Monthly Archives: August 2010

Give Iowa a try…

Map of USA with Iowa highlighted
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Iowa judges are under attack for unpopular rulings that have permitted gay marriage in their state.  Unhappy about the rulings, and displeased that so few could overturn the will of the people, activists are looking to check the power of the judges by way of the ballot box. From the Wall Street Journal

[T]his year, conservatives in Iowa are waging a campaign to vote out of office three supreme court judges, who joined a ruling last year that Iowa’s law barring the recognition of same-sex marriage is unconstitutional.

This isn’t the first time I’ve noted the action of one piece of our political “family” (executive, legislative, and judicial) acting against another to check its power.  Our constitution was written in such a way as to disperse power and spread it out, limiting the ability of any one group to tyrannize another. In this case, we see the people, the legislative function by which laws are usually made, acting to check the power of the judiciary.

Judges are intended to be independent so as to be free from political pressure.  This is to enable them to make decisions that are based solidly in the law and the constitution and to act as a restraint against the power of the majority to protect minorities.  However, even this power can be checked. Even when Supreme Court of the United States finds that a law of Congress is misbegotten and unconstitutional, the right to amend the constitution, however high that bar has been set, is still available .

On the state level, because justices are often selected by the executive, they usually have to stand for a “confirmation” vote periodically in order to retain their office.  Usually, because of the low levels of interest in the predominantly mundane work of the courts, few voters follow or even care about confirmation of a judge, and voter turnouts are often low.  In Iowa, voter anger is seeing to assuring that changes.

“We need to vote them off the bench to send a message across Iowa that we, the people, still have the power,” said Bob Vander Plaats, a Republican state politician who is leading the campaign. “Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country.”

The effort in Iowa, the Post reports, worries gay rights advocates and legal experts who say it is wrong to punish judges for unpopular decisions. But on the flip side, campaign advocates say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority.

Vander Plaats announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members, who plan to wage a political campaign replete with mailers, phone calls and door-knocking, according to the Post.

While the judges have not, yet, said anything in their own defense, this does raise the question of independence of the judiciary.  Can a judiciary that must cater to the winds of political whim ever be completely, to say nothing of partially, independent and objective sufficient to provide a fair trial?  How can a judge provide a fair trial when he, or she, knows that the parties before them may, or likely will, work to support or oppose their next election?  The result would be that the politically and financially powerful will end up winning their cases, while minorities and poor will lose.

On the other hand, there must be some check against the power of the judiciary to set policy from the bench.  If the judiciary, by one decision, can change a law established by the will of the people, what does it matter that the people have spoken or that the legislature has acted?

It’s true: you can sue for anything…

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Winning the lawsuit is another story.

The latest in our nation’s history of obnoxious and frivolous law suits is that of the Mormon suing his own church for injuries incurred while performing proxy baptisms in an LDS Temple.  He claims he was hurt because the people he was baptizing were too heavy.

The civil suit filed Wednesday in Salt Lake City‘s 3rd District Court claims Daniel Dastrup suffered severe back injuries, including a herniated disk, after performing about 200 baptisms at the LDS temple in Raleigh, N.C., on Aug. 25, 2007.

The lawsuit contends the church was negligent in failing to warn Dastrup that the repetitive nature of the proxy baptisms — bending, lifting and twisting — could result in physical injury.

“The church owed the plaintiffs a duty to exercise reasonable care to avoid injury to the plaintffs from the services they performed to the church,” the lawsuit states.

And when he complained, the person supervising the baptisms said he couldn’t stop. I am not making this up.

The lawsuit alleges Dastrup, then 25, complained about his injuries but a LDS temple officiator ordered him to continue and refused to let another worker relieve him.

If the officiator had told him to jump off a cliff, would he have done that, too?  Do you do everything you are told to do, Mr. Dastrup?  Is it so hard to say “no?”

And, yet again, Dastrup proves that: yes, you can sue for about anything, regardless of your own personal responsibility to say “no, I’m done.  My back hurts.”

UPDATE: Maybe this is why the Catholic and Eastern Orthodox churches perform infant baptism–it’s far easier on your back.

Law Practice Tips: Interesting work, if you can get it.

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I practice one of the least exciting areas of law.  At least in the eyes of those who ask me, almost every other day or so, “what area of law do you practice?”

“Contracts,” I say. “Leases, amendments, assignments, and so on.  All contracts.”  Their eyes glaze over, and they ask if I like it, or say something profound like “That sounds interesting.”  Yep.  Very interesting.  They say it because it’s not, and because they all remember how often they have had long contracts and agreements thrust in front of them for their signature.  Mortgage contracts, rental agreements for their apartment, student loans and auto loans, sports disclaimers for their softball rec league, and, almost ubiquitous on the web, those long wordy disclaimers that pop up so often we open a new profile on a social network site, be it Facebook, eHarmony, Twitter or any number of related sites.  Contracts are everywhere, and yet, no one reads them.

Well, I shouldn’t say that.  Some people read them.  Lawyers read them.  And lawyers draft them.  I draft them.

As one friend astutely and succinctly pointed out, a contract is the agreement between two parties to do or give something for or to the other in exchange for something else.  More specifically, Bryan Garner’s definition in “Blacks Law Dictionary” states that a contract is

1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.

It’s also the writing that describes that agreement.  (To extrapolate all the different nuances and types of contracts, Garner takes up a full seven and a half pages. But that’s neither here, nor there…)  It’s that writing that I deal with at work most days, and it’s that writing that people tell me “sounds interesting.”

Common and ubiquitous as contracts are, a poorly written contract can, and often does, result in trouble, especially if the deal goes south.  A well written contract, on the other hand, like a good fence between neighbors, helps parties to get along, determines and defines what should happen when there are problems between the parties, and describes what should be done to resolve the problem.

To that end, I ran into a useful article by Susan M. Chesler, published in the March 2010 ABA magazine GP Solo.  (A slightly modified version of the article can be found here.)  Her recommendations have been helpful to me to make sure the contracts I read, draft, edit, and forward for execution are useful to my clients’ relationships and businesses.

  • Think through the life of the contract under various situations, or fact patterns. Every contract should answer 1) who is obligated, 2) what is the obligation, 3) by when must the obligation be done, 4) where, 5) how, and, if any money is involved, 6) how much?  See a pattern here?  The follow-up is: what if there is a lack of performance and default?  What happens then?  And, in the worst case, what if the parties become hostile towards each other, does the contract provide enough guidance to govern the relationship?
  • Clearly and consistently set forth the parties’ rights and obligations. Make sure the language and obligations are consistent and use the same terms through out the contract, and define the terms clearly.  When a party has an obligation, use the word shall and never use shall for any other reason.
  • Understand every provision of the contract. If you don’t understand what you are drafting or reading, there’s a good chance that the language can and will be misinterpreted, likely to your clients’ detriment.
  • Use recitals and definitions to reflect the parties’ specific transaction. The recitals are not a part of the operative terms of the contract, but they provide the “story” to demonstrate and state the parties intentions upon entering into the contract.  By crafting the definitions, it allows the drafter to tailor the meanings to the purposes of the contract and prevent inadvertent, or intentional, changes of language.
  • Use plain language. The contract should be easy to read by audiences both legal and lay alike, says Chesler.  Make it easy to read.  Enough said.
  • Use proper grammar, a clear writing style, and logical organization. This should be obvious, but in case it’s not, proof read!  And get another pair of eyes to look at it.  Draft it in the present sense, organize it clearly.  One tool my employer has integrated into our contracts is to put in the first section of our leases a list of all the main points of the contract, the “businesses terms,” we call it, that can lay out very clearly for any reader the obligations and requirements of the parties.  It helps the parties quickly determine what their obligations are, and I think it has served us well.

Writing, and reading, contracts may not always be fun, but it is important.  Practicing care with the drafting can make sure the transactions for our everyday lives are more fluid and less conflicting.  Whatever your role, makes sure your contracts are carefully drafted, and if you ever need any help–go get a good attorney.  It is interesting work.  To us.

Benjamin Kaplan has died

Benjamin Kaplan in 1981. Wendy Maeda/The Boston Globe

In 1945, with the war against Germany just over and the revelations of the crimes by the Nazis coming to light, the President Truman turned to Justice Robert H. Jackson of the Supreme Court to serve as chief prosecutor for the United States in the then proposed war crimes tribunals against the Nazis.  Accepting, Justice Jackson turned to Benjamin Kaplan to help form the theory of the case, a case that was unprecedented and required the development of an indictment that would incorporate Anglo-American, French and Russian legal traditions.  From the New York Times:

Creator: Office of the U.S. Chief of Counsel f...

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That summer, Justice Jackson was in London, negotiating and writing the London Agreement, which was signed in August by France, Britain, the Soviet Union and the United States and delineated the procedures for the trial of war criminals by an international military tribunal. Colonel Kaplan remained in Washington, where, along with Col. Telford Taylor, he supervised a legal staff that was gathering and analyzing vast quantities of evidence, researching the means used by the Nazis to gain control of Germany and developing legal theories for the case.

He later joined Justice Jackson in London and that September was a central figure in the drafting of the American contribution to the indictment, which dealt with proving that there had been a common plan or conspiracy to commit “crimes against peace, war crimes, and crimes against humanity.”

Colonel Kaplan was present when the indictment was filed with the International Military Tribunal, and he worked on trial preparation until his Army discharge, shortly after the trials began on Nov. 20, 1945. The next year the Army awarded him the Bronze Star for his work.

Kaplan was born in the Bronx in 1911.  He spent his career teaching copy right law at Harvard, where he counted among his students both Ruth Bader Ginsburg and Stephen G. Breyer.  He served on the Massachusetts Supreme Judicial Court from 1972 to 1980.   He is survived by a son and a daughter, four grandchildren; three stepgrandchildren; and five great-grandchildren.

Ben Lusty, on Congressional education policy

My good friend Ben Lusty published a piece on Congressional use of it’s funding power to influence education policy in the states.  Because I feel like the tension between the states and federal government merits scrutiny, especially when money is at issue, I have reprinted Ben’s piece here with his permission.

Congress’ education bailout is bad policy

By Ben Lusty

Deseret News Published: Friday, Aug. 20, 2010 12:03 a.m. MDT

Congress last week passed the Education Jobs and Medicaid Assistance Act. The act is a $26.1 billion bailout for states. But there is a catch: States must not cut education spending and must

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pay each federal dollar to a teacher (the vast majority of whom are dues-paying union members). The bill intrudes into state sovereignty by dictating the way state legislatures spend their residents’ tax dollars, and nowhere is this more evident than Texas.

Congress singled Texas out for special treatment. To qualify for $820 million in aid, Texas must maintain its current level of educational spending until 2013. This command is retribution for Texas using some $3 billion in stimulus funds to plug a budget gap last year, rather than hiring more teachers as Congress wished. The governor of Texas must commit to maintain spending levels, even if that means raising taxes on Texans. The problem is that the state constitution prohibits the governor from promising to maintain funding levels. Only the Texas Legislature can direct state spending. Texas is thus on the very long horns of a dilemma: Forgo needed money, or violate its constitution.

Congress has some power to direct state action. There is no doubt that under the taxation and spending clause of the Constitution, Congress can require a state to do certain things in exchange for federal money. Congress used to require each state to keep a 55 mph speed limit as a condition for federal funds. Because states are free to choose whether they participate in these programs, these conditional grants are legitimate.

But congressional power over the states is not unlimited. The Supreme Court has ruled Congress may not “commandeer” a state government. Congress may not, for example, require states to pass taxation laws. Neither may Congress require state police agencies to enforce federal handgun laws. In South Dakota v. Dole, the Supreme Court even held that in some circumstances, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” That is, at some point, the amount of money at stake is too much that a state simply cannot turn the money away and must, as a matter of reality, concede to federal power.

The education bailout is troublesome to state sovereignty. In exchange for money, Congress requires states, particularly Texas, to surrender discretion regarding education funding. True, the states could decline the funds, but that is not realistic considering the fiscal desperation many states are enduring. Whether the financial inducement offered by Congress is compulsive under the Constitution is difficult to say because the Supreme Court has never said at what point the “financial inducement” becomes compulsive. And in any event, Congress is not threatening to withdraw existing funding to states.

At its heart, though, the education bailout is a mutual taxation and spending covenant between the states and the federal government, foisted upon the states by Congress’ superior power position. And it is bad policy. State legislatures are better placed to understand and respond to their own fiscal needs. Perhaps states have overspent on education and should be spending less, not more, as their legislatures judge best. Why should a senator from Virginia direct Texas educational spending? Congressional funding is a blunt instrument for delicate state finances. The Constitution envisions the federal government abstaining from meddling with state treasuries. The education bailout, however, pushes the federal government even deeper into each state’s treasury and in some cases between a state and its own constitution.