April 16th, 2018

Should the Disruptive CUNY Students Be Punished?

Last week I wrote about a group of students at CUNY Law who decided to disrupt the First Amendment speech of Prof. Josh Blackman. They didn’t like the way he thinks laws and the constitution should be interpreted, so they figured if they could shout him down this would magically change the way laws and the constitution get interpreted.

It didn’t go well for the students, and they’ve been widely widely ridiculed regarding their conduct. And yeah, the talk was to be about free speech, of all things.

But Prof. Eugene Volokh of UCLA Law — also the founder and longtime editor of group law blog The Volokh Conspiracy — has this interesting thought about whether these students should be punished:

The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations.

But the question of punishment is twofold: For even if you think they should be metaphorically spanked, the question remains as to constitutes suitable punishment. A punishment must, after all, fit the crime.

So here’s my two rupees on the subject. The answer to the first question is an easy yes. An organized effort to silence a speaker is a major no-no, not just for any university students, but especially for law students. They should know better.

And the “punishment” should be compulsory participation in CUNY’s Moot Court program, which exists as a competition among students.

For those non-lawyers reading here, the usual moot court format is for a legal problem to be given and a team of students to write a brief. One student might handle an issue of whether the case is properly in this court (jurisdiction) while another might handle the substantive part (i.e. Is it constitutionally protected speech if a person does xyz?).

The Moot Court room at SUNY Buffalo, my alma mater.

But this is the kicker, and the reason it’s such a valuable teaching tool: The students argue the side that they briefed on day one, but the next day must argue the other side. And they do it before a panel of “judges” that are busy firing questions at them as if in an appellate court. It’s the closest, most realistic, experience to an actual courtroom that a student will have in law school.

The requirement of arguing both sides forces the students to look at problems in a more objective light. It may force students to make arguments that run contrary to their own feelings about how a law should be read. It will force students to look at the warts of their own arguments, as almost all arguments have warts someplace.

Without an ability to understand all sides of an issue, it’s impossible for practicing lawyers to give objective advice to their clients — and that is what we get paid to do. This forces the issue to the forefront.

The moot court competition law school was, for me, the single most valuable experience of my academic experience. It did more to turn me from a student into a lawyer than anything else.

Those students that were disruptive — and it is yelling and screaming that are disruptive, not holding signs no matter how inane they may  be  — clearly have not yet learned enough about the law if they are acting out the way they did. They are not even close to ready for their legal careers and representing people.

While it may be easy to think some other, more traditional, type of punishment should be administered, the question any laws school should ask is, “What will make them better lawyers?”

And ten years later, they will send thank you notes to the administrators that made them do it and the professors that oversaw the program.

 

April 12th, 2018

Did CUNY Law Just Commit Suicide?

Was it smart for a CUNY Law student to try to stop Prof. Josh Blackman from speaking by yelling “Fuck the law?” Did this student’s friends and classmates think it wise trying to shut down a speech on, of all things, free speech?

Is this what they learn at CUNY Law? That if you don’t like the arguments or positions of another you scream and yell and have a tantrum?

Does anyone think this is good training for lawyers?

What would a judge think of such lawyers? What would clients think?

Is their training so shoddy that they don’t grasp there are differences of opinion on how a law or the constitution is read? Do they understand that certain things are inherently subject to interpretation, such as “unreasonable” search and seizure or “cruel and unusual” punishments?

Do they really think that the way to “beat” a conservative legal theorist is to holler?

Is their education so deficient that they don’t understand the long-term debate between those that think (loosely) that the Constitution is a living breathing document to be interpreted with the times and those that think it shouldn’t?

Do they understand that reasonable people can disagree on interpretations without name-calling? Do they not know that liberal icon Notorious R.B.G. was great friends with liberal boogeyman Antonin Scalia? Do they not know that sometimes liberals actually fall in love with conservatives and marry?

Why are they afraid of words?  Shouldn’t people secure in their ideas welcome the opportunity to openly debate? Are they afraid that in the marketplace of ideas they are unable to sell what they have? Do they understand that when they yell and scream others assume that they can’t win a debate?

How can someone get to law school not knowing that if you disagree with what a laws says, that the law can be changed? Have any of then ever tried?

Do they think that trying to shout down Josh Blackman will somehow change the law?

Are they so foolish that they don’t understand that the First Amendment is not a liberal thing, or a conservative thing, but an American thing?

Are they so clueless they don’t grasp that if one of them was stupidly arrested for holding a stupid sign calling Josh Blackman stupid names, that it would be the same Josh Blackman defending their right to display their stupidity to the world?

Have they never heard the saying, “I disapprove of what you say, but will defend to the death your right to say it?”

Are they so daft that they fail to understand the magnitude of difference between interpreting what an existing law is, and advocating for what one hopes it should be?

More to the point, perhaps, but if these students are unable to tell the difference between interpreting the law and advocating for changes in the law, why are they in law school? What firm would ever hire them if they can’t grasp such a concept? Why would any firm trust a client to them? What client could possibly want them?

How could such lawyers, hell-bent on trying to shout down the opposition, ever argue a point of law in court? Indeed, how could they even handle a residential closing? A contract? A transaction of any kind?

And this is a public interest law school? What public interest group would want lawyers so terrified of their opponents that they feel the need to shout them down?

Have you ever met a client, lawyer or judge who felt such behavior was persuasive to make a point? Have any friends or family ever thought that shouting someone down was persuasive argument?

Which is more likely to occur, that these people will be disappointed as lawyers, or that they will be disappointing to clients?
———-

Elsewhere:

Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech (Volokh @ Reason)

…The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations….

Josh Blackman And The Guy Who Wanted To Hear (Greenfield @ Simple Justice)

…It was a talk about free speech on campus. Josh was invited. Some students, however, didn’t want him to speak and instead wanted him to know he was unwelcome.

The best answer to “why Josh” seems to be that these students were knee-jerk antagonistic to anyone, any idea, that wasn’t theirs. Children do this, which makes it all the more ironic that when they were finally shut down by an administrator, one protester responded, “we’re not children. You can’t talk to us like that.” Children say that, too….

The Disgrace at CUNY Law School (Hawyard @ Powerline):

…Prof. Blackman was greeted with a protest that was off the chart even on the usual scale of infantile campus protests. Go see his own full account and pictures of the event at his website. Among other offenses, Blackman had written that the Trump Administration was legally correct to rescind DACA because it exceeded the President’s authority. But Blackman supports enacting DACA through proper congressional legislation. This was apparently not sufficient for “law” students at CUNY Law….

“F*ck the law” – CUNY Law students attempt shout-down of conservative law prof (Jacobson @ Legal Insurrection)

…Blackman was invited to speak by the Federalist Society Chapter at the City University of New York (CUNY) Law School. That did not sit well with some progressive law school activists, who tried to shut down and shout-down the event…

CUNY students call law prof ‘racist’ for supporting free speech (Sabes @ Campus Reform)

…Blackman told Campus Reform that he was “shocked” by the disruption, saying this was the first time he was protested.

“I had hoped they would protest before my speech, and ask me tough questions afterwards,” he said. “Instead, they decided to heckle and interrupt me. At the time, I had no idea if or when they would stop heckling. Fortunately, it did not last the entire time.”…

“Stop debating”: CUNY Law students disrupt speaker and his critic (Harris @ FIRE)

…As you can see from the video, Blackman abandoned his planned remarks about free speech and instead tried to engage the protesters on their substantive criticisms of him, such as his writings about DACA. He explained that he actually supports the DREAM Act and would have voted for it in Congress, but that he believes the DACA policy — which President Obama adopted after Congress failed to pass the DREAM Act — was “not consistent with the rule of law.” He cited this (over jeers and interruptions) as an example of how one can “support something as a matter of policy, but find that the law does not permit it. And then the answer is to change the law.”

That sounds like the premise of an interesting debate, but the protesters would have none of it. Instead, they shouted out that he was “gaslighting” them and “lying to [him]self” — apparently, they already understood his views better than he did, so there was no need for any intellectual engagement. When an administrator intervened to remind the group that they had to let Blackman speak, they asked her, “Why are you bringing racists into your school” and (before Blackman had spoken more than a few prefatory words) “Why are you not providing support for students affected by this hate speech?”…

 

April 3rd, 2018

NY’s Top Court Upends Law on Summary Judgment

It’s long been the law in ¾ of New York that, in order to win summary judgment in a personal injury case, plaintiffs also had to show that they weren’t themselves also negligent.

That three-fourths fraction exists because, as I noted back in 2010, there was a split in the four New York appellate departments regarding this issue.

That split case law is now history, courtesy of (naturally) a 4-3 decision today in New York’s Court of Appeals in Rodriguez v. City of New York.

The Court outlined the issue succinctly:

Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

Let’s take a garden variety matter of an individual crossing in the crosswalk, with the light in her favor. She gets hit by a car making a turn, whose driver failed to yield the right of way to the pedestrian.

Assuming that there is no question that she had the light, and was in the crosswalk, and was injured as a result of the collision, most people would have thought she could remove this issue from a trial and have the court determine the issue of the driver’s negligence as a matter of law.

But that wasn’t the case in New York, unless the pedestrian also proved that she was paying attention and didn’t do anything wrong. Some of our courts would deny the motion based on the issue of potential comparative fault, giving the driver a windfall by making his own negligent conduct a jury issue even though it was clear he broke the law and contributed to the injuries.

The Court used the example of a statutory violation being the basis of a motion for summary judgment being denied because, potentially, the plaintiff might also have some culpability:

For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries.

This was the windfall the Court wrote of: Why should the jury get the question of defendant’s negligence if it could be determined as a matter of law?

This is what we now refer to as “old law.” It’s in the dumpster.

The point of the underlying statutes, the court reasoned, was that the issue of comparative negligence was solely to deal with diminishing any potential recovery. It has no bearing on establishing whether a defendant is negligent.

Thus, a typical verdict sheet might have the five questions below, and if any of them can be resolved as a matter of law then that is the proper procedure for a trial court on hearing a motion for summary judgment:

1. Was the defendant negligent?

2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?

3. Was plaintiff negligent?

4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?

5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?

What was the rationale for overturning the prior decision of the court, in Thoma v RonaiThe majority reasoned (and the dissent disputed) that the parties in Thoma didn’t raise the relevant parts of our civil practice law and rules so that they could be analyzed. So be it.

The net result of this decision will, I think, be two-fold:

  1. Plaintiffs that previously had had summary judgment denied will now move to reargue based on the new interpretation of the law, if possible; and
  2. More issues will be resolved prior to trial, leading to more settlements. Because it is uncertainty about how a jury will resolve an issue that most often hinders settlements.

When I wrote about this split in the appellate departments back in 2010, I said:

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

It feels good being able to revisit that issue and see it come out this way.

 

March 28th, 2018

In Defense of the Unicorn: Baseball, Peace and a Better Day

An old baseball of mine that I had stitched back together as a kid to keep the leather on. You didn’t buy them by the dozen back then. Every baseball was precious.

It’s in the air. I can smell it. And so can Jay Breakstone, appellate lawyer and wordsmith extraordinaire who, in 2014, penned Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!) for this space.

No stranger to conflict (of which he writes today), Breakstone grew up in East Flatbush, the product of a tumultuous mixed marriage: His mom was a Brooklyn-born die hard Dodger fan and his Dad a Bronx-born Yankee fan.

He survived that experience to emerge as a die hard Mets fan.

Perhaps, if the union of Dodger and Yankee fans can mint something like Jay, there is hope yet for the country:

—————————–By Jay Breakstone———-

America has become such an uncomfortable place to live nowadays. When I say “uncomfortable,” I thoroughly understand that such terms are relative. But being an American has meant that we worry about a lot less than those in other countries and I understand that.

Yet, to wake up every morning to the headache of political soap opera is taking its toll on me. I am more irascible than usual; quicker to yell at the morning news and yell at my family from dawn until dusk. This is not good, for there is a thin line between being a lovable curmudgeon and a raging lunatic. What to do?

And there it is. Shining through the gloom like a landing beacon on a dark runway; like Lady Liberty in the harbor; like Mom’s chicken soup, a Nathan’s hot dog or pastrami on rye from Katz’s Delicatessen. Goodness knows, its done it before; brought hope where there was none and salvation to the depths of hell. Opening Day.

Yes, Virginia, there is a new tomorrow, and sacrilegious as it may be, God lives only 60 feet, 6 inches from home plate. In fact, whether you believe in God or not, you can still believe in baseball.

You can be a Democrat and believe in baseball. You can be a Republican and believe in baseball. You can be a Democrat or a Republican, sit side by side in the same temple, and believe in baseball together. You can speak English, Spanish, Greek, Serbo-Croat, even Pig Latin, and believe in baseball.

You can belong to the N.R.A., the A.C.L.U., the National White People’s Party, the N.A.A.C.P. or the Mickey Mouse Club and believe in baseball. Because, as it says in an oft-forgotten footnote in Genesis: “And G-d saw baseball, and it was good.”

Have you ever noticed those old pictures of men in suits and hats, sitting in ball parks during the business day? Why weren’t they at work? One of them, a young attorney in New York City, nearly lost his job because he kept sneaking out to Giants games at the Polo Grounds.

Nonetheless, the kid made good, but never forgot the magic of baseball. So, when he worked his way up to being President of the United States and the country he led was in the depths of soul-shattering gloom following Pearl Harbor, Franklin Roosevelt knew one thing that would cut through the fog: baseball. He declared that the Axis could do many bad things, but it could never stop baseball, which continued throughout the war.

Time and time again, baseball has been that never changing point in an ever-changing American universe. To those of us who were at Shea Stadium on September 22, 2001, it was much the same thing. Roosevelt’s words to Judge Kenesaw Mountain Landis, baseball’s Commissioner in 1942, still rang true: “I honestly feel that it would be best for the country to keep baseball going[.]”

I suggest that we need baseball now more than ever (as if there was ever a time we didn’t.) I think everyone should stay home from work on Opening Day and head to the ballpark instead.

If need be, dig up that old note from your mother, the one that says “Arthur could not be in school today. He has Dengue Fever.” If you can’t find it, I’m sure you can still forge her signature the way you did on the original. Eat a hot dog. Have a beer. Most important, let it go.

Nothing is so bad if it’s Opening Day, where all the past is prologue. Sure, it could turn out lousy, like the 1942 Brooklyn Dodgers, who had a phenomenal season, were in first place until September, only to lose the pennant to St. Louis. But on Opening Day, the Boys from Brooklyn took the opener, 7-5.

Opening Day is all about tomorrow. It always has been.

 

March 14th, 2018

Gunfire in the Classroom is No Accident

The story popped up yesterday that a teacher in California “accidentally” fired his gun in a classroom. He was teaching a class in gun safety at the time.

Headline after headline read that way: Accident. Accident. Accident.

No. No. A thousand times no. ‘Twas no accident. It was negligence. There’s a difference, for this was preventable with the exercise of reasonable care.

I covered this ground in 2013 when the NYPD changed its Accident Investigation Squad to the Collision Investigation Squad. According to then Police Commissioner Raymond Kelly, “In the pqast, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.”

An accident it when a deer bolts into the path of a car. A collision occurs when a second car is following too closely and slams into the first. One may not be avoidable, no matter how much due care you use. The other, very much avoidable.

Accidents do not simply “happen.”

And so it is with guns. Accidents don’t really happen.

As Jim Wright points out at Stonekettle, “there are no accidents with guns.”

For example, if a child picks up a gun to play cops and robbers with a sibling and shoots it, it is not an accident. It was negligence by the gun’s owner for leaving a loaded pistol in an unsecured place.

Part of the problem here is that the use of the word “accident” has been ambiguous. Similar to bimonthly meaning either twice a month or every other month. Or the word “sanction” meaning something has been approved (a sanctioned event) or is a punishment.

Accident has been unfortunately used in both matters where there is fault and matters where there is not. But there is a massive difference in meaning, particularly with news events such as this, where a shot is fired in a classroom.

Media headline writers should recognize this problem. They are, after all, in the word smithing business.

It’s lazy to use the word accident when it doesn’t actually convey the true meaning of what happened. It makes negligent conduct appear as if there was nothing that could be done to stop it.

And that is the media being negligent, for with the use of due care, the persistence of such ambiguous conduct can easily be crippled.