Errors of Law

Legal Studies Classroom Blog

2011-02-07T08:15:00.000-08:00

This blog was my first attempt at blogging about issues that I felt were important to legal studies education. However, it has since become inactive. As I progressed along the blogging learning curve, I have moved forward with the Legal Studies Classroom Blog. I invite readers of Errors of Law to look at the new blog and share their comments.

Songs About Law School Part 7

2008-11-07T14:52:00.000-08:00

This final (for now) installment in the "Songs About Law School Series comes from Singapore, where first year associates in the firm of Drew & Napier, LLC give advice to first year law students at SMU (Singapore Management University). The video entitled "All The Law Things" is a parody of the song "All The Small Things" by Blink 182 (both videos are below).The advice is predictable: as law school was all consuming, so too is law practice (although they seem so suprisingly happy about it!).

Songs about Law School Part 6

2008-10-28T17:51:00.000-07:00

Well, there's not a lot of substance to this next installment of the Songs About Law School series, but it is a lot of fun. Unlike the prior songs which exuded either the trepidation of the entering law student or the endless toil of the 1L, BarBri Girl by the NYU Law Revue is infused with the enthusiastic optimism of the graduating law student turning his/her attention to preparation for the bar exam. BarBri is a bar review preparation service popular in New York, Massachusetts and other states. I am a BarBri alum, myself and I confess that my (then) 16 year old BarBri outlines served as the basis for my first lecture outlines as an Adjunct Business Law instructor many years ago. BarBri girl is a spoof of the song Barbie Girl by the Danish pop group Aqua. There is an interesting legal connection to Barbie Girl in that Aqua's record company, MCA, was unsuccessfully sued by Mattel for trademark infringement on their Barbie doll product line. BarBri girl is a bit of Legally Blonde meets Delta House, part social commentary and part mindless emotional release. I see it as moving beyond the trivialization of womanhood evident in the original Barbie Girl to more of a celebration of accomplishment.

Below are first, BarBri Girl by the NYU Law Revue and, further below, Barbie Girl, by Aqua.

Songs About Law School Part 5

2008-10-26T14:30:00.000-07:00

The next installment in the Law School Songs series is Texas Wesleyan law student, Danielle Rupp's, submission for the Access Group's "One Less Worry" Contest. What I like about Danielle's unique expression of her law school experience is that it reminds prospective law students that they are stepping out of the cozy confines of their undergraduate cocoons and entering a place where there are other people from the "real world." When I was a law student I had the greatest respect for people who worked all day long and then went to class and somehow found time to prepare for the next day's classes. Yes, law school is hard; and it is harder for those juggling work and family and other real world responsibiities at the same time. But, LIFE is hard and the juggling act never really ends once it begins. Remember, students, to steal a line from Rudy Baylor in The Rainmaker, "There are all kinds of lawyers." And there all "all kinds" of ways to be involved in the practice of law or use of your law degree after law school. You don't need to throw yourself into the "Big Business model, 3,000 billable hour/year, owe your soul to the company store" type of law firm just because other law students are pursuing those positions. You need to be true to yourselves and the things that are important to you in your lives. Money is a poor substitute for peace of mind and a life richly shared with family.

Kudos to Danielle for her creativity and talent and the best of wishes for juggling law school and life.

Songs About Law School Part 4

2008-10-23T18:07:00.000-07:00

The next installment in the "Songs About Law School" series features Lindsey Myers's submission to the Access Group "One Less Worry" contest. In a lighthearted way, Lindsey touches on most of the basic entering law student concerns - including money, grades, appearances, competition and moral degradation. I think that Lindsey is ahead of the game. As I have stated here before, going into law school understanding what you are about to experience will help you to get through it intact. Law schools typically make much of their mission to "train you to think like a lawyer." This is all well and good and certainly a necessary skill for the practice of law. But it should not be misinterpreted as some higher state of intellectual pursuit. It is, ultimately, occupational training. A law student needs to learn to be able to "think like a lawyer" when lawyering and "think like a person" when not lawyering. Lawyers live in a world of relative truth. "Truth" in law is nothing more than an evaluation of what evidence exists that is more likely than not to prove the existence of the fact. However, when relating to your spouse, children, family, friends, employers or employees and co-workers (in short, everyone who has importance in your life) truth is not and should not be dependent on the existence of evidence. Logical, analytical analysis has its value in its proper place. But so do sympathy,empathy, and irrational emotion.

Thanks to Lindsey for sharing. If you're reading, Lindsey, I have no doubt that your sense of humor and insight will serve you well. And who could't help but admire a cheese-head wearing accordian player?

Primary Sources for First Amendment Cases

2008-10-21T11:56:00.000-07:00

Have you ever wondered exactly what was contained in the "Left Wing Manifesto" that Gitlow was distributing when the State of New York busted him? While the majority of the Supreme Court thought it had a "bad tendency," Justice Holmes, in dissent was dismissive of it stating, "[W]hatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration." Here is an opportunity to read the original Left Wing Manifesto for yourself, along with the original documents that were the subject of a couple of dozen First Amendment cases. The site "First Amendment Online" is hosted by the University of Minnesota Law School. The link here is to the home page. Click on "Primary Sources" to see the Left Wing Manifesto and other documents. Credit should be given to the Volokh Conspiracy Blog which is where I found the link. I hope that readers will find theses resources helpful in the classroom.

The International Sale of Goods Song

2008-10-20T15:45:00.000-07:00

Professor Harry Flechtner at the University of Pittsburgh Law School performs a song about the United Nations Conference on International Contracts for the Sale of Goods. While it is not my area of expertise, it strikes me as quite a good song (pun intended). This is not, strictly speaking, a popular cultural representation of the law. Although Prof. Flechtner's song is clever and catchy, it isn't likely to capture the attention of those outside of law circles. It is, however, the kind of song that can be used in the classroom - similar to the Law Lessongs available on my web page. Thank you, Prof. Flechtner for sharing your creativity and providing another valuable and innovative resource for the law classroom.

Songs About Law School Part 3

2008-10-19T12:34:00.000-07:00

This is the third installment in the "Songs About Law School" series. This is Joy Sadaly's entry into the Access Group's "One Less Worry" scholarship contest. Joy's song reminded me of the "UPS syndrome" that my fellow law students used to talk about 30 years ago - comparing our financially miserable circumstances as law students to the financial security enjoyed by our high school friends who eschewed higher education for a career in in short brown pants and shirts. It sounds like little has changed in 30 years.

I wish I could confidently advise all undergrads that financial insecurity in the legal profession is limited to their time as a law student. Unfortunately, for those who choose to practice in the parts of the profession that serve the poor, the neglected, the forgotten, the politically and economically powerless, the young, the disabled, the accused - in short, those doing the most serious and important work for society will enevitably be the worst paid. That includes prosecutors as well as public defenders. It is difficult for a civic minded law student, interested in public service, to watch a classmate of inferior ability earn a salary many multiples higher than her own simply by choosing to do less socially important work for clients with means. I strongly recommend that students who are drawn to law school because of an interest in public service read "Broken Contract" by Richard Kahlenberg. It will help you to understand this syndrome and its causes so that you will know what to expect in law school and beyond. Again, the lesson is NOT, "Don't go to law school," it's "Go to law school expecting it will challenge you socially, culturally, and ideologically as well as intellectually." Knowing that this will happen will put you in a better position to maintain you ideals, values and personality as you go through.

Songs About Law School Part 2

2008-10-18T14:43:00.000-07:00

This song was submitted as part of the "One Less Worry" contest sponsored by the Access Group for a $10,000 scholarship. Students had to submit a video that was no longer than 4:00 long on the topic, "What are your worries as a law student?" I will post the winner and some of the honorable mention video in the next few weeks. Some of them have a lot to say to undergrads. But first, recognition goes here to Melissa Mitchel for "The Law School Worryin' Blues." It is cleverly composed and nicely performed. Once again, I think that there is significant value in undergrads considering these issues in advance. It can't help but make them better prepared.

Melissa, if you ever read this you are welcome to come down to UConn to talk to our undergrads anytime. I love the Sweatshirt from good ol' So-FFolk-U Law.

My Cousin Vinny Gambini for President?

2008-10-15T16:55:00.000-07:00

Today I met with my freshman honors class, "Law and Lawyers in Song and Story." Students discussing the movie "My Cousin Vinny" got off on a thread about the value of having a lawyer whom you like and can relate to versus a lawyer who is more sophisticated and authoritative. I couldn't help but make the parallel to the discussion that has been going on since the 2000 Presidential election about Bush garnering votes because he is "the kind of guy you can see yourself sitting down with and having a beer." (see this editorial for example) In 2000, Gore was portrayed as wooden. In 2004, Kerry was cast as an elitist. The McCain campaign has attempted to cast Obama as an elitist as well, choosing Palin for her "you betcha" folksiness as a contrast. The problem is, in theses times of economic crises, we turn to serious people to solve serious problems. Likability is trumped by competence. I think that without realizing it, my students were fleshing out these issues in the context of the law movie. When you are in serious legal trouble, competence probably trumps likability; and the traits are not necessarily mutually exclusive - in lawyers or politicians.

And it all reminded me of one of my favorite movie clips - one that I use when discussing the decision in Texas v. Johnson. This is from The American President. I hope that you enjoy it.

Songs About Law School Part 1

2008-10-14T17:55:00.001-07:00

There are a lot of creative and talented people out there. Some of them end up in law school (for whatever reason) and share with all of us their impressions. Their reactions to law school, expressed in creative ways, fashion a picture of law school for curious undergrads (my students). For the most part, the images are unflattering - which is both scary and confusing to the smart and idealistic undergraduates who see the law as a force for good but are nervous about how law school might change them. I see this is a positive circumstance. The decision to enter law school should not be made lightly. Further, the more that you know about what to expect in law school, the more you are likely to be able to navigate the sausage grinder effect of law school and come out the other end with your sanity and personality mostly intact.

I give kudos and thanks to Owen from the University of Maryland School of Law for his "Law School Musical" video, shared here:

Thankfully Undemocratic

2008-10-13T16:51:00.000-07:00

George Will's column "Bloomberg Shows Reason For Term Limits" ran in the Hartford Courant today. Here is a quote:

Bloomberg's supporters say term limits are undemoctratic. To the charge that term limits are undemocratic, the answer, in Palinspeak, is, "You betcha." That is, they are as undemocratic as, say, the First Amendment, which begins with the most lovely five words in the English language: "Congress shall make no law." The amendment lists some things that the people's elected representatives cannot do even if the people want them done, such as abridge freedom of speech or legislate the establishment of religion.

Our Founders knew that the Bill of Rights was an imperfect list. That is why the ninth amendment was included. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So who determines what rights are retained by the people in the face of a hostile majority? Leaving that task to the majority is letting the fox guard the henhouse. Only the courts have the institutional make-up to provide this protection. Once we recognize the need for protection against the tyranny of the majority (as out Founders did) the proper role of the courts in this process should be a reason for celebration - not for complaint.

Give me an "activist" judiciary over a tyrannical "will of the people" anyday.

Hijacking Language of Democracy to Fight Same Sex Marriage

2008-10-11T19:10:00.000-07:00

I apologize for the length of this post, but the subject demands it. I have been paying too little attention to this blog of late trying to keep up with the semester’s demands, but the relevance and import of this issue is too much to sit on without comment.

In a 4-3 decision, the Connecticut Supreme Court has ruled that same sex couples can no longer be denied the right to marry. The decision has caused an outcry about “activist judges” who are “usurping the will of the people.” The Norwich Bulletin editorial (People, Not Court, Should Decide Policy) is typical. “Should four people be establishing the state’s public policy? We think not. . . . [T]hat policy should be guided by the will of the people.” All this sudden concern for democratic principles is, at best, misguided and, at worst, misapplied by those with a conservative social agenda.

Perhaps the Bulletin editorial board simply doesn’t understand how a legitimate democracy works. In The Bulletin’s world, if you have five kids on the school playground, it is perfectly acceptable for 4 of them to vote and by “the will of the people” decide to beat up the fifth kid and steal his lunch money every day. Luckily, there is an entity (in this case the teacher) who is charged with the obligation to protect the minority against this kind of bullying and who also carries the authority to reverse the action.

This nation’s founding principles were forged out of a healthy fear of and dislike for the tyranny of the majority. A strong case may be made for the proposition that the minority that the drafters of the US Constitution sought to protect were the influential, yet numerically small, commercial class of merchants and businessmen. After watching Daniel Shays and his rabble of farmers (“the people”?) rise up against the merchants in the Confederated State of Massachusetts and a legislature full of farmers and laborers in Rhode Island pass laws issuing paper money, the founding fathers were genuinely concerned about what other mayhem a passionate and motivated majority might visit upon a righteous minority.

The judicial branch of government is the only one which, by design, does not answer to the majority will. In the Federal System, judges are not elected and they serve for life. Even the basic civics class curriculum teaches our students that this system is specifically designed to insulate the judges from the influence of politics (again, the majority will). Whether by design or not, we have come, as a democratic society to expect the courts to uphold the rights of the weak, the disliked, the marginalized, even the amoral from the overreaching bullying of the tyrannical majority.

Therefore, the Connecticut Supreme Court has done exactly what it is supposed to do – ignore the will of the majority and make a decision based on reason, rationality, human dignity, and in no small part, centuries of Anglo-American Common Law.

Perhaps “The Bulletin” and similar complainers understand democratic principles perfectly well but are not above hijacking democratic style language in order to enhance a conservative social agenda. Let’s turn the call for the “will of the people” onto a different subject – gun control. Most (the majority) of people in Connecticut are in favor of strong and meaningful restrictions on gun ownership. Suppose that the Connecticut legislature passed a law that said that people could own guns, but could not keep them in their homes. That is, you could store your gun in a locker at a shooting range, and could use it there, but could not possess it elsewhere. (You would still have the right to own a gun - like same sex couples were said to have had all the rights of marriage under the civil union law.) Most likely, a gun owner would file a law suit and go screaming to the court to overturn the “will of the people” and protect their fundamental rights of gun ownership. All the concern about democratic principles would shift from “will of the people” to protection against “tyranny of the majority.”

Now, those paying attention will point out that the U.S. Constitution, as recently interpreted by the US Supreme Court, guarantees the right of gun ownership in the Second Amendment. Therefore, in deciding the gun case, the judges are not being activists, but rather strict constructionists. There is some merit to this distinction and it points out the difficulty in finding applicable analogies to other situations where there is a disconnect between the “will of the majority” and “the fundamental rights of humanity.” Usually, the majority respects fundamental rights. Sometimes they do not.

The obvious example of the latter is our nation’s long and tortured history of discrimination against non-whites. When the US Supreme Court ordered southern public schools desegregated in the 1950s, that decision was very unpopular with the majority in the southern states. The “will of the people” was to resist enforcement of the Court’s decision with violence which was overcome in several instances only by calling in Federal troops.

But for some reason, those opposing gay marriage do not recognize marriage as a basic civil right which is being denied to same sex couples. The argument is often made that this is a claim for special treatment – “extra rights,” perhaps. That argument was deflated 40 years ago, again, by the US Supreme Court. When the “will of the people” in Virginia criminalized the state of marriage between a white person and a non-white person, the Court threw off the yoke of majority tyranny and struck down the law in the case of Loving v. Virginia. The Court affirmed:

Marriage is one of the "basic civil rights of man[kind]," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

This is strong language to make a strong point. The right to marry is a fundamental civil right and, therefore, must be protected by a judicial system charged with the authority to do so in the face of tyrannical “will of the people.”

It would be less than thorough to wrap up this discussion without mentioning religion. Obviously, the free exercise of religion is another dearly protected individual liberty. Therefore, churches, such as the Catholic Church, are, and should always be, free to refuse to sanction same sex marriages in their churches (as they presently eschew civil divorces). However, marriage is in the first instance a civil matter with corresponding important civil and secular meaning. There are two separate and distinct realms of marriage. Churches have no business in dictating the civil effects of marriage or any other secular aspect of relationships. If a person because of his or her religious beliefs does not wish to have a same sex marriage, then he/she should not have one. However, the protected free exercise of religion does not extend to include the freedom to infringe on the basic civil rights of others.

I cringe every time I read another diatribe against “activist” judges, because it is certain to be couched in a call for adherence to “democratic” principles by people who either do not understand democracy or are so ethically challenged as to manipulate the language of democracy to promote a specific conservative agenda. The latter group has no ideological reverence for democratic principles and will abandon them whenever expedience requires. I resent the hijacking of language of democracy under these false and manipulative pretenses. It is this latter group that is promoting support for a ballot question that will appear on this November’s ballot to call a Constitutional Convention in Connecticut. Their claimed goal is to “return democracy to the people.” From where I stand, they are bullies out to steal everyone’s lunch money. Don’t be fooled by their thinly veiled call for democracy. To quote the President, “They hate our freedoms,” and they want you to empower them to take our rights away from us. Thank goodness for judicial activism!

Alberto Gonzales Mishandles Classified Documents

2008-09-04T12:31:00.001-07:00

Several news organizations are reporting that former U.S. Atty. General Alberto Gonzales admits mishandling classified documents.

I am suprised that he can remember (see video below)!

World Turned Upside Down

2008-07-09T13:25:00.000-07:00

The AP is reporting today that the manufacturers of the travel trailers used by FEMA after hurricane Katrina are blaming the toxic levels of formaldehyde on the lack of government regulation. These claims are being backed and echoed by Republican members of Congress during the hearings being conducted by the House Oversight committee. To repeat, that's Republicans and manufacturers complaining about too little business regulation. It's no wonder students have a hard time sorting out legal principles and public policy when ideology gives way to expediency.

How is it that the manufacturers are not able to determine a safe level of formaldehyde on their own? In our legal scheme, a robust civil justice system should cause the manufacturers to be wary of civil lawsuits by people injured by their product. This should cause them to be cautious in their manufacturing, placing a premium on safety over profit. I think the problem is that our civil justice system is not sufficiently potent enough to do the job. We should be considering meaningful tort reform that makes it easier to file and prosecute lawsuits against manufacturers of unsafe products. Perhaps tort reform that mandates punitive damages would cause manufacturers to be more careful in their production.

Top Ten Law Songs from Above The Law Blog

2008-06-23T18:19:00.000-07:00

The law blog, "Above the Law" has recently posted their list of the top ten law songs as determined by their survey. While I applaud the effort, the list is pretty limited - including mostly very obvious songs that make the list simply out of notoriety (though "Lawyers, Guns and Money" should make anyone's list). Some of the more obvious omissions, to name a very few, are Jackson Browne's "Lawyers in Love," Weird Al Yankovic's "Don't Download This Song," Bob Rea's "The Law," Dance Hall Crashers' "So Sue Us," Vickie Lawrence's or Reeba MacEntire's "Night the Lights Went Out in Georgia," Throwing Toasters' "Nursery Rhyme Lawyer," Joe Lima's "Drivin' Lucinda to the Courthouse," The Diamonds' "You Are My Judge and My Jury," Kitty Wells' "Will Your lawyer Talk to God For You," Judas Priests' "Breaking The law," The Who's, "It's a Legal Matter," David Lindley's "Talk to the Lawyer," The Allman Brothers' "The Judgment," Tom Paxton's "One Million Lawyers" - whoops!, I guess that's way more than 10. Hmmm - I guess I will have to add a page to my website and start my own list. Here is a link to Weird Al's "Don't Download This Song" which is a quality piece of social commentary (Youtube embedding was disabled by request). For other law songs, see my website, Errors of Law.

Law Songs For The Law Classroom

2008-06-15T16:57:00.000-07:00

This video is one of a series from a company called "Manpower." The company apparently does consulting work in Human Resources. What I like about their approach (and how it relates to law) is that they adopt the attitude that getting sued (or suing) is undesirable. I tell my students that the most important principle that they can learn in a Business Law class is how to avoid conflicts in court. Too many students (and businesspeople) have been indoctrinated into thinking that court is a place to go to obtain a just resolution of a dispute. Therefore, they become sloppy and imprecise in their business dealings thinking that the court will bail them out in a serious dispute. Then after encountering the expense, stress and imperfection of the court system, they rail against "the lawyers." Once again, legal legitimacy takes a hit.

This song is just a fun way to remind students that there is value in conducting business so as to avoid litigation. For some other songs that may be helpful in the classroom see my "Law Lessongs."

Glimpses of Human Failings Harm Legal Legitimacy

2008-06-12T17:48:00.000-07:00

Judge Alex Kosinski, Chief Judge of the 9th Circuit U.S. Court of Appeals, sitting as a trial judge on a case involving distribution of obscene material may have to recuse himself as he himself has been a regular contributor to a website containing questionably pornographic material. The NY Times article is available here . The article, and those put out by the wire services contain some unfortunate quotes from the judge (i.e. “It’s not a porn site. There’s some funny stuff on there.”) According to the Times, "the site, now disabled, included a video showing a sexually aroused animal, a photograph of naked women painted to look like cows and images of masturbation and public sex." Ouch!!

The legal system does not need this kind of publicity. Yet, as a legal educator, I see this incident as another opportunity to help students see judges as people, with all the capabilities and failings that are inherent in humanity. These types of incidents damage the legitimacy of the system by exposing one of its inherent potential weaknesses - it's humanity. One of the reasons why we retain certain traditions in our system, like robes for judges and the strange language of court openings ("oyez, oyez . . .") is an attempt to disguise the court's humanity in mystique. A college educated person should understand this.

Blaming the Trial Lawyers

2008-06-04T10:58:00.000-07:00

This "Mallard Fillmore" cartoon ran in newspapers this week. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The attached cartoon erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.