Recently in All legal posts Category

An important case recently came out of the Ninth Circuit Court of Appeals, an en banc panel reconsideration of an earlier appellate ruling that found the website Roommates.com potentially in violation of the Fair Housing Act, the act that generally forbids housing to be denied people based on "race, color, religion, sex, handicap, familial status, or national origin."

Some, like Eugene Volokh see this decision as a fairly minor occasion. Others, like Eric Goldman and Susan Crawford, on the other hand, see it as a significant piece of jurisprudence related not to the Fair Housing Act, per se, but to 47 USC 230, a 1996 statute that provides fairly broad immunity for Internet sites for the content others put on it.

It's been announced that a third season of Kingdom, the English show centered around fictional solicitor Peter Kingdom I earlier reported liking so much, has been commissioned for development later this year. However, while I still consider it a thoroughly enjoyable show, after watching the second season I've become aware of some cracks in its veneer, cracks which I hope will be patched before the next season is shot.

What tends to make so much English television, Kingdom included, better than many American shows is its greater reluctance to rely on clichés, instead providing truer settings and letting the drama and characters develop more naturally. American entertainment is often so contrived -- with artificial conflict, stereotypical personalities, stories that play to every public misconception, etc. -- that it's particularly refreshing to watch something from England that avoids such pitfalls.

But if Kingdom showed any weaknesses last season, it was in its weakening fortitude in resisting these predictable tropes. In some instances they snuck in connected to dramatic elements, like with the gratuitous introduction of boorish American military types in Episode 3 (an episode also plagued with cartoonish renderings of its own usually warm and rounded main characters), or the all-too-convenient plot device of a cataclysmic flood in the season finale.

But where I want to particularly focus is on its occasional, yet increasingly frequent, unfortunate and unnecessary over-simplifications of the law, a tendency which does a deep disservice to its characters, stories, and production generally.

In the new US News and World Report rankings Boston University School of law is apparently at #21, a mere one point away from being tied with #20. It's a reasonable position, significantly higher than it was back when I'd originally applied. Still, I can't help but wonder if there were more BUSL bloggers how far we could shoot up in the rankings...

To its credit though the school is making a much bigger effort to justly toot its own horn on its own website, including by touting the accomplishments of its alums. Including that of Zaheer Samee, a fellow 2006 grad, who recently won an important housing discrimination case in front of the Massachusetts Supreme Judicial Court.

I'm very happy to see someone from among my law school acquaintances go out and accomplish something significant, and all the more so when doing so has also served the public interest.

I'm starting to become a culture snob, I think. Or maybe just cultured altogether, as it's become a new tradition that whenever I'm in London I go to the theater. While such outings seem rare occurrences at home, in London it seems to happen more often than not.

On this latest trip I thought I might like to see the London performance of Spamalot. I already saw it in Boston once, but I really liked it and it's one of the few soundtracks I ever listen to regularly. But then, as I was standing on line to buy tickets at Leicester Square, I happened to turn over the flier on current London theater productions I picked up at Heathrow (a terrific idea to place them there, local tourist board). Felicity Kendall, whom I recognize from Good Neighbors and Rosemary & Thyme was on the cover, as she is appearing in The Vortex. And Penelope Keith, whom I also recognize from Good Neighbors, as well as To the Manor Born, was playing in the Importance of Being Earnest, a play I sadly seem to like less and less every time I encounter it, which is a pity, as I thought it hysterical the first time I read it.

But then I read on, and saw a listing for a comedy called Legal Fiction, starring Edward Fox. Well now! I've always liked Edward Fox, at least ever since I figured out who he was. He was one of those actors whom once I noticed I then went on a mini-filmfest to see what else he'd done. In fact, even though I own few movie DVDs, my collection happens to includes Day of the Jackal and Force 10 from Navarrone, two films he starred in. I even saw him in a film production of The Importance of Being Earnest and All the Queen's Men, with Eddie Izzard and Matt LeBlanc, which turned out to be one of the best films I've paid money to see in recent years. (If, like the San Jose Mercury News, you expect a camp farce, you will be disappointed. If, however, you just sit back and let it be a sweet, slightly comedic drama, you won't be.)

So it seems clear, on review, that apparently I do like Edward Fox quite a bit (despite never having seen him in Edward and Mrs. Simpson, a role for which he is perhaps most remembered, and hardly having watched any of his movies within the past several years), and so when I saw him listed as being in a production of something whose title included the word, "legal" and whose description included the word, "comedy," well, I thought to myself, what could go wrong?

I've been a pretty poor blogger this month, first being preoccupied with dealing with my earlier writing project and then with planning last week's trip to London. The reasons for my trip I'll divulge as soon as I have a moment to catch my breath, but long-time readers may be impressed (or is it shocked?) to discover it had absolutely nothing to do with Huey Lewis... (Or even Stephen Fry, for that matter.)

As per my usual cheapskate custom, I stayed in a hostel, the only nominally affordable lodging solution in London. The enormous downside to this arrangement is that for the second consecutive time, I found myself sharing a room containing someone who snores. All hopes of overcoming jetlag were dashed on the first night, as I didn't just find myself lodged with someone who snores but someone who seemed to snore through every. single. sleep stage.

On the upside, in shared rooms you do get occasion to meet people. Including, on this occasion, a non-snoring French paralegal who's studying to become an attorney.

UPDATE: No I apparently can't. Stupid pesky 12th Amendment and its fine print...

UPDATE 3/21: Or can I? See Update 4 below.

Much fuss is being made over whether the unique circumstances of John McCain's birth -- in the Panama Canal Zone to two American citizen parents -- preclude him from fulfilling the "natural born" requirement of the US Constitution's articulated qualifications for the office of the President:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. -- Article II, Section 1.

In elementary school I had always been taught that "natural born" meant that you had to be born on American soil -- the idea being that someone born elsewhere might have split loyalties, with some being devoted to the place of birth instead of the US. That reasoning may still be the logic behind the requirement, but knowledgeable legal scholars are saying that "natural born" really only differentiates between naturalized citizens and those who were citizens by virtue of their birth -- which the citizenship of their parents could establish regardless of where they were born.

In looking over Article II, Section 1 of the Constitution, however, much more interesting realizations come to mind.

At Opinio Juris Roger Alford asks whether recognition of leap year constitutes customary international law, having "been in practice since the 16th century ... general, consistent and uninterrupted across the decades." He goes on to note, "No state claims a right to object to the practice. And yet no treaty governs the question."

Meanwhile, in more pedestrian legal matters, I overheard a lawyer declare, "Leap year's great. An extra day to get in your billable hours."

I wonder, though, if there were firms out there that added extra hours to the yearly requirement because there was the extra day...

Walter Olson at Point of Law links to an article about someone trying to sue her employer for demoting her after she blew the whistle on their conduct while she was working for them in France. The news from the case is that a US judge decided that, despite the various nations implicated in the matter (Bermudan company, American subsidiary, British employee, French workplace), American whistleblowing law applies to the case and gives her a cause of action to pursue in American courts.

I don't have enough information to fully analyze the issue, but I wanted to raise a possible related factor not mentioned in the Law.com article. A few weeks ago I attended a CLE event sponsored by the Orrick law firm that discussed the issues faced by American companies when doing business in Europe. At one point the panelists brought up the issue of whistleblowing as an instance when policies that may work for a company's offices in the United States might not also work for its foreign ones. In the US securities regulations require American companies to establish policies allowing employees to report malfeasant corporate conduct without fear of retribution in effort to protect the shareholding public.

But no matter how great the policy works for its American offices, it can't just be automatically imposed upon its foreign ones. The rules and cultural norms in these other places may in fact prohibit it. Like in France, where whistleblowing is poorly regarded, and possibly even illegal. Whistleblowing is regarded as snitching, contrary to the spirit of worker solidarity, and harkens back to unpleasant historical memories of collaborations with the Vichy government and the like.

Thus, given the particular nations involved in this case of O'Mahony v. Accenture, I suspect there may be more going on here than necessarily meets the American eye.

I mentioned on the "Turning Cathy into a Lawyer" blog how much I enjoyed Stephen Fry's (relatively) new TV series, Kingdom, and how PBS really needed to bring it over to America. Happily, they have, and one of my local stations, KTEH, has been showing it on Monday nights. So far they are about halfway through the first season of six shows, and it is well worth tuning in. Or, if you can't, or if you'd like to catch up on the epidodes you've missed, fortunately there's the Internet to help you out...

The show centers around Peter Kingdom, a small-town solicitor in Norfolk, England. Stephen Fry plays him as an eminently wise and patient jack-of-all-trades, exactly the kind of person you'd want your local lawyer to be. And yet, it's believable, as along the way we see that Peter is partly the man he was born to be by nature, and partly the man long experience at the job has taught him to be. He's contrasted by his young "articles clark," who, while obviously a good soul, is still learning, as Peter's apprentice, how to distill his youthful idealism into patient practice.

While I think a lay person would definitely enjoy this show, what with it being so well-crafted in every respect, e.g., with sympathetic characters, engaging story lines, inviting scenery, warmth, humor, etc., the fascination for me is in how it portrays the law. As an American lawyer I obviously don't know to what extent the show might be over-fictionalizing the practice of English law, but the detail in the scripts suggests that at least some effort has gone into not completely glossing over it. Indeed, many aspects of the show (e.g., plots, theme, character development, etc.) are heavily dependent on Peter Kingdom actually being a practicing lawyer. It's not just an excuse to give him something to do.

In recent weeks Kirsten Wolf, an alum of my legal alma mater, Boston University School of Law, kicked up some dust by complaining how law school was totally not worth it. She raises valid points; it clearly doesn't seem to have been worth it to her, nor is it likely to be worth it to lots of other people for many of the same reasons.

The truth is that law school clearly contains several manifest defects (e.g., immense cost, too often disproportionate to the amount of financial benefit it can provide afterwards, and pointless competitiveness, which too often wastes students' actual talents, etc.), which really should be done away with. That said, it's clearly foolish when people go to law school for lack of any sort of better idea of what to do with their lives. These are the people who will be most gravely injured by the experience's shortcomings. I therefore agree wholeheartedly with what Susan Cartier Liebel wrote:

There is only one moral to Kirsten Wolf's story: understand what it is you are trying to accomplish by going to law school and the short and long term financial and psychological costs associated with the undertaking. There are no excuses for being Alice in Wonderland anymore. There is too much information circulating today about the trials and tribulations of law school, the debt, and employment opportunities for you to remain ignorant and whiny.

This is definitely a reasonable point. Of course, I may be particularly partial to Ms. Liebel for having cited me earlier in her post as providing a counterpoint... In fact, a counterpoint as an alum of the exact same law school.

The Electronic Frontier Foundation (and others) are spearheading a campaign to protest bills in Congress that would give retroactive immunity to the telephone companies who helped the government eavesdrop on ordinary people's conversations. We're not speaking about tapping those phone lines of people who were under investigation, because in those instances the government could have gotten warrants to tap them. We're talking about ordinary, innocent Americans for whom no warrants could be gotten -- and none were. Despite Fourth Amendment principles protecting people's privacy, and a Wiretap Act that protects the privacy of phone calls specifically, the government went ahead and invaded that privacy by enlisting the phone companies to install bugging equipment within its central switching apparatus. Instead of just tapping the one line of someone under suspicion, the government tapped everyone's lines, whether they warranted suspicion or not.

Lawsuits are pending against these phone companies for their illicit tapping -- the Wiretap Act is clear about when phone companies may intercept phone conversations, and it clearly doesn't apply to what they did -- so under pressure from the Bush Administration, who had asked for the spying, Congress is considering passing a bill that would retroactively exonerate the phone companies for their illegal interceptions. Thus the campaign, to express outrage at such a prospect. The campaign is designed to put a human face on the situation, to remind Congress that the people spied upon were not some abstraction but real people, who up to now were entitled to their privacy. And so it has solicited pictures from those who were spied upon people (in other words, everyone), which have been posted to a flickr stream. (See if you can find mine.)

This situation is a story itself, but I wanted to juxtapose it against another, similar story. Recently I wrote about plans by some major ISPs to start sniffing all the network traffic they carried for copyright violations. Even if the project of policing for copyright violations were actually possible for an ISP to do (which it's not, for how are they to know whether something is copyrighted, or whether the person sending it is not actually entitled to do so, etc.) it represents the similarly nightmarish scenario that the people who provide a communications network will commit the wholesale interception and monitoring of every bit of people's communications. Private communications. Communications that no one has any business receiving except those who are intended to.

No, this is not some abdication of my feminist, independent spirit. It's the result of some musing that led to the realization that there really isn't anyone in my life I can truly confide in. Sure, there are plenty of people I completely trust, but none of these relationships are such that someone couldn't later try to discover the contents of my conversations with them. I don't mean that any of these people would freely blab about what we talked about if they were asked; I mean that they could legally be compelled to do it.

There are few people one can truly confide in without worrying about possible compelled disclosure later on. Though the examples vary slightly from jurisdiction to jurisdiction, typical examples of confidential relationships include those with lawyers, therapists, and clergy. Of course, the first two relationships usually cost money to establish and maintain, and within all of these professional relationships the range of topics you might be able or inclined to discuss is probably narrower than the full scope of what you might want to talk about within the more natural relationships you have with emotional intimates like friends or family. However, no matter how close you might be to any of these friends and family, your relationships with them are legally vulnerable. The only exception is a spouse, as only with spousal privilege can a relationship with an emotional intimate be protected against forced disclosure.

Hence the conclusion that I need a husband. Not today of course; there's nothing on my mind that would be of any interest to any adverse party, I don't think. But I did realize that it would be good to have someone to talk to with whom this would never be a concern. Thus the need for a husband, an emotional intimate in whose confidence I could truly be confident.

While the concern is hypothetical for me now, I can see how for others it could be a big deal, especially for people who do their best thinking out loud by bouncing their decisions off of someone they trust. If there's any possibility that these decisions could lead to legal liability - which, given today's litigious society could happen for just about anything - then people with spouses are much better off than those without them, having the benefits of both less liability exposure as well as the ability to speak with the greater candor that privileged communication enables. Or, conversely, the people without spouses are at a greater disadvantage than those who have them. While married people get a legally-protected confident built into their lives, unmarried people do not, and it could matter.

Perhaps we can say this is a perfectly fine result, that people who do not choose to marry should not have all the same benefits as those who do. But that ignores the reality that many people can't marry their emotional intimate, or that some people are not so lucky in love as to ever have an emotional intimate they could possibly marry. It further essentially forces those who might otherwise not have been so inclined to marry, simply so they can get the equivalent benefit of a protected confidant.

So do we really want to say that this is a perfectly fine result? While we wouldn't want all relevant testimony to be locked up, it may not advance society to deprive so many people of the benefits of a truly candid relationship with a confidant. Or, worse, to only allow this privilege to some.