Saving A Law Against Being Annoying

For 38 years, the City of Grand Rapids, Michigan has had a law against being “willfully annoying.” Now the law is going to be repealed, because the city attorney has determined that the law is probably unconstitutionally vague and therefore unenforceable.

I’ve no doubt her legal analysis is correct, but I’m also sure that the law was well-intentioned. After all, when you’re dealing with a willfully annoying person it’s just so . . . annoying. I’m guessing the person who came up with the law in the first place had a little brother who tormented them with all kinds of annoying behavior.

Could the law be clarified and saved from unconstitutional vagueness by specifying certain conduct that is deemed per se annoying? I think you would find near-unanimity that certain things are, by definition, willfully annoying. My list of such conduct would include the following:

* Constantly repeating, word for word, everything you say in a sing-song voice

* Repeatedly thrusting things toward your face, with accompanying sound effects

* Deciding to sing 99 Bottles of Beer on the Wall for an entire three-hour car ride

* Repeatedly kicking the back of the chair in which you’re sitting

Dogs, And Human Rights

Recently I stumbled across an interesting article, now several months old, about dogs and efforts to determine how their brains work. The article summarized the research and reached a provocative conclusion.

Determining how dogs think is not an easy task. (Insert joke here.) The problem, of course, is that they cannot communicate in the conventional sense.

IMG_0909The research involved training dogs to sit quietly so that their brain activity could be evaluated through operation of an MRI. The results focused an area of the brain called the caudate nucleus, which is found in both dogs and humans. In humans, the caudate nucleus shows activity https://webnerhouse.wordpress.com/?p=31933&preview=truewhen people are exposed to things they enjoy, like food, music, and love. The MRI testing showed caudate activity in dogs when dogs smelled their human companions or saw signals indicating that food was on the way.

The researchers think this indicates that dogs have emotions. It’s hard to imagine that research is needed to confirm that fact, which is pretty obvious to any dog lover. We know that our dogs can experience emotions — we see it in their eyes, in their wagging tails, and in their happy behavior when a loved one returns home. Come over to our house to see the reception Kish gets from Penny and Kasey if you don’t believe me.

The provocative conclusion of the author of the article is that, from a legal standpoint, dogs or any other creature that shows “neurobiological evidence of positive emotions” should be treated like people rather than property. Laws against abuse of animals isn’t enough; “limited personhood,” the author reasons, would better protect dogs from exploitation in puppy mills, dog racing, and other activities that interfere with the right of self-determination.

I’m as troubled by anyone by the mistreatment of dogs, and I think people who are cruel and abusive to dogs should be punished. But conferring “limited personhood” rights on dogs — and other animals that display emotions — starts us down a slippery slope where line-drawing becomes extremely difficult. How do you deal with the difficult decisions when a dog reaches the end of life? Would society be obligated to provide shelter and food for dogs that have none? Would dogs need to give consent before they could be neutered?

Penny and Kasey are part of our family and are treated as such — but they aren’t people.

Will Detroit Once More Lead The Way?

At one time in American history Detroit was a leader in commerce, capitalism, and civic development.  As the home of the American auto industry, Detroit experienced the boom.  More recently, Detroit has experienced the bust.  Now the question is whether Detroit will become a leader in a different way — by showing how local governments can use the federal bankruptcy laws to try to free themselves from the product of decades of financial mismanagement and shortsightedness.

IMG_5164Yesterday, federal bankruptcy judge Steven Rhodes ruled that Detroit’s pension obligations are not immune from scrutiny in a federal bankruptcy proceeding, notwithstanding a Michigan constitutional provision that specifically protects public employee pensions.  In effect, the judge said, contractual obligations that require cities to pay public pensions are like any other contracts and thus may be modified and restructured by a bankruptcy judge after all sides present evidence and argument.  It is the first clear ruling on this issue — one that is of enormous interest to other local and state governments that are dealing with the fiscal consequences of overly generous public employee benefit and pension arrangements that were reached when times were flush but that now threaten to crush the governments’ ability to provide basic services to citizens.

The bankruptcy judge’s ruling will be appealed, and the judge also has promised to be careful and thoughtful before changing any monthly pension payments.  Neither of those circumstances may provide much comfort to former Detroit employees who have retired in reliance on their monthly pension payment from the city and who now must wonder how they personally will be affected.  At the same time, Detroit’s financial challenges are so staggering that city administrators have few options.  The bankruptcy process will work for Detroit only if the city emerges from the bankruptcy with a balanced budget and financial obligations that it can realistically carry given its current, shrunken state — and employee and retiree benefit programs have to be considered as part of that process.

When we visited Detroit earlier this year we stopped to look at a famous downtown statue called the Spirit of Detroit, of a seated man holding the sun in one hand and a family in the other, with a quote from the Bible about liberty behind him.  Viewed in the context of Detroit’s current, crippling financial problems, the figure looks like he is trying to decide which way to turn.  A bankruptcy judge will now help him make that decision.

Homely Discrimination

The Boston Globe recently ran an article about “beauty bias.”  The underlying concept is that people inevitably discriminate in favor of the beautiful and, in so doing, show bias against the less attractive among us.  So, what to do about it?

One of the suggestions by “experts” is that we make homely people a protected class entitled to special legal protection, or require some form of “affirmative action.”  The article makes it seems, at least, that these are serious suggestions propounded by serious people.  Apparently, they don’t realize how ludicrous it would be to implement either of these proposals — and how stigmatizing.

Imagine walking into a job interview and getting rejected, and then bringing a “homely discrimination” claim.  The first element of the claim, presumably, would be to prove that you’re not one of the beautiful people.  Even if people wanted to self-identify as ill-favored — a dubious proposition, in my view — how would you prove that element?  By comparison to a Hollywood start or supermodel?  And how would you draw the line about who could bring a claim?  Would simply plain people be eligible, or would that ability be reserved to only those who fall into the Wicked Witch of the West category?

Can’t we just take a deep breath before creating more legal “rights,” and recognize that people inevitably will look different in ways that favor some and disadvantage others?   For example, studies show that people subconsciously attribute more leadership qualities to taller individuals.  If you’re of below average height, should you get some form of compensation or the ability to make a claim if a taller man or woman is promoted rather than you?

This kind of effort is futile and, I think, ultimately counterproductive.  People would do well to stop worrying about outward appearances and start thinking about how to let their inner beauty show.

Heading Toward A Settlement

On the eve of the 2013 regular season, the National Football League and lawyers representing certain players have reached a preliminary settlement of claims concerning concussions and other head injuries.

The player lawsuits alleged that the NFL had hid information about the effect and potential dangers of head trauma.  In the proposed settlement, the NFL doesn’t admit any liability, but agrees to pay $765 million.  The money will be spread among more than 4,500 players and payments of the money will be made over 20 years, with half of the settlement proceeds being paid in the first three years.

According to the New York Times story linked above, the NFL makes about $10 billion a year, so the payment of $765 million over 20 years — while not exactly chump change — is likely to be only a tiny fraction of the League’s revenue during that time period.  The players, however, get certainty and immediacy, rather than the prospect of continued litigation over the next few years and an uncertain result, which is important if you are battling neurological problem or other issues that you claim were caused by concussions you received during your NFL career.  On the other hand the NFL, which is the most PR-savvy of the professional sports leagues, avoids the sad and unseemly spectacle of crippled and addled former star players parading before a jury to show the degree of their mental injuries.

The American public loves football and loves the big, bone-jarring hits that the NFL provides; it’s why the NFL is easily the most popular sport in the country.  Those who played the game received lucrative salaries and adulation, but paid a high price.  It’s very troubling to see men who were once premier athletes hobbled, mentally and physically, to the point where they cannot walk unaided or remember what they have done during the day.  I’m not sure that any amount of money is really adequate compensation for what those men have lost.

Fewer Law Students, Fewer Lawyers

The number of people applying to American law schools is dropping sharply.  A recent report of the Law School Admission Council states that applications to law schools fell almost 18 percent from 2012 to 2013.  That drop-off continues a trend; the report says approximately 20,000 fewer people applied to law schools in 2013 than submitted applications only two years earlier, in 2011.

Why the drop-off?  The economy has changed, and there is less need for lawyers.  Would-be law school applicants recognize that many recent graduates are unemployed or underemployed.  The employment statistics compiled by the American Bar Association show a significant number of graduates struggle to find any kind of law-related job.  In the meantime — because law school is incredibly expensive — many recent graduates are saddled with tremendous student loan burdens.  Working at a waitressing or bartending job in a desperate effort to pay your debts while looking fruitlessly for work in the field for which you’ve received costly but narrow training is not an attractive future.

I think this change is permanent — which means we’re going to see some of the less well-regarded law schools close their doors and we’re going to see a change in the power equation between the shrinking pool of applicants and law schools that want to fill out their classes with well-qualified students.  The latter result apparently is already occurring, as students are negotiating more lucrative financial aid packages with law schools competing for their acceptance.

Optimists might foresee other, positive long-term effects from this trend.  Lawyer jokes aside, lawyers tend to be intelligent, well-educated, highly motivated people who could contribute to the American economy in many different ways.  I’m hoping that people who might have gone to law school in the past now apply those traits and abilities in opening and managing their own businesses, devising new approaches to products and services, and letting their creativity and passions guide them to other productive roles.  The fact that the door to a career as a lawyer may be closing just means that other doors should be opened.

No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.

“Reality Show” Meets Reality

It’s embarrassing to admit it, but Kish and I like Storage Wars.  It’s a “reality show” where the continuing characters bid on abandoned storage lockers in southern California, then find out what’s inside and learn whether they made money or lost their shirts.  We love to scoff at the implausible values that get assigned to some of the junk in the lockers — where a beat up chair might be rung up at $50.  (I can get $50 for that chair all day long!)

One long-time participant, a boastful “mogul” named Dave Hester, isn’t on the new episodes, so I decided to do some internet research to see what happened to him.  It turns out that ol’ Dave and Storage Wars had a parting of the ways, and they are now mired in a lawsuit. Hester alleges that the show’s producers “salted” some of the lockers with interesting items that are more valuable than the humdrum crap that most people store.  The initial judicial ruling in the case favored Storage Wars and tossed out one of Hester’s claims.

Now, there’s some reality for you!

It’s pretty devastating to consider, however, that Storage Wars might have jazzed up the storage locker bidding world to make for some better TV.  Could it be?  Could it be that Darrell doesn’t constantly spout hilarious malapropisms?  Could it be that Brandi and Jarrod aren’t constantly second-guessing each other, even though we know that deep down they love each other dearly?  Could it be that Barry doesn’t really have a collection of silly cars and isn’t a complete idiot when it comes to bidding for lockers?

Yeah, right!  Next thing you know someone will try to convince us that professional athletes don’t play purely for the love of the game!

Should You Be Able To Patent Your Genes?

The Supreme Court hears cases of constitutional import that make front-page headlines, but also wrestles with issues that make you stop and think about how the world is changing.  Yesterday the Court heard argument in a case in the latter category, and the issue is whether human genes should be patentable.

The case involves the legality of a patent that one company, Myriad Genetics, holds on genes that can identify an increased risk of breast and ovarian cancers.  Myriad uses the patents to test women for mutations that can indicate risk and charges thousands of dollars — typically paid by insurance — for the tests.  Opponents of the Myriad patent, and other human genetic patents, say there is no inventive process involved and the patenting of human genes has impeded research, medical progress, and access to testing.  Myriad and its allies argue that the process of identifying and isolating the genes satisfies the inventive requirement and that disallowing patents on genes would affect billions of dollars in investments and patents on useful things like genetic tests and biotech drugs and vaccines.

At yesterday’s oral argument, the Court’s questions indicated some skepticism about the patentability of human genes and whether they really involve the inventive process that is the focus of patent rights — although lawyers will tell you that drawing conclusions from judicial questions is a risky business.

The issues are intriguing.  If we can target human genes that will allow us to detect and avoid fatal diseases like cancer, we’d like to think that such discoveries would be used for the benefit of all mankind.  At the same time, however, what companies are going to spend billions of dollars going through the laborious process of identifying those genes without some assurance that they will be able to recoup those costs, and a profit besides, through the protections afforded by patent law?   And how much invention should be needed to secure a patent, anyway?  If genes can be patented, should we all pony up the patent application fee and try to patent every gene in our bodies, just to be on the safe side?

The Court will try to answer these questions before this term ends in June.

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

Truly Supreme

IMG_3054Today I went over to the Ohio Supreme Court to listen to an oral argument.  While there, I had the chance to enjoy the Supreme Court courtroom and many other splendid features of the Ohio Judicial Center, which was called the Ohio Departments Building when it first opened in 1933.

The building is a graceful structure that is chock full of beautiful features and distinctive touches, and the Supreme Court courtroom is one of the highlights.  It is a magnificent venue for an oral argument before Ohio’s highest court, with walls and ceilings covered with historical murals and classical scenes, rich carpeting and wall hangings, and fine furnishings.  When I was there this morning a high school class was there to watch the argument, and while I thought the students might have been bored by the subject matter — which involved the standards for certifying a case as a class action under Ohio law — they could easily occupy their time gaping at the room.  It definitely conveys the majesty of the law.

There’s a marked contrast between the current courtroom and its immediate predecessor, which was located a few blocks away in the Rhodes Tower.  The Rhodes Tower is a prime example of soulless modern architecture, and the Supreme Court courtroom was a cold, drab, unadorned room that was filled with stone and sharp angles.  The old courtroom always made me feel as if the Politburo was ready to walk out, give a perfunctory wave to the proletariat, and then pronounce judgment on the latest five-year plan.  The “new” courtroom — which of course is older than the “old” courtroom — is a vast improvement.

On my visit today I took some photos of the refurbished building and its trappings.  Above is a picture of the Supreme Court bench and counsel tables, and below is some of the terrific artwork found on the ceiling of the courtroom.  I’ll post some more pictures of the building over the next few days.

IMG_3057

Silent Justice

In a loud and loquacious world, Supreme Court Justice Clarence Thomas has earned a reputation for his silence.

During oral arguments before the Supreme Court, Thomas almost never speaks.  In fact, his statements during oral argument are so rare that, when he does ask a question or make a comment, it becomes news and is covered even on overseas websites like the BBC.  That’s what happened this week, when Thomas made his first statement during an oral argument since February 22, 2006.  In short, he hadn’t spoken at an oral argument for almost seven years.  On Monday, his comment apparently was a joke about lawyers from different law schools that caused some of the other Justices to laugh.

Thomas doesn’t think he needs to ask questions during oral argument to do his job — and he’s right.  He reads the briefs submitted by the parties, votes on whether cases should be accepted for review by the Court, writes majority opinions, concurrences, and dissents, handles the other duties of a Supreme Court Justice, has developed a very consistent (and very conservative) judicial philosophy . . . and gives an occasional speech, besides.  The other Justices bombard the attorneys who argue before the Court with questions and, many legal scholars believe, pose the questions not to hear the answers, but rather to communicate with and attempt to persuade other members of the Court.  Thomas thinks that lawyers should be able to present their arguments without constant interruptions, so he stays silent during oral argument.  Who’s to say which approach is the right one?

I admire Justice Thomas for his willingness to buck the prevailing trend and follow his own approach.  I also respect anyone who, in our texting, talking, e-mailing, communication-saturated culture, somehow manages to keep his own counsel.

Voting In The Courts

More and more, it seems, every decision affecting voting ends up in the courts.  How are congressional districts configured?  How can people register?  Are petition signatures valid?  Should people have to show photo ID to vote?  Is ballot language unclear?  When can people vote?  Must the polls stay open late on Election Day because of machine malfunctions?  Often it seems there are as many stories about court rulings as about candidates.

In Ohio, the latest judicial decision addressed the issue of early voting, which started this past week.  Ohio’s Secretary of State had ordered county boards of elections to stop early voting the Friday before Election Day, except for members of the military.  The Obama campaign challenged that decision, and on Friday a federal court of appeals ruled that the Secretary of State’s decision was invalid.  As a result, individual county boards themselves will decide whether to be open on those days.

As a lawyer, I obviously don’t object to people seeking judicial recourse when they believe their rights have been violated.  The big issue, to my mind, is confusion on the part of voters about what the rules are — confusion that may cause them to inadvertently lose their right to vote.  I hope that we are done with court rulings affecting Ohio this election cycle, so that information about the actual rules can be disseminated to all voters before November 6.  I also hope that the state and local officials who address voting recognize that it might be helpful to simply leave the rules that have been vetted and approved by courts unchanged for a few elections, so that every voter knows when, where, and how they can exercise one of the most important rights afforded to any American citizen.

The Aurora, Colorado Massacre And The Psychiatrist-Patient Privilege — An Update

Prosecutors responsible for the case against James Holmes — the man charged with the massacre at a screening of The Dark Knight Rises in Aurora, Colorado — have decided to drop their effort to see a notebook Holmes allegedly mailed to a psychiatrist.

If the prosecutors had pursued a forced disclosure of the notebook, the case would have tested the application of the psychiatrist-patient privilege.  Prosecutors decided to avoid the delay that would result from such a fight and worked out an arrangement with the defense team instead.  Under the agreement, the defense will be allowed to review the notebook under circumstances that will ensure no potential evidence will be destroyed.  Then, if Holmes’ defense team raises his mental health during the trial, prosecutors will be able to review the notebook.

It would have been interesting to see how the privilege issue was resolved in a contested setting, but prosecutors should be presumed to know their case — and often an agreement is the best way to advance the ball.  If prosecutors can make their case without the notebook, let’s move forward to a speedy trial, to learn what really happened in that Aurora, Colorado movie theater.

The Aurora, Colorado Massacre And The Psychiatrist-Patient Privilege

Should the communications between a psychiatrist and her patient be privileged from disclosure to others, and are there instances when the psychiatrist should be obligated to report a potentially violent patient to the authorities?

The issue has arisen because news has leaked that James Holmes, the accused shooter in the Aurora, Colorado The Dark Knight Rises massacre, was seeing a psychiatrist.  It is reported that Holmes sent the psychiatrist, who is employed by the University of Colorado where Holmes had been a neuroscience student, a package of information that supposedly included a notebook that described a massacre.  Authorities seized a copy of the package, and Holmes’ defense lawyers are arguing that it should not be disclosed because it is a confidential communication between a patient and his psychotherapist.

Psychiatrist-patient communications are generally viewed as privileged, protected from disclosure, and not admissible as evidence in a trial.  The concept underlying the privilege is that we want psychiatric patients to be honest about their thoughts and impulses so they can be effectively treated; the argument is that if patient communications are routinely disclosed, patients will not be forthcoming when they talk to their psychiatrists and their treatment will suffer as a result.

However, the precise contours of the privilege are not clear, and even experts disagree about how it applies in specific circumstances.  It is generally accepted that if a patient communication contains a clear threat about committing an imminent violent act against the patient or others, the psychiatrist should alert the authorities.  But what is a clear threat of imminent action, as opposed to the delusional rantings of a disturbed individual who is undergoing treatment?  And if the communication is about past bad acts, should it always be privileged — even if it might help police solve crimes?

Horrible events like the Aurora shootings often produce unpredictable fallout that can touch and change different areas of the law.  In this case, one unexpected focus of attention might be the rules applicable to psychiatrists and their obligations to report the violent ravings of their patients.