The truth about "Hot Coffee"

Monday night as I lazed on the sofa trying to figure out what to watch on TV, I came across the new HBO documentary "Hot Coffee." The title comes from the now infamous McDonald's hot coffee lawsuit, in which a patron who was burned by hot coffee was awarded millions of dollars. This story has been retold, twisted and bastardized so many times by now that it barely resembles the truth, and so this documentary focused on the evils of tort reform and big business tactics in litigation used the story as the introduction to set the stage. As I watched the whole thing, numerous friends mentioned to me on Twitter that I should be watching it, presumably because I do litigate cases of the sort being described in the doc, and on behalf of evil big business to boot.

The McDonald's hot coffee case is a bit of a personal crusade for me precisely because so few people know the real details. The salient points commonly bandied about are correct: the woman spilled hot coffee on herself, was burned, and won millions at trial thanks to a punitive damages award that was calculated on the basis of McDonalds' daily revenues for sales of coffee. What many people don't know is that the woman was burned severely on much of her body, suffered extensively as a result, and was able to develop evidence at trial of numerous other similar injuries that had provided notice to McDonalds that its coffee was being delivered to customers in a dangerously hot condition (and well above the temperature other drive thru restaurants were serving their coffee at.) The punitive damages award occurred because the jury found McDonalds knew this was a problem that was injuring consumers but declined to fix it. It is far from the travesty of justice that proponents of tort reform would have us believe.

The rest of the documentary focused on four other serious problems with the state of personal injury litigation today: 1) tort reform, 2) damages caps, 3) elected judges, and 4) mandatory arbitration clauses. I happen to not be in favor of any of these things (with the exception of certain tort reform that I think does make sense, more on this later.) The dirty little secret that most defense attorneys don't like to say in public is that we don't particularly like tort reform any more than the plaintiffs do. Our livelihoods depend on having lawsuits to defend, and making it harder to sue people doesn't do us any favors. But apart from that basic defense of my job security, I find all four of these methods of controlling "runaway lawsuits" to be ineffective and unfair.

Tort reform often consists of a package of legislative enactments intended to make it harder to sue companies and harder to win a lot of money doing so. In Georgia, for example, it included several provisions that make a lot of sense--requiring defendants to be sued in the county in which they are located, requiring medical malpractice lawsuits to be supported by an affidavit signed by a physician in the same specialty saying that the care provided was deficient, and a mechanism for offers of judgment that are already available in federal court. It also included things that I didn't like, particularly caps on punitive and non-economic damages. More on those later. But the point is, there are parts of tort reform that I think can make sense and be fair. It is when the tort reform becomes focused on capping what a plaintiff can win even in the most extreme of cases, or when it seeks to shorten the time for filing a lawsuit to points that make almost no sense (such as states that now have just a one year statute of limitations for tort lawsuits) that I start to get uncomfortable.

The second part of the documentary focused on the damages caps enacted in most states, and the situations in which they often leave injured persons and their families holding the bag. Generally damages caps apply to so-called "non-economic damages," i.e. everything but lost wages and out of pocket medical costs. Pain and suffering, mental anguish, loss of consortium, and such "squishy" things are included in the cap, which may be as low as $250,000. The documentary accurately pointed out that some injuries, such as loss of ability to bear children, blindness, or loss of a limb might be considered excruciating to most people but would not be associated with high medical costs or loss of earning capacity, meaning the only way it could be compensated is with non-economic damages. If I lost my uterus in a car accident and learned that I was only getting $250K for the imposed inability to have children, I'd probably think that was a worth a lot more money to me than $250K. If I lost my eyesight, I'd definitely think it was worth more. The documentary also focused on states where the cap is absolute, on all damages. In those instances, where the money from a verdict or settlement runs out, the costs of future care invariably fall to the state and federal governments. The side effect that the documentary did not really explore (probably because it was made by trial lawyers) is that when such provisions are enacted, lawyers stop taking those cases because they cannot make enough money on them, which makes it even harder for people who have been injured by medical malpractice or someone's negligence to even recover the capped amount in a lawsuit.

The third section of the documentary was one that I feel particularly passionate about: electing judges. I have never been comfortable with the concept of allowing people who know nothing about the legal system to decide who should preside over it. I am even less comfortable with allowing judges to take campaign contributions from people and corporations who have cases before them. Massachusetts, where I began my legal career, had appointed judges with a mandatory retirement age at 65. I was shocked and uncomfortable upon coming to Georgia to learn that lawyers running for judicial slots and sitting judges hoping to hold their seats would be coming to our office and asking us for money. I was even more uncomfortable at the notion that my clients with cases winding their way through the courts system could make donations to judges who might hear those cases, and all of this was 100% legal.

However, it is after trying a case in Texas that I have now seen the true worst judicial election situation in the country: judges run as Democrats or Republicans, and voters usually end up electing a "slate" depending on what party is doing well in their county, with absolutely zero knowledge of whether any of the judges are qualified or doing a good job as judges. I hesitate to talk out of school about our judge for my last case, but let's just say that he was younger than I was, the son of a prominent plaintiffs' attorney, and elected in the 2008 Democratic "wave" election in Houston. And he had the worst ratings of any civil judge in Harris County in the survey of attorneys put out by the local legal newspaper. However, we heard horror stories about other judges elected in that same wave who would actually cajole attorneys appearing before them about not yet having received their "check"--for campaign contributions they expected to receive from all local attorneys. The obvious grift on display in Texas is astounding, and demoralizing as a lawyer. We were able to persuade our judge to rule in our favor when it really mattered, and we put on a good case, but in plenty of situations the judge's rulings will make or break a party's chances, or at minimum cause a defendant to spend millions defending a frivolous lawsuit by refusing to dismiss the case at the outset. And it makes me no more comfortable to know that my clients can give massive contributions to those same judges in an effort to influence their decisions--I want no part of that sort of winning.

The documentary's claims about the inability of plaintiffs' attorneys to compete with the Chamber of Commerce in funding judicial elections was probably the part that felt the most "off" to me. The Plaintiffs' bar is a hugely powerful organization and they can certainly compete in terms of dollars and influence. Also, traditionally plaintiffs' attorneys have been fond of electing judges precisely because in many instances they can get their pro-plaintiff buddies into office. The easiest way to get rid of Chamber money in judicial selection is to take judges off the ballot, but I sincerely doubt we will see the AAJ (formerly ATLA) pushing for that radical notion anytime soon.

The final portion of the documentary about mandatory arbitration clauses was by far the most powerful, due primarily to the story of one Jamie Leigh Jones. Most of us do not realize how many times we have unwittingly agreed to arbitrate any dispute we may have with our creditors, employers, or anyone else we've ever signed a preprinted contract with. But what happened to Jones was far more disturbing: she had signed an employment agreement containing a mandatory arbitration clause, and then shortly thereafter was shipped by Halliburton subsidiary KBR to Iraq, where her coworkers drugged and gang-raped her, then locked her in a shipping container. (The story is actually far worse than what was shown in the documentary--the rape was so brutal that it tore her pectoral muscles and ruptured a breast implant, requiring reconstructive surgery, and left her bruised and bloodied. She was examined by a physician who completed a rape kit, and the contents of that kit, including photographs and DNA samples, mysteriously disappeared soon thereafter when the kit was turned over to KBR security.)

When Jones went to sue her employer KBR and the one man who had admitted to her that he had participated, they sought to enforce the arbitration clause and have the lawsuit thrown out of court. Years later, the 5th Circuit court of appeals disagreed and ruled that Jones' suit could go to trial in the court system instead of a secret arbitration. In fact, Jones' trial began two weeks ago in Houston, and is currently ongoing. I have been watching the news and the federal court docket in her case with great interest in the outcome. In what should come as a shock to noone, KBR is now calling Jones a liar and claiming her sex was consensual and that there is no evidence to say otherwise (especially with no rape kit contents to worry about.)

Our own Hank Johnson in Georgia's 4th congressional district has been pushing for years to pass legislation prohibiting mandatory arbitration clauses from being included in these sorts of contracts. The legislation has not made it far to date, but hopefully as more people become aware of the abuse of mandatory arbitration clauses, this is an issue that will receive more attention. While it may make sense for some disputes to be arbitrated, certainly the provisions are over-used now and should not cover all types of potential disputes. In the meantime, Al Franken's amendment prohibiting companies doing work for the federal government from having arbitration clauses in their employment contracts that would include claims like Jones' claims did pass, so that at least is good news.

Overall, Hot Coffee was an interesting and thought-provoking piece, but with an obvious slant. I've seen the other side and I know there are no documentary film-makers itching to make movies about stupid, bogus lawsuits but if there were I would have BOATLOADS of material. It is a problem, in that my clients often end up paying northwards of $2 million from inception of the case through trial in order to prove their products didn't injure anyone. That may seem like highway robbery, but it's a necessary cost to retain the right experts, take the right depositions, get and review ALL the medical records, produce the necessary company documents, draft and file the right motions, and get ready for and complete a successful trial. That's just for one case, but big companies that make products like drugs, medical devices, cars, or tractors might get sued hundreds of times a year. And it's not like they can just offer to pay every plaintiff a quarter of what they'd spend to defend the case, because as soon as they did that they'd get 3 times as many cases as news spread of their willingness to open the checkbook in order to avoid litigation costs. So, not that I am suggesting you should feel bad for big business, but consider the alternatives that a big company has--pay millions to defend each case and clear their name every time, or pay millions in settlements and verdicts, or stop making products that could ever potentially be involved in any injury. These are not good options. Defending the cases vigorously and sending the message that our products are good products that never hurt anyone, and that we're going to fight back if we ever get sued, is the best of the flawed options. And it's precisely what makes everything in this country cost more than it needs to.

The other concept that I think got lost somewhere along the way is that people can get hurt without it being anyone's fault. I had an argument awhile back about vaccine litigation, and someone told the story of how they had a cousin who was severely disabled following a bad reaction to a vaccine. She assumed that was the vaccine manufacturer's fault and that they should pay for the lifetime care of that child. But people can have a "bad reaction" to almost anything--I could drink a glass of milk tomorrow and go into anaphylactic shock, through no fault of the cow or dairy. It could even kill me. Vaccines are no different than any other chemical compound ingested into the human body, be it medication, food, vitamin supplements, or beauty products. All of it can really hurt us for no particular reason. So often in my cases I see a situation where a person is severely injured and it was around the same time as they were taking this drug, or using this device, and so they assume it must be the result of that drug or device and that the manufacturer must be responsible. But they seem to have forgotten the notion that SHIT HAPPENS--people get sick, people have allergic reactions, people develop medical conditions and people have bad outcomes in surgeries or hospitalizations. None of these things necessarily mean that anyone did anything wrong.

The challenge for us defense attorneys is to remind judges and jurors that shit happens. It's not always the role that we want to be in, and it can be a tough argument. The plaintiff's attorney is essentially trying to argue that the shit wasn't there before the drug or the device, and suddenly it was there, and we have no other obvious cause, so clearly the shit is the fault of the drug or device. There is a simplicity to their argument, which is their greatest weapon. Plenty of jurors can be convinced that temporal relationship is sufficient to meet the preponderance of the evidence standard. So before everyone goes worrying that we've made it impossible to win a lawsuit in this country because Hot Coffee told you so, I'd advise you to start reading the legal newspapers in your city for a month. Think critically about what the producers of the documentary (trial attorneys, by the way) have to gain from it. Recognize there are two sides to every story. Yes, there are many tales of abuse of the legal system on both sides, and many tales of people who have been negatively impacted by tort reform, big business tactics, and defense attorneys like me. But as with almost any story, the facts depend on who's telling it. Hot Coffee got a lot right, but it got a lot wrong and left a lot out. Dig deeper.

Undefeated!

So, I've been gone for awhile but I had a really good reason. I just returned from a monthlong trial in Houston...my first jury trial. And we won. I can't really post about the trial itself, as much as I might want to, but I can say that I learned a great deal.

One of the most important things I learned is what really matters, based on what you can and cannot live without for an extended period of time. I've read or watched almost zero news or sports over the last few months, and I haven't missed it. I haven't watched a single moment of television except for the Indy 500 since sometime in March. I slept very little. I felt at times completely out of touch with what was going on in the world. And it was very disorienting, but I could live without those things if I needed to, because it was important.

What I could not live without, even though I had to try, was the love and support of my friends and family, the people who really matter to me. Being out of touch from them was nearly physically painful, so much so that I jumped at an opportunity to run home for a quick weekend to spend with those I really care about. It was glorious, and it kept me sane. And now that I'm back, I still haven't gone grocery shopping, done laundry, restocked my fridge or my bathroom cabinets, or anything essential like that. Instead I've spent 2 days being around the people I missed so much, and will continue to do so for much of this week. I am home, in every sense of the word, and it's what I craved and felt so deprived of for the past month of trial and even the weeks leading up to it.

The greatest lesson I learned is to appreciate and revel in that wonderful feeling of being home with those I love, because it's the one thing that I will desperately long for when I don't have it. I'm looking forward to not knowing that feeling again for a good long while.

Lather, Rinse, Repeat

I could write a whole new post about Sarah Palin's ridiculous tweet that Dr. Laura's 1st amendment rights are being violated because people complained she used the N-word 11 times on a show last week...but why bother? I already wrote the exact same post last year when she made the same ridiculously inaccurate claim about Carrie Prejean. So, lather, rinse, repeat...here's last year's post in its entirety:

There are many things that make me crazy, but today's crazy-maker is a legal issue:

People who cite "free speech" or the 1st Amendment as justification for expressing unpopular political or social opinions make me crazy.

For starters, the 1st Amendment only prohibits restrictions on the freedom of speech that are imposed by the government. Let's read the text of the First Amendment, shall we? It's pretty short, so it should be easy to understand:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The "Congress shall make no law" part of the amendment is pretty clear. (The Constitution originally only restricted federal government action, but was been held applicable to state and local government action through the fourteenth amendment's equal protection provisions.)

So, pursuant to the First Amendment, your federal, state or local government is not allowed to tell you that you can't espouse the view that Barack Obama is inferior because he is black. But a private individual can throw you out of their home or shout at you in the street for saying that. A company can fire you for saying that at work, or a store manager can ask you to leave and ban you from their property. A private organization like Kiwanis can expel you from the membership. "Free speech" and the first amendment have no force of law anywhere other than in government.

(Even in government, "content-neutral" restrictions on speech are often upheld, such as when a government prohibits protesting in the middle of a busy street because it could cause a traffic jam that creates a safety hazard. Such a restriction would generally be permissible regardless of whether it prohibited a Nazi protest or people who want you to honk for more breast cancer research funding.)

Now everyone's favorite Constitutional scholar, Sarah Palin, has claimed that Carrie Prejean (Miss California), was just trying to assert her protected First Amendment rights when she answered in the Miss USA pageant that she believes gay marriage is wrong according to the bible.

“I respect Carrie for standing strong and staying true to herself, and for not letting those who disagree with her deny her protection under the nation’s First Amendment Rights,” Palin said.

“Our Constitution protects us all — not just those who agree with the far left.”

Governor Palin apparently does not understand that despite being called "Miss USA," the pageant organization has no government affiliation and is in fact owned by Donald Trump's corporate empire. Thus, the pageant is not governed by the Constitution and can punish Prejean for her views however they chose to do so, including not awarding her the crown because she wasn't apparently smart enough to give a more diplomatic answer. The television, print and online media entities that excoriated Prejean were also not Constitutionally bound not to criticize Prejean. The Miss California USA organization could have fired her if they wanted to, without any Constitutional impediment. The First Amendment does not protect anything that Carrie Prejean said during the pageant competition or at any time since, unless she said it in a government building or on government property and I just missed it. Last time I checked, nobody is claiming that Prejean was prevented by any governmental entity from speaking about her views.

It figures that a bubbleheaded beauty queen known for her intolerance would feel the need to speak out in support of someone whose attributes must have seemed mighty familiar. It would have been nice if a sitting Governor who considered herself qualified to be Vice President had bothered to actually read and understand the Constitution she has been charged with upholding and defending, before she claimed that it protected Prejean in the Miss USA pageant.

A Threat or a Promise? McBerry's Libel Claims

Recently the word "libel" has been thrown around a lot in the Georgia blogosophere in connection with one fringe gubernatorial candidate who allegedly had a past predilection for the young ladies. Very young ladies.

Ray McBerry was a teacher in the late 1990's when he got to know a student at his school fairly well. She moved on to a different high school, and to hear her and her parents tell it, she began a romantic relationship with McBerry that led to him leaving teaching and having a judge order him to stay away from the girl. To hear him tell it, he was just counseling the girl after her parents made her end an interracial relationship, and her parents got the wrong idea and now they are all defaming* him all over Georgia.

Meanwhile, a few weeks before the girl and her parents' story hit the pages of "respectable" media, the SWGA Politics blog threw its skirt over its head and called McBerry a child molester. When informed that the law in Georgia does not apply to victims over the age of 16, and that this girl was 16 when the alleged sexual contact began, the blogger in question basically said he didn't care because McBerry was a teacher and teacher-student sex is still some form of crime, even if not meeting the legal elements of child molestation. (Side note: it's unclear whether this is even accurate, since the girl claimed the sexual contact only occurred once McBerry was no longer her teacher, as she had moved to a different school.)

McBerry threw a hissy fit of his own the other day, and started making threats of litigation against online outlets and individuals. Some wondered if one target for a libel suit might be SWGA Politics itself. But despite all his bluster, I would bet a cool Benjamin that McBerry never files any sort of defamation lawsuit against anyone. Why?

1) Defamation suits are expensive, time-consuming, and generally not taken on contingency by the attorneys who file them. This means McBerry would probably have to pay a lawyer by the hour to file the lawsuit, unless he intended to proceed pro se (in which case he might as well not even bother). McBerry hasn't exactly been lighting up the fundraising in his gubernatorial race, and I don't think he's rolling in the dough personally either. Even litigating on the cheap is likely to cost upwards of $25K to take such a case to trial, which brings us to the next problem...

2) The targets of such a suit, for the most part, are judgment-proof or close to it. What assets do either the girl and her family, or the proprietors of SWGA Politics, really have to satisfy any judgment rendered against them? Lawyers are especially wary of taking such cases on contingency when they strongly suspect at most their clients will obtain a moral victory, but no real cash. Why spend $25K to win an apology and a judgment that allows you to garnish someone's wages until the end of time? Now, any media outlets that report the allegedly defamatory statements could also be sued, and would not be judgment proof by any means, but the standards for a libel suit against a newspaper are higher and they have more defenses. They also have more and better lawyers who have defended cases like this before. Does McBerry want to take on the AJC and the big firms that represent it? I doubt it.

3) Truth is a defense in defamation cases. I make no allegations about McBerry's veracity or the propriety of his past behavior. (See, I know how to stay on the good side of the defamation line!) But if the girl and her family have evidence to support their allegations, which it sounds like they might based upon the apology letter they have already produced, then they could defeat any defamation action simply by showing that McBerry really did the things they claimed he did. Even if they don't have evidence, if a jury were to determine that the girl and her parents were telling the truth, McBerry would lose. And on the way to presenting evidence of truth or falsity to a jury, the parties would have to engage in embarassing discovery in the form of depositions of those McBerry or the girl talked to about their relationship, people who may have found them in compromising positions, etc. Not exactly the sort of character evidence an aspiring politician wants to see put down on the public record, even if he did eventually prevail at trial.

4) Potentially, McBerry would have to show "actual malice"--knowledge the story is false, or reckless disregard for its truth or falsity--in order to prevail. There is little law out there on the question of whether blogs enjoy the same first amendment protections as "traditional press" like newspapers in defamation cases, so this one is sort of a guess. The Supreme Court famously ruled in New York Times v. Sullivan that in order for a newspaper to have libeled a public figure, it must have shown actual malice--meaning either the newspaper knew a published statement was untrue or showed a reckless disregard for its truth or falsity. McBerry is arguably a public figure by virtue of qualifying as a candidate for Governor. The question is whether the blogs that published this story showed reckless disregard for the truth of the story or knew it was false. Now, as discussed briefly above, if the story is true then McBerry has no case. And if the bloggers who published the allegedly defamatory statements are protected by Sullivan to the same extent the AJC and other traditional media outlets are protected, then McBerry would need to prove that they showed a willful disregard for the truth of this story, which is a high burden and highly subjective because it relies upon the knowledge and intentions of the publisher of the libel.

I could write an entire series of posts on whether Sullivan applies to bloggers, and whether it should, but that is a post for another day when I have more free time. For now, if we assume it applies, then it makes a tough case to prove nearly impossible.

And that, my 3 readers, is why Ray McBerry's threats to sue will never be more than threats.

* I prefer to use the term "defamation" to cover both libel and slander, because people often erroneously use the two terms interchangeably and having one term that covers both is less confusing. Generally speaking, libel is written while slander is spoken, though the expanding definition of publication has led to libel also governing internet postings and TV/radio broadcasts. In the instant situation, the news stories containing the statements of the girl and parents about McBerry would be governed by libel laws, while the girl and her parents' actual spoken statements about McBerry would be governed by slander laws. However, because this gets confusing in a situation where slander is published in a potentially libelous news story, I'll just use defamation for both. The only real differences are that libel requires "publication" of the defamatory statement, slander requires actual damage to reputation through the spoken defamation, and there are some libel protections for press reports involving public figures as described above.

Sometimes the First Amendment is Inconvenient, but Still Must Be Obeyed

Over two years ago, I wrote about the legal issue decided today by the Supreme Court: laws banning videographic depictions of animal cruelty are unconstitutional content-based restrictions on speech. The challenger of the federal law, passed in 1999, claimed he was researching dogfighting's history and cultural implications through his videos, rather than appealing to a purely prurient interest.

The 1999 law was intended to ban the production and distribution of so-called "crush videos," in which women in high heeled shoes stomp on and kill small animals such as mice and kittens. The decision today apparently leaves open the possibility that such speech could still constitutionally be outlawed (presumably by arguing it is purely directed at a prurient interest) if the law is rewritten in a much narrower fashion. The flaw in the existing law, per the SCOTUS, is that it was vastly overbroad and could encompass speech that should be protected.

This is one of those situations when I don't really like the end result, but I can't argue with the reasoning. In fact, I predicted this would probably happen in my first post years ago. When Congress tries to write a law that it knows is on thin constitutional ice, bad things tend to happen. This is but one example.

I do not think it means what they think it means

On several blogs today, I have seen the following scary warning about "secret language" that Harry Reid has somehow snuck into the Health Care Reform bill in the "dead of night" that will make it impossible for Congress to amend or repeal the bill later. Here's one example, taken from this comment:

Senate Majority Leader Harry Reid of Nevada buried this anti-democratic poison pill designed to prevent any future Congress from repealing the central feature of the Healtcare Bill.

Beginning on page 1,000 of the measure, Section 3403 reads in part: ". it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection."

In other words, if President Barack Obama signs this measure into law, no future Senate or House will be able to change a single word of Section 3403, regardless whether future Americans or their representatives in Congress wish otherwise!!

Note that the subsection at issue here concerns the regulatory power of the Independent Medicare Advisory Board (IMAB) to "reduce the per capita rate of growth in Medicare spending."

That is precisely the kind of open-ended grant of regulatory power that effectively establishes the IMAB as the ultimate arbiter of the cost, quality and quantity of health care to be made available to the American people.

And Reid wants the decisions of this group of unelected federal bureaucrats to be untouchable for all time.

No wonder the majority leader tossed aside assurances that senators and the public would have at least 72 hours to study the text of the final Senate version of Obamacare before the critical vote on cloture. And no wonder Reid was so desperate to rush his amendment through the Senate, even scheduling the key tally on it at 1 a.m., while America slept.

True to form, Reid wanted to keep his Section 3403 poison pill secret for as long as possible, just as he negotiated his bribes for the votes of Senators Mary Landrieu of Louisiana, Ben Nelson of Nebraska and Bernie Sanders of Vermont behind closed doors.

The final Orwellian touch in this subversion of democratic procedure is found in the ruling of the Reid-controlled Senate Parliamentarian that the anti-repeal provision is not a change in Senate rules, but rather of Senate "procedures."

Why is that significant?

Because for 200 years, changes in the Senate's standing rules have required approval by two-thirds of those voting, or 67 votes rather than the 60 Reid's amendment received.

Reid has flouted two centuries of standing Senate rules to pass a measure in the dead of night that no senator has read, and part of which can never be changed. If this is not tyranny, then what is?

DON'T SIT BY AND LET THIS HAPPEN IN THE DARK!!! FORWARD TO EVERYONE ON YOUR LIST!

Because these sorts of things tend to be total fabrication, I first went to check Snopes. Unfortunately their page lists the status of this story as "undetermined," because they are still researching it. I don't blame them for taking awhile, since the current HCR bill is 2500 pages long and not real fun to slog through. So, I did it for them. I read the relevant provision, which is over 30 pages of dull as hell. And the short answer is, the language quoted is in there, but it doesn't do what they say it does.

Section 3403 establishes an Independent Medicare Advisory Board that will study and submit proposals to the President and Congress each year, beginning in 2014, as to ways to contain costs in Medicare. Section (c)(2) specifies in subsection (A)(1) that the proposals submitted in each year must "include recommendations so that the proposal as a whole...will result in a net reduction in total Medicare program spending in the implementation year that is at least equal to [a savings target specified in another section.]" Also, "The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums...increase Medicare beneficiary cost-sharing...or otherwise restrict benefits or modify eligibility criteria." In addition, "the proposal shall not include any recommendation that would reduce payment rates for items and services furnished." Subsection (C) also requires that the proposal "be designed in such a manner that implementation of the recommendations contained in the proposal would not be expected to result...in any increase in the total amount of net Medicare program spending relative to the total amount of net...spending that would have occurred absent such implementation."

Later, in section (d)(3), the bill does state "It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2)." It also says "It shall not be in order in the Senate or House of Representatives to consider any bill, resolution amendment or conference report...that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2)." The bill then goes on to state that this particular provision cannot be repealed or changed except by a 3/5 vote, and specifies parliamentary rules limiting the length of debate on any such proposed changes.

So what does all this legal mumbo jumbo mean? Well, yes, the language cited above is really in the bill. But it doesn't prevent Congress from ever tinkering with healthcare reform as some would suggest, and it isn't designed to prevent oversight from a board intended to bring draconian healthcare rationing to Medicare. The bill's language expressly prohibits the board fromm implementing rationing, increase of premiums, and other scary things.

Instead, this language is intended to prevent Congress from rewriting the proposals to be drafted by a board whose sole job is to figure out ways to control healthcare costs. Controlling costs is often politically unpopular, so the fear would certianly be that a proposal would come to Congress and the politicians there would amend the proposal in perpetuity to add funding for all sorts of additional programs and violate the spending limits, in order to make their constitutents happy. We need only look at the way the closings of military bases were often botched or used as political footballs to see how easily cost cutting measures become viewed as political kryptonite for politicians to be wheeled and dealed away to nothing.

Also, this provision is limited solely to the section establishing the Independent Medicare Advisory Board. It does not apply to the rest of the bill, and it doesn't limit future tinkering with the rest of the legislation through amendments or even repeal.

Now, I do have a question as to whether this provision is Constitutional, so I am hoping the drafters of the bill included a severability clause making clear that just because one section might be thrown out by the courts, the rest of of the bill is unaffected and remains in place.

Still, if anyone tells you that Harry Reid and the Democrats are trying to pass healthcare reform that can never be amended or repealed no matter how much of a disaster it might be, you deserve to know what the bill really says. So, I read it so that you don't have to. Go forth and correct the misinformation, my readers.

Name that Justice

As I wrote today over at Blog for Democracy's /law page, today the Supreme Court issued the Citizens United v. FEC ruling invalidating restrictions on political advertisements funded by corporations, on first amendment grounds. Many people have been shocked to learn for the first time that corporations have 1st amendment rights, but they shouldn't be. The Supreme Court ruled in 1978 in First National Bank of Boston v. Bellotti that a corporation had a 1st amendment right to engage in political speech through campaign contributions. While some recent rulings had narrowed the precedential value of Bellotti, the Supreme Court had specifically asked the litigants in Citizens United to brief and argue whether those later precedents should be overruled. That is exactly what happened.

In re-reading Bellotti today for the first time since law school, I was struck by the fact that Justice Stevens was in the majority of the opinion, which was authored by the more liberal wing of the Court at the time. Stevens wrote a 90 page dissent to Citizens United, so you'd never know that he was one of the majority votes for the decision that essentially underpinned today's decision. But even more amusing was this dissent in Bellotti, written by a Justice to be named later (see if you can guess after you read the whole thing):

This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, 169 U.S. 466, 522 (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Grosjean v. American Press Co., 297 U.S. 233, 244 (1936), and that a nonprofit membership corporation organized for the purpose of "achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. NAACP v.
Button, 371 U.S. 415, 429 (1963).

The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court. 1 However, the General Court [435 U.S. 765, 823] of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed.

Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).

The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by [435 U.S. 765, 824] state law. 2 Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U.S. 694, 698 -701 (1944) (corporations do not enjoy the privilege against self-incrimination), our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth College, supra, at 636. There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. 3 Grosjean so held, and our subsequent cases have so assumed. E. g., Time, Inc. v. Firestone, 424 U.S. 448 (1976); New York Times Co. v. Sullivan, [435 U.S. 765, 825] 376 U.S. 254 (1964). 4 Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 -770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.

It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. 5 A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as [435 U.S. 765, 826] an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed. 6 I would think that any particular form of organization [435 U.S. 765, 827] upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.

One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression [435 U.S. 765, 828] by a corporation "when a general political issue materially affects a corporation's business, property or assets." 371 Mass. 773, 785, 359 N. E. 2d 1262, 1270 (1977). I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.

It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. Maher v. Roe, 432 U.S. 464, 474 (1977).

I would affirm the judgment of the Supreme Judicial Court.

That argument against finding that the first amendment could be applied with equal force to corporations crafted entirely out of the laws of states that recognized them, was the work of one Justice William Rehnquist. I'm quite certain Justice Rehnquist would have come down with the majority in today's ruling, so it begs the question: what changed?

Motion to Scrap that whole "trial" brouhaha so we can watch some football

I'd have titled this post "Only in Alabama," but apparently something similar has happened in Louisiana a time or two as well. Lawyers in a case currently set to begin trial on January 4, 2010 in Jefferson County, Alabama have filed a Motion for Continuance, asking the Court to postpone the trial of the case until February or later so that they can attend the national championship game in Pasadena to cheer on their beloved Crimson Tide.

In addition to their own plans to attend the game, the movants cited as additional grounds that many of the witnesses will also be attending the game. They also argued that any Jefferson County jury pool is going to be too distracted with the impending national championship game to actually pay attention to trial anyhow, perhaps resulting in prejudice to the parties. (Hey, I didn't write these shitty arguments, I just paraphrased them for you.)

Apparently their opposing counsel are Auburn fans, however, so they refused to consent to a continuance. Luckily for the movants, the judge is also of the crimson persuasion and is almost certainly going to grant the request.

I have to say, even if Florida State had magically made it back to the national championship game this year, if I were set for trial on the Monday before the game I would never in my wildest dreams move for a continuance just so I could attend the game. And never in my wildest dreams would I expect a judge would actually grant this sort of thing. But maybe that's why I don't litigate in Jefferson County, Alabama...

On Advocacy

It is very easy for people to make fun of, look down upon, and pass judgment upon lawyers. As I have often said to friends, lawyers have the reputational issue they do because generally people only need one of us at the worst points in life: you have been injured, you have been accused of a crime, you have been sued, you are getting a divorce, you need to declare bankruptcy, or someone has died. As a result, it often feels to people who suddenly need to interact with lawyers that we are profiting from your misfortune, because we get paid for the work we do on some of the worst days of your life.

But on the worst days of your life, when your property, your liberty, or your rights are at risk, I assure you that you will want the most vigorous advocate you can find. You will want the person who will leave no stone unturned in trying to find the evidence of your innocence or the police misconduct that will keep you out of jail. You will want the person who persuades the judge not to give your ex sole custody of your children. You will want the person who makes sure your company is not run out of business by a massive punitive damages award simply because you made a great product that was involved in an isolated and unforeseeable injury. You will want the strongest advocate you can find and afford, and you will want that person to agree to represent you even if you are not 100% pure. Because frankly, nobody is.

When we sign up to go to law school, we know we will someday take an oath to vigorously advocate on behalf of our clients. We will agree to keep their secrets in virtually all circumstances (except when telling them can prevent death or serious injury to someone else). We will agree to take on representation we may later be ethically prohibited from withdrawing from even if we never get paid. We will agree to take positions that we may not personally agree with, because they are the best position for our client. And we will agree to put our own self-interest behind the interests of our clients virtually all the time. This is part and parcel of becoming a lawyer.

We agree to all of these things because we believe that vigorous advocacy is a necessary part of our criminal and civil justice system, which for all of its faults is the best one in the world. We recognize that we hold tremendous responsibility within that system as "officers of the court" to bring injustice to light, to prevent the entry of falsehood into the record whenever we can, and to ensure that every litigant's rights are protected whenever possible. Thought it is fashionable to assume we walk into court and lie every day, throw out the bad documents if we don't feel like turning them over to the other side, and train our witnesses how to wriggle out of responsibility for their actions, the truth down in the trenches is not even remotely close to this. In 9 years of practice, I can count on one hand, not using all of the fingers even, the number of lawyers I have worked with or battled against who I truly felt pushed the bounds of legal ethics. These people are usually treated as pariahs by the rest of us who are, by and large, passionate about upholding what we have sworn to do.

Some people can't fathom the commitments our profession requires, and for those people it is easy to announce moral absolutes about how they would rather get fired than represent this type of criminal defendant or that corporate behemoth with sketchy accusations against them. Perhaps they are incapable of compartmentalizing, and cannot understand that preventing police and prosecutorial excess is important even when doing so in defense of someone who committed armed robbery or rape. Perhaps they are incapable of anything but strict adherence to a particular ideology, and prefer not to examine it too closely to see if it should be revised from time to time. Whatever the reason, for people who recognize their own unsuitability for this profession to criticize the way in which others have performed it is ludicrous.

Kasim Reed defended large corporations accused of discrimination and other violations of employees' statutory rights. Not every case in which discrimination is alleged is meritorious, and not every corporate defendant accused of discrimination is branded an evildoer for all time.

Some plaintiffs' employment cases are bogus, and those should be weeded out and dismissed so that the meritorious cases can be resolved faster and more amicably. If a county has 20 rape allegations in one month and half of them are proven to be false accusations, then it makes it harder for the other 10 to obtain justice. The same is true with frivolous plaintiffs' litigation--it makes it harder for the meritorious cases to obtain justice more quickly.

In addition, corporations are not immutable objects incapable of change. A person may be a rapist for all time if convicted of (and actually guilty of rape.) But corporations are different--boards fire CEOs and hire new ones, company policies change, and the corporation that paid women less than men in 1979 shouldn't have that hanging over their heads thirty years later if it's no longer the case. To take Reed to task for representing Cracker Barrel in 1999 based upon cases that occurred years earlier completely ignores the potential for change within an organization. Perhaps this is by design--all large corporations are inherently evil, to some. But once we get to that point, we're demanding the sort of ideological purity that will disqualify virtually every candidate.

But even if I were retained to represent Cracker Barrel in a race discrimination case today--why shouldn't I? I am not going to lie, cheat or steal to win the case, I am only going to use the facts and evidence, legal defenses and procedural maneuvers legitimately available to me. If the company has really engaged in systemic discrimination, then that should usually result in either a verdict at trial or a settlement in the event the company's lawyers decide a trial win is unlikely. This is exactly how the free market is supposed to work--if someone is indefensibly injured or damaged by a corporation, the corporation pays. And if I am able to obtain dismissal of the case or keep the verdict/settlement low, then the case probably wasn't as meritorious is plaintiffs first believed.

What bothers me most about Cardinale's position is that he presumes all of the defendants Reed represented had violated the rights of employees, and that Reed was therefore working against workers' rights by advocating on behalf of those companies. Again, should we presume that simply because corporations are always evil and hurting people however they can? Do we really believe that? I have worked on hundreds of cases at this point in my career, and I have seen very few true slam dunks of liability. I have seen many, many cases that fall in the grey areas, and many cases that are obviously frivolous. To completely ignore the possibility that some of these companies were not liable for discrimination or statutory violations, and simply assume Reed was defending bad companies, is simplistic and unsupported by the evidence.

I've glossed over many of the points I wanted to make but struggled with, because they are difficult to wrestle with in one post. For example, the notion that a junior or midlevel associate in a large law firm gets to pick and choose what clients he wants to do work for is, frankly, ludicrous. Even now with 9 years of experience and some decent seniority, if I said "no, I can't represent Cracker Barrel because I disagree with things they've done in the past," I would expect it to potentially get me fired, and certainly lead to negative comments in performance reviews, etc. Earlier this year an associate at the law firm of Quinn Emmanuel was fired just a few days after sending an email in which he questioned whether the firm should be defending the Washington Redskins against constitutional claims brought by Native Americans. Law firms do not provide the freedom to pick and choose your clients as an associate, and I would never presume to demand that anyone to turn down an assignment when it could get them fired (and potentially blackballed within their industry to boot.)

Every single candidate for political office who is an attorney has probably represented an individual or entity who was guilty or liable of something bad. If we are going to start holding candidates to the standard that they can't have represented any client who ever committed a bad act, then we might as well just disqualify all lawyers from political office. Considering that our President, Vice President, Secretary of State, and more than half of Congress are lawyers...have fun picking from what's leftover after the disqualifications are complete.

I am not the slightest bit ashamed of my profession, or of having represented corporations accused of injuring people. They deserved a strong defense, and I provided it. I will not apologize for that simply because some people are incapable of understanding that I am fulfilling a necessary role in our justice system. Kasim Reed should not have to apologize for it either.

An interesting Atlanta-centered legal dispute

The organizers of this year's Dragon*Con are working through lawyers to persuade the Guinness Book of World Records to grant them the record for the largest choreographed performance of "Thriller," with over 900 people. Watch it here:



The previous record was 242 participants, but unfortunately before the Dragon*Con dancers' record could be established, almost 14,000 Mexicans beat them out and were able to obtain the official Guinness record. I'm not really sure how much of a legal issue this is (is the Guinness system considered an offer of a prize for completion of a task in reliance upon the receipt of the prize?) but I am sure one of the other lawyers who reads here and who has burned away fewer brain cells since law school than I have can wax philosophical on that point.

At any rate, the Dragon*Con video is hilarious, if for no other reason than at one point you see the Flying Spaghetti Monster doing the Thriller dance. Mexico's got nothing on that!

Legal Bullshit

Given my chosen profession, I have a natural fundamental respect for the rule of law. I believe that it must be adhered to unless adherence is either impossible or unconstitutional. But sometimes, law creates impossible situations, little cracks where a few unlucky citizens can fall in and become trapped. At those moments I feel some personal responsibility for being part of a profession that tries to improve lives but often ends up being the source of so much strife.

Wendy Whitaker is the latest victim of well-meaning but bad law. She made the mistake of performing oral sex on a 15 year old boy when she was 17 years old. She was convicted under a sodomy law later ruled unconstitutional, and now she must follow the many onerous regulations and rules for sex offenders for the rest of her life while in Georgia.

Whitaker has been lead plaintiff in a suit challenging the constitutionality of Georgia's sex offender laws that prohibit her from living near virtually any place that a child might occasionally inhabit, which has left her with only tiny pockets of the state that are not off-limits. While that suit has been creeping through the courts for the past 3 years, she has been trying to comply with the laws as best she can (with help of a temporary injunction), but she was just rearrested for failure to register a new address. She remains in jail, with bail set at $10,000. This is an outrage.

While I know many people will make the argument that Whitaker should just keep her nose clean while her case is pending and make sure all laws are complied with, this is a law that Whitaker should never have been forced to operate under. On the flip side, I could easily argue that it borders on malicious prosecution to rearrest someone for failing to comply with a law to which they have made a pending constitutional challenge. To throw her in jail for non-compliance while she is challenging a law that shouldn't apply to her amounts to some very dirty pool.

The Southern Center for Human Rights has been handling Whitaker's constitutional challenge for the past three years, but I'm not sure if they have a mechanism or the funding to pay for bail money for Whitaker. I hope someone will create a way for people like me who agree this case is bullshit to donate to a legal defense fund to pay Whitaker's bail and her defense costs in the new criminal case. I have little doubt that the eventual outcome of Whitaker's pending case will be a vindication of her constitutional right to live wherever she chooses, but that may take more than a decade to accomplish. In the meantime, she needs our help to keep her out of jail for something that should never have been imposed upon her.

If you have any details about a legal defense fund, please post in the comments. If I learn anything about such a fund, I will pass it on. And I will donate.

Supreme Court orders a hearing for Troy Davis

(Cross-posted from Blog for Democracy)

Today the Supreme Court shocked nearly everyone by granting relief on a direct habeas corpus petition for the first time in 50 years. The Court ordered that the U.S. District Court for the Southern District of Georgia hold an evidentiary hearing on Troy Davis' claim that he is actually innocent of the murder for which he was convicted and sentenced to death. This means that for the first time a trial court will actually be able to hear the live testimony of those seven recanting witnesses, rather than trying to decide their credibility based solely upon affidavits. For the last three years, all that I and the others fighting for Davis have asked for is that the evidence of his innocence be reviewed in open court. It will finally happen.

Justice Stevens' concurrence explaining the rationale for the decision is here, while Justice Scalia's somewhat nasty dissent is here. But the two competing opinions essentially boil down to this: Stevens and those who voted to order the evidentiary hearing believe it is essential to prevent a potentially innocent man from being executed. Scalia thinks execution of an innocent man is not a constitutional problem, as long as he got a trial and appeal. I suspect that fundamental ideological dispute will eventually have to be resolved by the SCOTUS in a future appeal of this case, but for now Davis will get his day in court and his execution by the State of Georgia will be stayed indefinitely. It is a good day.

Update: SCOTUSBlog has a comprehensive writeup about the decision that includes the interesting news that 5 justices had to vote to issue this Order. Generally 5 votes are needed for a decision but only 4 are needed to grant Certiorari to hear a case, so I had been wondering if this Order required 4 or 5 votes. Given that Stevens, Ginsburg and Breyer concurred while Scalia and Thomas dissented, with Sotomayor not taking part in the vote, that means that 2 out of the 3 silent justices (Kennedy, Roberts and Alito) must have supported granting the evidentiary hearing. Kennedy would not be a surprise, but both Roberts and Alito have been fairly tough law and order types during their tenures on the bench, so neither one seems an obvious choice to grant such extraordinary relief. However, if I had to guess I would say Alito was the fifth vote. He probably felt that there was no harm to letting a Court actually examine the evidence, particularly if there's a good chance that the evidentiary hearing still will not end with Davis being set free.

And then there were two...

Some of the most amazing lawyers I have ever worked for have been women, and nearly half of graduates of law schools today are female. So, for the past three years it has been downright unseemly to have only one woman on the nation's highest Court. Today, that discrepancy has been rectified with the confirmation of Sonia Sotomayor.

It should be a proud day for everyone, but certainly for all women and Hispanics, to see someone who worked so hard and accomplished so much in her professional life (despite coming from humble beginnings) rewarded with this highest achievement.

Why the birthers lose

Slate finally asks the question that we should have been posing to the birthers all along: suppose Barack Obama was really born outside the U.S....legally, would it really matter? Among the not very complicated legal reasons why there would be virtually no way the birthers would prevail in a challenge to the legitimacy of Obama's presidency even if they finally found the smoking gun of Kenya birth:

1. No citizen in the U.S. would have standing to sue to challenge his presidency, because every citizen would be impacted equivalently and courts routinely interpret such situations as not conferring standing.

2. The people who ran against Obama in 2008 also wouldn't have standing because there is no legal relief available that would address their injury. Basically, if Hillary Clinton sued and won, it still wouldn't make her the winner of the Democratic primary or President. Instead it would just make Joe Biden President.

3. Even if someone established standing, courts would probably decide it was a political question not appropriate for adjudication. Courts would be very wary of forcing a Constitutional crisis that would oust a sitting President, particularly when there is a procedure specifically spelled out in the Constitution for that. Which brings us to...

4. Congress could impeach him, but it would be difficult to prove he committed a high crime or misdemeanor unless he actually knew he had been born in Kenya and conspired to hide it, thereby committing a fraud. If he didn't know, he wouldn't have done anything criminal that would qualify. Also, there's no way in hell this Congress votes to impeach him.

Of course this article doesn't go into the other big reason why it might not even matter: Obama was born to an American citizen, Stanley Ann Dunham, so much like John McCain he would have been a natural born citizen of the U.S. even though not born on American soil. (There is some question of whether she had been a citizen for 5 years beyond her 14th birthday, a requirement under some statutes to be considered a full citizen, but it's not even clear that applies.) Being a natural born citizen is all the constitution requires, and does not necessarily require birth on U.S. soil despite the ravings of people who have obviously never read said Constitution. Being born on U.S. soil is the easiest, but not the ONLY, way to be a legally natural born citizen.

(The Constitution also does not require that both biological or legal parents be American citizens, but that won't stop some of the whackjobbier birthers from claiming it anyway.)

So there you have it, even if you assume the crazy things they would have you assume, it still won't change anything. Can we move on to more important matters now?

Defamation by Twitter

It was bound to happen sooner or later: someone casually states on Twitter that a person or a business has done something awful to them, not considering for a second that the person or business might see the tweet and take issue with it. But that person or business does see it, decides it is false and defamatory, and brings a lawsuit because now that tweet is out there for the world to see on the internet. If anything, it is surprising that it has taken this long for the first "Defamation by Twitter" lawsuit to come to light.

A woman in Chicago complained that her property management company apparently believes residents can safely sleep in moldy apartments. The property management company has now sued her because her Twitter feed is public, so in essence she "published" the allegedly defamatory statement about the management company on the internet.

Defamation laws vary by state, but in essence the elements are these:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff
(5. Where the subject of the statement is a public figure such as a politician or celebrity, he or she must also prove "actual malice" on the part of the person making the statement.)

There are several defenses to a defamation action, but the big ones are:

1. Truth of the statement is an absolute defense
2. Privilege: the statement was made in a legal or legislative proceeding
3. Opinion: statements that clearly express opinion as opposed to statements of fact are usually not defamatory, but it must be proven that a person hearing the statement would have appreciated that it was opinion.

For purposes of this case, it is unlikely that the woman who made the allegedly defamatory statement on Twitter can prove that the management company really does believe mold is not harmful to its residents. Thus, she is going to have to show that a reasonable reader of her Twitter feed would have interpreted her tweet as a statement of her opinion rather than fact.

There are two takeaways from this story for everyone who uses Twitter:

1. Consider carefully any derogatory statements that you make on Twitter about another person or entity, and if you don't feel reasonably certain that you can prove them to be true, then be sure to express them clearly as your opinion only.

2. If the management company is successful in this suit, the measure of damages will be tailored to how many people saw the tweet. A private twitter feed would have likely prevented the lawsuit altogether, and for anyone who wants to insulate themselves from legal liability for the things they say on twitter, taking your twitter feed private is probably the smart way to go. However, because this woman has a public feed, the question will be how many followers she has. The more followers who had her allegedly defamatory tweet show up in their feed, the higher the potential damages. This is one time that being popular isn't a positive thing.

Update: a pdf version of the Complaint is available here, courtesy of the Chicago Bar-Tender Blog.

Interestingly, the Complaint alleges that this was defamation per se, which if true would eliminate the need to prove damages because they are legally presumed. Illinois recognizes defamation per se when it falls into the following categories:

1. Accusing someone of committing a crime;
2. Stating someone has a "loathsome communicable disease" (generally this applied to STDs);
3. Stating someone cannot perform or lacks integrity in performing his or her employment duties;
4. Attacking someone's professional ability or reputation; and
5. Accusing someone of adultery or fornication.

Horizon is attempting to use #4, an attack on its professional reputation, as the basis for per se defamation in this case.

The interminable saga of Troy Davis continues

If it seems like I've been talking about the Troy Davis case for years, it's because I have. Apparently, I will be talking about it for a few more months at least. Today the Supreme Court adjourned for the summer without deciding whether to grant or deny Davis' habeas corpus petition.

After the Eleventh Circuit denied Davis' most recent appeal, his attorneys took the rare step of filing a habeas corpus petition directly with the Supreme Court. So, SCOTUS now has the option of either granting it (which hasn't been done since 1925), remanding for an evidentiary hearing to the district court (which is occasionally granted) or denying it outright. I found the last option the most likely, but was surprised to see that Davis' petition was not included in the final list of orders issued today before the Court adjourned until September.

The no-decision today essentially means that Davis' petition will not be acted upon until this fall when the court reconvenes. Davis will get a few more months on this earth, at least. I still have very little faith that Court intervention will occur at this point, with nearly all of his legal options rejected or exhausted. But I am very open to the universe surprising cynical ol' me just this once.

Protests at Shopping Malls

Protest minded right wingers in the Atlanta area were displeased yesterday when Simon Malls, owner of the Gwinnett Place mall, refused to allow a July 4th "Tea Party" to occur on its property. Immediately the right wingers assumed that the company and its owner wanted to support a Democratic agenda, but the real reason behind the company's objection is probably far simpler: they have a legal interest in not allowing protests on their property.

There is a long and storied line of case law establishing when private landowners that open their property to the public must allow members of the public to petition or protest on their property, and when they can remove such individuals. Generally speaking, private landowners are not bound by the First Amendment's rights to speech or assembly. However, many litigants have attempted to expand the First Amendment's requirements to private property that is opened to the general public. From hare krishnas in airports to union picketers at shopping centers, the last fifty years of Supreme Court jurisprudence is littered with cases defining the parameters for the owners of these "quasi-public spaces," such as shopping malls.

The essential rule after years of legal battles by owners of shopping centers and malls is this: as long as the owner of the mall has not dedicated their private property to "public use," they can legally exclude individuals who intend to conduct non-business activities on the property. This includes protesting, petitioning, gathering, and picketing. However, where a landowner has in the past allowed the property to be used much like a town square, such prior use of the property could be used as a bar by a court to prevent that landowner from arguing that his property should now be treated like any other private property (on which there is no right to free speech or assembly.)

So, Simon Malls could have faced future difficulty excluding other groups from protesting, petitioning, gathering or picketing on their property if they had allowed the Tea Party to occur there. I suspect that someone on their legal team finally told them that it was a bad idea from a legal standpoint to allow this protest to occur. It probably had very little to do with politics or PR, and everything to do with avoiding opening the floodgates to every crazy group that might want to congregate in the mall in the future. And it seems like a smart move.

A third way?

In recent arguments with a friend about the preclearance requirement of the Voting Rights Act, I have posited that perhaps all voting changes nationwide should have to go through the Department of Justice for preclearance. That way there would be no argument that the federal government is impermissibly discriminating between states in how much oversight it applies to their voting. That way we would not have to rely on outdated assessments of whether a state has sufficiently bad history with disenfranchisement to justify the remedial measure of preclearance. That way we would still have a way to prevent illegal disenfranchisement before it happens, rather than leaving it to DoJ to litigate it after the fact when the disenfranchised have no remedy.

When the VRA case was argued in April, many felt that Kennedy's questions indicated he was hostile to preclearance. But what if he was thinking the same thing? What if he was thinking that the way to save all the good that VRA has done is to expand it? Certainly if one of the justifications for preclearance in certain states was the dramatic disparity in registration statistics between whites and minorities, states with high Hispanic populations but low registration of those voters (California and New Mexico, for example) should theoretically be under a preclearance requirement. And states like Idaho or Nebraska with few minority voters might actually be in greater danger of disenfranchising those voters on the basis of their race, because their small number makes it that much harder to catch disenfranchisement through statistical sampling.

Many hoped that if SCOTUS struck down the preclearance requirement, it would provide Congress with an impetus to write a new and improved VRA that cured any constitutional deficiencies and put forth a more modern regime for administration. Even though today's decision didn't force that result, I hope that Congress considers some alternatives to the current system while they still have the votes to make it work. There is no reason, even if you fundamentally believe that VRA is not a broken system that needs fixing, why we can't make it better while we have the chance.

Just some thoughts rumbling about in my head after today's decision and all the commentary that has followed...

I'm back

Vancouver was fun, exhausting, grey, chilly, beautiful, and a complete whirlwind. I returned after an agonizing 11 hour layover in Chicago to find my house's air conditioning had crapped out while I was gone, so upon my arrival at home at 5:30 a.m. it was 88 degrees in my house. Let's just say that life did everything in its power to make my return...eventful. I *still* do not have my luggage thanks to Delta and United refusing to talk to each other, but I hope to rectify that tonight.

Hopefully, sometime this week I will have photos for you from my 12 km walk to, around, and back from Stanley Park's seawall. That was the definite highlight of the trip.

In the meantime, I wrote about today's un-landmark Supreme Court decision on the Voting Rights Act's preclearance requirment over at Blog for Democracy/law. Check it out.

Jobs I've Had Part IX: Law School Jobs

During law school, I worked for two different small plaintiffs' firms in my second and then third year. The first was a job I acquired midway through the first semester of my second year, when I decided that I really needed some extra money because Boston was so damned expensive. I worked for a two man firm that did a little of everything, though personal injury was sort of the filler in between the cracks of their other cases. I worked 20 hours per week answering phones, drafting legal documents, doing legal research, and basically helping them out on whatever they needed done.

I remember working on documents for the arbitration of a post-divorce case all about stock options. The former husband had been quite high up at a technology company and had acquired millions of dollars' worth of stock options, and a portion of those options had been granted to the former wife in their divorce settlement, with the catch that she only obtained the rights to the stock options once they'd been both vested and exercised. The ex-wife claimed that the ex-husband had been deliberately NOT exercising his options in order to keep them from her. The ex-husband claimed that as a company executive his ability to exercise options was restricted for much of the year due to blackout provisions for stock transactions on company executives who might have foreknowledge of information that could affect stock prices. We represented the ex-husband in the case. I worked there for nearly 6 months and the arbitration still wasn't even completely over by the time I left, so you can imagine I came away from it with a dim view of how well arbitration provides a faster, less expensive alternative to traditional litigation.

One of the two lawyers was also in-house counsel part-time for a technology company, and that company had a patent litigation action that involved most of the other big firms in the city. I don't remember many details, beyond feeling like the poor guy representing them was a little outmatched given the firepower on all the other sides.

Another law student who actually looked enough like me that she could have been my sister shared my schedule there, and we occasionally overlapped enough that we could hang out and talk for a few minutes. I've long since forgotten how it came about, but one of us somehow discovered that we could search the cache of the computer at our desk and see what the 2 lawyers were viewing on the internet when we weren't around. We found URLS to beastiality sites in that computer, and were quite scandalized by trying to figure out who was responsible for it. I don't think we ever figured it out, though we had our suspicions. (One of the attorneys had a teenage son who occasionally came with him to the office on Saturdays.)

I left that job to serve as a summer associate at a big firm in Boston, which I would later join as a first year associate fresh out of law school. It was a cushy gig, since I was paid $1800 a week to do research projects, go to lunch with attorneys, go to cocktail parties and dinners all paid for by the firm, and even take a weekend trip sponsored by the firm to the Vermont mountains. Of course the firm was NOTHING like this when I returned as a real employee, but it was still lovely while it lasted. We had a big class of 30 law students from various schools, and there were several romances and scandals that summer. At the end of the summer I got an offer for full time employment, so I knew I could relax my third year of law school rather than sweating it through another interview process.

Third year I again needed to earn a bit of extra money, so I went to work part time for a solo practitioner. While I don't really want to put her name here because I'd prefer not to have her find this blog through a Google search, let's just say that her first name was the name of a famous main character from a Shakespeare play about star-crossed lovers, while her last name was the last name of the rival family. It was her married name, and she'd long since divorced Mr. M, but she kept the name because people found it distinctive. Also, she was crazy.

She had won a few huge cases in the years before I joined her practice, and I think she still fancied herself as a legal badass. The problem was that the money had started to wear a little thin, and the only cases that we had were not quite the moneymakers she hoped. I worked on a personal injury suit against a large Atlanta-based building supply chain (again, do the math) that really exposed me for the first time to the downfalls of dealing with plaintiffs. It's the reason I will never do that work again: plaintiffs lie, and they're almost all crazy.

I also worked on my first employment litigation case at that firm, a woman who had worked for a large banking organization and had been demoted after refusing her boss's sexual advances. It was a great case for us for a variety of reasons, the biggest of which was that the woman had kept copies of all sorts of emails from the boss saying how qualified she was for this new job, as well as a diary of all the things he tried to get into her pants. Ultimately we settled that case for nearly two years' pay, which is about as good as a sexual harassment case can turn out. (It had some warts, too, but we managed to keep those under wraps.) I had essentially been allowed to bring in and run that case entirely on my own, so I was very proud to get that result.

The lawyer I worked for was constantly trying to expand her repertoire, but sometimes before she really knew enough to take on a new type of work. She was called by a former personal injury client who has arrested for bank robbery, and decided that she could learn how to do criminal defense work. I recall frantically trying to research what I needed to put into a motion to suppress that she had decided we needed to file, and feeling stressed to the end of my rope out of fear that we were flying TOO blind in the case. Thankfully, that case was before a judge who was notoriously lenient on criminal defendants (to the point that she later was the subject of a campaign to kick her off the bench), and my boss managed to secure a deal for 6 months probation and a drug treatment program for the guy. I was amazed, because our client had signed a confession! (While high as a kite on Vicodin, but still...)

I worked there for the second half of my third year of law school, and while I studied for the bar exam. I left that office about a week before I started at my "real" firm, and when I left she asked if there was any way she could convince me to stay. Given what big firms were paying starting lawyers, I told her that I had to take the other deal. Honestly, she was such a strange bird--her depositions were excruciating to read because she liked to do weird things like stand on her chair to intimidate witnesses--that I really didn't think I could in good conscience keep working for her any longer.

However, I ended up being very happy she was still around and wanted me back 2 years later when I was laid off from that cushy firm gig. I worked for her part time for 6 months while I interviewed for full time positions at other firms, and strangely enough the same woman who had been the plaintiff in my first sexual harassment case had somehow managed to acquire a NEW sexual harassment case. I managed to settle that one too, though the terms were far less lucrative. By the time I left there a second time, the boss had started to talk about moving up to Vermont to retire, and it was clear her heart wasn't in it anymore. I ran into her in the courthouse a few years later and she was still working (and still crazy)...and told me a story about how she had an ethics complaint filed against her because she shoved opposing counsel at a hearing. She said this with pride.