Tag Archives: Law

Ohio Law Student Not Qualified To Be Atty If Debts Not Paid, Supreme Court Rules

According to an ABA Journal article, Ohio’s highest court has ruled law grad Hassan Jonathan Griffin of Columbus, Ohio failed to satisfy the “character and fitness qualification” requirements to be an attorney because he had no visible means to pay back his law school loans or credit card debt.  Mr. Griffin works part-time in the public defender’s office, earning $12/hour.  He has $170,000 in loan debt and $16,500 in credit card debt.  Griffin provided information that he was remaining at his part-time job in the hopes that it would become a full-time position

To the Ohio Supreme Court, these facts rendered Griffin unfit to practice law based on low moral character.  The opinion is downloaded to the Box for those who wish to review it.

Frankly, and I agree with the ABA writers, this decision is outrageous!  In my opinion, this young man is being penalized for a legal education system that yokes its students with back-breaking student loan debt, often well into the hundreds of thousands of dollars.  The fact that Griffin is working – whether part-time or full-time – in a public interest career ought to be encouraged, not be grounds for punishment or banishment.  In fact, it is not at all unusual – instead, quite typical – for public interest jobs to be less than full-time at first, often working into more stable situations for those graduates that are able to stick it out.  In the present economy, Griffin is not doing anything extraordinary – certainly not immoral – when you consider the many articles recommending volunteer work as a means to land a full-time job.

If Mr. Griffin has any further avenues available to him to pursue this matter, this author strongly encourages him to do so against what is truly an inequitable decision, one with far-reaching implications.  For example, what if Mr. Griffin – like me – wanted to go directly into his own solo law practice, but lacked any clients at first.  Would that evidence insufficient morals to practice law?  If so, then can only the super rich, or super lucky, practice law in Ohio?

 

 

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California Governor Signs “Expedited Jury Trials Act”

As many already know, alternative dispute resolution (ADR) is a common feature in today’s civil litigation.  The goal of ADR is to assist litigants in resolving their disputes without the need for a full-blown jury trial on the merits of an action.  ADR can take many forms, including arbitration, mediation and early neutral evaluation.

One form of ADR that never seemed to gain traction in most jurisdictions, however, is the “summary jury trial.”  (See, Thomas B. Metzloff, Reconfiguring the Summary Jury Trial, 41 DUKE L.J. 806, 806. (1992).)  Typically, a “summary jury trial” involves a smaller number of jurors impaneled to hear cases with a lower dollar value, and the proceedings are usually limited to a short period of time (e.g., less than one day’s trial time).  Ordinarily, both sides must agree in order to submit a case to such a procedure.

One jurisdiction where “summary jury trials” have been used in some civil matters is South Carolina.  You will find a law review article entitled Summary Jury Trial in Charleston County, South Carolina in the Box, which discusses the use of this ADR procedure in South Carolina.

Now, the “summary jury trial” is expected to become a more oft-used feature of California’s ADR processes.  On September 30, 2010, Governor Arnold Schwarzenegger signed into law Assembly Bill 2284 known as the Expedited Jury Trials Act.  The Act will take effect on January 1, 2011 and self-expire on January 1, 2016 unless a later-enacted statute deletes or extends the date.  The Act is modeled on South Carolina’s “summary jury trials.”

How Will Summary Jury Trials Work In California?

Under the Act, the parties to a civil dispute must agree to submit their case to this procedure; they cannot be compelled to submit their case to the procedure.  Their case will be heard by a jury of eight jurors (or fewer in some circumstances) with no alternates, and six of these jurors must agree on a verdict.  Counsel will be limited to three peremptory challenges.  Each side will have no more than about three hours in which to present their cases.  They must waive their right to appeal an adverse decision or to make certain other post-trial motions.  Finally, expedited jury trials will typically involve “high/low agreements”, a written agreement entered into by the parties specifying a minimum amount of damages a plaintiff is guaranteed to receive from the defendant and a maximum amount of damages that the defendant will be liable for regardless of the ultimate verdict returned by the jury.

Goal Of Summary Civil Trials

Like many states, California has a severe backlog of cases percolating through the judicial system.  Many of these are low-value cases.  The proponents of the Act contend that the procedure has the potential to drastically reduce the cost of such litigation as well as relieve the court’s docket.

What do you think?  Do you think ADR is a good idea in general?  What about “summary” or “expedited” jury trial in particular?

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In Significant Workers’ Rights Case, The U.S. Supreme Court Grapples With Grammar

In legal disputes, success or failure often turns on the definition of a word.  For example, what does the word “file” mean?  To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without.  To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint.  Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.

Black’s Law Dictionary defines “file” in this way:

1. “A record of the court.  A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.”  (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.

Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly.  Oh, but if language were that simple.  Words don’t exist in a vacuum, after all.  They represent beliefs and intent expressed in a particular context.  As I heard an attorney state in a recent oral argument, “Nomenclature matters.”  Yes, it does.  But, so does context.

During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.”  While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA).  The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory.  Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint.  The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.

So, the crux of the issue is this:  Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?

According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints.  These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers.  Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.

The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA.  In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do.  Counsel for the employee, Kevin Kasten, remarked:

“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”

Realistically, both sides have a valid point.  In those case, the “right” decision usually is a combination of both viewpoints.  Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures.  Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow.  To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions.  In and of itself, that smacks of unfairness.

Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added.  Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones.  Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual.  Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off.  These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.

As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint.  In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.

A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint.  If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing.  In past generations, that might have been a letter, a handwritten note perhaps.  Today, it can be easily achieved via electronic means.  Do yourself a favor and don’t lock yourself into a dispute like this employee did.

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Federal Judge Blocks Controversial Portion Of Arizona Immigration Law

Seal of the United States Department of Justice

Image via Wikipedia

FindLaw.com’s blog is reporting news today that a federal judge has preliminarily blocked enforcement of at least a portion of Arizona‘s controversial immigration law, known as the Support Our Law Enforcement and Safe Neighborhoods Act.

Because the Arizona immigration law contained a “severability clause” – a clause that allows a provision of law that is of questionable legality to be severed from a larger statute or body of laws – U.S. District Court Judge Susan Bolton did not enjoin enforcement of the entire law.  However, she did enjoin enforcement of the controversial portions of the statute until resolution of the U.S. Department of Justice‘s lawsuit against the State of Arizona is resolved.

That lawsuit, filed by the U.S. on July 6, 2010, argues principally that immigration law is a matter left up to the sole legislative authority of the federal government, an argument known as “pre-emption.”  “Pre-emption” finds its roots in the U.S. Constitution’s “supremacy clause,” which states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const., Art. VI, Clause 2. (Emphasis added.)  See also, Wikipedia article here.

In reaching her conclusion, Judge Bolton determined that, in all likelihood, the U.S. would be successful in its lawsuit against the State of Arizona.  This determination is a pre-requisite finding before a federal judge can enjoin the enforcement of a law.

A copy of Judge Bolton’s order has been downloaded to the Box for viewing.

Breaking News Update!

Arizona Governor Jan Brewer said Wednesday she would swiftly appeal a judge’s ruling blocking key parts of a new state immigration law, vowing to take it all the way to the Supreme Court.  You can read the Arizona Governor’s response here, courtesy of Yahoo.com.

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History Of Child Labor Laws In The U.S.

The photo above was taken from today’s MSNBC PhotoBlog. As you can see, the photo features a young boy in Kabul, Afghanistan waiting to sell popcorn from a rolling cart as evening settles in. I found the photograph to be poignant, and despite its relative darkness, visually stunning. The photograph also got me to thinking about the topic of child labor, a topic that has not yet been covered here at CRW. So, I have included below a brief outline of the history of U.S. child labor laws.

1832 New England unions condemn child labor
The New England Association of Farmers, Mechanics and Other Workingmen resolve that “Children should not be allowed to labor in the factories from morning till night, without any time for healthy recreation and mental culture,” for it “endangers their . . . well-being and health”
1836 Early trade unions propose state minimum age laws
Union members at the National Trades’ Union Convention make the first formal, public proposal recommending that states establish minimum ages for factory work
1836 First state child labor law
Massachusetts requires children under 15 working in factories to attend school at least 3 months/year
1842 States begin limiting children’s work days
Massachusetts limits children’s work days to 10 hours; other states soon pass similar laws—but most of these laws are not consistently enforced
1876 Labor movement urges minimum age law
Working Men’s Party proposes banning the employment of children under the age of 14
1881 Newly formed AFL supports state minimum age laws
The first national convention of the American Federation of Labor passes a resolution calling on states to ban children under 14 from all gainful employment
1883 New York unions win state reform
Led by Samuel Gompers, the New York labor movement successfully sponsors legislation prohibiting cigar making in tenements, where thousands of young children work in the trade
1892 Democrats adopt union recommendations
Democratic Party adopts platform plank based on union recommendations to ban factory employment for children under 15
1904 National Child Labor Committee forms
Aggressive national campaign for federal child labor law reform begins
1916 New federal law sanctions state violators
First federal child labor law prohibits movement of goods across state lines if minimum age laws are violated (law in effect only until 1918, when it’s declared unconstitutional, then revised, passed, and declared unconstitutional again)
1924 First attempt to gain federal regulation fails
Congress passes a constitutional amendment giving the federal government authority to regulate child labor, but too few states ratify it and it never takes effect
1936 Federal purchasing law passes
Walsh-Healey Act states U.S. government will not purchase goods made by underage children
1937 Second attempt to gain federal regulation fails
Second attempt to ratify constitutional amendment giving federal government authority to regulate child labor falls just short of getting necessary votes
1937 New federal law sanctions growers
Sugar Act makes sugar beet growers ineligible for benefit payments if they violate state minimum age and hours of work standards
1938 Federal regulation of child labor achieved in Fair Labor Standards Act
For the first time, minimum ages of employment and hours of work for children are regulated by federal law

The outline above was obtained from The Child Labor Education Project. Below are some additional photos on the subject that readers may find interesting or useful.

Speak Softly To Your Spouse In France – Or You May Be Guilty Of A Crime

In what appears to be a first-of-its-kind piece of legislation, France has enacted a law that criminalizes “psychological abuse” by one spouse against another.  The law applies to cohabiting couples as well as married couples.

The law is expected to cover a wide variety of verbal behavior, including repeated rude remarks, insults, false allegations of mis-behavior, and verbal threats of physical violence.  French police have been urged to issue a caution for first offenses, but repeat offenders could face fines, restraining orders, and even jail time.

Opponents of the law contend that it is a gimmick aimed to please feminist lobbyists, and will be impossible to implement.  But French premier Francois Fillon, who announced the law, said: ‘The creation of this offence will allow us to deal with the most insidious situations – situations that leave no visible scars, but which leave victims torn up inside.’

You can read an interesting article about the French law from Jonathan Turley here, and an article from Dailymail.com here.

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Latin America Ends Year With Major Advances In Gay Rights

While much attention has been focused – deservedly so – on the distressing developments with Uganda’s “death-to-gays” law, news of a far more optimistic type for gays and lesbians has emerged from Central and South America.  In November, a Buenos Aires court approved the marriage of a gay couple.  Under the rules of law in Argentina, the mayor of Buenos Aires has the right to appeal such a decision.  However, in a surprising decision, and one that he described as “difficult” due to tremendous pressure, Mayor Mauricio Macri chose not to appeal the ruling, making Buenos Aires the first Latin American city to recognize gay marriage.  In eloquent language, Mayor Macri stated:

“[I]t is important to accept and live with this new reality, which is the direction that the world goes, as to safeguard the right of every person to freely chose with whom to pair and be happy.”

Such strong sentiment makes the dribble that issues forth from the mouths of many right-wingers in this country seem downright arcane, if not idiotic, doesn’t it?

Then, today, Mexico City‘s legislative assembly voted overwhelmingly to approve gay marriage.  Unlike the U.S., where legal issues involving marriage are governed primarily at the state level, Mexican law allows for significant governance of marriage at the local level, including legislative and policy-making functions.  As a result, Mexico City’s officials are empowered to change the definition of marriage for the citizens of Mexico City — which is precisely what they did today by a vote of 39-20.  Rather than continuing the narrow definition that marriage is a union between a man and woman, a definition similar to the narrow definition upheld by California voters supporting Prop. 8 and similar to the dictates of the federal Defense of Marriage Act, Mexico City’s new definition is:  marriage is “the free uniting of two people.”

Although perhaps not as eloquent as the words of Buenos Aires Mayor Macri, the elegance of Mexico City’s new definition of marriage is its utter simplicity.  In my opinion, Mexico City’s legislation is as remarkably inclusive and expansive of civil rights as California’s Prop. 8 is miserably exclusive, narrow-minded, and paranoid.

Mexico City’s mayor Marcelo Ebrard is expected to sign the legislation into law.

You can read more about the developments in Buenos Aires here and Mexico City here.

Update:  Argentine Couple Becomes First To Wed In Region

Following closely on the heels of recent developments in Argentina that expanded the right of gay couples to marry, the first gay couple has wed.

Alejandro Freyre, 39, and Jose Maria Di Bello, 41, tied the knot in a civil ceremony in the southern province of Tierra del Fuego.

As previously reported, in November of this year, a judge in Buenos Aires approved the marriage of the couple, and the mayor of the city decided not to appeal the decision.  Another judge, however, blocked that decision.  However, the couple obtained special permission from the provincial governor to wed.

This story is being widely reported throughout the world.  Here is a link to the source article I used from the BBC, which also contains links to additional stories.

Marriage Equality In Latin America

In 2007, Uruguay became the first country to approve civil unions nationwide, and in September 2009, it also became the first Latin American country to permit same-sex adoption. Other Latin American countries such as Venezuela, Brazil and Ecuador are debating same sex civil unions or marriage issues in the courts and legislatures.  Here is a link to an informative article on the subject, here.

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