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Top Legal Stories of 2011

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2011 has been an interesting year. The economy remained sluggish. The 2012 presidential campaign got into full swing. We had a war in Libya (remember that?). Of course, this is a law blog, so I won’t dwell on those subjects except to the extent that they have a significant legal angle.

But there’s still plenty to write about – 2011 has been an incredibly eventful year in the legal world. Important constitutional questions about the power of the president were brought to the forefront of public discussion. The Supreme Court agreed to hear what may well be its most momentous case in decades. A longstanding policy regarding sexual orientation and military service was changed. And there were plenty more, far too many to discuss in a single blog post.

So, without further ado, here are what I view to be the most important legal news stories of 2011, in no particular order, and chosen by my subjective opinion of which stories were the most interesting, along with a bit of arbitrary whim. So, it’s the definitive list, obviously.

  1. The legality of the military invention in Libya: 2011 may be remembered as a year of profound change in the Middle East, with one of the most notable cases being in Libya, where the U.S. and its allies, backed by a UN resolution, launched air strikes, helping rebels overthrow Moammar Ghadaffi. However, there has been some controversy over America’s role in the operation. Under the War Powers Resolution, passed after the Vietnam War, the President must obtain the approval of Congress for any overseas military engagement lasting longer than 60 days. President Obama did not seek such approval (to be fair, every president since the law was passed has ignored it, arguing that it’s unconstitutional). Given the divided political culture in Washington, some politicians and commentators have argued that the U.S. intervention in Libya was illegal. This controversy brought the War Powers Resolution back into the public limelight, and sparked a heated (though brief) public debate about this important constitutional issue.
  1. “Don’t ask, don’t tell” is repealed: The policy that barred gay and lesbian soldiers from serving openly in the U.S. military was repealed in December of 2010, and the repeal went into full effect in September of 2011. As of the writing of this blog post, there have been no reports of any significant problems resulting from the repeal. There are predictions that, in the long run, allowing gays and lesbians to serve openly will have broader positive implications for expanding the legal rights of gays and lesbians.
  1. Massive employee lawsuit against Wal-Mart thrown out: The largest class-action lawsuit in U.S. history (and it’s now likely to hold on to that record forever, for reasons that will soon be obvious) was thrown out by the U.S. Supreme Court on the grounds that the proposed class – comprising 1.6 million current and former female Wal-Mart employees – was too large. The court never ruled on the merits of the plaintiffs’ claims that Wal-Mart engaged in a pattern of gender discrimination, leaving the plaintiffs open to bring a new lawsuit with a smaller class of plaintiffs, which marks a trend of the Roberts court limiting consumer class-action lawsuits.
  1. New York legalizes same-sex marriage: The state of New York became the largest state in the country to legalize same-sex marriage. It also marked the first time a Republican-majority state legislature passed such a law. Once again, it brought into focus the fact that the federal government does not recognize these unions, denying lawfully-married same-sex couples the many federal benefits that come with marriage.
  1. States take immigration enforcement into their own hands: Several U.S. states set themselves up for a legal showdown with the federal government over who has (and doesn’t have) the power to enforce federal immigration laws. Immigration is generally considered the exclusive domain of the federal government. However, with immigration becoming a hot-button political issue, many states began passing laws giving state authorities unprecedented authority to enforce immigration laws. The federal government, concerned about diplomatic relations with foreign countries and maintaining a consistent nationwide immigration policy, is challenging some of these laws in court. You can bet that 2012 is going to see much more of this.
  1. Supreme Court to hear healthcare reform cases: Legal challenges to President Obama’s signature legislative accomplishment – the Patient Protection and Affordable Care Act – began almost immediately after the law was passed. Federal courts considering the constitutionality of the “individual mandate” (the provision of the law that requires almost all Americans to obtain health insurance or pay a financial penalty) have come out on both sides. The Supreme Court, as everybody predicted, is going to hear the case, and hopefully resolve the issue once and for all. However it rules, you can bet that the court’s decision (expected in the summer or fall of next year) is going to be one of the top legal news stories of 2012.
  1. Free speech applies to the worst of the worst: Westboro Baptist Church, the group best known for its virulent anti-gay stances, and its claims that every bad thing that happens in the world is a result of God punishing humanity for allowing gay people to exist, and picketing the funerals of U.S. soldiers killed overseas, which, naturally, the friends and families of these soldiers found incredibly upsetting. One family sued the church for intentional infliction of emotional distress. The Supreme Court ruled that the church’s actions were protected by the First Amendment. Most legal commentators reluctantly agreed that the court’s ruling was correct, even if almost everyone found it personally distasteful.

2011 was definitely an eventful year in legal news. And considering that most of the stories discussed above are far from over, I wouldn’t be too surprised if a lot of them make the 2012 list, as well.

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Should There Be a Right To a Free Attorney in Civil Cases?

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The American Bar Association has filed a brief in a New Hampshire court in favor of state funding of appointed counsel in certain civil cases.

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that.  The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.

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Man Sues Fertility Clinic Alleging it Stole His Sperm

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This is a new one: a man is suing a fertility clinic, alleging that his ex-girlfriend stole his sperm, and used it to get herself pregnant at the clinic by in vitro fertilization. Allegedly, she was motivated mostly by a desire to collect child support payments from her ex-boyfriend.

If the man’s allegations are true, there’s plenty of blame to go around. Obviously, a large amount of fault would lie with his ex: the act of bringing a child into the world for the sole purpose of collecting child support is pretty despicable. And (again, if the allegations are true), the fertility clinic would also bear a good deal of fault, for causing this man to father children without his consent.

The man’s lawsuit (.pdf) claims that the ex-girlfriend took used condoms with her to the fertility clinic, where his sperm was used to impregnate her. He claims that he never intended to have a child with the woman, and never sought treatment at the clinic.

As I said, if all this is true, a lot of people have a lot of explaining to do. However, the plaintiff in this case has quite a few evidentiary hurdles to overcome, as his story appears to have quite a few holes in it.

First of all, the fertility clinic claims that they have a consent form for in vitro fertilization which has the man’s signature on it. Also, the woman billed the plaintiff’s health insurance company for the procedure, which it paid, and the plaintiff did not contest these charges.

The plaintiff claims that the woman lied to him about the procedure she was having performed.

If these basic facts are true, the defendant, if she were a person with no scruples, would have a lot of financial incentive to attempt such a scheme. If she got away with it, she would arguably be entitled to half of the plaintiff’s assets. This is because Texas is a community property state, wherein half of the assets acquired by either spouse during a marriage are owned jointly by the spouses, with each of them holding a 50/50 interest in the assets, which must be divided in the event of divorce. Texas also recognizes common-law marriage, where a couple can be declared legally married, even if they never have a wedding ceremony or obtain a marriage license.

A common-law marriage is usually declared after the couple have lived together for many years, and held themselves out as husband and wife. Having children together is one factor that weighs extremely heavily in favor of finding that a relationship should be declared a common-law marriage.

The NY Post article I linked to above indicates that the woman went so far as to ask a court to declare the plaintiff her common-law husband, though the court denied her request, which seems to strongly suggest that they didn’t believe her version of events.

Thankfully, situations like this appear to be very rare. However, I’ve noticed a somewhat disturbing trend in the “fathers’ rights” camp that seems to be against court-ordered child support altogether, and claim that courts are dominated by bias against fathers in child support and custody disputes. They sometimes point to extreme cases like this one to drive their point home.

While I won’t deny that the family law system needs improvement, and judges should be given more flexibility in crafting fair child support arrangements, mandatory child support is an essential part of the social safety net.

Hopefully, cases such as this one don’t undermine public acceptance of the child support system.

200-Pound 3rd Grader Removed From Home, Placed in Foster Care

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A few months ago, I wrote about the question of how state child protection authorities should handle the growing problem of severely overweight children.

Since then, there have been a few developments in that area. The state of Ohio has taken a 200-pound third-grader out of his parents’ home, and placed him in foster care. This is one of the first-ever cases of a child being placed into foster care solely because of their weight, and the parents’ inability or unwillingness to control it. State authorities classified the child’s weight as a case of “medical neglect,” and state that they applied the same standards in deciding to place the child in foster care as they would in any other case: they looked at the conduct of the parents, and whether it posed an imminent threat to the child’s health and/or safety.

In this case, a 10-year-old weighing over 200 pounds was deemed to be threatened enough by his weight to warrant placement in foster care. While an action like this is sure to be controversial, and will probably prompt heated debates about the exact role the government should play in protecting children, I think they made the right call in this case.

After all, the long-term health effects of childhood obesity are well-documented. And for such a young child to be so severely overweight, it seems like there’s a good chance that he could be in more immediate danger of illness or injury as a result of his weight.

And if the parents are unwilling or unable to take corrective action (and it’s not as if feeding your child less creates any additional expenses for the parents), the child should be removed, until his weight can be brought down to a healthier level.

Comments on the conspiracy-themed blog “Prison Planet” have a different view. Shockingly, most of them seem to think that this is part of a government scheme to poison our children with anti-psychotic drugs while they’re in foster care. I don’t really have much to say about that claim, but buried in all that paranoia is a legitimate issue: just how much government involvement in the parent-child relationship is appropriate?

Obviously, the answer to this question depends a great deal on individual value judgments. However, just about anyone but the most die-hard anti-government type will concede that, sometimes, it’s necessary for the state to intervene in the parent-child relationship, generally as a last resort, to protect the health and safety of a child.

Remember, young children are generally unable to defend themselves, or make sound decisions for themselves. We trust that parents will always act in the best interests of their children, and make reasonable decisions on their behalf. But, most people also know that parents don’t always take care of their children, sometimes with tragic results.

When parents willfully or negligently place their child in danger of serious medical problems, the state does have an obligation to intervene. Given the growing rates of childhood obesity, and the precedent set by Ohio’s actions in this case, I expect state social services to begin taking action like this more frequently in the future. If so, I hope that they’ll come up with concrete guidelines on exactly when intervention is appropriate in dealing with childhood obesity.

After all, nobody could seriously suggest that every child who’s even slightly overweight should be placed into foster care, or even that the state should intervene on their behalf. While guidelines specifically dealing with how social services will handle childhood obesity may be necessary, the basic standard for intervention should be the same as it would be in any other case of medical neglect: do the parents’ acts or omissions put the child in immediate danger of serious injury or illness?

Whether or not the child’s condition in this particular case warranted his placement in foster care is debatable. However, whatever the results of this action, and the parents’ legal challenge to it, the fact remains that, in the most severe cases of childhood obesity, intervention may be warranted.

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Facebook Postings May Be Used Against You in a Divorce

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Social networking websites have often found their place in court, especially during voir dire or criminal proceedings.  Yet again, social networking sites are being used, but now in a different context.

In a Connecticut divorce proceeding, a judge is requiring that a couple submit their social networking passwords to the court.  Attorneys of both parties are to exchange passwords for their clients’ Facebook and dating websites.  Such evidence is being used to help evaluate how each party feels about their children, and their ability to take care of them.  Essentially, these passwords are being used to help resolve a custody battle.

The court issued an injunction to deter both parties from deleting any material on the websites, and ordered the attorneys to exchange passwords.  It has also been ordered that neither party will go on the websites of the other and post any messages, status updates, etc.

There are mixed reactions to the judge’s orders.  People are objecting because they feel this is an invasive discovery tactic which invades the privacy of the other party.  People log onto their social networking sites almost every day, sharing thoughts, exchanging communication, and revealing information about them.  Is it really fair to have all of these expressions used in court?

Divorce proceedings in particular are sensitive because they deal with the dissolution of a valued institution, as well as potential custody issues regarding children.  Can a judge really evaluate parents’ true personas and abilities as caretakers from information on these sites?  Many feel that these sites only reveal everyday expressions that are not relevant to an individual’s caretaking abilities.  Moreover, such information is an invasion of privacy and may be used unfairly to determine if a person is fit to take care of his or her child.

Of course there is another side to this argument.  This tactic does compromise Facebook’s policy of not exchanging passwords.  It also invades someone’s privacy.  However, when an individual enters into legal proceedings, it is expected that a certain amount of private information is revealed.  Unfortunately, this is a natural consequence of litigation; there are times when a door is opened, and the other side learns of personal information.  Therefore, many feel that there is nothing wrong with the judge’s order.  Common sentiments are that this information will increase our legal system’s ability to make the “proper” decision.

A potential solution that people have proposed is to label any printed documents from these sites as “privileged.”  Therefore, this information will fall under the attorney-client privilege and will not be submitted into evidence.  People, however, need to better educate themselves on this privilege.

A client cannot just “put” information into the protection of privilege because it may be pertinent evidence.  The attorney-client privilege ensures that communication between attorneys and clients, be it written or oral, will be confidential.  Further the work product doctrine falls into this privilege and ensures that an attorney’s mental impressions and/or work put into the case will remain confidential.  The other side may never obtain the attorney’s mental impressions.

However if a significant showing of necessity is pleaded in court, then a party may obtain work product such as interviews, reports, notes documenting meetings, etc.  Overall, the court does establish guidelines on what information can be privileged.  Clients cannot just put any information they want into the “privilege bubble.”

All in all, as technology consumes our lives, it also finds its way into court.  Lawyers already use sites such as Facebook to learn about jurors and/or defendants in criminal proceedings.  It is only natural that such a tactic be used in other legal proceedings as well, such as ones involving divorce.

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