SBM Blog

Michigan Supreme Court Denies Same-Sex Custody Dispute Appeal

In a 4-3 decision on Friday, the Michigan Supreme Court denied leave to appeal a July 8 decision of the Court of Appeals in Renee S. Harmon v Tammy L. Davis involving standing of a same-sex partner to sue for custody after a period of shared parenting. Harmon and Davis were partners for 19 years, during which Harmon bore three children through artificial insemination. After a time of living together with the children, Davis and Harmon no longer lived together but continued to share parenting for some period. Davis asserts that a de facto legal custody arrangement existed, and has sought enforcement of the disputed arrangement. She has been denied standing as a "third person" under the Child Custody Act (CCA) by both the Wayne circuit court and Court of Appeals.

Justice Marilyn Kelly's dissent says that the case involves issues of "great jurisprudential significance," including (1) the scope of the “equitable parent” doctrine established in Atkinson v Atkinson1 and interpreted by this Court in Van v Zahorik, (2) whether Van’s interpretation of the CCA violates plaintiff’s constitutional rights, and (3) whether the combined effect of the CCA and the marriage amendment of the Michigan Constitution unlawfully denies plaintiff standing.

Justices Hathaway and Cavanagh would also have granted leave to appeal. The opinion is  here. (PDF) 

Two Legal Scholars to Obama on the Debt Ceiling: Do What Lincoln Did

The University of Chicago's Eric Posner and Harvard's Adrian Vermeule team up in a NYT op-ed, "Obama Should Raise the Debt Ceiling on His Own," to urge the President to suspend the debt ceiling law on emergency grounds:

When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession.

Comments on the Case Against Law School

The New York Times "The Case Against Law School," prompted a number of interesting comments, mostly from people you've never heard of. Check them out (especially Micki from Detroit.) Here's an excerpt from someone you have heard of, legendary trial lawyer Gerry Spence:

Lawyers are the physicians of human rights. From that standpoint law schools do not train men and women to aid people in achieving justice. Students leave law school utterly unprepared to represent anyone in any sort of trial. In short, as representatives of the people they are nearly useless. They can neither speak or write the English language correctly or effectively. Their ability to empathize with their client has been driven from them by three years of study using archaic teaching methods taught by professors who, themselves, in most cases, are incompetents in any courtroom.

Moreover, the cost of trials has become so extraordinary that only the rich or those with massive injuries (who can give a percent of their injuries for their lawyer's fee,) can obtain a lawyer. The system is pathetically broken. Every honest lawyer and every observant judge knows it.

We must train trial lawyers who become human beings again after having had their humanness methodically extracted from them in law school by the zombies of the profession, their brain-locked law professors. These poor kids come staggering out of law school lost, unfamiliar with who they are, and who are unable to communicate and relate effectively to juries. We do not need to reduce the hours of legal training. We need to change the course of study so far as trial lawyers are concerned so that they emerge from law schools as caring persons who are competent to speak to juries. The goal of law schools must change. They must become determined to create a legal profession that is first charged with obtaining justice for ordinary people, not creating litigators for banks and insurance companies and the corporate mass to defeat the rights of ordinary citizens. 

The Case Against Law School

As readers of this blog know, a broad and sometimes angry debate has been going on about whether law school as we currently know it is doing the job, and is worth the cost.  The New York Times has pulled together an interesting assortment of people in the Room for Debate pages, in a somewhat misleadingly titled spread, "The Case Against Law School." The question presented is:

Should the standard three-year model of legal education, followed by taking and passing the bar exam, be the only path toward becoming a lawyer? Could law school be shortened, or should those three years of classes have a different focus?

The titles of the various contributions hint at the array of views:

• Reduce Credit Requirements, David Van Zandt, president of the New School, and dean of Northwestern University School of Law from 1995 to 2010
• Allow Anyone to Take the Bar, George Leef, director of research at the Pope Center for Higher Education Policy
• It's Not a Trade School, Kevin Noble Maillard, law professor at Syracuse University
• Improving, Not Overhauling Rose Cuison Villazor, associate professor of law at Hofstra University Law School
• Bring Back Apprenticeships, David Lat, founder and managing editor of Above the Law
• Learning to Think Like a Lawyer Geoffrey R. Stone, distinguished service professor at the University of Chicago Law School, was the school's dean from 1987 to 1993 and was the provost of the university from 1993 to 2002
• A Priceless Degree, Linda Greene, Professor of Law at the University of Wisconsin, Madison, and associate vice chancellor for academic affairs from 1999 to 2004.
• Three Years, Better Spent, Bryan A. Garner, editor in chief of "Black’s Law Dictionary," distinguished research professor at the Dedman School of Law at Southern Methodist University, and the founder of LawProse.

The Current President on His Constitutional Options Concerning the Debt Ceiling

It was just a few days ago that former constitutional law professor and U.S. President Bill Clinton said that if he were still president he'd invoke the constitutional option to ignore the debt ceiling if necessary.  Former constitutional law professor and current U.S. President Barack Obama had stayed quiet on the issue until Friday, although his Secretary of the Treasury had previously signalled rejection of the option.  But on Friday, according to the New York Times, the President seemed to come down on the side of rejection:

“I have talked to my lawyers,” Mr. Obama said, and “they are not persuaded that that is a winning argument.”

Some commentators, the Washington Monthly's Steve Benen among them, thinks the President's statement still leaves the door open a crack for the constitutional option. Early last week Yale Law's Jack Balkin explained why former Clinton and Obama are in different places on the question.  And here are Balkin's thoughts on why Obama might just be bluffing.

Meanwhile, Laurence Tribe is continues to be prolix (blog-wise) in advancing his view that there is not constitutional authority for the President to ignore the debt ceiling, although he does throw out this question:

I’m still waiting to see a convincing argument for distinguishing in principle between legislative restrictions on government borrowing authority and legislative restrictions on government taxing and other forms of revenue-raising authority. I have to say that seems implausible to me, but I can’t rule out the possibility and thus would be interested in hearing/reading more.

Update: The Sunday New York Times has an Adam Liptak piece on the subject, with this warning -- "[I]t is, in any event, not clear that the nation’s creditors would continue to lend money to the United States were the president to take unilateral action."

California Law School Responds to Disappointed Grad's Lawsuit

There are many ways to express unhappiness with one's law school experience. Of particular Michigan note, a former Cooley Law School student chose to unleash a blistering attack online, to which Cooley has now responded with a lawsuit for defamation.  Meanwhile, in California, a disillusioned honors graduate of Thomas Jefferson School of Law (TJSL) has chosen a more traditional medium -- a legal complaint. In it, she has asked for compensatory damages in excess of $50,000,000, punitive damages, and injunctive relief, and asks to represent a class of “[a]ll persons who attended TJSL within the statutory period” — about 2,300 individuals. Above the Law says the complaint is  "a concise, footnoted indictment of the American legal-educational industrial complex." From the complaint:

Citizens United and Campaign Spending Disclosure

In "The Post Citizens United FantasyLand," Georgetown Law's Roy Schotland reviews the academic commentary on the decision and its consequences, agreeing with the conclusion that some of the academic commentary on the opinion has been "over-overwrought," but that nonetheless the decision "may well matter mightily."  Although Schotland is passionate about the need for public disclosure requirements that cover Citizens-United-enabled spending, in assessing current disclosure proposals, he scrupulously notes a concern that the “complexity” of campaign finance law" may in itself be unconstitutionally burdensome."  You can download Schotland's article here.

 

Genealogy of an Illustrious Michigan Legal Family

Dickinson Wright's Richard Van Dusen was long a star in Michigan's legal firmament. Daughter Amanda has developed a formidable reputation in her own right at Miller Canfield. But the family's illustrious roots go much deeper than we in Michigan generally knew. The New York Times tells the story in The Van Dusens of Amsterdam, and pinpoints Richard and Amanda in an interactive timeline.

Painting: Martin Van Buren, by G.P.A. Healy. 1858. White House.

Two Sensible Tips on Taking the Bar Exam

Advice to all bar exam takers today, from Washington College of Law professor Ira Robbins, via Volokh Conspiracy:

• On the night between the two days of the exam don’t spend any time checking to see how you did on the first day’s questions. That’s completely unproductive. You don’t need to get everything right; you just want to pass. Better to get some sleep.

• Don’t celebrate finishing the bar exam by doing things that could get you disbarred.

Best of Luck to Michigan's bar exam takers!

 

In Memoriam: Gilbert A. Deibel

Gilbert A. Deibel, of Omena, died July 20, at the age of 89. Mr. Deibel was a 1949 graduate of the University of Michigan Law School.