Professor Spooner's Blog

In the last few days I have had several students question the relevance of LA245. This is good. I welcome the skepticism, and see exactly where it comes from. For many, the law seems far afield from their future careers as accountants, entrepreneurs, or bankers. The beginning of the semester does little to clarify; we must lay the groundwork necessary to understand all legal issues, not just those important to business. As we progress, the relevance of the course should become more obvious. Every accountant or banker must know something about securities regulation. Every business owner must choose how to organize legally. Every manager must know her rights and obligations with regard to employees. Every company that wants to sell something across borders must understand international sales contracts. Here is an interesting take on the relevance of lawyers to innovation, for those entrepreneurs out there.

The goals of LA245 are the following:

- provide future businesspeople with the ability to spot legal issues

- provide future businesspeople with the vocabulary to discuss these issues with their lawyers

- provide global citizens with knowledge of legal issues that impact most people's lives

Most notable is what is NOT our goal: to create future lawyers. We often do end up inspiring students to pursue a career in law, which is rewarding. But we assume that the vast majority of our students will not go to law school, so we do not intend to be a pre-law curriculum.

Remember that your education is a two-way street. If you want to connect your classrooms to your lives or future careers, ask questions. Seek out more information on topics that you think are most relevant to you. Ultimately that will make you smarter, and you will enjoy the journey of your education much more.

I may have sunk to a new low here, because I am about to link you to an article on TMZ. Not exactly a scholarly publication, but TMZ does give us a helpful update on the lawsuit brought by James Franco's NYU professor against the actor. You will recall that James Franco said mean things about the professor after the professor gave him a bad grade.

The professor sued for the tort of defamation, but Franco never responded to the lawsuit in court. Thus, the professor has made a motion for default judgment. We learned in Chapter 3 that a plaintiff can ask for default judgment, meaning a judgment by the court that the plaintiff wins, if the defendant fails to respond to the complaint on time. Franco has decided to wake up, and actually defend himself in court. He is arguing he wasn't properly served with the complaint, and that his statement was protected by the 1st Amendment because it was his opinion. As we know, if Franco's statement was opinion, Franco is correct.

Of course, the best part of the entire update is the photo of Franco sleeping in class. I would have failed him too.

This is Zeus.
According to the Supreme Court, we can all trust Zeus to protect our Fourth Amendment rights. Doesn't he look smart and trustworthy?

Well, at least he is cute. This is Aldo. He was a police dog in Florida. Clayton Harris, a man addicted to methamphetamine, was pulled over for an expired license plate. Harris was nervous and acting funny, but that wasn't enough to give the police the right to search the vehicle. The police officer asked to search, but Harris said no. So the police had Aldo sniff around the car. Aldo signaled that he smelled something funny by the door. The police used that as grounds to search the car, where the police found evidence of materials used to make methamphetamine. Harris was read his rights, and then started blabbing about being addicted to meth. During his trial, his lawyer tried to suppress the evidence, but the court refused. Harris later appealed.

Harris actually won in the Florida Supreme Court, which ruled that not just any dog will do to create probable cause to search, but only a special dog that meets the checklist of qualifications the Court created. The Court wanted the police to show a record of accurate signals versus false alarms, and give proof of training. Sorry, Zeus.

Yesterday the U.S. Supreme Court reversed, ruling that a dog's sniff can be grounds for probable cause if a "reasonably prudent person" would believe that the dog's actions would turn up evidence of illegal activity. As Justice Kagan put it, “[a] sniff is up to snuff when it meets that test.”

The law at issue here is the Fourth Amendment to the Constitution. The Fourth Amendment protects us against unreasonable searches and seizures by the government, which are defined as those without a warrant. There are some exceptions to the warrant requirement, and a car is particularly vulnerable to those exceptions. But it still remains that in order to do a search, the police must have "probable cause."  Now, however, even Zeus can provide probable cause. Here's one more picture of Zeus, just so you know who will be determining your rights.

** No animals were harmed in the writing of this blog. Unless you count being dressed up by a six year old as harm.**

Cheap beer. It is the lifeblood of the American college student. Without it, you would all whither away. Or be more prepared for class.

Well, the Department of Justice has your back. The Antitrust Division has sued the maker of Budweiser to block its acquisition of the Mexican company that sells Corona. The DoJ argues that if the merger were to occur, the company would control too much of the American market, thus giving it the ability to drive up prices. The merger would mean the end of cheap beer.

If combined, the company would control 46% of the beer market in the United States. Although they argue there are plenty of other beer brands on the shelf, the reality is that most are owned by just a few companies.

The lawsuit is one of many recent aggressive moves by regulators here and in Europe to enforce antitrust laws. The Department of Justice  blocked AT&T's purchase of T-Mobile in 2011. In Europe, UPS abandoned its plan to buy another delivery company after regulators there expressed concerns.

Should Anheuser-Busch and Modelo be able to combine if they want to? Is this too much government regulation? Or is the government just protecting our right to drink cheap beer?

We have talked about the role of juries in a civil litigation, but haven't yet given much thought to criminal procedure, and what juries do. Although the systems are parallel in many ways, the stakes are always higher in a criminal case, which gives every procedure more import. Perhaps the title of this post should have been "The Lack of ..." because in reality, jurors see such a small percentage of criminal cases that they don't play much of a role at all. Instead, the process is controlled by a prosecutor for the most part.

Until you or a loved one is involved in the criminal justice system, you probably don't give much thought to the discretion of prosecutors. But with the recent suicide of internet activist Aaron Swartz, people have been paying more attention. Swartz was accused of hacking into MIT's computer network and using his laptop to download thousands of academic articles. The prosecutor charged him with several crimes, and had just offered him a deal that would require him to plead guilty in exchange for a six month sentence. Then next day Swartz committed suicide.

As this article points out, Swartz may have had many other issues that led to his suicide. But the story has brought attention to the dirty little "secret" of the justice system: the prosecutor has almost limitless discretion in deciding who to charge with a crime, and what crimes to charge him with. I call this discretion a "secret" because no one really pays attention, although it isn't hidden.

There are lots of good reasons to give the prosecutor discretion, not the least of which is that he or she is representing all of us, the "people," in the courtroom. So we want the prosecutor to have the power to do the job. And to get the "bad guys." But every once in a while a case comes a long where we may disagree with the prosecutor, and it causes us to revisit how our system works. The article linked above is a really thoughtful look at what some academics are saying about how we could change the system to avoid abuse of discretion. Most of the suggestions relate to the role of juries, more specifically, giving every day people a greater say in other parts of the process.

An interesting example is the plea bargain. We will learn that plea bargains are negotiated between the defendant (really his lawyer) and the prosecutor, with almost no checks. The judge does have to approve the plea, but judges have a conflict of interest that might create a bias: they need to move cases, so they want plea bargains to be reached. So some researchers have suggested that jurors should have the right to weigh in on plea bargains. Interesting, but complicated idea.

What do you think about the role of prosecutors? Should jurors do more? Do any of the suggestions in the article make sense?