Ian’s Legal Fact of the Week 4/20/2015: “Of the People”

While it is commonly thought that the phrase “of the people, by the people, for the people” is a description of our government that is found in the Constitution, the language actually comes from Lincoln’s 1863 Gettysburg Address.

Ian’s Legal Fact of the Week 4/13/15: Taxation Without Representation

Since 2000, license plates for the District of Columbia display the slogan “Taxation Without Representation”, to reflect the fact that D.C. has no voting representatives in Congress. It does, however, send a non-voting delegate to the House of Representatives, and has 3 electoral votes by virtue of the 23rd Amendment. The phrase has its origins in the political slogan “no taxation without representation” which emerged in the 1750s onwards in the American colonies and Ireland to protest English taxation policies.

Ian’s Legal Fact of the Week 4/6/2015: The Fugitive Slave Clause

The Fugitive Slave Clause is found in Article 4, Clause 3 of the Constitution, which states that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” While never repealed (an attempt to do so in 1864 failed), the passage of the Thirteenth Amendment abolishing slavery effectively invalidated this provision.

 

Ian’s Legal Fact of the Week: 3/30/2015: A Republican Form of Government

Article 4, Section 4, Clause 1 of the Constitution states that the United States “shall guarantee to every State in this Union a Republican Form of Government….” Sometimes referred to as the Guarantee Clause, the definition of “republican” government is not set out in the Constitution. While the meaning was litigated in the case of Luther v. Borden, 48 U.S. 1 (1849), the Court declared that this was a political question to be resolved by Congress. The Guarantee Clause is one of the least-litigated and explored clauses of the Constitution.

Ian’s Legal Fact of the Week 3/23/15: The Number of Laws in the U.S.

Want to guess the number of federal laws in the U.S.? Good luck– even the Library of Congress doesn’t know. While this is one of the most popular questions asked of the Library’s reference librarians, they point out that simply tallying the number of entries in the 125+ volumes of the Statutes at Large compendium would not suffice. Some laws repeal or amend previous laws, and the Statutes also do not include regulatory provisions or case law that has the force of law. On the state level, it is estimated that approximately 40,000 new state laws take effect every year. Unsurprisingly, there is also no reliable estimate as to the number of state laws in the U.S.

Online Legal Education

Feb15NJ

I was pleased to have the opportunity to share some thoughts about distance learning in legal education in the National Jurist a few weeks ago. As the article just came out–you can read it here (Education Anywhere February 2015) — I wanted to add a few more thoughts about online learning.

Recently a colleague asked me whether there was a ‘learning curve’ for our students with respect to using technology, more specifically distance learning technology. The question seemed particularly germane for our program, he added, given that many of the ELLM students have 20 years or more of work experience and might not be expected to be very tech savvy. My response to this was that our students are essentially using many of the tools they already utilize in their everyday professional and personal lives. Legal and business practitioners routinely use Outlook, Skype/Adobe Connect, social media, Google Docs, text messaging and related programs and technology every day. The specific functionality used in a specific program or course may be different, but typically that is quickly learned since it is technology with which most of us are already familiar.

Distance learning has, in many ways, ‘democratized’ education as it transcends borders and time zones and, depending on the model, is delivered without traditional economic barriers to entry (a typical MOOC comes to mind in this regard). It certainly affords students a degree of flexibility that is not present in a typical residential-based model of learning. Incidentally, you can also read BU’s short ELLM blog on the topic as well

Legal education is in some ways a bit of a paradox. We replaced the traditional, centuries-old ‘apprentice’ model of legal education–where law students learned from practicing lawyers and attended lectures on the side, typically at night– with a model that was based on a three-year program of study of classroom lectures and the so-called ‘Socratic method’ and case studies….a model, incidentally, where one could take a year-long course on Contracts and never actually see a contract, let alone try to draft one, and be taught by an instructor who may never have drafted one him/herself. In recent decades we began to add clinics and other experiential learning, because it seemed we graduated lawyers who knew little or nothing about actual legal practice. Law schools, the ABA and professional legal associations continue to reevaluate the traditional model and there is a sense of urgency about graduating students who are (a) saddled with less debt and (b) have more marketable and practical skills. Will we abandon the three year model? Will we essentially revert back to what legal education used to be, where there was an emphasis on working knowledge coupled with the academic? I don’t necessarily feel qualified to prognosticate about what additional changes are in store, but we are clearly in the midst of a sea change in the manner in which legal education is structured and conveyed. A greater combination of the theoretical and practical study of law, over a shorter period of time than the traditional three years, seems to me to not be a very daring prediction.

 

Ian’s Legal Fact of the Week 3/16/15: The Public Benefit Corporation

In addition to the for-profit and limited-liability models of traditional corporations, other variants exist. A public-benefit corporation is state-chartered and designed  to perform some public benefit (examples include the MBTA and Massachusetts Turnpike Authority). A B Corporation is a corporation certified by the non-profit B Lab for having met its standards of sustainable business practices, including high levels of public accountability, social and environmental performance, and transparency. Well-known examples of B Corporations include Ben & Jerry’s Ice Cream and the apparel company Patagonia. The B Corporation certification is similar to LEED (Leadership in Energy and Environmental Design) certification for buildings or the Fair Trade label for products such as coffee.

Ian’s Legal Fact of the Week 3/2/15: Citizen’s Arrest!

A citizen’s arrest — an arrest by a non-law enforcement officer — is statutorily provided for in 49 states (North Carolina is the exception) where a citizen observes a felony being committed, or when a citizen is asked by a law enforcement officer to help apprehend a suspect. States differ in whether a citizen’s arrest also extends to misdemeanors, crimes not witnessed by the arresting party, or to breaches of the peace.

Ian’s Legal Fact of the Week 2/23/15: Alienation of Affection

One of the most common 19th century civil suits was for alienation of affection, awarding damages to litigants whose marriages disintegrated due to the actions of a third party. In order for a plaintiff to prevail, he or she had to show that the marriage had been a loving one, that the relationship was alienated (i.e., destroyed), and that the defendant was responsible for this alienation. While long since abolished in most states, in 2010 a record $9 million judgment was awarded in North Carolina against the defendant who had seduced the plaintiff’s husband.

Ian’s Legal Fact of the Week 2/16/15: The Alford Plea

The Alford plea is a form of “alternative plea”, meaning that it does not correspond to traditional pleas of either guilty or not guilty. It is premised on the defendant’s acceptance of a plea bargain agreement while continuing to assert innocence. Typically, this involves a defendant’s acknowledgement that evidence of sufficient weight exists to result in a probable guilty verdict. The Alford plea derives from the 1970 Supreme Court case of North Carolina v. Alford, in which a defendant “concludes his interests require a guilty plea and the record strongly indicates guilt”, having received benefit of advice from a competent attorney. Alford please are accepted in virtually all state jurisdictions. While the civilian federal courts recognize Alford pleas, U.S. military courts do not.

For those who might want to read about this and other alternative pleas in more detail, please visit my earlier blog on the topic.

 

 

 

 

Ian’s Legal Fact of the Week 2/09/15: Reporters’ Privilege

Reporter’s privilege (also known as journalist’s privilege), is a limited First Amendment right of journalists to shield their confidential sources from discovery. Forty states and D.C. have enacted press shield laws that protect reporter’s privilege. While there is no federal press shield law, ten Courts of Appeals have upheld this privilege. Proposed bills to create a federal press shield law were last introduced in Congress in 2004-2005.