Monday Morning (Quarterbacking)

I’ve been posting Monday Morning Hearsay for several years now, and finally I have the opportunity to write on the subject I previously only alluded to with my catchy title: football.

A recently reported decision of the Maryland Court of Special Appeals comes to us from the world of youth football and it describes a problem most league parents will confront at one time or another: the grown-up who takes the game just a little too seriously. In this case, a coach allegedly cursed at another volunteer in front of children and, probably to the coach’s eternal regret, a parent who also served on the league’s board of directors. The board suspended the coach, and the coach, determined to set an example of sportsmanship, then sued the league for defamation.

Here we leave behind the world of passes for the world of privileges. To win a defamation case, it’s not enough to prove that someone has made a false statement about you. A plaintiff also has to prove publication, meaning that a statement was not only made but was communicated to one or more people other than the plaintiff himself. But under the law there have always been certain privileges, or protected communications. There is a legislative privilege, for example, that protects statements made during the legislative process. There is the attorney-client privilege that protects communications between a lawyer and her client. There is the privilege against self-incrimination guaranteed by the Fifth Amendment.

A person sued for defamation may assert the common interest privilege. If you’re not a lawyer you won’t have heard of it, but if you’ve ever been one of several parties to litigation you’ve probably had the benefit of it whether you know it or not. The attorney-client privilege does not extend to communications between a lawyer and someone she doesn’t represent, even if that person is on the same side as the lawyer’s client. So if you and another poor soul have been sued and you retain different lawyers, and the four of you talk about best how to defend the case, your opponent could force you to reveal your secret strategies if the attorney-client privilege was the only available privilege. Luckily, it’s not. The common interest or joint defense privilege evolved to ensure that when people who share a common interest share information amongst themselves, we don’t consider the information published. In order to be published, the information must be shared with a third party outside of the shared interest group. And since publication is necessary to prove defamation, the common interest privilege also defeats claims based upon false statements.

This issue comes up more often than you might expect and pretty frequently in the employment context. In smaller companies, hiring and firing decisions are often made by the board of directors or at least shared with them. In larger companies, the board participates in hiring and firing only for very senior personnel, but in such cases the monetary stakes are concomitantly much higher. Municipalities and non-profits make all sorts of decisions through boards or councils. Hospitals conduct peer reviews of challenged professional conduct. Teachers, administrators and parents meet and share information during IEP or student disciplinary meetings. In all of these contexts the potential for provocative statements in an emotionally-charged environment is high. And for defamation purposes, so long as a false statement is innocently made within such a group, it will not support a defamation claim.

There is an exception in cases of malice. In a defamation case the common interest privilege can be defeated by proving that the statement was made with actual knowledge of its falsity. If the speaker has no reason to know that a fact alleged is not true, even if he could have discovered that it is false with a little investigation, he will be still be protected from a defamation suit.

Another exception applies if a statement is made for purposes other than the group’s common interest. So, for example, if a board member is participating in a meeting to decide whether to fire the company’s CEO and he suddenly starts telling the board about his neighbor who’s probably having an affair with a politician, the common interest privilege does not apply. To be protected, a statement has to be related to the purpose for which the group has convened.

That concludes today’s lesson on the common interest privilege, friends, but it wouldn’t be Monday Morning Hearsay without a quote. This comes from Shirley v. Heckman, our appellate decision on the common interest, and brings us back to football with a little international rivalry:

Bill Shankly said it most succinctly: ‘Some people think football is a matter of life and death . . . . I can assure them that it is much more serious than that.’

Followed by this footnote:

Mr. Shankly, the manager of the Liverpool Football Club in England, spoke of course of the brand of ‘football’ that Americans call soccer. But his sentiment originated here in America and with our brand of football: wittingly or not, Mr. Shankly paraphrased UCLA football coach Henry Russell “Red” Sanders, who declared on the eve of a showdown with USC for a Rose Bowl bid that ‘this game is not merely a matter of life or death . . . It’s more important than that.”

(Internal citations and alterations omitted)

P.S. Go Ravens!

 

Why Didn’t I Think Of This?

There are only two posts up so far, it appears.  I’ll be keeping an eye out for new posts (and who am I kidding, I am absolutely going to submit.  What rhymes with judicata?)

Check out the Law Poetry blog here.

 

Summer Reading

I’ve been playing hooky with the blog, admittedly. This is partly because I have been working hard on a writing project in the hopes I’ll have a decent first draft completed by next NaNoWriMo. I’m writing an article for a bar association journal (the text of which I’ll upload here when I’m done). Also, I’ve been reading and re-reading the fabulous Scalia footnote from City of Arlington v. FCC because it may hold the key to the secrets of the universe. If only I were just a little smarter.

So I’ve only got time for a quick post. Let’s talk about books, or more specifically, summer books. Depending on who you ask, a good summer book is either 1) interesting and challenging (like Judge John M. Woolsey, who read Ulysses on his vacation in preparation for drafting the opinion ruling it not obscene); or 2) pulpy and so formulaic that spilling one’s margarita over two-thirds of it makes little difference (like seventy-five percent of what’s sold in bookstores today). I prefer the former. This summer I think I am finally going to suck it up and read Middlemarch, and possibly finish the Henry James I started a couple of summers ago before I drank too many margaritas. But if Georgian realism is not to your taste, I humbly offer up the following suggestions:

1) The Third Coast: When Chicago Built the American Dream, Thomas Dyja

and

City of Scoundrels: The Twelve Days of Disaster That Gave Birth to Modern Chicago, Gary Krist

I’ve been on a Chicago kick ever since I read Devil in the White City. Both of these are eminently readable, although you may learn to fear fire.

2) The Swerve: How the World Became Modern, Stephen Greenblatt

This has been out for a while. If you haven’t yet read it, you should; it will change the way you understand history.

3) Embroidered Ground: Revisiting the Garden, Paige Dickey

and

The Writer in the Garden, Jane Garmey (ed.)

My backyard runs, roughly, at about a seventy degree angle to my house. The whole neighborhood is hilly. When we moved in I had to re-engineer everything I knew about landscaping. Dickey is a celebrated gardener who writes lovingly about her relationship with her garden, how it has developed and changed with time and with her advancing age. The Writer in the Garden is an anthology of essays by writers including the likes of W.S. Merwin, Andrew Marvell, Katherine Mansfield, Vita Sackville-West and Jamaica Kincaid.

4) The Stockholm Octavo, Karen Engelmann

A smart, dense historical whodunit.

5) The War of Art, Steven Pressfield

and

Make Good Art, Neil Gaiman

Both books are food for creatives, or for people who would like to be more creative. Also, if you don’t know who Neil Gaiman is we probably can’t be friends.

6) The Virtues of Poetry, James Longenbach

I know you won’t read it, but I wish you would. I wish everyone would.

7) Gilead, Marilynne Robinson

An aging man’s love letter to his young son, and to life. Robinson’s writing is the literary equivalent of cool, clear blue water and a fragrant breeze. I go back and forth about what book is my absolute favorite, but Gilead is always in my top three.

8) The Night Train, Clyde Edgerton

and

Train Dreams, Dennis Johnson

Two very different books united, but a train runs through them (apologies to Norman Maclean). Night Train is a coming of age story set in the deep south, as television brings “race music” to a small town. Train Dreams ranks up there with Gilead in my mind. I won’t tell you more than that. You will love it.

9) The Barbarian Nurseries, Hector Tomar

and

These Dreams of You, Steve Erikson

Both are novels about disintegrating families, the recession, and the ways that immigrants experience America. Both are ultimately hopeful.

10) The Devil’s Tickets, Gary M. Pomerantz

For the lawyers who can’t leave the office behind. Pomerantz relates the true story of Myrtle Bennett, who shot her husband to death in 1929 for calling her a “bum bridge player,” and her lawyer, James A. Reed. A little knowledge of how bridge is played is helpful but not necessary. The real story concerns nascent feminism in a nation on the cusp of the Great Depression.

Let me know if you have your own suggestions or if you like (or hate) any of mine. Happy summer!

 

Monday Morning Hearsay: Backsies

We have, I believe, the first opinion authored by Judge Douglas R. M. Nazarian, who was appointed to the Court of Special Appeals in January.  And it is worthy of mention not only because it is his first reported opinion, but also because it makes reference to “backsies,” and to one of Russell Hoban’s Frances books.

The opinion is Barson v. Maryland Board of Physicians, No. 2673 (Md. App. May 3, 2013).  The case has to do with a consent order entered in the Maryland Board of Physicians, the body charged with the licensing and discipline of physicians.  A consent order is akin to a plea agreement in criminal court, although it is important to note that the Board is an administrative agency and its determinations are not criminal in nature.  In any event, a physician sought to renegotiate the order when she had second thoughts about it and the Board denied her request.  The Court of Special Appeals agreed and held that the Board was under no obligation to revise the order.

Here’s where we get to “backsies:”

A deal is always a deal, but this appeal brings to mind the long-standing playground rule of “no backsies.” By calling “no backsies” before finalizing an agreement, the parties reiterate and reinforce their intention to be bound and stay bound.

And then, in a footnote:

See, e.g., Russell Hoban, A Bargain for Frances (1970). The Consent Order in this case is, as the discussion below reveals, distinguishable from the bargain in the story, which Frances entered in reliance on her friend Thelma’s misrepresentations about the value and virtues and availability of plastic versus china tea sets. Even still, and putting aside whether Frances might have been able to seek rescission from a higher authority, the “no backsies” rule held until Thelma’s seller’s remorse (fueled in part by a clever if borderline omission on Frances’s part) led her to seek, and Frances to agree to, backsies after all. Another variant applies in the game of tag: if a player who is “it” calls “no backsies” before tagging another, the taggee cannot tag him/her back immediately.

Any friend of Frances is a friend of mine, for the record.

 

 

 

Tinker, Viewpoint Discrimination and a Flag

“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

 

A Tale of Two Futures

[. . .] I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt. Not that these things matter 20 years after the fact, but I had a 3.6 GPA and a 178 LSAT. I worked for [politician] between college and law school. I graduated from [top ten law school] in 2000. My GPA was a 3.5, which was well above the mean but not good enough for law review. I clerked for a federal district court judge from 2000-2002, during which time my law school loans were in forbearance. My point is that, although my resume wasn’t printed with gold ink when I began my legal career, my credentials were good.

[. . .]

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

[. . .] Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” [. . .]

From www.insidethelawschoolscam.blogspot.com, February 26, 2013

If you’ve been online at all within the past couple of years you are probably familiar with posts like the one above, from Professor Paul Campos’ Inside the Law School Scam blog.  The problem of lawyer and law graduate unemployment have been covered recently in the Wall Street Journal, The Huffington Post, US News and World Report and the New York Times, and the bloggers at Above The Law have been discussing it for years.  It’s a complicated issue having to do with, among other things, the cost of going to law school, the fact that student loans are not generally dischargeable in bankruptcy, and the ongoing effects of the Great Recession.

Now here come the books, although the doom and gloom is not limited to recent graduates’ prospects.  First to hit the shelves was Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future (Oxford Univ. 2013).  In fairness to Susskind, who is a British IT consultant, he wrote about many of these issues in his earlier book, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford Univ. 2008).  The relative newcomer to this genre is Steven J. Harper, a former partner at Kirkland & Ellis and now author of The Lawyer Bubble: A Profession in Crisis (Basic Books 2013).  (Both men share, apparently, a fondness for subtitles.)

Harper’s book is more autopsy than prescription, so we begin with it.  The Lawyer Bubble limits itself to discussion of law schools and the largest law firms (so-called BigLaw), but what it has to say about the state of the profession is pretty scathing.  Harper points to Christopher Columbus Langdell, Harvard Law School dean and founder of the case method of law school instruction, as the “essential foundation” of the problem – and the problem is that there are too many lawyers.  He says that the case method permitted law schools to abandon the time-intensive lecture-and-internship model that held sway before 1890 and turn to “mass production of attorneys.”  In turn, law schools became profit centers for their universities, all the while having little incentive to turn away applicants because student loans became essentially non-dischargeable in bankruptcy in the 1970’s.

Both the American Bar Association and the US News & World Report law school rankings have a share in the blame, according to Harper.  The rankings have become hugely influential and law school deans, although initially reticent, have embraced them.  According to Phillip J. Closius, former dean of the University of Baltimore School of Law, “[m]illions of dollars [are] riding on students’ decisions about where to go to law school, and that creates real institutional pressures.”  Yet Harper argues that the rankings are deeply flawed.  He cites incredible examples, including one in which a dean circulated a law school ranking survey similar to the one used by US News, and respondents rated the law school at Penn State as a mid-level school despite the fact that Penn State at the time did not have a law school.  He describes efforts at the University of Illinois College of Law to bolster its incoming GPA and LSAT numbers, which count for twenty-five percent of a school’s rating, which resulted in the blatant falsification of the numbers.  (The employee responsible for submission of the information was blamed, and although the law school dean was absolved of wrongdoing, the ABA censured the school, imposed a $250,000 fine, and required that the school submit to compliance monitoring for two years.)

And then there is the employment data.  Before 2012, the ABA applied an extremely broad definition of “employed,” so that when law schools provided graduate employment data, they made no distinction between working in a law firm as an associate and working in a coffee shop.  Many schools reported employment figures as high as ninety-three percent even during the recession. Yet in 2012, according to Harper, only sixty-six percent of the class of 2011 worked in jobs requiring bar membership, and many of those were part-time or temporary positions such as clerkships.  Schools made a practice of offering paid temporary positions to graduates that conveniently started before and ended just after the window of time set for employment data gathering.  When, in 2012, the ABA began to require that schools disclose such arrangements, several low-ranked schools revealed that they employed more than fifteen percent of their own graduates.  All of these factors led to a flood of incoming law students and the creation of a “lawyer bubble” not unlike the real estate bubble of the mid-2000’s.

Harper heaps his wrath upon BigLaw firms as well, arguing that they have increasingly abandoned the traditional “true partnership” model for a pure business model that values profit over anything else.  When income determines all, he argues, individual lawyers adopt a “what’s in it for me?” attitude and move freely between law firms, taking their lucrative books of business with them.  In order to hold on to their most valuable business-getters, firms offer higher salaries (or, as in the case of Dewey & LeBoeuf, salary guarantees); to make the numbers work, they cut support staff and attorneys considered less valuable to the firm.  The result, Harper says, is that BigLaw firms have become oligarchies where a small number of attorneys achieve exceptionally high earnings and the lawyers who find themselves shut out become demoralized. Harper devotes more than a few paragraphs to lawyer suicides, such as the suicide of Mark Levy in 2009.  He also details several case studies, including Dewey & LeBoeuf as well as Finley Kumble, whose failure in the late 1980’s mirrored Dewey’s.

Harper advocates for several changes: abandonment of the billable hour and “eat what you kill” systems; implementation of true “partnership” schemes within law firms to encourage loyalty and real mentorship; and implementation of mandatory retirement policies so that younger attorneys have an opportunity to move up the ladder.  He also suggests that businesses such as Axiom and other out-sourcing vendors should encourage firms to streamline their processes and learn to better utilize technology.

Technology, and the way it will change the practice of law, is squarely within Richard Susskind’s bailiwick.  Tomorrow’s Lawyers is less an indictment of the way things have been done than a prediction of how they will be, and if Susskind is correct the future looks very different.  (However, it’s worth pointing out that Susskind is most familiar with the British legal system, and that system differs from the United States’ system in significant ways, including in permitting non-lawyer investment in law firms.)

Like Harper, Susskind argues that the billable hour has had its day and should be retired.  But this would only represent the first of a number of transformations he proposes.  More traditional “legal” work should be performed by non-lawyers, in much the same way that certified nurse practitioners have taken on many traditional physician functions.  Susskind would include within this category document review in litigation, due diligence work, basic contract drafting and basic legal research.  This is work that involves more “process than judgement” and should, in time, be further commoditized so that it is performed entirely by computers.  Another proposal would permit clients with similar interests to “collaborate,” and set up a shared fully-owned “law firm” to serve their mutual needs.  He uses banks as an example, and claims that they could own a shared “service centre” to undertake compliance activities at reduced costs.  (He does not address here, I note, any conflicts issues that might come up, although presumably those could be dealt with in the firm’s operating documents.)

Much attention is devoted to the idea of commoditizing legal services.  Susskind breaks down (or “decomposes”) litigation into specific tasks, such as document review; research; strategy; tactics; negotiation; and advocacy.  He claims that although strategy, tactics and advocacy, at the least, have traditionally been the province of lawyers, he is “increasingly hearing from General Counsel that alternative providers can now take on the remaining tasks at lower cost and to a higher quality than traditional law firms.”  In some cases this involves outsourcing work to a third-party.  In others, work may be subcontracted from one law firm to another.  Susskind raises the possibility that, in the future, many legal problems will be crowd-sourced before they are ever presented to a lawyer for consideration.

Most of Susskind’s predictions involve the elimination rather than the creation of legal jobs.  He closes the book, however, with several positions he believes will be created in the future: the “legal knowledge engineer,” who will program the software necessary to perform commoditized legal work; the “legal technologist,” who will “build the foundations upon which legal service is built and the channels through which non-lawyers can access the law,” and as for what that means, your guess is as good as mine; the “legal hybrid,” who will be both family lawyer and marriage counselor or commercial lawyer and strategy consultant; and the “legal project manager,” who will oversee a project once it has been “decomposed” and outsourced to ensure that its various components are completed on time and within certain quality parameters.  (There are more, but I am finding this exhausting.)  Susskind rather grudgingly concedes that there will be “Expert Trusted Advisers” and “Enhanced Practitioners” in the future, but there will not be many of them.  He closes with advice to young lawyers, or those considering law school, to follow the example of Wayne Gretzky and “[s]kate where the puck’s going, not where it’s been.”

 

Monday Morning Hearsay: Ovid’s Lawless Age

 

Before Gardens: The Golden Age

 

 

 

Then sprang up first the golden age, which of itself maintained

The truth and right of everything, unforced and unconstrained.

There was no fear of punishment, there was no threatening law

In brazen tables nailed up to keep the folk in awe.

There was no man would crouch or creep to Judge, with cap in hand:

They lived safe without a Judge in every realm and land.

The lofty pine tree was not hewn from mountains where it stood,

In seeking strange and foreign lands, to rove upon the flood.

Men knew no other countries yet where themselves did keep;

There was no town enclosed yet, with walls and ditches deep. 

No horn or trumpet was in use, no sword or helmet worn:

The world was such that soldiers’ help might easily be forborn.

The fertile earth as yet was free, untouched of spade or plough,

And yet it yielded of itself of every thing enough.

And men themselves, contented well with plain and simple food,

That on the earth of nature’s gift, without their travail stood,

Did live by raspis, hips and haws, by cornels, plums and cherries,

By sloes and apples, nuts and pears, and loathsome bramble berries,

And by the acorns dropped on ground from Jove’s broad tree in field.

The springtime lasted all the year, and Zephyr with his mild

And gentle blast did cherish things that grew of own accord,

The ground untilled, all kinds of fruit did plenteously afford.

No muck nor tillage was disposed on lean and barren land,

To make the crops of better head, and ranker for to stand.

Then streams ran milk, then streams ran wine, and yellow honey flowed

From each green tree whereon the rays of fiery Phoebus glowed.

 

 

Ovid (trans. Arthur Golding)

 

Monday Morning Hearsay: The Sound of Order

Just a poem today, one I really love from the April 2013 issue of Poetry.

Order

 

 

For once, her was just my father.

We drove to the Computing Center

in a Monte Carlo Landau

not technically ours.  Lexington,

 

 

1977.  That fall.  The color

had settled, too, undone

orange-brown and dull yellow,

crimson.  And it was something,

 

 

yet not, the pile of leaves

just a pile of leaves.  Sorry to think

what thinking has done to landscape:

He loved punched cards,

 

 

program decks and subroutines,

assembly languages

and key punch machines.

Even my father looked small

 

 

next to a mainframe.

The sound of order;

the space between us.

We almost laughed, but not for years –

 

 

we almost laughed.  But not.  For years,

the space between us,

the sound of order

next to a mainframe.

 

 

 

Even my father looked small.

And keypunch machines,

assembly languages,

program decks and subroutines.

 

 

He loved punched cards,

what thinking has done to landscape –

just a pile of leaves.  Sorry to think,

yet not, the pile of leaves

 

 

crimson.  And it was.  Something

orange-brown and dull yellow

had settled, too, undone

1977, that fall, the color

 

 

not technically ours, Lexington

in a Monte Carlo Landau. 

We drove to the Computing Center,

For once he was just, my father.

 

 

Randall Mann, from Poetry (April, 2013)

Something about April always makes me think of sestinas, don’t ask me why.  I love that this poem, which is neither a formal sestina nor a pantoum, but a cross between them perhaps, moves from the large (the relationship between fathers and sons) to the small (father standing next to the mainframe, punch cards) and then back again.  Both sestinas and pantoums rely on words or phrases repeated in strict, orderly fashion; they process words, you might say, the way a computer processes the data fed in.  Our relationships might work much the same way.

I also love the way that the phrase “the sound of order” echoes Wallace Stevens’ “The Idea of Order at Key West.”

I’m about 10,000 words behind where I should be to reach my Camp NaNoWriMo goal for this month.  Wish me luck, fellow campers.

 

Employers Decide Who’s Best Qualified in Maryland “Failure to Hire” Cases

You’ve probably heard the old (clichéd) saying, “those who cannot do, teach.”

A recent case in the Maryland Court of Appeals disposes of that sentiment rather neatly in favor of those who (allegedly) cannot do, and therefore teach.  Essentially when it comes to youthful academic achievement versus hard-earned experience, an employer can decide which job candidate is the better “fit” without significant concern about age discrimination liability.

The plaintiff in Dobkin v. University of  Baltimore School of Law is a lawyer who practiced immigration law for many years before he decided to seek an academic position.  The School of Law at UB advertised a search for tenure-track professors for the 2009-2010 school year in several fields, one of which was immigration law.  The plaintiff, Dobkin, applied.

But Dobkin was not interviewed or hired.  Instead, a significantly younger woman with much less practical immigration law work experience was hired.  When Dobkin was informed of the decision, he emailed the school to complain:

It’s simply amazing how law schools choose newbies like [the successful applicant] and don’t even bother to interview candidates with a world of experience.  Something is seriously wrong here.

An EEOC complaint and then a private lawsuit followed.  The trial court entered summary judgment in favor of the university.

The Court of Appeals found both that Dobkin presented a prima facie case of age-based employment discrimination and that the university presented evidence of valid, non-discriminatory reasons for its refusal to hire him: that he had no clinical teaching experience, had not graduated from a top-tier law school, and had never worked as a judicial clerk.

At that point, under the McDonnell Douglas classic burden shifting analysis, the burden shifted to Dobkin to prove that the reasons offered by the university for its decision not to hire him were merely pretextual.  No previous Maryland cases concerned similar “failure to hire” scenarios, so the Court reviewed federal and other states’ cases.

The difficulty, the Court noted, is that otherwise qualified candidates may not be hired for a position based on purely subjective determinations about what characteristics make for the “best” candidate.  In one case discussed by the Court, for example, an applicant for a staff attorney job had more experience (and was older) than the candidate who was hired, but came across as arrogant and hadn’t previously worked at a private law firm.  The court in that case refused to substitute its own judgment about which person would be the better hire for the employer’s.  The Maryland Court of Appeals agreed:

We cannot thereby demand or require U.B. to hire applicants with practical experience as opposed to academic training, as it has a right to choose what qualifications address their needs.  [Dobkin] must understand that his and the successful applicant’s qualifications were not equivalent like the applicants in

[another case].   Instead, they were different types of skills and

training.  Accordingly, because qualifications are relative, as it depends on the preference of the employer, we cannot deem appellant’s qualifications as superior than the successful

applicant’s in this case.

The Court’s analysis of pretext in Dobkin will probably weigh heavily in cases alleging other kinds of employment discrimination going forward.  Where an employer’s hiring criteria are facially reasonable, the plaintiff who fails to meet the criteria will face a significant obstacle to proving discrimination.  On the other hand, though, the Court did not consider whether criteria not reasonably related to a position to be filled would justify an adverse employment decision and did not determine what a “reasonably related” analysis – assuming that there should be such an analysis – would entail.  These are important questions, but they will have to await a future decision.

 

Reasonable Accomodation in Maryland: A Shifting Burden

While the local media is focusing on legislative efforts to overturn the Maryland death penalty and reconcile competing pit bull liability statutes, an important decision on housing discrimination has recently been issued by the Court of Appeals.

Under Maryland law (and, in many circumstances, under federal law), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling[.]”  Md. Code Ann., Art. 49B § 22(a)(9).  The language in the state statute correlates closely with language in the federal Fair Housing Act.  See 42 U.S.C. § 3604(f)(3)(B) (stating that “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is housing discrimination).

Under either statute, housing discrimination will only be found if the particular accommodation requested is “reasonable.”  Reasonableness in this context means that a support can be provided at reasonable cost without excessively burdening other people.  Among many questions that typically arise in proving housing discrimination is which party – the plaintiff or the defendant – bears the burden of proving reasonableness. 

In Board of Directors of Cameron Grove Condominium, II, et al. v. State Comm’n on Human Relations, issued on March 28, 2013, the Court of Appeals decided the question in favor of plaintiffs.  The Court held that in order to prove a housing discrimination case under the state statute, a plaintiff must make a prima facie showing of reasonableness;  once that showing has been made, the burden of proof then shifts to the defendant to prove that the requested accommodation is not reasonable.

This is a win for the disabled, since a prima facie showing is a pretty low bar to meet.  Cameron Grove is interesting for another reason, also.  The Fourth Circuit Court of Appeals, which is the federal appeals court responsible for Maryland among other states, has taken the opposite position in adjudicating housing discrimination cases under the federal statute.  See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997) (stating that “[b]ecause the [Fair Housing Act]’s text evidences no intent to alter normal burdens the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence”).

The Maryland Court of Appeals is, in almost every case, the final arbiter of the meaning of state statutes, while the federal court system is responsible for interpreting federal statutes.  While it’s not unheard of for courts to reach different conclusions on similar statutory language, it’s quite striking when the language in the state statute so closely mirrors the federal statute.  It’s worth pointing this out, too, because concepts like “the burden of proof” are rarely dealt with on television or in movies, yet the allocation of the burden can be determinative of the outcome of a case.  The plaintiff in Bryant Woods Inn, for example, lost its case, while the plaintiffs in Cameron Grove won theirs.  I’m not accounting for differences in facts here, so the comparison isn’t necessarily fair, but it is interesting.

What was at issue in Cameron Grove?  Two individuals in a condominium complex who suffered from unnamed medical conditions filed suit to require that the condominium association provide them with keys to back and side doors to their respective buildings.  Apparently these doors were closer to a retail area within the complex and the plaintiffs wanted to be able to use those doors when they brought in their groceries.  The condominium argued that it shouldn’t have to give copies of the keys for security reasons and that installing a security code pad at each door would be prohibitively expensive at $19,000.  The association was ordered to pay both plaintiffs a combined total of $35,000, in addition to a civil penalty of $5,000.

Most hardware stores sell keys for something like $4.00.