Archive for the 'Court' Category

Appeals Court Denies “Uber” for Planes

If you want to get from Dallas to Washington, D.C. fast, wouldn’t it be nice to contact a pilot in an Uber-like plane service? Well, keep dreaming. In December 2015, the U.S. Court of Appeals for the District of Columbia Circuit struck down the idea.

Flytenow, Inc. developed a web-based service allowing private pilots to offer their planned itineraries to passengers. The itineraries were only given to passengers willing to share in the pilot’s expenses to fly to their destination. The company contacted the Federal Aviation Administration, or FAA, regarding the legal interpretation of its compliance with the Federal Aviation Act of 1958 and other FFA regulations.

A dispute arose when the FFA concluded Flytenow’s pilots needed a commercial license. Normally, pilots are considered common carriers. A common carrier offers its services to the general public. The services are offered in compensation of goods, property or messages over a defined route. Typical types of common carriers include mass transit, such as airlines, taxis, cruises, and ferries.

This means private pilots can’t use Flytenow to offer their services.

Flytenow Wanted the Court to Set Aside the FAA’s Interpretations because of Inconsistency

The company filed a lawsuit based on objections like:

  • The FFA misinterpreted its regulations when it decided passengers would be compensating the participating pilots
  • The FFA erred when it concluded pilots using would be holding out an offer transportation to the public

The Court found both objections unpersuasive.

By sharing expenses, private pilots are being compensated for their trips. If a person called a private cab service, the amount of gas is probably calculated into the amount paid to the driver. The same would have been true of Flytenow’s pilots. By getting paid a portion or half of their expenses, consumers would save money. Essentially, there’s an exchange of value.

Thus, they aren’t private pilots, but commercial pilots.  Plane

Another problem with Flytenow’s argument is trying to redefine “holding out.” According to FAA Advisory Circular, pilots are barred from advertising their services to the public. The company tried to argue its’ pilots don’t advertise to the public. They submit their flight plans to the Flytenow.

However, the FFA argued that by giving their flight plans to the company, they are advertising their services to the public. For example, an individual wanting to fly to California from Missouri could look at a flight plan on the company’s website. He could then decide to “share” the expenses of the flight with a pilot flying to California.

The Right to Sue

The court got it right. The company holding itself out as a professional service to the public does create a risk to unsuspecting passengers when its pilots are not in fact held to professional standards. Passengers are under the impression the company and its pilots are common carriers. Common carriers have the experience and credential to fly commercially. If Flytenow and its pilots were allowed to present themselves as commercial and a plane crashes, passengers and/or their family would have difficulty suing under common carrier negligence.

Negligence is the failure to act with reasonable care as another in a similar or same situation would. When transporting passengers from one area to another, common carriers have the duty to:

  • Provide reasonably safe vehicles fit for an intended purpose
  • Provide careful drivers or pilot of reasonable skill and good habits
  • Exercise all standard precautions for the safety of all passengers
  • Comply with all safety laws
  • Use vigilance and utmost care in transporting all passengers
  • Warn passengers of any potential dangers the common carrier knows about

A private pilot doesn’t have to do those things. So making the pilots commercial instead of private gives passengers more legal protection.

Maybe the public won’t have to imagine an Uber-like plane service for very long. Maybe the right company will hire commercial pilots willing to fly planes to destinations for pay. For now though, we can only dream of avoiding the long waits at airline terminals and trying to book the best flight at the best price.

Transgender Laws in the United States

U.S. History has been marked by continual efforts to expand the inclusiveness of civil rights. While we have made strides in gender equality and gay rights, we have a long ways to go. Presently, transgender rights are at the forefront, with celebrities like Caitlyn Jenner and Laverne Cox who have brought transgender issues to the collective consciousness like never before.

Even though we are beginning to recognize the transgender community, we are far from recognizing broad legal rights for those who identify as transgender.

The United States is behind three European countries that not only recognize transgender issues as the next civil rights movement, but also provide comprehensive legal rights for those who identify as transgender. Denmark, Malta, and now Ireland allow transgender people over the age of 18 to change their legal gender without medical or state intervention. Changing one’s legal gender is a huge progress for the majority of European countries, many of whom require transgender individuals to undergo surgery and sterilization, or be diagnosed with a mental disorder, and get divorced if married, to have their desired gender recognized legally.

Who Is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.  LGBT Flag

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

How Does the United States’ Transgender Laws Compare?

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

While there are laws which protect transgender people from discrimination, there is no current law similar to Denmark, Malta and Ireland’s that allow transgender people to change their legal identification without intervention. Although one can easily change his or her name in any state, it is much more difficult to change the name on one’s birth certificate, which requires a court order. Changing the gender marker on one’s birth certificate is even more difficult. In the majority of states, it requires proof of surgical treatment to change one’s sex. Some states, including California, Oregon, New York, and Washington, allow one to change the gender marker on their birth certificate with proof of appropriate clinical treatment, even if no surgical treatment is sought.

Even if one changes their gender marker on their birth certificate, it does not mean that one’s sex is legally changed. There are some cases involving marriages in the United States before same-sex marriage was legalized where the court ignored the corrected birth certificate and decided the marriage was invalid. Now that same-sex marriage is legal, the gender marker on one’s birth certificate for these cases is immaterial.

The United States does not allow transgender people the same opportunity to change their legal identity without medical intervention. Ireland’s bill that afforded the transgender community this legal right was passed months after Ireland legalized same-sex marriage by popular vote. It stands to reason that because same-sex marriage is now legal in the United States, we may soon be following suit to expand transgender rights.

Use of Religion in Deciding Secular Issues: Risk of Prejudice and Inequity

The role of religion in conflict situations can be powerful. The use of religion in alternative dispute resolutions may produce sensible resolutions for the disputes of the parties who share the same religious faith without having to go to a court. However, the norms of what is right and what is wrong in a particular religion set different rules from what is legal and illegal under the civil law. This leaves minority groups vulnerable and subjects similar cases to vastly different sets of arbitrary rules.

For instance, in family law, the use of religious doctrines to resolve issues such as divorce and marriage is problematic because the religious doctrines are often prejudiced against women. Furthermore, the proceeding of religious arbitration is quite different from legal procedure, foregoing many steps of investigation and discovery that are instrumental for fact finding. As a result, those individuals who agreed to religious arbitration do not get a day in court and have to accept the decision by the value-laid religious principles of which they may or may not believe in.

Judicial Preference to Uphold Religious Arbitration

One of the biggest controversies is that religious arbitration may shield religious organizations from liability. When religious arbitration is used to decide a secular issue, there is a concern that religious arbitration often results in outcomes favorable to the religious entity and unfair to the individuals who signed the religious arbitration contract.

With such skepticism religious arbitration brings to the table, you may believe that courts would intervene. Unfortunately, courts rarely do. The First Amendment’s Free Exercise and Establishment Clause preclude courts from meddling with religious exercises of faith and from favoring one religion over another. Consequently, courts have either upheld religious arbitration or refused to review these cases under the First Amendment.  I Do Solemnly Swear

This judicial preference to uphold religious arbitration sometimes leaves truth untold. Ms. Spivey, a mother, wanted to find out what occurred or led her gay son to death when her son was found dead while he was in the custody of Teen Challenge, a Christian based rehabilitation program. One day, she got a call from Teen Challenge that her son was intoxicated and was being taken to a hospital. When Ms. Spivey called the hospital, she was told that he was never admitted there. He was missing and later found dead.

Ms. Spivey attempted to find out what happened to her son. She tried to bring a wrongful death suit, but could not because she signed an agreement that contained a religious arbitration clause when she enrolled him in the program. Under the clause, any disputes had to go to Christian conciliation, the religious arbitration. The mother appealed, challenging that a court should decide the matter, not the religious arbitration. She argued that her First Amendment right also included the right not to exercise religion. While it is a correct statement and interpretation of the Free Exercise clause, the court found that there was no constitutional conflict.

In any case, she had signed the agreement to arbitrate and was suing on behalf of her dead son. Accordingly, the appeals court did not review the case and parties proceeded to religious arbitration. The facts show that many questions were unanswered. Why was her son intoxicated and why was he not admitted to the hospital? Did the pressure from Teen Challenge worsen his drug abuse? Why did he end up in a city with no money or cellphone?

Law of Contracts – Limitations and Safeguards

While the First Amendment prevents courts from reviewing religious arbitration awards, courts can review the awards based on contract law. Courts can review religious arbitration agreements just like any other contract.

Proponents of religious arbitration argue that you cannot challenge the arbitration agreement because you voluntarily enter into the agreement to arbitrate. Admittedly, in contracts that contain religious arbitration clauses, courts almost always order the arbitration, finding that there is a valid contract to arbitrate. Furthermore, in regard to whether the arbitration award should stand, courts almost always affirm the arbitration award.

Courts may vacate the award where the award is a product of fraud, corruption, or serious misconduct by an arbitrator. Courts seem to focus on the procedural aspect of arbitration. Judges often will not opine whether arbitration awards are substantively fair.

Admittedly, freedom of contract is a long-standing principle that deserves due respect. Contracts cannot void agreements just because the parties have unequal bargaining power. As consumers, we more and more encounter an agreement containing an arbitration clause that is take-it or leave-it situation without any room for negotiation. This one-sided contract has become a fact of modern life.

However, with expansion of practice of arbitration in consumer contracts, courts sometimes invalidate arbitration agreements if the contract is unconscionable. The contract is unconscionable if it was so extremely unfair to shock the consciousness. Perhaps, courts could use the same doctrine to void the religious arbitration clause when the contract was entered into under extremely unfair circumstances. Perhaps, for public policy grounds, courts should gradually review more cases decided by religious arbitration to identify particular secular issues that are unfit for decision making based on religious principles.

Is Forcing a Defendant to Read about WWII Creative or Cruel?

As my colleague Jason Cheung discussed in a 2012 blog, you wouldn’t think the legal system was a creative place. The only real creativity we’ve seen from the legal system comes from fictional dramas or reality shows. However, more and more judges have been handing out creative sentencing to punish criminals. Creative sentences are a type of alternative sentence, given instead of fines or jail time. Examples of creative sentencing include wearing a sign in front of a store a criminal stole from, letting everyone know he or she was punished for stealing.

There’s a hidden question underneath all the creative ways to punish criminals. Does a creative sentence violate a defendant’s Eighth Amendment right against cruel and unusual punishment?

Let’s look at the case of Frank Peluso, 59, and Thomas M. Martin, 59. The two men were accused of stealing money from a local Veterans of Foreign Wars Post. They used a key to access the VFW’s machines. The thefts happened while they were playing games at the Post in July 2015. The men allegedly took more than $6,000. As one man blocked the surveillance camera, the other stole the money. The co-defendants pleaded guilty to:

  • One count of theft, a fifth degree felony
  • Three counts of possessing criminal tools, a fifth degree felonies
  • Tampering with coin machines, a misdemeanor

Theft is the trespassory taking of property of another without consent and intent to permanently deprive.

The theft and criminal tools charges each carried about six to 12 months in prison. The tampering count carried about 180 days in county jail.

They plead guilty to the charges. At their Dec. 7 plea hearing last year, Judge Frank Forchione asked Peluso and Martin about the significance of that day.


Martin didn’t know. Peluso said it was the anniversary of D-Day.


Unfortunately for them, their answers got them a creative sentence. For those were never into history, their plea hearing fell on the same day as the Japanese attack on Pearl Harbor.

State law prevented the judge from sentencing Peluso to prison. Instead, Peluso was sentenced to jail time and ordered to read two books. Both books, “Pearl Harbor: FDR Lead the Nation into War” and “D-Day,” were paid for by the judge. Peluso was ordered to write a five-page paper on the importance of veterans. He was also sentenced to three years of probation, restitution, and 200 hours of community service.

Martin was hospitalized and couldn’t be sentenced the same day as Peluso.

The Eighth Amendment Prevents Creative Sentences from Being Cruel

The Eighth Amendment is often associated with the death penalty. The Amendment prohibits cruel and unusual punishments, excessive fines, and bail. Opponents argue that creative sentencing can be cruel. Looking at Peluso’s case, he was sentenced to read two books because he didn’t know that his hearing fell on a veteran holiday. He was punished because of his ignorance, not because of his crime against veterans. Some would probably argue the creative sentence didn’t go far enough. The men could have been sentenced to something harsher than reading books.

Proponents of creative sentencing argue it puts an important twist on the legal system. It stops people from reoffending or committing a harsher crime. Sometimes a stint behind bars is just that—doing time. Creative sentencing may cause them to think twice about reoffending.

The Peluso case wouldn’t violate the Eighth Amendment. He’s forced to read about a day he should know about anyway. The problem with creative sentencing though, is it opens the door for the possibility of going too far. What is creative and what isn’t? Maybe it’s forcing a defendant to read a book about veterans today. Maybe tomorrow it’s being locked in a room without food and water to react what a prisoner of war went through after being captured. There should be more limits to the types of creative sentences a judge can impose.

Should Americans Have a Right to A Lawyer in Civil Court?

In 1963, the Supreme Court decided Gideon v. Wainwright, ruling unanimously that the Constitution required all criminal defendants to have a right to representation in court. One of the main rationales Justice Black’s opinion in Gideon was that the “noble ideal” of “fair trials before impartial tribunals  in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In criminal cases, a person’s liberty may be at stake. However, civil cases can also inflict great personal loss. Some civil cases involve large sums of money, others may involve housing, public benefits, child custody, or employment. Many advocate providing legal counsel as a right in cases where basic rights like family or shelter are at risk. Often, these decisions are the key to helping indigent clients move forward in their lives.

Legal Aid: Solution or Stopgap?

Currently, the poor have some access to legal assistance in civil cases through Legal Aid. Legal aid programs assist in three main types of cases: accessing basic necessities (like housing, healthcare and government benefits); ensuring safety and stability (like domestic violence, guardianship, and student discipline); and economic security (like employment, taxes, and consumer protection). These programs exist all over the country, and are very helpful to many. However, Legal Aid offices are not mandated to take all cases, and due to lack of resources must choose carefully whether to represent clients.  Legal Assistance

However, a right to an attorney in certain cases would guarantee that clients could not be turned away. Even if this were to exist, a separate system of Legal Aid would be an important community resource. This is because Legal Aid often helps clients who are plaintiffs or who are applying for certain programs or benefits; some of what they provide would not overlap with a civil Gideon. A civil right to representation in certain cases could potentially create new legal jobs and would ideally free up legal aid attorneys to do more good work.

Would the Failings of the Public Defender System Be Repeated?

While there is a guaranteed right to representation in criminal cases, there are also many flaws in the public defender system. Especially in some counties, public defense attorneys are overloaded with too many clients and sometimes do not have the time and energy that a private criminal lawyer could bring to an individual case. On the other hand, these attorneys are often incredibly well-versed in criminal law and some of the most experienced trial lawyers. Dedicated public defenders can often be great assets to their clients.

One concern is that the lack of staffing and resources faced currently by criminal public defenders would just be mirrored in a civil defense system. This is a rather cynical argument, as though our society could not possibly provide better funding to both a criminal and civil public defense system. The limitations that public defenders face are due to a lack of economic commitment to the principles of just representation. In a fair legal system, public defense would be sufficiently funded; we should try to move forward by making this a reality rather than naysaying.

The Way Forward

President Obama is a major proponent of increasing civil representation. In September, his administration released a memorandum that established the White House Legal Aid Interagency Roundtable to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” This statement reflects another important point about the benefits of civil representation—local and federal governments can set up meaningful programs or pass important legislation in hopes of protecting vulnerable individuals. However, in a system where few people are adequately represented, those programs and laws won’t work as intended.

At the same time, there has long been a national movement within the legal community to find a way to provide an attorney for those facing certain civil issues. Lawyers and judges are uncomfortable with indigent and vulnerable clients trying to represent themselves in complicated matters. In several states and jurisdictions, pilot programs have begun to try to work out what it would take to provide these services.

As Martin Luther King famously said, “injustice anywhere is a threat to justice everywhere.” A commitment to civil legal representation for all would be a step forward in defeating injustice.