Pro book project. It adds a new Foreword by Stanford's Deborah Rhode. Excerpt on the demise of 'Ladies' Day' in law schools, and other info, found at MsJD blog. And the book itself is at Amazon in paperback or Kindle, plus B&N for Nook and Apple iBooks. Although the book certainly covers women as law students and in law teaching, most chapters are about professional practice as such, in firms, solo practice, public interest work, government, and the judiciary.
Also out in paperback is a book I edited, written by Tulane students: Hot Topics in the Legal Profession 2012. Those two are the newest ones on topic with the U.S. legal profession. Upcoming is a reissue in paperback of Llewellyn's The Bramble Bush, though already in Kindle and other ebook formats. [Alan Childress]
Tuesday, March 6, 2012
Touro Law Center's Jewish Law Institute features Nathan Lewin as part of its Distinguished Lecture Series, on Tuesday, March 20, at 5:30 pm. Lewin, a renowned advocate of religious freedoms and frequent arguer before the U.S. Supreme Court, will deliver a lecture, "The Legal Profession and the Orthodox Jewish Lawyer: Change Over Half a Century." It is open to the public and more information is linked here. [Alan Childress]
Wednesday, February 22, 2012
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio held today that a provision in the state’s disorderly conduct statute, R.C. 2917.11(A)(2), that prohibits “recklessly causing inconvenience, annoyance or alarm to another by ... making excessive noise” provides sufficient notice for a person of ordinary intelligence to understand what the law requires, and therefore is not unconstitutionally vague.
The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed a decision of the 9th District Court of Appeals.
The case involved a citation issued to Jason Carrick of Wayne County by sheriff’s deputies for a minor misdemeanor count of disorderly conduct. The citation was issued after an incident in which neighbors complained about loud music and particularly “booming” bass coming from a building owned by Carrick at which he was hosting a Halloween party. Carrick initially complied with the deputies’ request that he reduce the volume of the music, but later increased the volume again after the officers departed. After obtaining signed complaints from the neighbors, the deputies returned to Carrick’s property, cited him for violating the state disorderly conduct statute, and warned him that if they had to return again he would be arrested.
After receiving a third complaint at approximately 1:30 a.m., deputies returned to the property and placed Carrick under arrest. He was charged with and convicted of violating R.C. 2917.11(A)(2), the subsection of the disorderly conduct statute that addresses noise-related violations.
Carrick appealed, asserting that his conviction should be vacated because R.C. 2917.11(A)(2) fails to describe the conduct it prohibits with enough specificity that a person of ordinary intelligence can know what the law requires, and the provision is therefore unconstitutionally vague and unenforceable. The 9th District Court of Appeals affirmed the judgment of the trial court, but certified that its ruling was in conflict with a 1985 decision of the 4th District in which that court held that the challenged statutory language was not sufficiently specific, and was therefore void for vagueness.
The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
Writing for the Court, Justice Cupp cited Columbus v. Kim, a 2008 decision in which the Supreme Court upheld as constitutional a Columbus city ordinance that banned keeping or harboring “any animal which howls, barks or emits audible sounds that are unreasonably loud or disturbing and which are of such character intensity and duration as to disturb the peace and quiet of the neighborhood ...”
In Kim, Justice Cupp wrote, “(W)e concluded that ‘Columbus City Code 2327.14 is not unconstitutionally vague, because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the ordinance prohibits. The ordinance incorporates an objective standard by prohibiting only those noises that are “unreasonably loud or disturbing.” The ordinance provides specific factors to be considered to gauge the level of the disturbance, namely, the “character, intensity and duration” of the disturbance. Further, we recognize that there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.’”
“We find the analysis in Kim to be applicable here. Contrary to the appellate court’s analysis in the conflict case ... and Carrick’s assertions in this case, the statute at issue here does provide adequate qualifying language to prevent the statute from being unconstitutionally vague. R.C. 2917.11(A)(2) sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the statute prohibits. It incorporates an objective standard by prohibiting only noise that is ‘unreasonable.’ This objective standard undermines Carrick’s assertion that R.C. 2917.11(A)(2) permits hypersensitive persons to impose criminal liability on others. Further, it enumerates specific factors – ‘inconvenience, annoyance, or alarm to another’ − with which to judge the level of the disturbance.”
“Additionally, the statute requires a culpable mental state of recklessness. Therefore, in order to violate R.C. 2917.11(A)(2), a person must act ‘with heedless indifference to the consequences,’ in ‘perversely disregard[ing] a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.’”
“The record contains sufficient evidence for the trier of fact to conclude that the loud bass music emanating from Carrick’s Halloween party was loud enough to constitute ‘unreasonable noise’ that ‘inconvenience[d], annoy[ed], or alarm[ed] ... another.’ ... More specifically, (the complaining neighbors) were inconvenienced and annoyed by the loud bass music. A person of ordinary intelligence would understand that R.C. 2917.11(A)(2) proscribes playing music at a late hour at such a volume that it keeps the neighbors from sleeping, causes windows to vibrate on a house a quarter mile away, and prompts numerous calls of complaint to authorities. Moreover, prior to citing Carrick, law enforcement officers visited the property to advise Carrick that the music was so loud that it was generating complaints from his neighbors and they warned him to lower the volume. Carrick has failed to establish ‘beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.’”
“Accordingly, we conclude that R.C. 2971.11(A)(2) is neither unconstitutionally vague on its face nor as applied to Carrick. We answer the certified question in the negative and affirm the judgment of the court of appeals.”
Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.
The court's opinion is linked here. (MIke Frisch)
Wednesday, February 1, 2012
The Wisconsin Supreme Court has reversed its Court of Appeals and held that a criminal defendant convicted of battery on a law enforcement officer and disorderly conduct was not entitled to a new trial because she used a peremptory challenge to keep the judge's daughter-in-law off the jury:
We conclude that because the defendant exercised a peremptory strike to remove the circuit court judge's daughter-in-law from the jury, and because the defendant does not claim the jury was unfair or partial, a new trial is not required under the circumstances of the present case. The defendant has not shown that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. Accordingly, we reverse the decision of the court of appeals ordering a new trial.
The voir dire of the potential juror is recounted in the opinion:
THE COURT: All right. Nikki, you're my daughter-in-law. All right. I've told the attorneys that you and I have had no discussions about the case, correct?
JUROR STENGEL: Correct.
THE COURT: As a matter of fact, I didn't know until last night that you were coming in as a juror in this matter, right?
JUROR STENGEL: Correct.
THE COURT: Very good. You didn't ask and I wouldn't have excused you anyways so. But you're competent, you can be fair and impartial?
JUROR STENGEL: Uh-huh.
THE COURT: The fact that I'm the judge wouldn't affect your ability in this matter at all?
JUROR STENGEL: No.
THE COURT: Listen to all the evidence and decide the case, correct?
JUROR STENGEL: Correct.
THE COURT: And if we see you after the case, you wouldn't be at all hesitant as to how you decide the case, right?
JUROR STENGEL: Correct.
THE COURT: Very good. And I have told the lawyers about this, so they understand that as well.
The case was remanded to explore claims of ineffective assistance of counsel.The defense counsel had not challenged for cause.(Mike Frisch)
Monday, January 30, 2012
Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:
Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.
Sunday, January 29, 2012
You may not catch it from the title, but William T. Gallagher's (Golden Gate U. Law) new paper posted to SSRN is firmly about the legal profession, the bar, and the practice of IP law. Using an empirical/interviewing methodology, Gallagher explores the construction of copyright/trademark law through day-to-day practice, cease and desist letters, and the stuff that never makes it to courts. A teacher of both Professional Responsibility/lawyer regulation as well as IP law, he has spent years collecting the data for this revealing study. His abstract:
In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete precisely because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in daily life. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. Most IP scholarship is primarily doctrinal, focusing on published appellate cases. Even the growing empirical scholarship on IP focuses largely on published or, at least, filed cases. As in every other area of civil justice, however, most IP disputes do not result in litigation, and most litigation settles well before trial. Certainly, published appellate decisions and even filed cases represent only a small percentage of IP disputes. Thus, in order to more fully understand whether IP rights affect competition, chill free speech, diminish the public domain, or impede creativity, it is necessary to explore how IP claims are made and resolved in private negotiation rather than in litigation, which is the focus of this Article. It presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice.
January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
Thursday, January 26, 2012
In a 5-2 decision, the Maryland Court of Appeals reversed the Court of Special Appeals and found that a parent who suffered from an allergy to latex was discriminated against by her child's preschool for its failure to accommodate her condition by refusing to use non-latex products in its diaper changing of the child. The school responded by asking her to withdraw the child. The court held that the condition was a handicap that the school had not reasonably accommodated.
The dissent agrees that parenting is a "major life activity" but questions the "reasonable accommodation" analysis of the majority. The dissent also suggests that the court majority has failed to consider the potential broad impact of this decision. (Mike Frisch)
Thursday, January 19, 2012
In the case involving the murder of Chandra Levy, the District of Columbia Court of Appealls has reversed and remanded a trial court order denying the Washington Post access to completed jury questionnaires.
The Post's request was made after the trial jury had been selected and the trial had begun. The government contended that the request was thus untimely.
On remand, the trial judge must start with a presumption that the completed questionnaires should be completely disclosed. If any answers touch on "deeply personal matters," the judge may provide the jurors with an opportunity to raise concerns in camera. The court may then enter specific individualized findings on the necessity of redaction that a capable of appellate review. (Mike Frisch)
Wednesday, January 4, 2012
The Maryland Court of Appeals has held that a defendant who qualifies for appointed counsel is entitled to representation at the bail hearing that takes place at an initial appearance. While other related proceedings may go forward, the defendant must be afforded the opportunity to have counsel before the bail is set. The court interpreted the state's Public Defender Act to require the result.
A concurring and dissenting opinion refers to the "otherwise righteous" majority opinion as "turn[ing] a deaf ear to the pleas of the Office of the Public Defender" and invokes Yul Brynner as the Pharoah in the movie The Ten Commandments:
So it is written; So let it be done.
The concurring/dissenting opinion would impose a modest stay to consider the budgetary and logistical issues that will result from the majority's ruling. (Mike Frisch)
Sunday, December 25, 2011
The Connecticut Supreme Court has affirmed a decision of the Appellate Court finding no reversible error in a probation revocation order.
The defendant/probationer was sentenced to prison on alcohol-related offenses and was subject to a number of probationary conditions after her release.
At issue was the prosecutor's submission of evidence consisting of a series of photographs from her Facebook page. The undated photos appeared to show her partying at, among other places, Yankee Stadium. Some of the photos had the message "this is why I'm hot."
The prosecutor argued at the hearing that the photos evinced a violation:
...in all these pictures is again [the defendant] worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant? It's significant because the message didn't get sent, and this individual refused to accept it.
The court describes the defense counsel's reply:
...the alcohol-related behavior evident on the defendant's Facebook profile was reflective of prevailing social norms, and the images were not representative of the way the defendant spent most of her time...
The court noted that the evidence would not satisfy the requirements of admissibility in a criminal trial but met the "minimal indicia of reliability necessary to pass constitutional muster in the context of a probation revocation hearing." (Mike Frisch)