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Archive for the month “October, 2013”

Happy Hallowmass

Happy Halloween to all of my readers!

I thought it would be interesting to briefly mention the significance of this day most people identify with ghouls, costumes, trick or treating, and candy.

With certain exceptions, like Easter, the date of most Christian celebrations are either unknown (e.g.: no one really knows the actual date when Jesus was actually born) or not tied to a certain date (e.g.: Holy Cross Day).  The fluidity of dates for these celebrations allowed the Church to assign dates to them in ways that were most effective in evangelizing the pagan peoples surrounding the early Christian communities.  Hallowmass is among those Christian celebrations which has no specific event to tie it to a certain date, so the Church, in its wisdom, established it to begin on October 31 because the pagan practices around this date seemed to be easily adaptable to the underlying spiritual significance of Hallowmass (described below).

The pagan practices around this date, by and large, commemorated and/or acknowledged the dead and the ending of the seasons of life (spring and summer) and beginning of the seasons of death (autumn and winter).  The Church took these pagan practices and adapted and directed them to its own commemoration of the dead, which is what underlies the Hallowmass.

Hallowmass is a Triduum; a Triduum is a Christian celebration which involves three days, in this case they are: All Hallow’s Eve (October 31), All Saint’s Day (a.k.a.: All Hallow’s Day) (November 1), and All Soul’s Day (a.k.a.: the Commemoration of All Faithful Departed) (November 2).  Each day helps us live out and recognize what the writer of the book of Hebrews says is a “great cloud of witnesses” (Hebrews 12:1).  That great cloud of witnesses are all Christians, living and dead, who pray, support, and help one another grow closer with one another and with God.  Hallowmass helps us take the time to focus especially on those dead Christian believers.

All Saint’s Day is one of the major (or “high”) Christian holy days and, like all major holy days, it is preceded by a vigil the evening before.  The most famous holy day vigil is Christmas Eve and, like Christmas Eve, All Hallow’s Day (i.e.: All Saint’s Day) also has a vigil called All Hallow’s Eve, now known as Halloween.  On All Saint’s Day, the Church recognizes all of the Christians who have died and are now recognized as having been martyred for the faith and/or as “saints“, which is just a fancy way of saying someone is a hero of the Church (and, therefore, as a follower of Jesus Christ) and are experiencing the true presence of Jesus.

Now, many Christians recognized that there are a great many truly faithful and great followers of Jesus who may not be a “big name”, if you will.  Many Christian families have that faithful father, mother, grandparent, child, son, daughter, aunt, uncle, or whomever, who has helped shape and form the others in his/her family in the Faith, but is not known to anyone but that family.  They may not have the name recognition or the wide appeal or influence of someone like Saint Augustine of Hippo or Saint Francis of Assisi, but for that person’s family, the impact is much more intimate and enormous.  So, in recognition of this, the Church established All Soul’s Day to commemorate all of those Christians who have passed onto the next life.

So, by all means have fun dressing up and eating candy tonight, and enjoying the children, especially yours if you have any, having fun living out a fantasy of being their favorite super hero or princess or whatever it is they like; just do not forget that these three days are also holy and sacred and be sure to remember those Christians who are no longer with us, but, if we have faith in Jesus, we will meet again in the life everlasting.

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Free as a Bird

Just a quick note to highlight a case I thought was humorous.  The Huffington Post reports that it is legal to give a police officer the middle finger.  The U.S. Court of Appeals for the Second Circuit ruled that flipping the bird cannot be the basis for reasonable suspicion of a potential traffic violation or criminal activity.  Check out the article here.

Justice for the 99%ers

Check out Faye Cohen’s blog post “Justice for the 99%ers” on her blog Toughlawyerlady here.

The Grounds for the Famous McDonald’s Coffee Case

Most people have heard of the 1994 case of the old woman spilling McDonald’s coffee in her lap, being severely burned in the process, suing McDonald’s over it, and securing millions of dollars after a verdict in her favor.  My law school career began in 1999 and, I must say, when non-lawyers speak to me about the law, this McDonald’s coffee case, often to the exclusion of all the famous, important, and significant cases that the Courts have heard over the years, decades, and centuries, is routinely mentioned, especially as some sort of lament over the perceived abuse of the legal system, and using tort law as a substitute for playing the lottery.

There is just so much misconception over this case that any conversation about it becomes a sort of deconstruction of previously held misconceptions – generally thanks to the media and widespread public perception – more than it is about the legal significance of the case.

Before reading this post and/or watching the video below, did you know:
(1) the coffee was heated 30 degrees hotter than a home brewer can heat coffee?

(2) the woman burned was not driving and her car had no available cup holders?

(3) the woman did not make millions but only about $600,000, much of which went to pay her very large medical bills?

(4) the woman suffered third degree burns?

(5) McDonald’s was aware of the fact that literally hundreds of people had been similarly burned by their coffee over the 10 year period prior to the famous 1994 case and took no action to make their coffee safer?

Once all of the facts are known, it becomes clear that this case is far from being the poster child of the abuse of the legal process and is hardly an example of people looking to “frivolous” tort cases to become overnight millionaires.

For a great look at the details of this case – and some photographs of the burns themselves – check out this video posted on upworthy.com:

You can find it here as well: http://www.upworthy.com/ever-hear-about-the-lady-that-spilled-coffee-on-herself-at-mcdonalds-then-sued-for-millions?g=2&c=ufb1

Also, here is the wiki page for the case which includes the official caption and citation and other details which may be interesting:  http://en.wikipedia.org/wiki/Stella_Liebeck

A New Marriage Proposal

Anyone who has paid even minimal attention to the news must be aware of the efforts made across the country to redefine marriage as something other than exclusively a heterosexual union.  Although I have been very hesitant at supporting the idea that perhaps the government ought not be involved in marriage at all, I have, in recent months, been more and more persuaded that that is possibly the direction we, as a nation, must go.  Before you read this, please note that I am still trying to work these issues out for myself, but the below is where I am now and likely the direction I will continue to go for the foreseeable future.  I also concede that I may not have all of the issues at play completely ironed out, but I did at least want to put pen-to-paper, as they say, to at least start the discussion.  Although it should be clear, let me say it plainly here: nothing I suggest in this blog post would prevent people from doing what they want in their Church or other house of worship regarding “getting married.”  This post deals exclusively with civil marriage.

 

Many view the gay marriage movement as ushering in some sort of new and heretofore unheard of attempt to change the very nature of marriage or, indeed more generally, societally accepted sexual relationships.  Indeed, many view the gay marriage movement as the start of a so-called “slippery slope” to other redefinitions of marriage, such as the legalization of polygamy.  Unfortunately, the gay movement has not ushered in some sort of new movement to redefine marriage or sexual relationships, nor did it start any sort of slippery slope.  The reality is that the gay movement is, itself, on the slippery slope of a pre-existing, and ongoing, sexual revolution already in progress in redefining marriage and accepted sexual relationships.

 

The greater sexual revolution, of which the gay marriage movement is merely a part, really has its origins in the free love American Counterculture of the 1960s.  Prior to the rise of the Counterculture in the 1960s, gender identity and roles, as well as marriage, were clear, long standing, and unchangeable.  Suddenly, as a result of the sexual revolution, which was ushered in by the aforesaid Counterculture, these heretofore accepted norms became subject to change, and what was once taboo suddenly becoming accepted.  The concept of sex outside of marriage has become increasing accepted and is now considered normal or standard; with this change, all kinds of sexual relationships developed from the “one-night-stand” to short-term cohabitation, to long-term cohabitation, all the way to marriage as it is commonly understood.  As an aside, considering the above, does not the premise of the old television program Three’s Company seem rather anachronistic now?

 

One of the results (casualties?), of the slippery slope caused by the above-described sexual revolution, is that no fault divorce entered the scene in Pennsylvania in 1980.  No fault divorce allows married couples to divorce without any justification or reason; they can simply dissolve their marriage practically at will and with no penalty for what most would consider egregious behavior (e.g.: abuse, abandonment, adultery).  The marriage vows to remain together until death separates are undermined by signing a couple of papers (or going to a hearing) to dissolve what was vowed to be an indissoluble union, with nothing to enforce the vows or penalize their breaking; a marriage has become a virtually unenforceable contract (or a contract in name only).  Considering this, I cannot believe why people wonder why marriage is at such a low ebb and why no one takes it seriously anymore.  Indeed, nowadays, the idea of being with someone “till death parts” him/her seems almost passé and quaint, as multiple sexual partners in one’s life have become an established norm.

 

In the context of this already slippery slope, homosexual marriage finds itself not at the top of the mountain but already far down the steep slope made possible by the failure of heterosexuals to maintain the dignity of their own marriage relationships.  Is it any wonder that gay marriage would enter the picture?  If heterosexuals can legally diminish their sexual relationships to the degree described above, what logical legal justification is there to disallow homosexuals from trying raising the dignity of their relationships to at least the level to which heterosexuals have lowered theirs?  Had heterosexuals not allowed their own marriages and sexual relationships to decline as described above since the 1960s, gay marriage would not even be on the radar today.

 

So, in the face of all of the above, I suppose one can take one of two (2) angles.  The first is to try to restore the dignity of marriage and sexual relationships by trying to reverse the influence of the Counterculture described above.  I hate to sound like a defeatist, but I simply do not see this strategy as successful any time soon and, besides, the second option described below does not really foreclose the first from happening anyway.  As a result, a second option seems more viable, which is to change marriage laws to conform to, and account for, the new reality in American culture regarding marriage, divorce, and sex, instead of trying to rely on old, and now rather anachronistic, laws regarding divorce.

 

If you consider that something like fifty (50) percent of marriages end in divorce, and studies suggest twenty (20) percent of marriages suffer from adultery, as well as the fact that more and more people are simply electing not to marry, it would seem logical to suggest that our current law, shaped by pre-Counterculture understandings of marriage and divorce, are increasingly inappropriate, irrelevant, and unable to account for our new cultural realities.

 

In the face of this new cultural milieu described above, I think it is worth asking those – myself included – fighting so hard to protect our marriage laws from admitting homosexuals, what it is, exactly, they are fighting to protect at this point?  In the face of the advancement of the gay marriage movement, traditional American marriage supporters are fighting to preserve and protect the current marriage laws from that movement, but why?  Why fight so hard to protect marriage laws which are already so gutted, so diminished, and so poorly reflect what marriage is supposed to be?  Why fight so hard to protect civil marriages which can be dissolved at will at the stroke of a pen, or are increasingly not even being entered into from the start anyway?  This is not a fight to protect traditional American marriage; it is a fight to preserve the appearance of traditional American marriage, and, I ask, is that worth the fight?  I am increasingly convinced that it is not.

 

It would seem that, as a result, state recognized marriage may be a thing of the past.  Perhaps the concept of civil marriage ought to go the way of the dodo?  Certainly doing so would cut the knees out of the gay marriage movement as they would have nothing to strive to achieve any longer, and the news and popular culture, which is currently littered with gay marriage propaganda, may finally dissipate into the ether.

 

Ironically, in my view, one of the big negatives in doing away with civil marriage is that it would also do away with the protections of divorce.  While I am generally opposed to divorce, I do acknowledge that, legally speaking, a divorce process serves to protect the more financially vulnerable spouse.  For example, if a man and woman are married for twenty (20) years and, for the last fifteen (15) years, the woman has been a homemaker with no independent assets of her own, she will be left absolutely destitute if her husband elected to suddenly pick up and leave her.  The protections of divorce law allow the wife to secure her equitable share of marital property, and make things like spousal support and alimony (among other things) available to her to help her maintain some sort of financial viability and independence.

 

So, the big question for me is, how can we achieve the following multiple purposes without having established civil marriage?: (1) dodge the gay marriage movement’s goals (especially that of having an officially government sanctioned and approved “marriage”); (2) protect the vulnerable spouse; (3) improve the dignity and quality of existing non-marital domestic relationships; (4) protect the vulnerable party in non-marital domestic relationships; and (5) conform “marriage laws” to existing societal norms?  To this end, and to achieve the above goals, I believe civil marriage may be done away with in conjunction with introducing palimony into Pennsylvania law and creating a new and more modern form of what was once called “common law marriage” (as of 2005 Pennsylvania no longer recognizes common law marriage).

 

How would my suggestion above achieve the goals laid out?

 

First, the gay marriage movement wants state recognition of their relationship through civil marriage.  Without civil marriage, there is no state recognition of their relationship as “married” in the same way a heterosexual couple would marry.  As the gay marriage movement is based upon this state recognition, doing away with civil marriage, by definition, will short circuit the gay movement’s efforts in this area and, as a corollary, will proportionately reduce the publicity of the gay movement in popular media.

 

Second, spousal support (and alimony pendente lite) and alimony, as currently defined, are for persons in a civil marriage and after a civil divorce, respectively.  If marriage is no longer civilly recognized, spousal support, alimony pendente lite, and alimony will all be eliminated as well.  Obviously, this is not a positive change, which is why I would suggest introducing palimony into Pennsylvania law.  Palimony, which is already the law in a number of states, allows for support to be paid from one partner to another in a domestic relationship, regardless of marital status.  Of course, the person seeking palimony has the burden to prove that the parties were involved in a domestic relationship but, once proven, a similar analysis is done as currently done for support and/or alimony.  Palimony serves to protect the vulnerable spouse and/or domestic partner in cases when the parties dissolve their domestic relationship.  Further, it acknowledges that more and more people are simply not getting married but are still beset by the same vulnerabilities and dangers and negatives as married people when their relationship dissolves.  I also believe that palimony will raise the dignity of cohabitating relationships.  If people know that palimony may be ordered if the relationship dissolves, they may think twice before entering into such a relationship and/or exiting one.  Cohabitation relationships are inherently unstable which adversely affects the vulnerable partner and/or the children they produce and palimony serves to help provide some much needed stability.

 

Third, I propose introducing a modern interpretation of common law marriage.  Instead of “common law marriage” one could call it “common law domestic relationship” (“CLDR”).  I am sure a better term for it could be developed.  As a side note, establishing a CLDR would entitle the vulnerable party to palimony.  A CLDR, I think, reflects both the mores of those supportive of traditional American marriage, as well as the modern countercultural revisions to sexual relationships, and helps to raise the dignity of those new revised sorts of sexual relationships.

 

A person wishing to enter into a traditional American marriage is more than free to do so without civil marriage; so, introducing a CLDR has no effect on this.  It also reflects more modern relationship norms.  Nothing forces cohabitants to enter into a CLDR.  People can couple, and separate, without a CLDR, at their option.  However, if the cohabitation relationship does dissolve, one of the parties could file with the Court to secure recognition of the CLDR, just as people have filed for recognition of a common law marriage.  How is this a good thing?  Well, it protects the vulnerable party from the enormously negative financial impact dissolving the cohabitation can and does so often have, as well as makes the more financially independent party more responsible for the relationship s/he is attempting to leave.  A CLDR would allow for the Court to review and equitably divide the property between the parties and, of course, review the possibility for palimony.

 

This will provide stability and dignity to non-traditional (i.e.: “unmarried”) cohabitation relationships.  As it stands now, the vulnerable party in a cohabitation-relationship has very few legal options to preserve financial stability after the relationship dissolves.  As the law currently stands, and unlike a recognized civil marriage, if a cohabitation relationship breaks up, the person who legally owns the property accumulated during their relationship can often simply exit the relationship with his/her property intact, leaving the financially vulnerable partner in financial distress (and potentially the children of this relationship who stay with this partner as well).  Under a CLDR, the property division and palimony protections serve to provide some viable legal options for the vulnerable party.  I believe that these legal options would serve to make such cohabitation relationships less whimsical, as they often are now, and a much more serious decision.  If people know that “moving in” with one another could result in a CLDR, they may be much less likely to make the decision to move in together based on a whim or their warm emotional state of the moment – as is so often nowadays – and, instead, put more thought into it these relationships, as the cost will be much higher if they dissolve.  I think this, by definition, would raise the dignity, stability, and significance of these relationships.  Indeed, a CLDR would create legal connective tissue in relationships which would otherwise, under current law, disappear into the ether when one party elected to move out (or force the other one out).

 

I think the criteria to establish a CLDR could be rather similar to that of common law marriage and/or the establishment of palimony: Do the parties live together?  Do they share finances?  Do they co-own property?  Are they co-parties to contracts or leases?  Have they made financial decisions based on their relationship (e.g.: the woman quits her job to be a homemaker due to her relationship with the father of the children)?  Did he/she/they change his/her/their names?  Do they hold themselves out as a couple to friends, family, and others?  Do they have a child together?  I am sure other logical criteria could be developed.

 

It goes without saying that issues regarding taxation, insurance, and real estate (among other similar issues) need to be worked out to account for the above; however, as this blog post is already long enough, I will not get into these issues now, but I am sure these details can get hammered out easily enough.

 

In some ways, I think ideas like the above reflect my throwing-in-the-towel when it comes to the state of marriage in this country.  I certainly think traditional American marriage is worth fighting for but, the fact is, what the law currently reflects is not traditional American  marriage, and fighting to protect that, which is, in essence, what the gay-marriage-opponents are doing, does not seem like it accomplishes the goals of restoring marriage to its former dignity.

 

The fact is, reforming sexual mores, which will, in turn, restore marriage to its former dignity, is a job left to the Church, other religions, and traditional ethicists.  Using the law to achieve the goals of improving ethics and morals does not seem to be an effective strategy.  The Church needs to spend its time winning the hearts and minds of its neighbors, friends, and family, instead of focusing on politicians.  The fact is, we could have the best marriage laws in American history, but if people are simply electing to live together, or engage in other permutations of sexual relationships (including gay relationships), how effective and purposeful are those laws on the realities found among the people?  The fact is, it is becoming increasingly clear that marriage law, as it is currently constituted, simply does not serve what is an increasingly sexually progressive society and, therefore, is becoming increasingly irrelevant and anachronistic, and, therefore, does not protect the parties it was originally designed to protect.

 

The concepts I laid out above are just ideas I currently have; I am still developing my thoughts on these issues.  I am certain they could be improved upon.  Considering the reality of sexual relationships in this country, a serious discussion, hopefully absent political rhetoric, needs to happen so that our law can be adequately and effectively changed to reflect and deal with our new cultural norms.  If you have ways to improve on the ideas in this post, or have your own different ideas, feel free to post your comments below!

Coming of Age: Further Developments of the ADEA

The recent matter of Marcus v. PQ Corporation has seen the latest development in the application of the Age Discrimination in Employment Act (“ADEA”) since the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

Marcus v. PQ Corp.,  Nos. 11-2009, 11-2006 slip op. (3rd Cir. Jan. 19, 2012), dealt with a handful of Plaintiffs who were all terminated from their employment with PQ Corporation (“PQ”) not long after PQ purchased their previous employer back in 2005.  All of the Plaintiffs were over fifty-five years old at the time of their termination and, as discovery eventually revealed, no one under fifty-five was terminated by PQ.  Consequently, due to what the Plaintiffs believed to be something other than coincidence as to their commonality of all being over fifty-five and terminated from their employment, they brought suit against PQ for violating the ADEA.  After a trial on the matter, a jury entered a verdict in favor of the Plaintiffs, awarding the two appealing Plaintiff sums of approximately $2.5 Million each.

After the trial, both parties appealed the decision: PQ appealed the decision on the basis of jury instructions and a matter of law, and the Plaintiffs appealed the decision on the basis of taking issue with the calculation of damages awarded.

PQ’s appeal was multifaceted with regard to its issues with the jury instructions, raising four different arguments.  PQ first argued that the jury instructions did not accurately reflect the “but-for” causation established by Gross.  Per the Grossdecision, in order for an employer to be liable under ADEA, a plaintiff must show that “but for” the alleged age discrimination, he would not have been terminated.  The court ruled that it would not reverse a decision unless the lower court’s jury instructions “as a whole fail to correctly state the burden of proof [and, r]ead together, [the lower court’s instructions] were not deficient.”

PQ next argued that the jury instructions should not have included an instruction indicating liability can attach to an employer due to the animus of a non-decision-maker (the so-called “cat’s paw”).  The court ruled that, under applicable law pursuant to the ADEA, “it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate…[I]f a supervisor performs an act motivated by…animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment actions, then the employer is liable….”  The court further elaborated saying “the underlying principles of agency upon which subordinate bias theories are basedapply equally to all types of employment discrimination.”  Therefore, the instruction was appropriate.

PQ’s third argument was that the jury should have been given a specific business-judgment instruction.  A business-judgment instruction is one that makes it clear that an employer can make personnel decisions based on business considerations.  The court ruled that the jury instruction “the defendant had a right to hire and fire its employees whenever they [sic] wanted to, as long as they [sic] didn’t do it because of age” was sufficient to ensure the jury understood the law of business-judgment.

PQ’s fourth argument was that the lower court was not impartial in its jury instructions as a whole; however as the court ruled that the individual instructions described above were each acceptable, there is no question as to the impartiality of the instructions taken as a whole.

PQ then argued that judgment ought to have been entered in its favor as a matter of law.  When considering this argument, the court was unconvinced.  The court indicated that the Plaintiffs presented “considerable evidence” in support of their claims, including how PQ changed its reasons for termination over time, how it terminated only those employees over fifty-five years old, how the terminations are statistically significant as opposed to happenstance (even when controlling for alleged business decisions), and how statements from various people at PQ seemed to indicate a bias against older employees.  PQ argued that the evidence described above is insufficient to warrant a verdict in the Plaintiffs’ favor, however the court ruled that it is a jury’s discretion to weigh the evidence available and the above is sufficient to justify is verdict.

Finally, PQ argued that the award of the jury was inappropriate as it awarded damages for emotional distress in the absence of serious harm.  PQ argued that the size of the award reflected the jury’s ruling on passion and prejudice as opposed to measured consideration and, therefore, PQ should be entitled to a new trial.  The court quickly dismissed this argument citing well established case law indicating that the size of an award is not enough to prove the verdict was rendered due to passion and prejudice.  PQ then argued that the jury must have rendered its verdict due to passion and prejudice because it only spent three hours to deliberate, however again the court was not persuaded as it, again, cited a variety of case law indicating time spent deliberating is not dispositive.

Plaintiffs also raised arguments on appeal.  Plaintiffs argued that it should have been entitled to prejudgment interest and an adjustment for negative tax consequences.  The court ruled that one of the purposes of damages is to make an injured party whole; it also noted that an abuse of discretion in awarding damages “occurs when a district court deviates from this policy without a reasoned explanation.”  The court ruled that consideration of prejudgment interest and negative tax consequences were typical and the lower court’s denial of the above requested damages, contained in a single sentence, was clearly not a reasoned explanation for its deviation from the norm.  Therefore, the court ruled that the prejudgment interests and accounting for negative tax consequences were appropriate to make the Plaintiffs whole.

The applicability of the ADEA is in flux since the Gross decision.  The case of Marcus v. PQ Corporation will serve to make the ADEA’s applicability clearer in the wake of Gross, and help practitioners to more effectively and appropriately use it for the benefit of their clients.

Originally published in the Legal Intelligencer on May 9, 2012 and can be found here.

 

Some [Red] Skin in the Game

I had an entirely different post for today in the hopper as recently as this past Monday, but I got engaged (sucked into?) a Facebook debate (as I am wont to do (un)fortunately) regarding the name of the renowned National Football League team Washington Redskins and the recent controversy – or at least media controversy – over that name.  I have never really thought much of the debate in the past, mainly because I do not really self-identify as a Native American and/or American Indian, but the aforesaid Facebook debate made me take a little more time to consider the issue.

Now, it seems obvious to me, a veritable so-called W.A.S.P., that the term “redskin” could not be translated to other races.  For example, I could never imagine a team called “the blackskins”; so that begs the question as to whether “redskin” has the same pejorative power as, say, calling a team or a person a “blackskin.”  

Now, I am generally of the belief that people should try to be compassionate and kind to others and do their best to “treat others as they wish to be treated.”  I also think this is consistent with Christian teaching.  So, in that spirit, if someone (e.g.: an American Indian) feels that a term is offensive or an epithet against him, then maybe we ought to reconsider using the term even if the user of the term, say the W.A.S.P. writing this blog, does not see what the big deal is.  It is the nice thing – and other-person-centric thing – to do.

When it comes to potentially “racial” team names, I think some close analysis needs to be done.  So, for example, is “Redskins” the same as “the Braves”, which is a term describing Native American warriors?  I don’t think so, otherwise we would consider other team names, like the Vikings, Spartans, or, indeed, the Warriors as also racial.  In the same way, is a nationality also racial?  For example, “the Seminoles”  and “the Blackhawks” are team names which are, of course, Indian nations but are not necessarily representative of the Native Americans as a race; however, this seems to be balanced by, perhaps most famously, the Fighting Irish, a nation of white people but not necessarily representative of the white race.  In fact, in my view, Fighting Irish seems terribly offensive as it highlights an Irish stereotype, but there seems to be no out cry for that team name to change at this time.  What about “the Chiefs”?  This seems to represent an office and not a race, much like a team name like “the Senators.”  What about team names like “the Aztecs”, who where an ancient Native American civilization?  This sort of name seems balanced by a team name like “the Celtics” who where an ancient white (European) civilization.

This leads us to the worst offender, in my view, which would be teams like the Cleveland Indians, with its big goofy Indian mascot and his absurd name “Chief Wahoo”.  The team name seems to directly implicate the entire race of Native Americans.  I could not imagine a similar team name for other races being acceptable.  Could you imagine a team like, say, the Cleveland Asians?  How about Cleveland Africans?  Or Cleveland Caucasians?  What sort of racially offensive mascots would these teams have?  I am sure you can imagine what they could be and how offensive they could be; perhaps similar to that of the existing Chief Wahoo?

Of course, when it comes to something like a team name, the issue involves not just a person but an entire ethnic group, which consists of various individuals who have various feelings toward things like a team name like “Redskins.”  How many offended American Indians are enough of a critical mass to make it appropriate to change the name of the team?  I do not necessarily have the answer to that.

Perhaps that is the difference between “blackskins” and “redskins” and some of the other names listed above  A team name like “the blackskins” would be nearly universally reviled by black people whereas Native Americans, as a whole, seem rather ambivalent on the name “Redskins.  Apparently, the name was to honor Washington’s first NFL football coach who self-identified as having Indian heritage.  Also, as it turns out, many sports teams in areas primarily populated by Indians have the name “Redskins” and they use the name with pride.  Some say the term “redskin” started its life as an epithet against Indians, yet it is reported that something like 90% of Indians do not think the term is offensive and many embrace it.  So, I suppose, there is simply not a critical mass of Indians opposed to the name to make it worthwhile changing it; indeed it could be argued that Indians do not just “not oppose” the name, but embrace it with pride.

Who am I, this W.A.S.P. from Philadelphia, to tell 90% Native Americans that they should be offended by something?  If they are offended, I am sure they will be able to say something and, thus far, only a very small percentage has said something.  Maybe then something will be done; it does not seem anything will be done now.  To bring it back to the point of this blog, the law, it is for this reason I think all of the ovations and clamoring for the government to pass a law regarding the Redskins’ name to be absurd and entirely overreaching.  First, I question the authority and jurisdiction of the government to do that and, second, I simply do not think there is a critical mass of people to warrant such a move.  The fact is, no matter what someone does or says, it is likely that someone will be offended.  That simply cannot reasonably be avoided and is an unfortunate part of life both for the offender and offendee.  Until there is a critical mass of people opposed to the name to warrant a change, I think the only thing we should do is listen to those offended and provide a simple but sincere apology.

For more on this issue check out this fantastic article from EPSN “Have the People Spoken?”  Also, here is an interesting story of one Indian tribe’s advocacy of changing the Redskins’ name: “Oneida Indian Nation Plans Symposium on ‘Redskins’ Name“.  Finally, if you have a sense of humor, but are not easily offended, check out the Onion’s take with their list of Most Offensive Team Names.

Family Law Improvements

Check out Faye Cohen’s blog post “Trust Mislaid” on her blog Toughlawyerlady here.

Halloween Cancelled?

Much has been said about the so-called War on Christmas and, more generally, the expression of religion in the public square.  I think we all have seen the increase in the use of “Happy Holidays” over “Merry Christmas” and the decline (and sometimes cessation) of decorations in public spaces of Manger Scenes (i.e.: decorations showing Jesus’ birth) and other such things.  Regarding religion, if you have been paying attention, I am sure you have seen or heard the news stories of controversies over using a Bible for swearing in, having “In God We Trust” on American money, praying publicly during a public school ceremony, holding church services within a school building, and other such things.

Now, for those who know me or read my writing know that I think much of the above ranges between the silly to being overtly anti-religion.  I understand, appreciate, and, in fact, agree with the First Amendment imperative that Congress (since expanded to the government in general) ought not engage in behavior which respects the establishment of religion.  Indeed, many of the first people who emigrated to this New World did so in order to escape established religion so that they could worship (or, indeed, not worship) freely and in any way they choose without any sort of government involvement.  As a result, religious freedom has become a part of the fabric of American ethos.  Therefore, I agree with things like restricting school led prayer as that smacks of government advancing a certain religious belief over others.

For the record, I am not opposed in principle to having an established religion as long as the citizenry are on board with its establishment.  When it comes to the United States, however, we started life as a nation directly opposed to establishing religion and have since continued unchanged ever since.

Although I understand and agree with the First Amendment, as described above, I also think that the application of the First Amendment has occasionally become absurd and draconian.  I do not think that the First Amendment ban on establishing religion equates to the government being free from religion.  When it comes down to it, religion is a big part of the lives of tens of millions of Americans and our government represents those people just as much as it represents those who are not religious.  Therefore, in my view, a government entity may display a creche during Christmastide, a menorah during Hanukkah, or some other religious symbols for other religions holidays in order to acknowledge, respect, and represent the religious practices of its people; I do not think that doing so somehow equates to establishing religion.  In other words, taking actions which respect, acknowledge, and represent the various religious beliefs of the people seems to be consistent with avoiding the establishment of any particular religion.

It would seem that the modern American religion/legal ethos is to interpret the First Amendment to mean that government must be completely devoid of religion.  I can see the  attraction of this position and the practical nature of it.  I would imagine many Evangelical Christian groups being upset if, say, the government publicly recognized an Islamic holiday.  In my view, if the government is, as I said, simply acknowledging, respecting, and representing its citizens by noting a religious holiday or practice, I think that is perfectly fine, however, the government – perhaps wisely – has essentially elected, generally speaking, to avoid the debate entirely as to what exactly acknowledgement, respect, and/or representation is, as distinct from establishment, and simply tried to excise religion entirely.

Now, obviously, generally a balance is struck between completely excising religion on one side and  acknowledging, respecting, and representing religion on the other.  Even in our sometimes religion-phobic society out there, a government will wish “Merry Christmas” and erect a menorah during Hanukkah.  I happen to believe that the balancing pendulum between the two (2) sides has swung too far toward non-religion and that is expressing itself in the recent matter of Inglewood Elementary School in Montgomery County, Pennsylvania.

Inglewood Elementary School is a school within the North Penn School District.  The principal of the Inglewood Elementary School attempted to restrict Halloween celebrations because some view Halloween as a religious celebration.  The fact that Halloween is a religious celebration hits home to those who identify themselves as Wiccan and/or Pagan.  Many parents – and rightfully so in my view – responded to the principal’s attempts to restrict the Halloween celebrations with reactions ranging between being stupefied to angry to disappointed.  The parents realized that Halloween, though sometimes religious, is also part of our culture and, quite frankly, a 5-year-old-boy who just wants to have fun wearing a Batman costume while eating a Three Musketeers Bar is clearly not cognizantly engaged in any religious practice.

Since the outcry of the parents was so loud, the North Penn School District has since generally backed off its Halloween celebration restrictions.  A wise move in my mind.  In saying that, however, I am sure that when December rolls around, this same school district – which seems to accept the influence of Wiccan/Pagan religious influences in his schools – will hold a ridiculously named “Winter Party” (or something like that) as opposed to a “Christmas Party” because of some irrational fear of religion (and/or Christianity in particular).  I am also sure that this same school district will proscribe various Christmas celebrations to degree far beyond that of its proscriptions of Halloween.  Why is this?  Is the celebration of other religions – or Christianity in particular – so much more threatening to, say, the celebration of Wicca or Paganism?  Or does this reflect a general prejudice against Christianity?

Although I think such avoidance of religion is absurd, I do think that the rules should apply to all religions equally.  Therefore, if Halloween – an admittedly religious holiday – is celebrated, then other religious holidays, such as Christmas, ought to be observed in same way as well and not watered down to merely “Winter Holidays” (or conversely, all religious celebrations ought to be restricted).  Although I do not necessarily ascribe to the more extreme pundits who claim that there is a War on Christmas, I do think that situations like this school district reflect the possible bias against Christian religious holidays that fuels the perception that there is a War on Christmas (or Christians generally).

We, as a society in general, and the government in particular, need to do a far better job at respecting the beliefs of one another and allowing each one of us to equally use the space in the public square to express our religiosity.  Otherwise, the imbalance of the extent of religion is permitted in the public squire will continue to be a cause for controversy and continue to at least give the appearance of, if not the actual, preferring of one religion  (Wicca/Paganism) over another (Christianity).

Hidden Pictures: Constitutional Issues with the Red-Light Program

In 2005, Philadelphia started its participation in the red-light camera program. Per this program, cameras have been set up at high-risk intersections in the city in order to effectively catch motorists running red lights. So far, the cameras have been set up around the city, including the intersections around City Hall and at a few intersections along Roosevelt Blvd. Presently, a debate is ongoing in Harrisburg as to whether to continue and/or extend the red-light program in Philadelphia and into about a dozen other Pennsylvania cities.

There is no doubt that the red-light program has brought millions of dollars to Philadelphia in traffic fines and arguably has made our roadways safer; however, the question as to whether the program is constitutional remains outstanding. I have written about this issue before, in 2009, and, since that time, there has been little discussion regarding the constitutional aspects of the red-light cameras.

The constitutional issues are pretty clear. A traffic violation is a summary criminal offense (see: 18 Pa.C.S.A. Section 106(c); Stumpf v. Nye, 2008 Pa. Super. 122 (2008), Commonwealth v. Henry, 2008 Pa. Super. 20 (2008), and Commonwealth v. Gimbara, 2003 Pa. Super. 394 (2003)). The burden of proof the commonwealth must meet, even for summary criminal offenses, is beyond a reasonable doubt (see Commonwealth v. A.D.B., 752 A.2d 438, Pa.Cmwlth. 2000 andCommonwealth v. Banellis, 452 Pa.Super. 478 (1996)). Logically speaking, then, the burden of proof for the commonwealth for the summary criminal offense of a traffic violation like running a red light is proving it beyond a reasonable doubt.

Despite the clear law described above, pursuant to 75 Pa.C.S.A. Section 3116(b), motorists caught by the red-light program are presumed to be liable and have to prove their own innocence. Clearly, the burden of proof under the red-light program turns the traditional American jurisprudence of “innocent until proven guilty” on its head. The single biggest reason for the constitutional issue is that the photographs taken are only of the rear of the car, as opposed to the face of the driver, capturing only the license plate and make and model of the car. At least if the photographs were of the driver’s face, there would be convincing proof of who the driver was who ran the red light. As it stands now, the ticket for running a red light under the red-light program is assessed to the owner of the car photographed from behind, regardless of who the actual driver was at the time of the violation, despite this not being the case for other traffic violations.

I have been told that the photographs are not taken of a driver’s face to protect his or her privacy, however that has no logical basis, as the license plate and make and model of the car reveals just as much information about the owner of the car as photographs from the front. Additionally, no one sees the photograph except for PennDOT, the owner of the car and perhaps the court and police. Somehow, I simply do not think opposing basic American constitutional jurisprudence is worth the cost of allegedly protecting privacy.

As the debate on the red-light program continues in Harrisburg, I hope that before any decision is made, some consideration is made of the constitutional issues described above and that our rights are protected. Allowing our rights to deteriorate in this limited way without opposition may be a harbinger for further erosion. Now that we have the opportunity to address this issue again, I hope the debate on the red-light program highlights this very important issue.

Originally published in the Legal Intelligencer Blog on April 17, 2012 and can be found here.

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