Archive for June, 2011

Legalized discrimination

Wednesday, June 29th, 2011

The wheels of the law turn slowly.  Once a precedent is set, it can take years to overturn, even when the weight of public opinion has turned against its underpinnings.  Case in point, New York’s recently passed marriage-equality law.

Even as activists celebrate the law’s passage, an odd case comes out of the Supreme Court of Broome County.  In Yonaty v. Mincola, Hon. Phillip Rumsey held that a plaintiff who complained of defamation for allegedly false statements about his being gay had a case that could proceed.

The important thing about this case is not that the statements were false but that Judge Rumsey held that—under existing precedent—the statements were derogatory per se. When a plaintiff brings a claim for defamation, he generally has to prove some sort of damages arising out of the false statement; usually some sort of economic loss.  Except for a very limited class of statements, just because you say it, it doesn’t cause harm, even if it may be false.

In that limited class of statements—usually statements concerning a person’s alleged criminal past, alleged infection with a “loathsome disease,” dishonesty in business, and (in New York) homosexuality—harm is presumed, and a statement is actionable as a matter of law.  But when equality in the most fundamental and basic of familial relations has been explicitly recognized by the state, can it really be defamatory to call someone “gay”?  Under Judge Rumsey’s ruling, yes it can.

It’s important to note that the fault here is not Judge Rumsey’s.  He followed the precedent that he was required to follow.  Trial court judges do not have the luxury of ignoring years of established case law.  No, the lesson his order teaches is that, when discrimination becomes institutionalized, it takes more than a single vote or a stroke of the governor’s pen to make it go away.  History does not depend upon the present, but vice versa.  The law on which Judge Rumsey was forced to rely came from years before the recent referendum, but it was the law, nevertheless.

In recent years, states and their citizens have found all new classes of people to hate, and the results of that hatred are now turning up in state houses across the nation.  It is ground to be trod with caution.  When, in the heat of the moment, targeting one class for particular treatment becomes a goal of the law, it is not so easily ferreted out when more sober thoughts take hold.

Tip o’ the hat to



Physician, heal thyself

Monday, June 20th, 2011

“Nothing is more simple than greatness; indeed, to be simple is to be great.” – Emerson, Literary Ethics.

This is, admittedly, a bit late to the party, but a series of video-recorded interviews with the Justices of the U. S. Supreme Court has made its way around the interwebs recently, publicized in large part by the good folks over at NPR.  The message for legal writers is a simple one:  “Skip the Legalese, and keep it short.” It’s good advice for anyone who writes in any arena, but it applies especially to appellate lawyers.  Still, I have to confess that my first thought on reading the NPR article was:  “Do these people ever read their own writing?”

Don’t get me wrong.  The Supreme Court deals with the weightiest of weighty issues—Constitutional rights, including the rights of the accused; death penalty cases; federal statutory and regulatory schemes; and the sometimes highly complex interplay of federal and state law, all set against the background of the most politically charged city in the entire nation.  In short, it just can’t be an easy job, and difficult subject matter requires a certain gravitas.  But it’s also no secret that Supreme Court opinions are longer now than they ever have been before.  As the New York Times noted last November, the landmark decision of Brown v. Board of Education desegregated public schools in fewer than 4,000 words in 1954.  In contrast, Parents Involved in Community Schools v. Seattle School District, tipped the scales at 47,000 words, despite addressing only an aspect of the ground so economically covered by Brown. The same Times article also observed that the length of majority opinions from the high nine hit an all new high in the 2009-2010 term.

At least part of this might be explained by the fact that there is simply so much more law out there since the Warren Court decided Brown. But opinions aren’t just longer.  They’re also less readable and, according to some sources, provide scant guidance to lower courts, attorneys, and the public at large.  So it’s not merely a question of efficiency but a question of usefulness, as well.  If a court’s written opinion has one function, above all, it is to say what the law is so that others can be guided by it.  That goes double when it comes to the opinion of the highest court in the land.

So, Physician, heal thyself.  Advocates should avoid wasting courts’ limited time with overly long, formalistic briefs loaded with legalese, but judges should reward that effort with concise holdings that eschew complexity and favor clarity.  Small words can say as much as big ones.  Earl Warren needed fewer than 4,000 such words to change America forever.  And effectiveness is measured by weight, not by volume.


Wait, what?

Monday, June 20th, 2011

It’s the same old song and dance.  Professional athlete fails a doping test and blames the company that made some exotic-sounding supplement he’s been pumping into his body for weeks, months, or years.  “I had no idea….” the tearful confession always goes, continuing that he apologizes to the league, his teammates, and the fans, before promising never to do it again and going off to serve his suspension before unrepentantly returning to the field at its conclusion.  Despite all those supplement manufacturers out there who are supposedly lacing their vitamin pills with everything from eleven herbs and spices to rocket fuel, no one backs up all the talk with real action.

Or at least, not until St. Louis Rams linebacker David Vobora came along.  Vobora is used to breaking the mold.  As “Mr. Irrelevant” of the 2008 NFL Draft, Vobora could reasonably be expected to be one in that long line of hopeful NFLers who never saw a snap in a real, meaningful game.  But Vobora, not only saw action in eight games for the Rams in his rookie season, he started one of them and followed that performance with ten games as a starter in his second year.

So, when Vobora tested positive for a banned substance, he alleged it cost him serious money in the form of a suspension and endorsements, the “Mr. Irrelevant” title actually being worth something to those proving it a misnomer.  Last week, a federal judge agreed with Vobora and awarded him $5.4 million in a default judgment rendered against the supplement manufacturer, known as “S.W.A.T.S.”, which markets a number of products including what appears to be a similar spray to that used by Vobora claiming it contains “liposomal deer antler technology.”  Seriously.  I am not making this up.

Pro Football Talk views the judgment as complete vindication for Vobora, noting that “he was telling the truth.”  But a default judgment isn’t the same thing as a decision on the merits; it just means one side never showed up to the fight.  Even so, the fact that S.W.A.T.S. punted on its own defense lends credence to Vobora’s claims.  Given my high level of skepticism concerning denials like this, it would be nice if—just for once—an athlete really didn’t know what was in that stuff he was taking.


Decisions, decisions….

Saturday, June 11th, 2011

It’s rare for me to write on this blog about sports divorced from law—law being, at least, the pretense for my writing in the first place.  But anyone who follows sports with a passion knows that it’s all about storylines, and this year’s NBA Finals have them in spades.  There’s the obvious one of The Chosen One seeking his first title, but the events of the last offseason, together with the seemingly unlikely rise of the Dallas Mavericks seeking their first championship, make this year’s championship round a bonanza for those of us who love a good soap opera mixed in with the games.

For those of you who were asleep for the early part of last July (or who turn off the television whenever the sports section of the news comes on), LeBron James made history on July 8, 2010, with “The Decision”—one of the most arrogant appropriations of a supposedly independent journalistic organization’s resources that has ever been seen.  In a one-hour, intensely orchestrated live-broadcast television special (one for which ESPN donated its air-time in a pretend act of charity) aired that day with the cooperation and collusion of James’s agent and handlers, James announced that he was leaving the Cleveland Cavaliers in order to “take his talents to South Beach” and join the Miami Heat.  To be fair, no one forced ESPN to throw in with James and his handlers.  That decision was theirs.  But with those few words, James left the team that originally drafted him and supported by many in his hometown of Akron for the bright lights and bikinis of Miami and simultaneously became one of the most hated men in all of professional sports.

There was nothing wrong with what James did, at least, not insofar as his leaving the Cavaliers for a team that he believed had a better chance of winning a championship.  But the way he conducted the exercise—the public announcement, seen by many as a televised belittling of the city of Cleveland as well as a shameless publicity move—left a bad taste in many mouths.  In one hour, James became, deservedly or not, the face of everything that was wrong with professional sports.  It was a harsh and unfounded criticism.  Winning is supposedly what it’s all about, and it seems hypocritical to criticize an athlete for going to the ring, instead of waiting for it to come to him.

But victory need not come at the cost of shaming a foe.  Or a former friend.  James has plenty of defenders—a number of them, sycophantic ESPN employees.  It’s easy to defend the decision, but it’s not so easy to defend The Decision.

And in light of all this, James has met his perfect foil in this year’s finals:  the Dallas Mavericks, and specifically, their star forward Dirk Nowitzki.  Nowitzki is an unusual story in the NBA.  European-born players are an anomaly, and European-born players who become the central focus and stars of their teams are even more so.  Nowitzki—a native of Wurtzberg, West Germany (back when there was such a thing as West Germany)—has played his entire thirteen-year NBA career for Dallas.  That makes him another unusual story—a star player who has never left “home” to chase the ring, though he certainly left home to get where he is today.

It stretches themes and strains credibility to suggest that Nowitzki is entirely motivated by a desire to dance with those that brought him here as much as it does to suggest that James’s decision was completely unjustified.  In seven years, the Cavaliers failed to surround James with a team that truly complemented his skills, and that would seem to be enough to test anyone’s loyalty.  But the way you leave says a lot about you, and James’s exit from Cleveland said little that was positive.  By, not just leaving but humiliating his old team and city, James became the “anti-Dirk” and put new pressure on himself to lead the Heat to the promised land.  And as a result, again rightly or wrongly, Dallas has a new “America’s Team.”

A lawyer I used to work with told me that, at the end of a jury trial, as the verdict is being read, you keep a stony disposition and a stiff upper lip, win or lose.  You don’t crow about winning, and you don’t berate anyone when you lose.  It’s a lesson I’ve carried with me.  Any celebration—and any venting—happens in private.  Nothing good can come from a public spectacle of any sort, and it can make you a target for derision when you eventually come up against your opposite, even if that opposite is a presumed and not an actual one.  Maybe it’s a lesson someone should have told the Chosen One because, now, these finals are a referendum, not just  on the decision, but on The Decision, too.


False prophets and false profits

Thursday, June 2nd, 2011

Well, this seemed inevitable.  Anyone who has observed the legal job market over the last few years knows that these are tough times for new law school graduates.  Like the rest of the economy, the legal profession has shrunk, and the number of high-dollar salaries for newbie lawyers has declined substantially.  But at the same time, the number of law schools, the applications to those schools, and the number of graduates churned out by those schools have all increased over the last decade, with the number of prospective students taking the Law School Admissions Test jumping over 20 per cent between 2007 and 2009.  So why are so many so eager to shell out the bucks, take on the debt, and go through the misery of getting a law school education in a bum economy?

According to the plaintiff in a recently-filed state court suit in California, it’s because of fraud and false advertising.  Anna Alaburda is the putative class representative in a suit brought on behalf of herself and similarly situated graduates of the Thomas Jefferson School of Law in San Diego.  Alaburda alleges that Thomas Jefferson misrepresents its success in placing students in the legal profession post-graduation and thus the likelihood that its graduates will obtain a coveted big-bucks job.  It’s no secret that law school is expensive, and Alaburda’s complaint states that the average student indebtedness for Jefferson graduates is $135,000, while their bar passage rate is under 50 per cent.  As for herself, Alaburda states that she has $150,000 in student debt and no prospects of obtaining a full-time position as an attorney, despite graduating from Jefferson with honors.

The allegations make for some fairly damning reading.  According to Alaburda’s complaint, Jefferson deliberately misrepresented the number of its graduates holding full-time, law-related positions nine months after graduation in order to increase its position in annual rankings published by U. S. News & World Report.  Again, according to the complaint, Jefferson represented a 92.1 per cent employment rate for graduates in 2009-2010, but Alaburda alleges that the school included graduates involuntarily working in part-time or non law-related positions to make the picture look rosier than it actually is.  Indeed, with as low a bar passage rate as indicated by the complaint, it seems unlikely any law school could obtain the sort of employment figures Jefferson claims.

The big-firm, big-money associate position has long been the brass ring for many law students, and law schools tend to cater to that kind of thinking.  Indeed, one criticism I had of my own law school education was that some of our professors seemed to assume that every one of us was going to work for a national law firm on graduation.  (For myself, having worked for a large law firm before law school, I was pretty sure that I never wanted to see the inside of one ever again.)  But law schools don’t promise a legal job, just a legal education.  The old saw is that they teach you to think like a lawyer, not that they teach you the law, which changes every few years, anyway.

It’s hard not to have tremendous sympathy for someone like Ms. Alaburda, and she doesn’t seem to be alone by any stretch of the imagination.  The legal job market may not be significantly better or worse than when I graduated, but the $20,000 or so in student debt I carried looks like nothing compared to what recent graduates have to deal with.  Yet I still have a hard time seeing Ms. Alaburda’s suit getting much traction.  The U. S. News listing for Thomas Jefferson indicates a median, private-sector starting salary for its graduates of less than $60,000 per year and a public sector salary of less than $45,000.  Is that sufficient incentive to take on the $38,700 per year full-time tuition?  Maybe, maybe not.  Law schools clearly shouldn’t be allowed to misrepresent their success in post-graduate placement, but prospective students need to take a hard look at the realities of the legal market before buying into the spin.  Turn off the legal dramas, and go down to the courthouse and talk to a few real lawyers.  I suspect they’ll tell you a lot more about your prospects than the U.S. News ever could.

Tip o’ the hat to Courthouse News Service.