Debris
«chaque notaire porte en soi les débris d’un poète.»Archive for law
Justice O’Connor’s husband “reportedly in the final moments of life”
Retired Supreme Court Justice Sandra Day O’Connor was to have visited Greensboro and Elon Law School tomorrow. Sadly, her appearance has been canceled as a result of her husband’s worsening health. An announcement from the law school stated that John Jay O’Connor III, whose condition prompted Justice O’Connor’s retirement, “is reportedly in the final moments of life.”
Despite legal and political differences, I admire Justice O’Connor for her pioneering role as the Court’s first female Justice, and for the fact that she is an accomplished fly angler. She has been a good friend to Elon, speaking at the law school’s formal opening. My best wishes go out to her in this difficult personal moment.
UPDATE (Nov. 12, 2009): John O’Connor died yesterday at age 79. Condolences to Justice O’Connor and all of their family.
Hey, we know how to play softball!
The best comment I’ve seen concerning the atrocity of a health care “reform” bill passed by the House comes from comment to this post at Lawyers, Guns & Money. Speaking about the way Nancy Pelosi was snookered into allowing anti-choice Democrats to make an already bad bill even worse with the Stupak amendment, commenter Aimai quips:
the entire thing was like watching a game of prisoner’s dilemma played by very stupid cops
The analogy is arguably unfair to stupid cops, but otherwise it is perfectly apt.
Corporate medicine is hazardous to your health
I’ve read several criticisms of universal health care (a.k.a. “government-run medicine”) on the grounds of “you get what you pay for.” As stories like this remind us, that would be a vast improvement over the current insurance corporation-run system.
Union Busting 101
A great resource exposing the nasty and often illegal tactics of the real “labor thugs”: corporations and their hired lackeys who block workers from exercising their legal and human right to organize for their mutual aid and protection.
More authoritarian personality on display
In this installment, an upstate NY police officer drags a woman out of her minivan (in full view of her kids), shoots her multiple times with a taser, and shoves of face down in the middle of an icy street. Her “crime”? Asking to see the videotape supposedly showing her using a cell phone while driving (she wasn’t, and it didn’t, so the cop made up a bogus speeding charge instead).
Police abuse doesn’t only affect scary gang members or uppity Black men. And it isn’t only about racism. It’s about power.
(Thanks to Feminist Law Professors for the tip.)
Contributory negligence
A wonderful torts problem from Overheard in New York:
Suit on cell: You’re stupid enough to swallow a condom but you’re smart enough to know you can sue someone.
–69th & York
Sounds like some of the clients I represented when I was in legal practicel.
Easterbrookian claptrap
In my Employment Law class today, I am covering intentional interference with the employment relationship, for which the students are reading Judge Frank Easterbrook’s opinion in Kumpf v. Steinhaus, 779 F.2d 1323 (7th Cir. 1985). The opinion is noteworthy, not so much for its treatment of the intentional tort issue, as for the tortured logic of Judge Easterbrook’s opinion.
In Kumpf, the former President and CEO of an insurance agency (who also owned 20% of the agency’s shares) sued after his job was eliminated in the course of a corporate merger. The merger was engineered by Steinhaus, the Executive Vice-President of the agency’s parent corporation, who became President of the post-merger agency. Kumpf contended that the merger was motivated, at least in part, by Steinhaus’s self-interest and that Kumpf’s resulting loss of employment was thus subject to legal challenge despite his “at-will” status.
Judge Easterbrook flatly rejects Kumpf’s theory, contending that, as an at-will employee, he enjoyed no protection from even bad-faith termination. Along the way, he offers a paean to the virtues of greed (which, as the casebook editors note,1 echoes the famous “Greed is good” declaration in the movie Wall Street). He also makes the following observation about the value of at-will employment:
The privilege to manage corporate affairs is reinforced by the rationale of employment at will. Kumpf had no tenure of office. The lack of job security gave him a keen motive to do well. Security of position may diminish that incentive.
In support of that proposition, Easterbrook cites, not Wisconsin law, but his former University of Chicago Law School colleague Richard Epstein’s article, In Defense of Contract at Will, 51 U. Chi. L. Rev. 947 (1984).2 Curiously, Easterbrook (like Epstein before him) fails to address whether the same incentives apply to life-tenured federal judges or tenured law professors.
In further defense of Steinhaus’s self-interested motives, Easterbrook offers the following observation (again unsupported by any authority under Wisconsin law):
Often corporations choose to align the interests of investors and managers by giving the managers a share of the firm’s revenue or profits. Commissions, the ownership of stock options, and bonuses all make managers and investors do well or poorly together.
Re-reading that passage this morning, I couldn’t help but wonder whether the investors in AIG (a.k.a. We the People of the United States) would agree with Judge Easterbrook’s certitude on the magical powers of bonuses to align executive and investor interests.
1Timothy Glynn & Charles Sullivan from Seton Hall, and Rachel Arnow-Richman from University of Denver.
2The casebook editors rightly question whether Easterbrook’s application of “Chicago school” law & economics, in a case goverened by Wisconsin common law, is faithful to the Erie doctrine. They further note that Easterbrook’s analogy to the “business-judgment rule” is entirely misplaced under the circumstances of the case, both because the rule (a staple of corporate law) applies to corporate directors, not corporate managers more generally, and because the rule specifically does not apply where the decision in question involves a self-interested transaction as was alleged to be the case in Kumpf.
Plus ça change, plus c’est la même chose
Back in November, writing about why I’d voted for Barack Obama, I expressed my reservations, noting that “[o]ne thing that did not motivate my vote was any misplaced hope that an Obama administration would bring about meaningful change in a radical-democratic (small “d”) direction.”
Many of my friends, who were among the “Hope”ful, took issue with what they viewed as my undue cynicism. This is one time when I really hate to say “I told you so”. But two developments this past week stand as disturbing evidence that my skepticism was well-placed.
First, the Obama administration has refused to release the text of a proposed copyright treaty, claiming that disclosure of the terms would jeaopardize “national security”. That declaration came in response to Freedom of Information Act request by Knowledge Ecology International, an organization that advocates for policies and practices “to manage knowledge resources in ways that are more efficient, more fair, and responsive to human needs”. Opponants of the proposed treaty view it as yet another move by multinational corporations to further privatize and commodify knowledge and information. The Obama administration’s assertion of “national security” echoed a similar claim by the Bush administration in response to a previous FOIA request pertaining to the same treaty by the Electronic Frontier Foundation.
Yet, even while insisting that the treaty terms are too dangerous for the general public to view, the Obama administration has graciously shared the top secret details to a select group of corporate interests, including (but not limited to) Time Warner, Eli Lilly, Merck, Cisco Systems, Anheuser-Busch, the Recording Industry Association of America, the Motion Picture Association of America, General Motors (full list here). These are, of course, the same entitites whose private interests the proposed treaty is designed to protect against the public interest in the open flow of knowledge and information.
The second development, which received greater attention, was Friday’s announcement that the Justice Department will drop the term “enemy combatant” to describe people being held indefinitely without legal charges on suspicion of “terrorist” activities. While superficially a positive step, this move hardly represents “a dramatic break with the Bush administration” (as CNN characterized it). Beyond the cosmetic change of nomenclature, the “new” DoJ policy remains essentially the same in substance as under Bush: the Obama administration continues to assert the right to detain individuals indefinitely without criminal charges, and continues to apply a similarly broad definition of those subject to such detention.
In other words, when it comes to one of the most hotly contentious practices of the Bush administration, the only change Obama has delivered is to change the label. The contents of the package remain as rotten and unfit for human consumption as before.
