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On The Merits

Can You Hear Me Now?

The public’s access to the U.S. Supreme Court has been a hot topic during the past few years, including the court’s relatively recent decision to abolish “line-standing” and its ongoing opposition to allowing cameras to broadcast or record oral arguments. One trusted and inexpensive avenue inside the nation’s highest court recently faced a perilous future after serving the public for more than 20 years.

The Oyez Project was founded in 1993 as a free repository of Supreme Court oral arguments dating back to the 1950s. Chicago-Kent College of Law Professor Jerry Goldman started the Oyez Project by reproducing Supreme Court audio files collected by the National Archives and hosting them for free online. The group’s website reportedly has more than 9 million visitors every year. Goldman’s recent decision to retire put the Oyez Project in jeopardy, but an agreement with Cornell University’s Legal Information Institute and the online legal publisher Justia promises to keep the recordings available to the public for many years to come.

Although listening to audio of a Supreme Court argument isn’t the same as being in the courtroom personally, it does provide a relatively simple, no-cost means for the public to hear how the country’s top court does its business, which is a good thing. As we’ve said on this blog many times before, the public’s confidence in our justice system is largely dependent on people being able to see (or hear) for themselves exactly how the system works.

Until we can turn on our TVs or personal computers and see Supreme Court arguments in real time, the Oyez Project represents the best available option.  We owe a debt of gratitude to both Cornell and Justia for helping keep the window to the court open for the rest of us.

Posted: 6/24/2016 3:23:27 PM by On the Merits Editor | with 0 comments

Judge Not Lest Ye Be Judged

Many people think that presidential candidate Donald Trump believes himself to be more a potential emperor than a candidate to head a co-equal branch of government in a constitutional democracy. Consider his string of comments about the ethnic heritage of a California federal judge who is presiding over a case filed against one of the self-proclaimed billionaire’s former real estate businesses, Trump University.

After telling a campaign rally crowd in San Diego that he would talk for two minutes about the case handled by Judge Gonzalo Curiel in the U.S. District Court for the Southern District of California, Trump went on a 12-minute tirade that included him calling the judge a “hater of Donald Trump” and referring to him as a “Mexican” even though the judge was born in Indiana. Trump also argued that the judge should recuse himself based on his prior rulings in the Trump University case; the fact that President Barack Obama appointed him to the bench; and Trump’s campaign promise to build a wall on the border between the U.S. and Mexico.

Fortunately, Judge Curiel has responded in a manner that we should expect of a federal judge: he’s said nothing to address Trump’s comments, presumably because of his responsibilities under the judicial code of conduct. And he has not recused himself, either, because there is absolutely no legal reason for him to do so. 

Federal judges are not in a position to defend themselves by making public comments on cases before them because doing so could create a situation where recusal would be appropriate. Fortunately, a whole host of lawyers, commentators, politicians (including those from Trump’s own party), and public officials are rushing to the judge’s defense. As they should: by all accounts, Judge Curiel is an outstanding public servant who literally put his own life in danger in order to make his country a safer place while serving as a federal prosecutor, and he’s doing exactly what a judge is supposed to do. Even Trump’s own lawyer says so.

So, what have we learned here? That one of the major party presidential nominees either doesn’t understand or doesn’t care about the legal system, while the judge he is publicly shaming certainly does. The public could use more public servants like Judge Curiel. And polls suggest that they know it

Posted: 6/8/2016 7:24:27 AM by On the Merits Editor | with 0 comments

Federal Court Takes the Air Out of Tom Brady’s Season

The reaction of some fanatical National Football League fans to yesterday’s decision from the 2nd Circuit Court of Appeals in the Tom Brady case was, in many ways, quite predictable. The Court upheld NFL Commissioner Roger Goodell’s suspension of Brady for his alleged role in the “Deflategate” scandal.

For opponents of Brady’s New England Patriots, it confirmed their view that the team’s quarterback is a liar and a cheater. Fans of Brady and the Patriots, by contrast, likely see it as an excuse to harshly punish one of the NFL’s all-time greats on the flimsiest of evidence.

To some extent, this a classic example of the psychological tendency to see events through the filter of what you want to see. After all, another great quarterback with considerable off-the-field baggage, Brett Favre, was a hero in Green Bay until the day the former Packer suited up for their hated rival, the Minnesota Vikings.

But the legal matter really had more to do with strictly legal issues than rivalries or football. As the court correctly observed: 

Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act. [emphasis added]

Not exactly the stuff of NFL Films, but right on point. Goodell’s authority as arbitrator arose from a contract between the NFL and its players that outlines their legal relationship. The court correctly stated that, under the LMRA, it must:

. . . simply ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.”

The court then noted that, under the contract, the Commissioner’s authority is “especially broad” and that both sides had agreed to that authority. Thus, the fact that the evidence may have been flimsy and not enough to make a finding under a statutory standard, this was a standard set forth by their parties in their contract. And generally, as in this case, the court will honor what the parties intended unless there are good public policy reasons not to do so.

The issue was not really what the court thought Brady did, but whether the arbitrator’s conclusion was legally plausible under that broad standard. And a majority thought it was, though a dissenting judge and the lower trial court reached a different conclusion. And that happens often, but the judges in the majority rule the day.

So if you’re a fan of Brady and you think he was treated unfairly, perhaps he was. But the message from this court, anyway, is maybe the players need to negotiate a better contract; one where the Commissioner is not the judge, jury, and executioner.


Posted: 4/26/2016 3:07:07 PM by On the Merits Editor | with 0 comments

Houston Bar Association’s LegalLine Program Provides Volunteer Attorneys for Advice on Flood-related Issues

The flooding in Houston has been awful, but – as it always does – the local legal community is stepping up to help.  Tonight from 5:00 – 9:00 p.m. the Houston Bar Association will make volunteer attorneys available by telephone through its LegalLine Program.  LegalLine provides volunteer attorneys to provide free legal advice on the first and third Wednesday of every month.  The phone number is (713) 759-1133.  
Kudos to the Houston Bar for reaching out to Houston’s many flood victims.  


Posted: 4/20/2016 12:55:06 PM by On the Merits Editor | with 0 comments

Monkey Business

We all have heard the one about the monkey who took a selfie, right? 

The long-running legal dispute is over whether a female macaque who snapped a photo of herself owns the rights to that photo.

The answer is no, according to U.S. District Judge William Orrick in San Francisco. Animals do not have legal standing to bring lawsuits unless expressly provided by statute. Further, he wrote, the Copyright Office states that “to qualify as a work of ‘authorship,’ a work must be created by a human being.” 

People for the Ethical Treatment of Animals (PETA) argues for legal rights for animals –“living breathing creatures who deserve fundamental rights of their own.” PETA had sued on behalf of the macaque, named Naruto, claiming the monkey deserved copyright control of its picture. 

Photographer David John Slater was taking photos of macaques in Indonesia when he set up a camera the primates could use themselves. That’s when Naruto pressed the button, snapping the selfie. Later on, some media sites posted the photo, contending there was no copyright violation because Slater hadn’t taken the picture. That’s when PETA stepped in, saying the monkey deserved copyright protection.

Judge Orrick dismissed the lawsuit for the reasons stated above. Now, certain anti-lawyer organizations have made a lot of noise by collecting examples of “frivolous” lawsuits, including this one. But what they don’t tell you is that: (1) anyone has the right to file any lawsuit they want, and (2) once filed, virtually all truly meritless suits are eventually dismissed, as was this one.  

Likewise, a lawsuit filed by PETA against SeaWorld related to its treatment of its killer whales was dismissed within months of its filing. But the legal questions surrounding mistreatment of animals isn’t going to go away.  Where the lawsuit may have failed, the court of public opinion also weighed in, particularly in the critically-acclaimed documentary “Blackfish.” The negative publicity led SeaWorld to recently announce they would no longer breed the whales in captivity.  

Indeed, a growing number of Americans believe that animals should have at least some rights.  A recent Gallup poll noted that 62 percent of Americans support some protection for animals, and one-third believe they should have the same rights as people.    

Recognizing this, over 160 law schools in the U.S. and Canada now offer courses in animal rights, according to the Animal Legal Defense Fund. Because if you are going to figure out what rights animals have under the law, you’re going to need lawyers and judges to do it.  


Posted: 4/8/2016 8:15:04 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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