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Facebook Involved in an Unusual Lawsuit between Uncle and Nephew

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Family feuds have been a common form of entertainment on television.  Many of us have tuned in to watch shows like Family Feud, Modern Family, Growing Pains, etc.  In the legal realm, family feuds have comprised of a practice termed family law.  Attorneys who practice family law are considered to have a “tough heart” by many because it is not easy watching families endure events such as divorces and custody battles.  Speaking of families and lawsuits, a recent lawsuit of a nephew sewing his uncle for harassment over Facebook pictures gives new meaning to the term “family feud.”

A man from Minnesota named Aaron Olson sued his uncle because his uncle had posted childhood pictures of him, in front of a Christmas tree, in a rabbit costume.  Rather than untagging himself from the picture, or calling his uncle and politely asking him to remove the picture, Aaron sued his uncle for harassment in a Minnesota district court.

Olson’s claim was based on the fact that the pictures were “innocuous family photographs.”  Posting such photographs on Facebook establishes a platform for mean comments to be directed towards Olson.  The court dismissed this case, and the Court of Appeals of Minnesota denied Olson’s complaint.

The Judge in the Court of Appeals of Minnesota stated that harassment occurs when words have some sort of adverse effect on the safety, security, or privacy of another person.  Therefore, mean or disrespectful comments do not constitute harm to one’s safety, privacy or security. The court ruled that the district court was correct in stating that the evidence submitted by Olson (the Facebook pictures of him in a rabbit costume, in front of a Christmas tree) did not satisfy the requirements to prove harassment.

This lawsuit is probably the most ridiculous one I have heard of to date.  The obvious lesson to take away is that if you have a minor issue with a relative, talk to them.  The power of effective communication can do wonders, keep people out of court, and put the money spent on potential litigation back into your pocket!

More importantly, when frivolous suits are brought into court, it is a misuse of the judicial system and a waste of judicial resources.  People should realize that the judicial system is there to tend to complex matters that cannot be solved in the home or office environment, not minor family feuds over embarrassing photos.

So, a few tips to people out there.  Before thinking about going to court, evaluate the basis of your lawsuit.  If your lawyer explains things to you, you will be hit with a hefty legal bill.  Rather than depending on your lawyer, think about how much merit you have in your claim.  Next, think about solutions that do not involve litigation.  Often, litigation complicates matters before reaching a resolution.  If there is a quicker way to achieve some closure out of court, go for it.  Lastly, confide in a close confidant to see if your potential claim passes the “straight face test.”  Specifically, after conveying your claim to your confidant, examine their expression.  If it is not of a straight face, and rather is one of disgust, surprise, or awkwardness, it is likely that your lawsuit is frivolous.  Avoid filing it and resolve matters in the comfort of your own home!

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“Caylee’s Law” Gaining Steam in State Legislatures

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If you haven’t been living under a rock for the last several months, you’re probably aware that Casey Anthony was just acquitted of all charges (except a few relatively minor ones related to lying to the police) in the death of her two-year-old daughter, Caylee. Of course, she was convicted in the court of public opinion long ago. Many people passionately believe that Casey Anthony got away with murder.

Personally, if I were forced to make a guess, I’d say that she probably had something to do with her daughter’s death. However, proving that “she probably had something to do with Calyee’s death” is a far cry from proving beyond a reasonable doubt that she killed her daughter. Therefore, given the evidence that the prosecutor was able to produce, the jury was right to find her not guilty, even if they strongly suspect that she was guilty. We have a high standard of proof in criminal cases for the specific reason of making convictions difficult to obtain. This is supposed to make it highly unlikely that an innocent person will be convicted. Of course, it necessarily means that some guilty people go free. But most people agree that it’s far better for a guilty person to go free than for an innocent person to be punished (Ben Franklin said “It is better one hundred guilty persons should escape than one innocent person should suffer.”).

Anyway, not letting a good public outcry go to waste, state legislatures are scrambling to pass legislation that they’re referring to as “Caylee’s Law.” Most of the proposals are in response to the fact that Casey Anthony waited over a month after her daughter’s disappearance before reporting her missing. These laws would make it a crime for parents or legal guardians to fail to report the disappearance or death of a child within a certain period of time. For example, one proposal would require parents to report the death of their child within 1 hour of the death being discovered, and the disappearance of a child within 24 hours.

These all seem like things that the vast majority of parents would do anyway, if they were faced with the tragedy of a dead or missing child. It’s not likely that laws like this would prevent parents who are inclined to harm their children from doing so. Though, I suppose that if such a law existed at the time of Caylee Anthony’s disappearance, Casey Anthony could, if nothing else, have been convicted under it, even if she were still acquitted of murder. That might have been some comfort to the armchair pundits who are still screaming for blood, but meeting the expectations of the masses with respect to a high-profile case is not exactly the primary goal of the criminal justice system.

Furthermore, the article linked above mentions a petition to pass a federal version of this law. Besides being just as ineffective as similar state laws are likely to be, there’s another problem with the federal law: it’s almost certainly unconstitutional.

There’s simply no way that the Constitution gives the federal government the power to regulate such basic, personal conduct. Remember, the constitution created a federal government of enumerated powers. This means that the government cannot do anything which the Constitution does not explicitly grant it to do.

Now, if Congress were to pass such a law, it would have to rely on the Commerce Clause of the Constitution to support it. The Constitution gives Congress the power to regulate interstate commerce. Over the last several decades, the Supreme Court has interpreted this provision to regulate virtually any economic activity that has an impact on interstate commerce. This has given the federal government the broad regulatory power it enjoys today. This allows the federal government to regulate individual economic acts which, by themselves, do not affect interstate commerce, but which can have a significant impact in the aggregate.

However, the Supreme Court has drawn the line at non-economic activity. It is much harder for the federal government to regulate non-economic activity under the Commerce Clause. Generally, to regulate non-economic activity under the Commerce Clause, single instances of the activity must have an impact on interstate commerce. Aggregate effects of non-economic activity cannot be considered. Obviously, the “act” (really, it’s an omission) of not reporting a missing child is a non-economic activity, and it’s highly unlikely that a single instance would have any impact whatsoever on interstate commerce.

Of course, the writers of the petition probably didn’t consider the constitutional implications of the law they’re proposing. Also, they probably also didn’t consider the fact that it would likely be much easier to get individual states to pass these laws, rather than the federal government.

Even though they wouldn’t raise any constitutional issues, passing these laws at the state level seems ill-advised. As I mentioned earlier, they aren’t likely to deter somebody who is already inclined to harm their children. Likewise, enforcing them would be difficult, and could lead to some unfair results.

While such situations are rare, what would happen if a child is kidnapped for ransom, and the kidnapper tells the parents that he’ll kill the child if the parents notify the police? Suppose the parents panic, and wait longer than the maximum period of time before going to the police. Would they be held criminally liable? While most agree that, if someone is kidnapped, calling the police is the first thing you should do, no matter what the kidnapper says, could you really blame the parents for panicking in such a situation?

Really, this just goes to show, once again, that people need to think before legislating. The entire Caylee Anthony ordeal is extremely tragic. And the ensuing media circus did nothing in the service of that girl’s memory. Let’s not do her a further disservice by naming asinine laws after her.

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Is The Minimum Wage Unconstitutional?

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No, and no.Minimum Wage

But, a few candidates (also reported here) for the United States Senate have gone on the record as being of the opinion that it is, despite unambiguous holdings by the U.S. Supreme Court that both state and federal minimum wage laws are perfectly constitutional. The case upholding the federal minimum wage was unanimous, and over the past 70 years or so, under Courts of widely varying political and judicial philosophies, there has been no serious move to overturn either of those cases. Virtually every Supreme Court justice, regardless of their liberal or conservative leanings, views those cases as well-settled law. Even in today’s court, an argument that the minimum wage is unconstitutional is unlikely to fall on sympathetic ears.

I should note that there is some disagreement among economists as to whether or not the minimum wage is good policy, and whether it makes economic sense, but I won’t be discussing that issue here, mainly because I’m not an economist, and this is not an economics blog.

So, what are the possible arguments that the minimum wage is unconstitutional? Well, it boils down to the nature of the federal government, and its constitutional power, compared to the constitutional power of state governments. Basically, the constitution sets up a federal government of enumerated powers. This means that it expressly grants certain powers to the federal government, and denies it the rest. So, in theory, if the federal government does something which it isn’t specifically authorized to do, that’s unconstitutional. Under the 10th Amendment, all other powers not granted to the federal government are granted to the states, unless it specifically prohibits the states from doing something.

So, this means that the federal government can only do that which is expressly permitted. And state governments can do anything which is not expressly forbidden.

Now, if you look through the constitution, you won’t see anything that authorizes the federal government to impose a minimum wage on private employers. So, that’s the end of the debate, right? Not even close. In fact, the federal government does a ton of stuff that isn’t specifically authorized under the constitution. So, what’s the deal?

Many, if not most, of the constitution’s grants of power to the federal government are extremely vague and broad. For example, one of the things Congress is allowed to do is regulated interstate commerce. Unfortunately, the Founding Fathers didn’t see fit to tell us what that means, nor did they think to place a copy of This is What We Meant: A Guide to Constitutional Interpretation from the Authors in the Library of Congress. That would have been nice of them, but alas, it was not to be.

What they did leave us, however, is a Supreme Court whose job it is (among a few other things) to be the final arbiter of what interpretation of the Constitution is the correct one. Since the Great Depression, the Supreme Court has gradually expanded the scope of power granted to the federal government under the Commerce Clause. At this point, it grants the power to regulate virtually any economic activity that might affect something in another state. In this interconnected day and age, that includes basically everything.

With that in mind, there can really be no doubt that establishing a minimum wage is well within the federal government’s power. Some constitutional scholars believe (and their argument is certainly not frivolous) that the Supreme Court has expanded the federal government’s regulatory power far beyond anything that the Founders intended. This may or may not be true, but the fact remains that

I don’t doubt that these Senate candidates are perfectly aware of this fact, and were likely playing to their “Tea Party” base.

But for any employers who want to test the law, they should know that the federal minimum wage is $7.25 per hour (your state may have a higher minimum wage, which you are also bound by), and that LegalMatch case data from the past several months shows that alleged wage and hour violations by employers are still very common. And while these cases might not net plaintiffs a lot of money, typically little more than back wages and possibly attorney’s fees, wage and hour violations are comparatively easier to prove than many of the other common employment causes of action, such as discrimination and harassment.

So, if you’re an employer, and don’t think you should have to pay your employees the minimum wage, you’re certainly entitled to your opinion. And it’s your right to vote for candidates who promise to eliminate or reduce the minimum wage, if you want. But if you decide to make a stand against the minimum wage laws that you view as unjust, prepare to face the likely consequences: a trip to court, a court order requiring you to pay your employees any back pay that they’re owed, their attorney’s fees, and possibly punitive damages.

In the long run, it will probably prove much easier and cheaper to simply pay your employees at least the minimum wage.

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One Last Post about Bullying. Or, Let The Asinine Legislation Begin

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I’ve blogged before about some of the legal issues that come up whenThink of the childrenadolescents bully one another. These issues can be quite simple, involving ordinary assault and battery in the criminal/civil arena, and intentional infliction of emotional distress (IIED) in the purely civil arena.

I noted that these issues become more complicated in the rare instances when the victim of particularly severe bullying commits suicide, and makes it clear that the bullying was at least a factor in that decision, if not the main driving force. Specifically, the issue of whether or not the bullies can be held legally responsible for a suicide death which they may have indirectly caused is a sticky one.

Perhaps in an attempt to clear up the law on this subject, or to give an angry public the impression that it’s “doing something,” the Suffolk County board of supervisors has proposed a law (PDF) that would make it a crime, among other things, to “repeatedly insult a minor.” The law seems most focused on electronic communications, perhaps to deter cyber-bullying.

One should see right off the bat that this law has some serious problems with vagueness. Any law can be found unconstitutional because it is too vague (a law which is so vague that the public can’t actually know what conduct it prohibits deprives them of prior notice of the law, and therefore deprives them of due process). This seems especially likely in this case – in addition to being extremely vague, it could easily restrict expressive conduct which is protected by the U.S. Constitution.

For example, a 17-year-old girl who finds out that her friend has been saying nasty things about her behind her back, sends her former friend several emails calling her a few choice names. She would be guilty of sending “hate mail” and “repeatedly insulting a minor.”

Surely, this isn’t what the legislatures in Suffolk County wanted to do. But if this law passes, such an outcome is perfectly plausible.

Besides the obvious constitutional issues, this law, and others like it, illustrates the problem of legislation passed after a publicized event, which is clearly meant to placate the public, rather than solve a social problem.

When the news media get a hold of the latest moral panic, parents inevitably demand that their governments “Do Something” to solve the problem. Right now, bullying is in the news due to a few high-profile tragedies, and lawmakers are tying to “Do Something” about it. The problem with lawmakers “Doing Something” is that the laws they enact, no matter how well-intentioned, can end up stepping on the freedoms of people who are engaging in constitutionally-protected activities, such as expression.

While this attempt to address bullying with severe penalties as it is just beginning to occur is well-intentioned (and, if this law operates as intended, could probably prevent bullying from getting to the point that a teenager is driven to suicide), legislatures need to come to grips with the fact that the government just can’t solve some problems. There will always be bullies on the schoolyard. And there will always be bullies in the real world.

Of course, we all wish that this weren’t the case, but it is. Perhaps parents, teachers, counselors, and (to the extent their assistance would be useful) local governments should focus on addressing the causes of bullying, rather than passing knee-jerk, reactionary laws to respond to a single incident.

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Alternative Dispute Resolution – It’s Like The New Coke, Just Not Awful And Unnecessary

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I think I’m in one of strangest stages of my life.  It’s stranger than the Alternative dispute resolution optionsthen-mysterious state of puberty and even odder than the period of my life where my mom wanted to take family photos every month.  No, what I’m going through now is much different because I’m not only at an age where my buddies have started to settle down and marry, but I’m also at the age where they’re starting to get divorces.  The other day an old friend told me his marriage was finally getting to be too much for him.  His relationship with his wife had completely broken down.  They no longer spoke to each other, let alone sleep in the same room.  He told me he wanted to get a divorce, but he couldn’t because he had kids and his finances were too intertwined with his wife.  All of the factors, he claimed, would make the legal fees to get a divorce astronomically high.

Does this sound familiar to any of you out there?  No?  Well aren’t you happy…  Seriously, though normally under such a set of facts, legal fees would be really high there is another way to get through your legal issue without, to use the an old cliché, breaking the bank.  And that way is… drum roll, please… alternative dispute resolution.

Yeah, I know, not as exciting as you’d expect, especially considering the drum roll, but it really is an effect, efficient, and inexpensive option if done correctly.

So the first question you may wondering is, “what’s alternative dispute resolution?  Alternative dispute resolution, or ADR as it’s known in the legal world, is a procedure for settling disputes through means other litigation.  The alternative means you can employ to settle your dispute are numerous, but what they all boil down to is essentially resolving your dispute the old fashioned way, sitting face-to-face with the other person and hashing out your grievances.  The differences being that the negotiation is much more structured, usually overseen by one or more neutral third-parties, and generally, in the case of arbitration, are as legally binding as a court judgment without the all the extra costs.

The two most popular forms of ADR are arbitration and mediation.

Of the two, arbitration is more similar to an actual court trial.  Parties agree beforehand to resolve their dispute and usually hire one or more arbitrators (generally they are lawyers or former judges) to present their cases to and in the end, the arbitrator(s) hand down a judgment.  This is the more popular method employed in most potential legal situations due to the fact that arbitration judgments are almost always held to be as legally binding as a court decision.  And in the case of disputes between parties of foreign nationalities, arbitration judgments are held in especially high deference by US courts.  But when considering using this method, one should also take note of the fact that arbitration judgments are generally not appealable, which means if the arbitrator rules against you or not to your satisfaction, you’re pretty much stuck with it.  Evidence discovery is usually more limited, as well, when compared to what you get with a court trial.  Also once parties agree to enter into arbitration, they generally cannot back out of it until a judgment is given unless both parties agree to no longer arbitrate.

Mediation is the other most popular ADR method, particularly in divorce disputes.  Like arbitration, mediation require both parties to agree beforehand to enter this form of ADR and will hire and present their case to one or more third-parties (who are also generally lawyers or former judges).  The difference here is that the third-party is really a mediator, meaning that he or she is really there to help the two parties reach an agreement with one another, and not to hand down judgments.  The mediator can do this, however, if the parties agree to allow him or her to doo so.  In fact, the two parties can agree that the mediator has to do so dressed in parachute pants and standing on his head – assuming the mediator is willing/desperate enough for the business, of course.  Why is that?  Well, because mediation is essentially an advance contract creation session between the two parties where they can agree to do anything they want to resolve their dispute.  Mediation essentially gives the power to the parties to decide the best way to split their assets, decide who gets the kids, and so forth.  The downside is that unlike arbitration, mediation aren’t generally as legally binding.  Also, unlike arbitration, mediation can be ended by either party without the other’s consent, which means there’s a chance that the dispute won’t just be resolved, but that you could also be out for the time and money you put into employing mediation.

So next time you get the need to ditch your spouse (yeah, I know I could’ve phrased that better) try ADR.  It’s usually the cheaper and quicker way to go.  All you need is an experienced lawyer and a willingness to sit down with the other party without ripping their face off.

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