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Top Legal Stories of 2011

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 “Don’t ask, don’t tell” is repealed: The policy that barred gay and lesbian soldiers from serving openly in the U.S. military was repealed in December of 2010, and the repeal went into full effect in September of 2011.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.

Facebook Postings May Be Used Against You in a Divorce

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.

I, For One, Welcome Our New Robot Overlords

Back in February, an IBM supercomputer nicknamed “Watson” won a Jeopardy tournament against 2 human opponents, both of whom were previous contestants who were extremely successful when they first appeared on the show.

This represented a huge breakthrough in artificial intelligence. One of the most difficult problems in making computers to “think” like humans is getting them to understand the subtleties of human language. When posed with a question, finding the answer was simple – Watson contained a database of millions of documents from which to look for answers.

The difficult part, for a computer, is figuring out what’s being asked of it. This is especially true of the questions on Jeopardy, where the questions often contain puns, turns of phrase, and indirect allusions to their subjects. The fact that Watson was able to outperform its human opponents represents a spectacular leap in natural-language processing by computers.

Obviously, IBM didn’t spend several years, and millions of dollars, developing hardware and software that’s really good at playing a game show. They intend to put the Watson system to good use, particularly in the medical field. Suppose a doctor is baffled by a patient’s symptoms, and the medical references aren’t helping. A Watson system optimized for medical use might allow the doctor to simply input the patient’s systems, along with other relevant information, and the computer could then search through every piece of medical literature that’s ever been digitized, and parse together a diagnosis that no human might have considered. Obviously, it would serve as a possible avenue for further investigation, and not a definitive diagnosis. Still, it could make medical care far more efficient and effective.

However, Watson also has very promising applications in another information-based profession: the law. Anybody who’s done legal research can probably imagine how useful a system like Watson could be in legal research and discovery, with its ability to search through millions of documents in a matter of seconds, and parse meaning from them. It would probably far, far more effective at finding authorities that are relevant to a particular legal question than the current “natural language” search options offered by Westlaw and Lexis, which seem to mostly rely on keyword frequency. Law clerks and doc reviewers may want to start updating their resumes.

However, an article in the Yale Law Journal suggests that Watson, or systems like it, could someday supplement, or even replace, the work done by judges. This is especially true of judges who identify themselves as “textualists.” Textualism is, basically, the idea that judges should interpret statutes according to the plain meaning of their words. This is in opposition to judges who believe that the actual intent of the legislators who drafted the laws should be considered. Textualists basically argue that, if a legislature wanted a statute to be interpreted in a particular way, they would have made it clear in the text of the statute itself.

This method of statutory interpretation is relatively formulaic and systematic. This means that if there’s any judicial philosophy that could be implemented by computerized judges, this is the one.

Also, textualists argue that judges should be completely neutral as far as policy goes, meaning that they should avoid, at virtually any cost, letting their own opinions as to what would be the “better” result get in the way of objectively interpreting statutes according to the plain and common meaning of their words. Of course, judges are humans, and have opinions and emotions. Even the most committed textualist, there’s no guarantee that their emotions might subconsciously influence their judgment. And who wants that?

So, imagine a world in which a judge could compare his or her legal conclusions to those drawn by a computer doing a complicated language analysis of the relevant statute, and the facts of the case. Computers don’t have emotions, biases, or policy preferences. They are a textualist’s dream: logical, objective, and unfeeling. Of course, if you saw the Jeopardy games in which Watson competed, you’d know that it occasionally screwed up, and delivered an absurd response, that no human, no matter how clueless they were as to the answer, would deliver. For example, during Final Jeopardy, Watson was faced with a question under the category “U.S. Cities.” Its response was “Toronto.”

Obviously, computers are not going to be replacing human judges anytime soon. However, it’s clear that technology is changing the legal world in ways that we wouldn’t have dreamed of even a few years ago. And while this system isn’t going to completely replace judges or lawyers anytime soon, it’s very likely that the technology is going to find its way into courtrooms and law offices very soon.

For this reason, it’s absolutely essential that courts come up with clear guidelines on how the assistance computers provide in rendering judgments should be used. After all, even the most mechanical method of legal reasoning still requires a good deal of nuance, intuition, and human judgment. And computers just aren’t there yet, and won’t be anytime soon.

Alabama’s New Immigration Law Toughest in U.S.

As predicted, Arizona’s fiery immigration policies are having a chain reaction effect on other states.  Several states have attempted to institute laws that are similar to Arizona’s controversial SB 1070 law.  The most recent state to join the fray is Alabama, which passed a tough immigration law just a few weeks ago.

Now, we here at LegalMatch have blogged extensively about Arizona’s policies, which touch upon several aspects of immigration including birthright citizenship and employer punishments.  However, Alabama’s law contains many unique restrictions on illegal immigrants that are not included in any other state policies.  The law is poised to go into effect this September and contains the following provisions:

  • All business must check the legal immigration status of all workers using the E-Verify system
  • Schools will be required to find out if all students are in the country legally (data is to be used for the purpose of “statistical analysis” rather than preventing students from enrolling)
  • Permits police to arrest persons suspected of being an illegal alien if stopped for a different reason
  • Makes it a crime for persons to knowingly give rides to illegal immigrants
  • Makes it a crime for a landlord to knowingly rent property to an illegal immigrant
  • Makes all contracts entered into by an illegal immigrant unenforceable

Now that’s an extensive list.  The law also contains other provisions which have not been elaborated upon, including a restriction on voting.

Hands down, the most controversial aspects of the new law are the requirements regarding schools and landowners.  Many feel that the new regulations will allow for more extensive criminal profiling in areas that have traditionally been less vigilant.

Yet, as drastic as it is, Alabama’s new baby is getting much less attention compared to Arizona’s law.  Some writers are surprised at the lack of outrage towards the new law, given its unprecedented reach and scope.  To me there are several reasons why many people don’t know (or care) about the Yellowhammer State’s immigration developments.

For one, the illegal immigrant population in Alabama is not as pronounced as in other states like California or Arizona.  It is estimated to be at about 120,000 people.  While this indicates a nearly 5x increase over the last decade, this is still a very minimal figure comparatively speaking.  Also, the state of Alabama is not really well-known for being reliant upon immigrant work like Arizona is.  So the question of regulating illegal immigrants is somewhat more separate from the economic aspects of Alabamian life.

But I think that what’s really happening is this- we are simply getting used to hearing about the introduction of doomsday-like illegal immigration policies all over the nation.  Most readers are probably saying to themselves, “Oh, another one?”

Some legal experts feel that the law will be able to withstand legal challenges which are sure to be mounted against it.  The main justification is that Alabama has a legitimate state interest in enforcing such strict measures.  And then there’s the argument that illegal immigrants don’t have any citizens rights because they are not part of “The People” as defined in the Constitution.

Personally I agree that the immigration situation is a problem. And I agree with certain measures in the Alabama law, especially the one that requires employers to check and register workers with E-Verify.

However, I do feel that Alabama could accomplish its aims using much less restrictive means.  In particular, the requirements for schools, landlords, and contract rights are questionable in my opinion.  Rather than making national immigration policies more efficient, these requirements seem to exist only for the purpose of frustrating the immigrant population.

In fact, the first thing I thought about when I learned about property restrictions on illegal immigrants in Alabama was America’s immigrant policies during World War II.  During that time in the 1940’s, Japanese-Americans were forbidden from owning real estate, and many Japanese-American citizens lost a significant amount of property due to internment policies.

Granted, that was a time of war and such extreme policies were enforced out of military necessity.  But in this regard, Alabama’s latest law does seem to send the message:  America is at war.  Ok, maybe it’s not an all out military war, but this is definitely a conflict, and certainly one involving boundaries and territory.  For many, illegal immigration is a serious matter that is nearly tantamount to an act of war.

We’ll have yet to see if the times really are so dire as to require these restrictive measures against illegal aliens.  I project that some of the Alabama provisions will stand (namely, the E-Verify requirements) while many of the other ones will be required to stand down.

Where Does Assisted Suicide Currently Stand Legally?

Last week brought news of the death of Dr. Jack Kevorkian. As you probably know, Kevorkian was a pathologist who helped terminally ill patients end their own lives. Throughout the 1990s, his actions were at the forefront of the emerging right-to-die debate in the United States, which continues to rage on.

Dr. Kevorkian reportedly assisted 130 terminally-ill people in committing suicide. He was tried several times for assisted suicide, and was acquitted all but once. In 1999, he was convicted of second-degree murder, after assisting a terminally-ill man in suicide, by administering a lethal injection. His medical license had been revoked several years earlier.

This incident was unique, because Dr. Kevorkian actually administered the injection himself. Usually, he would hook the patient up to an apparatus that would deliver the lethal drugs, but the patient had to physically activate the mechanism, to ensure that the patient had absolute control over the decision. In this case, however, the patient was mostly paralyzed and not physically capable of activating the device himself.

The whole incident was videotaped and broadcast on 60 Minutes, and is what led to his trial and conviction for second degree murder. He was paroled for good behavior and deteriorating medical health after serving 8 ½ years.

Though Dr. Kevorkian brought the debate over voluntary euthanasia to the forefront 20 years ago, the debate is far from settled. The legal and public policy discussion on the issue of physician-assisted suicide has made only moderate progress.

So, where does the law on assisted suicide currently stand? It should be noted that, in the vast majority of states in the U.S., it remains illegal. Anyone who aids or abets a person in committing suicide will be tried for some form of homicide, in those states.

However, three states in the U.S. – Oregon, Washington and Montana – have legalized doctor-assisted suicide, under very limited circumstances. Both laws legalizing assisted suicide were passed by voter initiative, and won by fairly significant margins. And nationwide polls suggest that around 70% of Americans support at least a limited right for terminally ill patients to seek the assistance of a doctor in ending their own lives.

However, the U.S. Supreme Court ruled some time ago that there is no constitutional right to physician-assisted suicide. This means that both the state and federal governments have the power to criminalize it, if they so choose. The Supreme Court did, however, hold that the federal government cannot interfere with a state’s right to legalize assisted suicide, should it so choose.

So, this means that the question of whether or not assisted suicide should be legal is going to be determined on a state-by-state basis, with a patchwork of different laws across the country being the norm for the foreseeable future. However, it appears that the trend is in the direction of legalizing assisted suicide, rather than restricting it. In the two states where it is currently legal, the controversy appears to have died down.

And it should be noted that, even when assisted suicide is legal, it comes with some pretty heavy restrictions. And this is reasonable, considering the fact that, if there’s one right that we don’t want to see abused, the right to die would be it. So, the laws that allow assisted suicide require strong medical evidence that the patient is terminally ill, with less than six months to live. They also require a psychiatric evaluation, to determine that the patient is mentally competent to make the decision. There is also a waiting period. The patient must also make the request voluntarily, without any evidence of coercion whatsoever. The patient’s medical prognosis must be verified by two physicians. Their mental competency must be verified by at least two psychiatrists.

Finally, when all of these facts are verified, the doctor is allowed to prescribe to the patient a drug cocktail meant to cause death as quickly and painlessly as possible – typically a combination of sedatives, painkillers, and antihistamines. The patient must administer the drugs to themselves, to provide an additional level of assurance that the act is completely voluntary. Studies in Washington and Oregon have shown that most patients who are prescribed these drugs don’t end up actually taking them. However, both the patients and their loved ones take a good deal of comfort in the knowledge that the option exists.

Personally, I think that this approach is the best one. I firmly believe in the right of a terminally-ill individual (assuming they are of sound mind) to end their own life, and to seek the assistance of a willing physician, to ensure that their death is as dignified and painless as possible.

Of course, I’m a realist. I recognize the potential for abuse of such a right, if it is unlimited. For that reason, strong safeguards against abuse need to be put into place, such as a waiting period, a psychiatric evaluation to ensure that the patient is of sound mind, as well as verification of the patient’s medical condition by at least two independent physicians, should be in place.

Clearly, the debate regarding assisted suicide is far from over, and few other topics elicit such an emotional response, from both sides of the issue. However, it’s a debate that we need to have.



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