SBM Blog

Feed the Hungry, Go To Jail

With a collection of facts and case law interesting enough to attract at least one law school course packet, there's a living First Amendment theme park under development in Orlando, Florida, home to the vastly more intentional theme parks of Disney World, Epcot Center, and Universal Studios. 

The City of Orlando in 2006 enacted an ordinance regulating serving food to groups of 25 or more in city parks. A permit is required, and those seeking permits are limited to two per year per city park. First Vagabonds Church of God, a Christian church, and Orlando Foods Not Bombs, "a loosely structured organization of political activists who share the view that society has a responsibility to provide food to all of its members," have persistently defied the ordinance, and have challenged the ordinance's constitutionality. The City has prevailed as far up as the 11th Circuit Court of Appeals, as late as April of this year.  Here's the 2011 11th circuit opinion upholding the ordinance.

Although the ordinance has been upheld, the Orlando Sentinel reports that the attorney for Food Not Bombs is fighting the recent arrests of the group's members for violating the ordinance on the basis of the nature of the enforcement,citing a 2003 order from a state circuit judge that people charged with most misdemeanor violations of city ordinances should be issued a "notice to appear" and be released rather than arrested and booked.

Last but not least, the Orlando Sentinel reports that hackers shut down the Orlando Chamber of Commerce's web site for most of the day Monday and posted a "boycott Orlando" message on "a major theme park's Internet page" to protest the city's homeless policies.

Image: from YouTube video by Citizens Coalition for Police Accountability co-founder Tommy Frain & Tarpon Springs Food Not Bombs

Words to Use to Really Annoy A Judge

U.S. bankruptcy judge Janice Miller Karlin (D.Kan) reveals "A Judge's Most Dreaded Words, Phrases to Hear,"  in this month's American Bankruptcy Institute Journal.  You need to be a subscriber to access the witty piece, but here are a few  of its pointers.

Karlin opens with Dave Barry's observation that the correct usage of the phrase "With all due respect" is to " 'soften the blow' when you wish to critize someone in a diplomatic andnonjudgmental manner, as in: 'With all due respect, you are much worse than Hitler,' or 'No disrespect intended, but you have the intelligence of a macaroon.' "  She also cautions against "I didn't bring my file," and "That can't be the law."  My personal favorite, as the daughter of a secretary, is her objection to ""It's my secretary's fault."  Bad form under any circumstances because, as Karlin points out, lawyers are responsible for the work of their staff.  Especially bad, when, as is the case with Judge Karlin, the judge worked as a legal secretary before going to law school.

Salary Caps, Tax Law, and Why the Pistons Lose to the Mavs and the Heat

Mitchell L. Engler, The Untaxed King of South Beach: Lebron James and the NBA Salary Cap, 49 San Diego L. Rev. ___ (2011), on SSRN. From the abstract:

In contrast to major league baseball, the National Basketball Association has a salary cap designed to provide every team an equal and fair chance of competing for the championship. The Miami Heat‘s recent incredible success in signing the game‘s three most hotly desired free agents, including mega-stars Lebron James and Dwyane Wade, therefore flies in the face of the NBA‘s attempted level playing field. How could one team so outmaneuver all the others in the sport which tried to eliminate such uncompetitive results via a salary cap?

As discussed in this Essay, the answer lies in the law of unintended consequences and perverse incentives. Some NBA teams are located in more attractive jurisdictions with nicer amenities or lower costs, such as taxes. In particular, Miami provides a highly-favorable climate both as to weather and taxes as Florida does not have a state income tax. In the absence of any salary cap limitations, teams in higher-tax jurisdictions could compete better with Miami for free agent players by offering higher salaries to offset the extra tax. But the NBA salary cap, by its very terms, blocks this usual free-market response.

So, why aren't the Pistons crushing the Lakers?

Have G-mail? Get Extra Security, for Free

This is a good idea, even if you don't use gmail for legal work. Two-step verification provides  protection from the very real threat of someone taking over your account remotely.  Free and easy to get, small inconvenience, great peace of mind.

In Memoriam: Mark R. Fox

Mark R. Fox, of Lansing, died June 22, at the age of 57.  A graduate of Cooley Law School, Mr. Fox was a partner in and immediate past president of Fraser Trebilcock Davis & Dunlap.  He is survived by his wife, Anita; children, Tyler, Meredith and Gregory; brother, Craig; and sister, Karen.

Funeral services will be held Tuesday, June 28, 2011 at 11:00 a.m. at Temple Beth Israel, 801 W. Michigan Ave., Jackson, MI  49202. A meal of condolence will be served at the temple following services. Interment will follow at approximately 2:15 p.m. at Evergreen Cemetery, 1709 E. Mt. Hope, Lansing, MI  48910.  In lieu of flowers, donations may be made to the Alliance for Paired Donation, Inc., www.paireddonation.org, a charity Mark helped form and on whose Board he served.

In Memoriam: Frederica Lombard

Frederica K. Lombard, of Grosse Pointe Farms, died June 17, at the age of 72.  Prof. Lombard, the first full-time law faculty at Wayne State University, was a graduate of the University of Pennsylvania Law School.  She is survived by her husband, Wayne County circuit court judge Arthur Lombard; a daughter, Dr. Lisa Lombard; a son, Dr. David Lombard; and a grandson.  Memorials be made to:

Lombard Fellow Support Fund
c/o Michael Silverstein
Wayne Law
471 West Palmer
Detroit, MI  48202
(313) 577-9238
silverstein@wayne.edu

See the following appreciations:

• Wayne Law remembers Frederica K. Lombard (Wayne State)
• Frederica Lombard: Law professor was a trailblazer (Detroit Free Press)
• Professor aided women (The Detroit News)

On the LSAT, and Flagging "Accommodated Scores"

The recent legal challenges to the LSAT by visually-impaired and attention-deficient law school aspirants has focused on whether and what accommodations should be made. U of M Assistant Dean for Admissions Sarah Zearfoss's A²Z elucidates another contentious issue -- the Law School Admissions Council practice of flagging the scores of applicants who have taken the test under "accommodated" conditions.  (For example, per A²Z, "if you have medical documentation showing a learning disability, you may be entitled to additional time to take the test; if you have a vision impairment, you may be entitled to have a Braille test, or to a reader; and so on.")  Those who object to the flagging view it as a stigma that may cause law schools to deny admission to a flagged candidate for admission because they fear the expense that might be associated with accommodating the candidate as a law student. Zearfoss, however, says flagging the scores actually benefits candidates with flagged scores:

[B]ecause an accommodated score is “flagged,” an admissions office can be quickly assured that no matter how low the score, it’s no harm, no foul from a rankings point of view. Flagging allows admissions offices to respond to the incentive to view the score from a completely rational standpoint, rather than being corrupted by external rankings considerations.

 The post also has a compelling example of how a visually impaired law student can enhance the quality of law school discussions:

Think Globally; Act Ethically. Advice on the UK Bribery Act

In a practice note issued June 6, the Law Society of England and Wales has warned lawyers practicing in Great Britain that the Bribery Act of 2010 presents "significant risks" for law firms in relation to gifts and hospitality.  It suggests that firms adopt  procedures to "prevent the giving or receiving of gifts, hospitality or paying of expenses" that might "influence or be perceived to influence a business decision."  In addition, "facilitation payments" -- in which a third party pays a bribe either in the U.K. or overseas specifically to gain business -- are an offense under the Bribery Act, so the note advises firms to take appropriate measures to ensure that no bribes are made by third parties on their behalf.  Here's the note.

HT: Legal Week

Wal-Mart v. Dukes, Point/Counterpoint

There are already dozens of interesting legal commentaries out there on Wal-Mart v. Dukes, released Monday.  If you only have time for two right now, try these:

Pro-Wal-Mart (the majority decision): Walter Olson, Philadelphia Inquirer, "Reining in Frivolous Lawsuits".  A snippet -- "The message of this ruling is simple: Employees have to prove that they have been legally wronged, not just cash in because somebody else was."

Pro-Dukes (the dissents): Joey Fishkin, Balkinization, "Wal-Mart v. Dukes and the Future of Meritocracy".  A snippet -- "[T]he two most important questions the case raises are not so doctrinal. They are, first, what does this opinion mean for courts’ power to address forms of discrimination that are widespread and diffuse throughout an enterprise, rather than turning on the bias of a particular decision-maker?  And second, ... what effect will this opinion have on the conversations among executives, HR departments, and the lawyers who advise them, about the use of subjective employment practices?

Or, catch the NYT's "Room for Debate: A Death Blow for Class Action?" on the case.

Turner v. Rogers Ignites National Conversation About Appointed Counsel, Self-Help

Now that the ink on the opinion and the first news stories about it is beginning to dry, the commentary on this week's Supreme Court decision addressing Civil Gideon, Turner v. Rogers, is rolling in.  Here's a sampling:

Andrew Cohen at The Atlantic, in "Turners Trumpet Child Support and the Right to Counsel," predicts:

This issue will be back--even if Turner is not. Like many compromises in law and life, the one at the highest level of this case only delays to some near-future Court Term the resolution of the tough questions about how far the Sixth Amendment, or the due process clause, ought to extend into these hybrid cases. If debtor's prisons indeed are back in vogue in America, the law surrounding them surely won't be too far behind.

Judith McMullen at Margquette University Law School Faculty blog, in "Child Support, Contempt of Court, and (Maybe) Lawyers," says:

Ultimately, I do not think that Turner v. Rogers will change family court civil contempt proceedings all that much.  The non-payers will not have court-appointed lawyers, but they will be specifically asked whether they can pay.  After hearing the usual excuses, and perhaps requiring some sort of proof, the judge will doubtless often still find that the defendant can pay and is in contempt for not doing so.   The forms will be filled out completely.  The deadbeats will go to jail, and then many of them will find, beg or borrow the money to pay, and they will be released from incarceration, only – in many cases – to repeat the cycle.