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By Dave Hoffman

Introducing Guest Blogger Brishen Rogers

I’m delighted to welcome Brishen Rogers (Temple) as a guest blogger for the next month.  Brishen teaches torts, employment discrimination, and a seminar on current issues in labor law. Prior to joining the Temple faculty, Professor Rogers was a Climenko Fellow and Lecturer on Law at Harvard Law School.

Professor Rogers’ scholarship draws on the social sciences and liberal political theory to better understand the role of law in constituting and regulating paid work relationships, with a particular focus on issues of concern to low-wage workers.  One current project explores the role of law and social norms in shaping workers’ preferences towards unionization; another explores the proper role for minimum workplace entitlements in an egalitarian liberal state.  His work has been published in the Harvard Law Review Forum, and the Berkeley Journal of Employment and Labor Law, among others.

Professor Rogers received his J.D., cum laude, from Harvard Law School and his B.A., with high distinction from the University of Virginia.  Prior to law school, he worked as a community organizer promoting living wage policies and affordable housing, and spent several years organizing workers as part of SEIU’s “Justice for Janitors” campaign.  Welcome Brishen!

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Judge, Jury, and Arbitrator: The NBA Constitution

The NBA has finally made its constitution available online. Notwithstanding the grand title, the document styles itself as a mere contract: “This Constitution and By-Laws constitutes a contract among the Members of the Association . . . The Association and each of its Members shall be subject to the oversight and control of the Board of Governors of the Association as set forth herein and shall be governed by the Constitution and By-Laws, rules, regulations, resolutions, and agreements of the Association, as they may be modified or amended from time to time.”

The justification for Commissioner Silver’s actions turns on this document. Article 24 vests in the Commissioner the power to suspend members, though Don Sterling is permitted an evidentiary contest (which didn’t make the news today):

“Following an opportunity for the affected party to submit evidence and be heard, all actions duly taken by the Commissioner pursuant to this Article 24 or pursuant to any other 39 Article or Section of the Constitution and By-Laws, which are not specifically referable to the Board of Governors, shall be final, binding and conclusive, as an award in arbitration, and enforceable in a court of competent jurisdiction in accordance with the laws of the State of New York. In connection with all actions, hearings, or investigations taken or conducted by the Commissioner pursuant to this Article 24, (i) strict rules of evidence shall not apply, and all relevant and material evidence submitted may be received and considered, and (ii) the Commissioner shall have the right to require testimony and the production of documents and other evidence from any Member, Owner, or Referee, any employee of any Member or Owner, and/or any employee of the Association, and any person or Entity not complying with the requirements of the Commissioner shall be subject to such penalty as the Commissioner may assess.”

Article 13(a) then permits the Commissioner to force a sale:

“The Membership of a Member or the interest of any Owner may be terminated by a vote of three fourths (3/4) of the Board of Governors if the Member or Owner shall do or suffer any of the following: (a) Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association. [If 13(a) is triggered, the league will conduct an evidentiary hearing, at which] the Member or Owner so charged  shall have the right to be represented by counsel. Strict rules of evidence shall not apply, and all relevant and material evidence submitted prior to and at the hearing may be received and considered . . . The affirmative vote of three-fourths (3/4) of all the Governors shall be required to sustain the charges.”

Importantly, “The decisions of the Association made in accordance with the foregoing procedure shall be final, binding, and conclusive, and each Member and Owner waives any and all recourse to any court of law to review any such decision.”

Professor Michael McCann has argued that this last “waiver of recourse”...

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Misunderstanding General Mills

On April 15, General Mills added language to its website which purported, “in exchange for benefits, discounts,” to subject consumers’ claims for use of General Mills products to arbitration and a class-waiver. General Mills, notably, was free to sue in court at will. When the Times noted the change, General Mills reversed course, stating:

[W]e never imagined this reaction. Similar terms are common in all sorts of consumer contracts, and arbitration clauses don’t cause anyone to waive a valid legal claim. They only specify a cost-effective means of resolving such matters. At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood.

 Like Jeremy Telman, I found the emphasized sentence to be mysterious. There are only two ways to square the historic facts with “mischaracterization — or just very misunderstood” claim:

(1) General Mills thinks that “suing us” and “brining a claim in our bespoke arbitral forum” are the same thing; or

(2) General Mills believes that liking “one of our Facebook pages” isn’t the same as “joining our sites as a member [or] joining our online community.”

The first claim is sophistry, the second is frivolous. Roderick Palmore, GC of General Mills, Chicago Law grad, and head of compliance, had a bad week.

But what’s triply irritating about this whole saga is the lack of precision in the Times and elsewhere as to what, exactly, is wrong with the terms. General Mills is right to point out that many consumer contracts contain arbitral class action waivers, though many do not.  Contrary to the other speculation, there’s nothing per se illegal about provisions which shift costs in litigation. General Mills’ arbitration proceeding is actually quite generous about cost shifting, waiving a filing fee for disputes under $5000, and paying for the arbitrators themselves. Though proceduralists generally recoil from arbitration trumping procedure, what’s obviously at stake here isn’t individuals losing “their” right to sue, it’s class action lawyers losing their right to act as private attorneys general in quasi-regulatory cases. The ultimate question here – are class actions in federal court required for consumer protection – is harder than the commentariat has acknowledged.

But there is a legal problem with these particular Terms.  I don’t think they create a contract which binds consumers. Here’s the now-deleted triggering paragraph:

In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.

The problem is that most people who participate in such activities are probably not actively required to click to agree to these terms, and consequently aren’t bound to...

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George R. R. Martin on Copyright, Inheritance, and Creative Control

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.

HOFFMAN: Why?

MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

MARTIN: Now, I started writing for fanzines when I was back in high school and junior high. Back in Bayonne, NJ I was a comic fan and comic fandom was just starting back then in the 60s with little amateur [inaudible] magazines that sold for a quarter. And there were a lot of articles in there about the comic books we were reading so you could do non-fiction of that type or you could draw up characters if you were a talented artist. But there was also fiction and the fiction was of two types: one was the writers who wanted to write about characters in the actual comic books – they wanted to write a Superman story or they wanted to write a Spiderman story. That didn’t get very far and the company shut them down pretty quickly because they weren’t going to let their copyrights be infringed and start publishing amateur Spiderman stories. People very quickly switched to writing about their own characters. Now, some of the characters might have certain resemblances to Superman or Spiderman but you called them by a different name, you know they’re not Peter Parker, they’re Sam Smith, or something like that, you got a different character and you develop your character and you develop your world. That’s the kind of stuff I started with. I started with a character named Manta Ray since I couldn’t write about other people’s characters  and I really wouldn’t want to anyway. I wanted to do my own characters – make a character who ws great in his own right, who could stand up equal to those – and my own world. Those are the most important parts of writing. If you’re borrowing other people’s characters and borrowing other people’s...

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Lawyers in Westeros

This is Part 2 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For the audio file, click here.

 HOFFMAN: Are there lawyers in your books that are just in the wings off stage that haven’t yet appeared?

MARTIN: That’s an interesting question. I hadn’t really considered that until I started reading those links that you sent me. There are certainly laws but are there special classes of advocates who make their living by interpreting those laws? My inclination is probably not because the laws my books are administered by lords. In some ways it’s government as much for men than law. We like to say our government in the United States is a government of laws not men. In some ways the Seven Kingdoms I think is the reverse. There is basis of a law but also a lot depends on who is interpreting it and who is sitting in the Lord’s seat, who is sitting on the Iron Throne and how they settle these disputes.

HOFFMAN: Well those are ultimate questions but I think in two places one could have imagine lawyers and one of them again will be this church trial because there were church lawyers in the ecclesiastical church system there were lawyers who specialized in canon law. And the second one was at least twice I can think of in the books there’re trials by combat. And I don’t really know what the other alternative would be but I assume would be trial by jury – the path that Tyrion did not choose both times. And I was thinking –

MARTIN: Well he does choose in the first…in the second…second of his two trials, he is being tried – it’s not by jury – it’s by lord. There’s no jury of his peers, no twelve people that are randomly picked but there are three lords sitting on his case and hearing the evidence.

HOFFMAN: Right.

MARTIN: And, you know, the –

HOFFMAN: Tyrell I think is one of them, I don’t remember the other two.

MARTIN: Oberyn Martell, who is the Red Viper is one of them, in order to balance it because they want a semblance of impartiality. It’s a hopeless thing because his father is the presiding judge and the right hand of the king and his sister, who is also the daughter of the same father, is the chief complainant who is accusing him of doing these things. But that does have semblance of a trial where witnesses are being called forth, people are swearing oaths, people are testifying against him and saying what they saw and what they did not saw. Though Tyrion realizes that it’s hopeless, he’s losing that so he exercises an option as a lord to request a trial by combat instead.

HOFFMAN: Which was a bad choice –

MARTIN: When Oberyn stands for him he thinks he has a better chance there. And he has gotten off...

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