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(Todd Zywicki)

in honor of the new school year (via Michael DeBow).

Blank Rome is owed some money for representing SCO Chapter 11 trustee, Edward Cahn, and it would like to be paid, now that SCO has filed for Chapter 7 bankruptcy instead. I know. It's not called SCO any more. So, TSG, then, but it will always be "SCO" to me. Mr. Cahn has asked to be the trustee in Chapter 7, but that hasn't been decided yet, and so meanwhile, here come the bills, going back to December of 2011 and ending July 31, 2012.

If you recall, Cahn represented to the court that SCO now has only $145,352.00 in hand left. If you add up the new interim bills and expenses from Blank Rome, calculated at 80% of the actual bills and 100% of the costs which is how interim bills get paid, it comes to $34,601.78. And so the sand is running out of the hourglass, grain by grain, and this story is not yet at the very end. So even though I don't usually predict outcomes, I think it's safe to say that at this rate, barring the unlikely, Ralph Yarro and friends aren't going to get their $2 million loan repaid by SCO. Ever. Only in their dreams.

(Eugene Volokh)

Last year, I blogged about Moore v. Hoff, a Minnesota case in which a jury ordered a blogger to pay $60,000 to a university official because the blogger blogged the truth about the official, intending to get him fired. I am told that Monday morning, the Minnesota Court of Appeals will hand down a decision in the appeal of the verdict; I hope that it will reverse.

Here’s an excerpt from the trial court opinion sustaining the verdict:

Plaintiff Jerry L. Moore[ brought suit] for defamation, interference with contractual relationships, and interference with prospective advantage against Defendant John Hoff. A jury trial was held … [and] the jury … returned a verdict in favor of Defendant on Plaintiff’s defamation claim, and in favor of Plaintiff on the remaining two claims. Specifically, the jury found Defendant intentionally interfered with Plaintiff’s employment contract and interfered with Plaintiffs prospective employment advantage…. Defendant filed a notice of motion and motion for judgment as a matter of law or for a new trial….

When considering a motion for judgment as a matter of law, the district court must take into account all of the evidence in the case, view that evidence in a light most favorable to the jury verdict, and not weigh the evidence or judge the credibility of the witnesses…. [J]udgment as a matter of law under Rule 50 may only be granted “when a jury verdict has no reasonable support in fact or is contrary to law.” …

Plaintiff’s Complaint alleged that Defendant intentionally interfered with his contractual rights by actively working to get Plaintiff fired from his position at the University of Minnesota by, among other things, contacting individuals at the University of Minnesota, making disparaging remarks about Plaintiff, and encouraging others to do the same. To establish a claim for tortious interference of contract, a plaintiff must show: (1) the existence of a contract; (2) knowledge of the contract; (3) intentional procurement of the contract’s breach; (4) absence of justification; and (5) damages caused by the breach. Similarly, a claim for tortious interference with prospective advantage requires a showing that: (l) the defendant intentionally and improperly interfered with the prospective contractual relation, (2) causing pecuniary harm resulting from loss of the benefits of the relation, and (3) the interference either induced or otherwise caused a third person not to enter into or continue the prospective relation or prevented the continuance of the prospective relation….

[T]he Court heard direct testimony regarding Defendant’s active involvement in getting Plaintiff fired by contacting leaders at the University of Minnesota and threatening to launch a negative public relations campaign if Plaintiff remained in their employment. By way of example, Don Allen testified that he sent an email to the University of Minnesota, at Defendant’s behest, threatening negative publicity and lobbying to get Plaintiff fired. In addition to Mr. Allen’s direct testimony, the jury also heard circumstantial evidence supporting the jury’s verdict. The Court heard testimony that Plaintiff was terminated from his position at the University of Minnesota one day after transmission of the email from Mr. Allen. Furthermore, during this same time period, Defendant acknowledged that it was his goal to get Plaintiff fired and that he was working “behind the scenes” to do so. After the fact, Defendant took personal responsibility for Plaintiff’s termination and announced his ongoing, active involvement in the University’s actions. The direct evidence, combined with the inferences drawn from the circumstantial evidence presented, supports the jury’s verdict….

During the course of the trial, the jury was asked to consider whether a particular statement ["Repeated and specific evidence in Hennepin County District Court shows that Jerry Moore was involved in a high-profile fraudulent mortgage at 1564 Hillside Ave. N."] was true or false for the purposes of assessing Plaintiffs defamation c1aim. The jury determined that the statement was not false. With his current motion, Defendant argues that the jury’s award in favor of Plaintiff on the tortious interference claims were premised solely upon the same statement that formed the basis of Plaintiff’s defamation claim. Defendant does not present any evidence in support of this argument, nor does the Court find it necessary to invade the province of the jury.

It is not the Court’s function to determine on what theory the jury arrived at its verdict. Instead, it is the Court’s responsibility to interpret the special verdict form “and harmonize the jury’s responses where possible.” Thus, the Court must sustain the verdict “on any reasonable theory of evidence.” By special verdict, the jury found Defendant’s statement was not false, but that his conduct, taken as a whole, amounted to an intentional interference with Plaintiff’s employment contract and prospective employment advantage….

(Eugene Volokh)

I blogged below about the “American Law for American Courts” proposal, and its possible effect on foreign judgments entered without a civil jury trial. Here, I wanted to flag a possible problem with this proposal and foreign divorce decrees.

American courts routinely have to decide the marital status of people who came to America from a foreign country, and who got married or divorced or remarried in that country. If Wanda purportedly married Xavier in Elbonia, then purportedly divorced him in Elbonia, and then purportedly married Harold in Elbonia, and ten years later comes to America, the American legal system has to be able to figure out whether Wanda is indeed properly married to Harold. That’s the sort of issue that comes up all the time in immigration law, in divorce law, in wills and trusts law, in tax law, in evidence law, and in many other contexts. To figure that out, it may be necessary to decide whether the earlier Elbonian divorce was valid — which can only be figured out using Elbonian law — or possibly just to give legal effect to the earlier Elbonian divorce.

Now what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that we now take? What if, for instance, Elbonian law provides husbands more rights than wives in getting divorces started? Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be adjudicated under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the U.S.? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?

This might be bad, but it’s the reality under which Elbonian law operates, and Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce — however unfairly it may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That’s life on the ground in Elbonia for her.

Now she and Harry come to America, and the question of the validity of her and Harry’s marriage comes up. Maybe Harry brings it up in trying to get his marriage to Wanda annulled (on the theory that the Wanda-Xavier divorce was invalid). Maybe the government brings it up in trying to decide whether Harry is entitled to claim the spousal privilege to refuse to testify against Wanda, or whether Wanda is entitled to certain state tax treatment offered to married people, or in one of many other situations where marital status is relevant. Even if we disapprove of the Elbonian legal system, it seems to me that American courts can’t just categorically ignore the Elbonian divorce.

Yet that seems to be what the “American Law for American Courts” proposal would do, when it provides that,

Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

Because the divorce decree was entered under a legal system that denied “the same fundamental liberties, rights, and privileges granted under the U.S. ... Constitution[]” — such as equal rights regardless of sex, the First Amendment right not to be treated differently based on religion — the divorce decree is “void,” and thus presumably can’t be considered by American courts. Wanda would thus presumably be treated as still married to Xavier, and not to Harold.

That doesn’t seem to me to make such sense. It might be proper for courts to sometimes ignore the effect of foreign divorces that are based on procedures that American law views as improper — for instance, if they affect the rights of people who were U.S. residents at the time of the divorce, or to the extent they continue to affect child custody rights in some way that we see as improper. But it’s not right for courts to have to categorically ignore the effect of foreign divorces that involve departures from American equality norms.

Yet that seems to be what the “American Law for American Courts” proposal would call for. Perhaps this effect is inadvertent, and maybe courts can avoid it by some sort of creative construction, or liberal use of “putative spouse” doctrines under which (in some states) people can be viewed as married in some situations even if their marriage was technically invalid in some respect. But until that’s made clear, this seems to be a pretty serious potential problem with the proposal.

(Eugene Volokh)

I’ve blogged quite a bit about why broad bans on the use of foreign law in American courts are improper. But what about narrower limitations, such as the American Laws for American Courts proposal that has been enacted in some form in Arizona, Louisiana, and Tennessee?

I think that particular proposal is less problematic, and some aspects of it might well be sound. For instance, I support laws — such as the recent federal SPEECH Act — that limit domestic enforcement of foreign judgments that are based on speech that would be protected in the U.S. At the same time, it seems to me that there’s one pretty serious potential problem in it.

Briefly, the “American Laws for American Courts” is aimed not at banning all application of foreign law or of religious law — indeed, it might not apply to purely religious law at all, see below — but just to enforcement of foreign judgments or of arbitrations where the decisionmaker
bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

If read to mean that the judgment is unenforceable to the extent it relies on a particular legal rule that “would not grant” American fundamental rights — as opposed to the judgment being unenforceable if it’s based on any legal rule that comes from a legal system in which other rules don’t grant such rights — this is a pretty narrow proposal. Moreover, the proposal does “not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States,” and thus won’t cover the bulk of international commercial disputes.

Nonetheless, it seems to me this has one pretty substantial potential problem: Nearly all foreign countries do not provide for a civil jury trial. It’s not completely clear whether the civil jury trial in damages cases is treated as a “fundamental” right under the U.S. Constitution — though it’s not incorporated against the states, and that’s sometimes linked to a right’s supposedly not being fundamental, it sometimes has been labeled by courts as fundamental even though it is applicable only to the federal government. But in any event, the right is secured in all state constitutions, and is labeled “fundamental” by many state courts, including Louisiana courts.

Read literally, this suggests that pretty much all foreign judgments (and possibly all arbitral judgments) entered against individuals — or entered in non-contract cases — would be unenforceable, simply because they were entered without a jury trial. After all, such a judgment does “not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions [i.e., the civil jury trial], including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state” (emphasis added).

That seems bad for international commerce. It also seems unnecessary; while the civil jury trial has a long American history, and plausible arguments in its favor, I don’t think that absence of a civil jury is especially likely to make a trial unfair. Indeed, American law generally doesn’t call for civil juries in injunction cases, restitution cases, family law cases (except in Texas), admiralty cases, and more.

To be sure, the force of this provision, for good or ill, is dramatically limited by paragraph 5, which excludes cases in which the losing party is a business organization that has contracted for the application of foreign law. Still, the seeming the enforcement of foreign non-jury verdicts would be unsound, for instance when there’s a lawsuit against a wealthy American individual, or when there’s a lawsuit against an American company on a tort cause of action rather than a contractual one.

I’m not sure whether this is an intended effect of the proposal; but it seems to me a problem. There is also at least one other potential problem with the proposal, as it bears on divorces; I’ll mention that in a separate post.

Note also that the proposal is limited to the laws of “a jurisdiction,” which suggests a country or state. It thus might well not apply to religious law — whether Sharia, Jewish law, or some other legal system — to the extent that it is applied in an arbitration under that religious law, as opposed to when it’s applied as the law of a foreign country. (I say “might” because one could argue that Sharia or Jewish family law, even applied as solely religious rather than national law under an arbitration agreement, might be treated as the law “of a jurisdiction” because some other countries — even ones quite unrelated to the arbitrators — treat those legal rules as binding.)

Here’s the full text of the proposal:

The [general assembly/legislature] finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

The [general assembly/state legislature] fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest to protect and promote rights and privileges granted under the United States or [State] Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

[1] As used in this act, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals For the purposes of this act, foreign law shall not mean, nor shall it include, any laws of the Native American tribes in this state.

[2] Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

[3] A contract or contractual provision (if capable of segregation) which provides for the choice of a law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

[4]

A. A contract or contractual provision (if capable of segregation) which provides for a jurisdiction for purposes of granting the courts or arbitration panels in personam jurisdiction over the parties to adjudicate any disputes between parties arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the jurisdiction chosen includes any law, legal code or system, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

B. If a resident of this state, subject to personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.

[5] Without prejudice to any legal right, this act shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

[6] This subsection shall not apply to a church, religious corporation, association, or society, with respect to the individuals of a particular religion regarding matters that are purely ecclesiastical, to include, but not be limited to, matters of calling a pastor, excluding members from a church, electing church officers, matters concerning church bylaws, constitution, and doctrinal regulations and the conduct of other routine church business, where 1) the jurisdiction of the church would be final; and 2) the jurisdiction of the courts of this State would be contrary to the First Amendment of the United States and the Constitution of this State. This exemption in no way grants permission for any otherwise unlawful act under the guise of First Amendment protection.

[7] This statute shall not be interpreted by any court to conflict with any federal treaty or other international agreement to which the United States is a party to the extent that such treaty or international agreement preempts or is superior to state law on the matter at issue.

(Eugene Volokh)

Whenever I blog about why American courts often should consider foreign law — as in the recent Pakistani Law in U.S. Courts thread — some commenters ask: What if the foreign law is very bad? What if it’s sexist, for instance if it treats men and women differently in issuing divorce decrees? What if it requires that the losing party get his hand chopped off? What if it requires American courts to themselves discriminate, for instance by applying a legal rule that discriminates based on the sex or religion of the parties?

These are important and interesting questions, and they are why American courts do not apply a general rule that they will categorically enforce all foreign judgments or apply all foreign laws, whatever their content. American courts refuse to enforce rules that they see as sufficiently against the “public policy” of the state (or of the U.S. generally). But this doesn’t keep American courts from enforcing other judgments and applying other laws. It’s not an all-or-nothing matter — either you apply all foreign laws (e.g., decide whether immigrants are married based on the law of the place they married, and also chop off people’s hands if foreign law calls for that) or apply no foreign laws.

Contract law offers a helpful analogy (though, as always with an analogy, it’s just an analogy, not an identity). If two parties make a deal, American courts will usually enforce that deal. Sometimes they’ll enforce the deal even through “specific performance,” which is to say ordering the parties to go through with the deal and not just giving money damages. (There are limits on specific performance that are unrelated to the public policy exception, but we’ll set them aside there.) Will they enforce a deal that calls for chopping off a hand? No. Will they enforce a contract to commit a crime? No. Will they enforce a contract that calls for a court to interpret religious doctrine? Almost certainly not. Will they enforce a contract that calls for a court to exclude certain beneficiaries based on race or sex? Probably not. Will they enforce the great bulk of contracts that courts are asked to enforce? Certainly.

So courts do not have all-or-nothing “enforce all contracts” or “enforce no contracts” rules. They have a strong presumption in favor of enforcing contracts using damages awards, and they also enforce some kinds of contracts using specific performance, but they have had to come up over time with often complicated principles about what is enforceable and what isn’t enforceable. Developing and implementing such principles isn’t cost-free — but it’s better for economic and social life, and fairer to the parties, than having all-or-nothing rules.

The same is true for enforcing foreign law. American courts, for instance, generally enforce foreign money judgments, for instance when a plaintiff who won an award in England or Argentina or Saudi Arabia comes to an American court to execute the award against American assets of an American company. That’s vital to the effective functioning of the international economy, and to the competitiveness of American companies, since foreign companies might well be uninclined to do business with American companies if it’s hard to enforce contracts with those companies. They also enforce these judgments even if they were entered without a civil jury trial; though the constitutional right to civil jury trial is protected in federal cases by the Seventh Amendment and in state cases by state constitutional provisions, nearly all foreign countries don’t have jury trials in all or most civil cases, and it would be too burdensome on commerce to refuse to enforce such jury-trial-less judgments.

But American courts won’t enforce such foreign money judgments if they were awarded using procedures that the court considers as sufficiently unfair, for instance if the foreign court lacked jurisdiction over the defendant, or denied defendant any opportunity to be heard. Likewise, American courts won’t enforce (for instance) a foreign judgment based on a foreign libel law that wouldn’t comport with American First Amendment standards. (There’s now a statute related to such libel awards, but some American courts adopted such a rule even before that statute was enacted.) Note, though, that the refusal to apply one law or to enforce one set of judgments from a country (e.g., English libel judgments) doesn’t mean courts will refuse to apply all laws or enforce all judgments from that country.

Likewise, American courts generally look to the law of the place where a marriage or a divorce took place — at least if the parties were living in that place at the time — to determine whether the marriage or divorce is valid. That’s vital to dealing sensibly and fairly with people who come to America from a foreign country, and who should be seen as bringing their familial status with them. Here, it probably makes sense to follow such foreign law even if it embodies some procedural rules that we would consider improper or discriminatory. If, for instance, the law of some country lets men easily divorce their wives, but makes it much harder for women to divorce their husbands, we still have to recognize those foreign divorces: It’s no favor to a divorced woman to render her divorce invalid, and render her second marriage bigamous and therefore void, because other women were denied the ability to initiate divorces. Similarly, American courts tend to accept foreign marriages among first cousins, or even of uncles and nieces, as well as some not-very-underage foreign marriages.

On the other hand, American courts generally don’t recognize polygamous foreign marriages (except for some purposes), and may refuse to recognize certain child custody decrees, or property settlements involving American residents. Courts again refuse to apply all-or-nothing rules, and instead try to come up with sensible lines between what is allowed and what is forbidden — again, much like they do with regard to domestic contracts.

I like clear, simple rules. I often tend to side with those who prefer such rules over those who prefer vaguer standards. But sometimes clear, simple rules — apply all foreign law, apply no foreign law, enforce all contracts, enforce no contracts — just don’t work. Then mushier in-between rules become the most sensible option. As Einstein is sometimes paraphrased,

Everything should be made as simple as possible — but not simpler.

Remember this past April, when I was telling anyone who would listen that Florida’s much-flayed “Stand Your Ground” no-duty-to-retreat self-defense doctrine was unlikely to be relevant in the Trayvon Martin shooting, even as much of the media was publishing piece after piece claiming the opposite? Bloomberg’s Ed Adams is kind enough to remember:

Zimmerman Backing Off ‘Stand Your Ground’ Defense bit.ly/TC6yAR Walter Olson called it back in April youtu.be/y5h-f4h4Fvk

— Edward Adams (@edadams) August 14, 2012

Specifically, as AP now reports, “attorney Mark O’Mara now confirms that ‘The facts don’t seem to support a “stand your ground” defense,’” and that he will instead be advancing a conventional self-defense theory on behalf of client George Zimmerman. To add confusion, the preliminary hearing provided for by Florida law is colloquially known as a “Stand Your Ground” hearing, even if SYG is not the grounds on which dismissal is sought.

Particularly shameful were the organized campaigns in some quarters first to demonize Stand Your Ground as having somehow caused Martin’s death, and then to demonize the American Legislative Exchange Council for having promoted self-defense laws in other states. With little critical scrutiny in the media, the campaign even enjoyed a certain amount of success, though its factual flimsiness was apparent enough at the time.

Tweet Tags: Florida, Martin-Zimmerman case, self-defense

Zimmerman lawyer: “Stand Your Ground” isn’t our defense is a post from Overlawyered - Chronicling the high cost of our legal system

(Stewart Baker)

And do you have to be a Republican to use it?

PHOTOS: From Salon

(Eugene Volokh)

The recipe, and, better yet, the reviews. Thanks to GeekPress for the pointer.

Shelby County (Memphis) has subpoenaed the identity of the authors of 10,000 anonymous comments at the city’s major newspaper, the Commercial Appeal. Some of the comments, on a school consolidation plan, exhibited racial animus, and the county may be planning to seek the striking down of a particular law on the grounds that the lawmakers who enacted it were influenced by citizens displaying improper animus. “It is hard to square this subpoena with long-established protections for the right to speak anonymously,” writes Paul Alan Levy [CL&P] After the subpoena, which the newspaper is resisting, touched off a controversy, two commissioners reportedly “placed partial blame on The Commercial Appeal for reporting the subpoena.” Eugene Volokh wonders why there would be anything wrong with the newspaper blowing the whistle: “I should think that anonymous commenters (past and future) deserve to know that their county government might try to do this to them.” [Volokh Conspiracy](& Alex Adrianson, Heritage Insider Online)

Tweet Tags: Memphis, newspapers, online speech

Taking names and addresses is a post from Overlawyered - Chronicling the high cost of our legal system

• $250,000+ payout for cardiac arrest at age 92? Stupendous giveaway for uniformed public employees is sailing through California legislature [Sacramento Bee via Hillel Aron]
• Those confidential workplace investigations won’t be so confidential any more if NLRB gets its way [Jon Hyman, Daniel Schwartz] And the EEOC too? [Hyman]
• Myths of the “pay gap” [Ramesh Ponnuru, Bloomberg]
• Federal bailout of state pension funds? Don’t let it happen [Fergus Hodgson, John Locke]
• Former Indianapolis Colts cheerleader loses suit over nude body-paint photos [Staci Zaretsky, Above the Law, earlier]
• Some small businesses hope to dodge the employer mandate by getting below 50 employees [CNN]
• Obama names partner at class action powerhouse Cohen Milstein to EEOC vacancy [White House]

Tweet Tags: California, EEOC, football, public employment, sex discrimination, workplace

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

(David Bernstein)

As voters in a swing state, in 2008 my wife and I got lots of letters, phone calls, and visits to our home–but they were all from the Obama campaign.  Not a peep was hurt from the under-funded and poorly managed McCain campaign.  So far this Summer, though, we’ve already had a Romney volunteer at our door, and just got our first robocall from the campaign.  Meanwhile, none of the eager young Obama volunteers who seemed ubiquitous in our neighborhood four years ago have reappeared this Summer.  I understand that this is a ridiculously small sample size, but it certainly suggests that the ground war is going to be much more competitive this year.

(Eugene Volokh)

In past discussions, especially about the Oklahoma foreign law ban and about similar proposals in other states, some people have questioned why American courts would want to look at foreign law. Yesterday’s Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012) offers an excellent example. The facts:

On August 1, 2000, wife [Tahira Naseer] married Nasir Mehmood Khan in Pakistan. On June 12, 2001, Khan told wife three times that he divorced her pursuant to Islamic law. In Pakistan, this is considered the religious component to a divorce. Then, the parties have to obtain a legal divorce. Once the husband pronounces the divorce, he gives notice to the local government, known as the Union Council, and the wife receives a copy. The Union Council gives notices to both parties to try to reconcile. After ninety days, if there is no reconciliation between the parties, the Union Council issues a certificate confirming the divorce. In this case, wife and Khan did not give notice to the Union Council to start the process to receive a legal divorce in Pakistan. Wife assumed she was divorced after Khan said that he divorced her three times.

On January 26, 2003, wife and husband [Hamid Moghal] married in Pakistan, and on July 4, 2004, had a subsequent marriage ceremony in Fairfax County, Virginia. Wife did not tell husband that she had been previously married. She indicated on their marriage certificate that this was her first marriage. Husband and wife separated on November 18, 2009.

On December 3, 2009, husband discovered a marriage certificate from wife’s first marriage. He took the document with him on his trip to Pakistan, where he learned that wife never obtained a legal divorce from Khan. The Pakistani authorities issued an arrest warrant for wife and charged her with bigamy. Wife filed a Suit for Declaration in Pakistan, and on July 19, 2011, the Pakistani court finalized the divorce between wife and Khan.

On February 22, 2011, husband filed a complaint for annulment, alleging that wife committed bigamy by marrying husband while she was still legally married to Khan. Wife filed an answer and counterclaim for divorce. On January 17, 2012, the trial court heard evidence and argument from the parties and granted the annulment.

In the process, the trial court heard from experts on Pakistani law, accepting the testimony of husband’s expert — a Pakistani lawyer — who “testified that in order to be divorced in Pakistan, a person had to obtain a legal divorce, not just a religious divorce” and rejecting the testimony of wife’s expert (not a Pakistain lawyer) who “testified that based on Islamic law, wife was divorced and that Islamic law controls.” The Virginia Court of Appeals deferred to the trial court’s judgment about the experts’ credibility, and concluded:

“A marriage entered into prior to the dissolution of an earlier marriage of one of the parties” is prohibited. [Va.] Code § 20–38.1(1). ["]When a marriage is alleged to be void or voidable for any of the causes mentioned in §§ 20–13, 20–38.1, 20–45.1 or by virtue of fraud or duress, either party may institute a suit for annulling the same; and upon proof of the nullity of the marriage, it shall be decreed void by a decree of annulment.["] Code § 20–89.1(a). The burden of proof in an annulment case based on bigamy is “clear and convincing.” Rahnema v. Rahnema, 47 Va.App. 645, 665, 626 S.E.2d 448, 458 (2006)....

The trial court found that the testimony of husband and his witnesses was more credible than the testimony of wife and her witnesses.... Husband carried his burden of clear and convincing evidence to prove that wife had not obtained a legal divorce from Khan before she married husband. Therefore, the marriage between husband and wife was bigamous. The trial court did not err in granting husband an annulment.

Note what happened here:

1. Under Virginia law, if A marries C while A is still married to B, the A-C marriage is void, and C can get it annulled.

2. Virginia courts naturally decide annulment questions using Virginia law.

3. But many Virginians came to Virginia from other places, including other countries. Virginia law therefore provides that, for purposes of Virginia law, whether an out-of-state marriage or divorce is valid is determined by the law of the place where the marriage or divorce took place (at least when that place was also the place of residence of the parties). To my knowledge, all American states apply a similar “choice of law” rule to marriage and divorce questions.

And that’s because such a rule is sensible: If you need to find out whether someone who had lived in Pakistan (or Germany or Canada) was properly married or divorced in Pakistan (or Germany or Canada), you naturally can’t expect them to have gone through the proper Virginia formalities at the time — perhaps when they weren’t even planning to move to Virginia. The best you can do is figure out whether they were properly married or divorced under the law of the place where the marriage or divorce happened.

To be sure, some out-of-state marriages and divorces might be contrary to Virginia public policy, and won’t be recognized in Virginia even if they are recognized elsewhere. Polygamous marriages probably qualify. But that’s the exception, not the rule.

4. So to determine, under Virginia law, whether the Naseer-Moghal marriage was valid, the Virginia judges had to decide whether Naseer was still married at the time, which required them to determine whether Naseer had divorced Khan (whom she had undoubtedly married) under the law of Pakistan. That’s not because Pakistani law is somehow being forced on Virginia. Rather, it’s because Virginia chooses to apply such law, in an attempt to better manage the lives of its residents, who come from all over the world.

5. Naturally, Virginia judges might not know much about Pakistani law, which is why the parties call experts on the subject, and the trial judge decides whom to believe. (In some situations, the judge could also consult treatises on the matter.) This is an imperfect process, but it’s generally reliable enough.

6. In this instance, the judge concluded that Pakistani law imposed requirements beyond those required by religious law. But Virginia law calls for application of the foreign law in such a situation, whether the foreign law is based partly on religious law, entirely on religious law, or not at all on religious law. If it turns out in a later case that under the law of some other country, a religious ceremony (say, one conducted consistently with Sharia law as understood within that country) suffices to produce a legally recognized divorce — or, in a different case, a religious ceremony suffices to produce a legally recognized marriage — then Virginia judges would follow that law, and call experts to determine just what religious ceremonies suffice and what effect they have.

And this wouldn’t be because Virginia was being governed by Sharia, or because American Muslims are entitled to have their legal rights adjudicated under Sharia. Rather, it’s because Virginia law calls for the application of the law of the jurisdiction where the marriage or divorce took place, whatever the law might be — again, except in rare situations where the law is contrary to Virginia public policy.

Perfectly normal behavior for American courts, and in my view perfectly sound behavior. American courts should apply American law, but sometimes American law calls for the application of foreign law, and then American courts should apply that. Yet under the Oklahoma constitutional amendment, Oklahoma courts would have been barred from considering Pakistani law in this situation, had the amendment not been enjoined on Establishment Clause grounds. Likewise, under the proposed Arizona statute that I cited at the beginning of this post, Arizona courts would have been barred from doing the same.

A quick update on the various Lodsys actions. As we mentioned in the article two weeks ago (Lodsys - Another DJ Action), the time for Lodsys to file further actions, according to Oracle, has now passed. So what has been filed should be it. We also mentioned that we were principally going to keep our eyes on two aspects of the cases: Oracle's declaratory judgment action against Lodsys in Wisconsin (because of the substantial prior art that Oracle has raised in seeking invalidation of the Lodsys patents) and the Apple intervention in the Texas case, Lodsys v. Combay.

In the Oracle action Lodsys has filed motions to dismiss or, in the alternative, transfer the action to the Eastern District of Texas. We are awaiting Oracle's response, but it isn't hard to guess what that will be. Oracle moved first and filed in the district where, arguably, Lodsys is actually located, not in the district where Lodsys maintains an empty storefront office (Eastern District of Texas).

It’s about that time of year again where law students brush off the summer days and head back to school. In this very special "Back to School" edition of Lawyer2Lawyer, co-host and attorney, Craig Williams, chats with law students Daren Gottlieb from Western State College of Law in Fullerton, California and Han Fang from New England Law Boston, about why they chose law school, top concerns, personal goals, jobs, competition and next steps after graduation.

Last Month, I mentioned a survey on patent demands that law professor Colleen Chien of Santa Clara University is asking folks to fill out, asking for experiences with patent trolls um... nonpracticing entities. The specific interest is the impact on small businesses and entrepreneurs. How big is this problem? How many are being affected and how?

The results will be used for academic purposes, including to form the basis of policy recommendations. If you or your company got a letter demanding you license a patent or received a threat of a lawsuit, how was it handled? Did it affect the company's plans, for example, as to where money would be spent? Even if it hasn't happened to you yet, is it something you worry about, or feel you must consider in your plans?

A lot of you did participate, and now the survey folks are asking if there are any others here who did not fill out the form who could. Don't do it twice, of course, but surveys like this matter most when they have large participation, so this is last call to put a little dent in the universe, maybe, if enough people participate.

So if you have had experience with such problems, please consider answering their few questions here. The instructions say, "However, you should take the survey even if you've never received a demand." I guess that means if you feel you have to factor in the possibility of dealing with this issue, you should still tell them about it. It's strictly anonymous, so don't give your name or the name of your company. Scroll down the page, as the survey itself begins with the word "Background" but on that same page, below the message from Professor Chien.

And if you know someone else who has had to deal with this kind of issue or who would be interested in participating, let them know about the survey too. Your company doesn't have to be a tech company. A well-done survey collecting real-world experiences would be helpful. Please do spread the word in all the ways you know about, including ones that the Internet makes possible, if you don't personally have an experience to share. If you have any questions, you can contact Professor Chien [colleenchien@gmail.com].

Harassment complaints filed by men are on the rise, up from 9 percent to 16 percent over the past two decades, according to the EEOC. Now male employees at the Department of Homeland Security have filed a complaint saying they were subjected to a hostile environment under female management. Alison Yarrow of Newsweek/Daily Beast has a new report that quotes me on several points.

Tweet Tags: harassment law, hostile environment

Harassment complaints by male Homeland Security employees is a post from Overlawyered - Chronicling the high cost of our legal system

After decades, farmers in western Canada are finally free to decide for themselves how and to whom to sell their crop, the result of a long political campaign led by free-market premier Stephen Harper with key help from Saskatchewan premier Brad Wall. I’ve got a new, celebratory post at Cato giving details. Next: getting our own Supreme Court to reconsider Wickard v. Filburn, the decision that laid out a charter for federal supervision of wheat growing and so much else besides? [Name screwup fixed now]

P.S. Milk still a big problem (although the U.S. is hardly free of cartel-like regulations in that sphere).

Tweet Tags: agriculture and farming, Canada, Cato Institute, WO writings

Freedom for Canadian wheat farmers is a post from Overlawyered - Chronicling the high cost of our legal system

(David Bernstein)

I’m posting this on behalf of my colleague Ross Davies.

George Mason University School of Law may have one or more tenure-track or visiting positions available starting in the fall of 2013. Both beginning and experienced professors will be considered. Candidates should have a distinguished academic record and a demonstrated commitment to scholarship. At senior levels, candidates should be established scholars. Please visit http://jobs.gmu.edu/ to apply for position F9054z in order to submit your application, curriculum vitae and any other pertinent information. Candidates are strongly discouraged from mailing information to the GMU School of Law. Deadline for applications is May 1, 2013. George Mason University is an equal opportunity employer encouraging diversity. Questions? Please feel free to email Ross Davies at rdavies@gmu.edu.

Ross didn’t authorize me to say so, but to preempt an obvious question George Mason generally looks for “best available all-around athletes” rather than specific subject areas.

leglsocialmedia: RT @Fulbright: Fulbright Partner Listed Among the Top 250 Women in Litigation #Litigation @BenchLitigation - http://t.co/qfgckpvh