Should the Disruptive CUNY Students Be Punished?

Last week I wrote about a group of students at CUNY Law who decided to disrupt the First Amendment speech of Prof. Josh Blackman. They didn’t like the way he thinks laws and the constitution should be interpreted, so they figured if they could shout him down this would magically change the way laws and the constitution get interpreted.

It didn’t go well for the students, and they’ve been widely widely ridiculed regarding their conduct. And yeah, the talk was to be about free speech, of all things.

But Prof. Eugene Volokh of UCLA Law — also the founder and longtime editor of group law blog The Volokh Conspiracy — has this interesting thought about whether these students should be punished:

The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations.

But the question of punishment is twofold: For even if you think they should be metaphorically spanked, the question remains as to constitutes suitable punishment. A punishment must, after all, fit the crime.

So here’s my two rupees on the subject. The answer to the first question is an easy yes. An organized effort to silence a speaker is a major no-no, not just for any university students, but especially for law students. They should know better.

And the “punishment” should be compulsory participation in CUNY’s Moot Court program, which exists as a competition among students.

For those non-lawyers reading here, the usual moot court format is for a legal problem to be given and a team of students to write a brief. One student might handle an issue of whether the case is properly in this court (jurisdiction) while another might handle the substantive part (i.e. Is it constitutionally protected speech if a person does xyz?).

The Moot Court room at SUNY Buffalo, my alma mater.

But this is the kicker, and the reason it’s such a valuable teaching tool: The students argue the side that they briefed on day one, but the next day must argue the other side. And they do it before a panel of “judges” that are busy firing questions at them as if in an appellate court. It’s the closest, most realistic, experience to an actual courtroom that a student will have in law school.

The requirement of arguing both sides forces the students to look at problems in a more objective light. It may force students to make arguments that run contrary to their own feelings about how a law should be read. It will force students to look at the warts of their own arguments, as almost all arguments have warts someplace.

Without an ability to understand all sides of an issue, it’s impossible for practicing lawyers to give objective advice to their clients — and that is what we get paid to do. This forces the issue to the forefront.

The moot court competition law school was, for me, the single most valuable experience of my academic experience. It did more to turn me from a student into a lawyer than anything else.

Those students that were disruptive — and it is yelling and screaming that are disruptive, not holding signs no matter how inane they may  be  — clearly have not yet learned enough about the law if they are acting out the way they did. They are not even close to ready for their legal careers and representing people.

While it may be easy to think some other, more traditional, type of punishment should be administered, the question any laws school should ask is, “What will make them better lawyers?”

And ten years later, they will send thank you notes to the administrators that made them do it and the professors that oversaw the program.

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Did CUNY Law Just Commit Suicide?

Prof. Josh Blackman

Was it smart for a CUNY Law student to try to stop Prof. Josh Blackman from speaking by yelling “Fuck the law?” Did this student’s friends and classmates think it wise trying to shut down a speech on, of all things, free speech?

Is this what they learn at CUNY Law? That if you don’t like the arguments or positions of another you scream and yell and have a tantrum?

Does anyone think this is good training for lawyers?

What would a judge think of such lawyers? What would clients think?

Is their training so shoddy that they don’t grasp there are differences of opinion on how a law or the constitution is read? Do they understand that certain things are inherently subject to interpretation, such as “unreasonable” search and seizure or “cruel and unusual” punishments?

Is there education so deficient that they don’t understand the long-term debate between those that think (loosely) that the Constitution is a living breathing document to be interpreted with the times and those that think it shouldn’t?

Do they understand that reasonable people can disagree on interpretations without name-calling? Do they not know that liberal icon Notorious R.B.G. was great friends with liberal boogeyman Antonin Scalia? Do they not know that sometimes liberals actually fall in love with conservatives and marry?

Why are they afraid of words?  Shouldn’t people secure in their ideas welcome the opportunity to openly debate? Are they afraid that in the marketplace of ideas they are unable to sell what they have? Do they understand that when they yell and scream others assume that they can’t win a debate?

How can someone get to law school not knowing that if you disagree with what a laws says, that the law can be changed? Have any of then ever tried?

Do they think that trying to shout down Josh Blackman will somehow change the law?

Are they so foolish that they don’t understand that the First Amendment is not a liberal thing, or a conservative thing, but an American thing?

Are they so clueless they don’t grasp that if one of them was stupidly arrested for holding a stupid sign calling Josh Blackman stupid names, that it would be the same Josh Blackman defending their right to display their stupidity to the world?

Have they never heard the saying, “I disapprove of what you say, but will defend to the death your right to say it?”

Are they so daft that they fail to understand the magnitude of difference between interpreting what an existing law is, and advocating for what one hopes it should be?

More to the point, perhaps, but if these students are unable to tell the difference between interpreting the law and advocating for changes in the law, why are they in law school? What firm would ever hire them if they can’t grasp such a concept? Why would any firm trust a client to them? What client could possibly want them?

How could such lawyers, hell-bent on trying to shout down the opposition, ever argue a point of law in court? Indeed, how could they even handle a residential closing? A contract? A transaction of any kind?

And this is a public interest law school? What public interest group would want lawyers so terrified of their opponents that they feel the need to shout them down?

Have you ever met a client, lawyer or judge who felt such behavior was persuasive to make a point? Have any friends or family ever thought that shouting someone down was persuasive argument?

Which is more likely to occur, that these people will be disappointed as lawyers, or that they will be disappointing to clients?

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NY’s Top Court Upends Law on Summary Judgment

It’s long been the law in ¾ of New York that, in order to win summary judgment in a personal injury case, plaintiffs also had to show that they weren’t themselves also negligent.

That three-fourths fraction exists because, as I noted back in 2010, there was a split in the four New York appellate departments regarding this issue.

That split case law is now history, courtesy of (naturally) a 4-3 decision today in New York’s Court of Appeals in Rodriguez v. City of New York.

The Court outlined the issue succinctly:

Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

Let’s take a garden variety matter of an individual crossing in the crosswalk, with the light in her favor. She gets hit by a car making a turn, whose driver failed to yield the right of way to the pedestrian.

Assuming that there is no question that she had the light, and was in the crosswalk, and was injured as a result of the collision, most people would have thought she could remove this issue from a trial and have the court determine the issue of the driver’s negligence as a matter of law.

But that wasn’t the case in New York, unless the pedestrian also proved that she was paying attention and didn’t do anything wrong. Some of our courts would deny the motion based on the issue of potential comparative fault, giving the driver a windfall by making his own negligent conduct a jury issue even though it was clear he broke the law and contributed to the injuries.

The Court used the example of a statutory violation being the basis of a motion for summary judgment being denied because, potentially, the plaintiff might also have some culpability:

For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries.

This was the windfall the Court wrote of: Why should the jury get the question of defendant’s negligence if it could be determined as a matter of law?

This is what we now refer to as “old law.” It’s in the dumpster.

The point of the underlying statutes, the court reasoned, was that the issue of comparative negligence was solely to deal with diminishing any potential recovery. It has no bearing on establishing whether a defendant is negligent.

Thus, a typical verdict sheet might have the five questions below, and if any of them can be resolved as a matter of law then that is the proper procedure for a trial court on hearing a motion for summary judgment:

1. Was the defendant negligent?

2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?

3. Was plaintiff negligent?

4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?

5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?

What was the rationale for overturning the prior decision of the court, in Thoma v Ronai? The majority reasoned (and the dissent disputed) that the parties in Thoma didn’t raise the relevant parts of our civil practice law and rules so that they could be analyzed. So be it.

The net result of this decision will, I think, be two-fold:

1. Plaintiffs that previously had had summary judgment denied will now move to reargue based on the new interpretation of the law, if possible; and
2. More issues will be resolved prior to trial, leading to more settlements. Because it is uncertainty about how a jury will resolve an issue that most often hinders settlements.

When I wrote about this split in the appellate departments back in 2010, I said:

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

It feels good being able to revisit that issue and see it come out this way.

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In Defense of the Unicorn: Baseball, Peace and a Better Day

An old baseball of mine that I had stitched back together as a kid to keep the leather on. You didn’t buy them by the dozen back then. Every baseball was precious.

It’s in the air. I can smell it. And so can Jay Breakstone, appellate lawyer and wordsmith extraordinaire who, in 2014, penned Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!) for this space.

No stranger to conflict (of which he writes today), Breakstone grew up in East Flatbush, the product of a tumultuous mixed marriage: His mom was a Brooklyn-born die hard Dodger fan and his Dad a Bronx-born Yankee fan.

He survived that experience to emerge as a die hard Mets fan.

Perhaps, if the union of Dodger and Yankee fans can mint something like Jay, there is hope yet for the country:

—————————–By Jay Breakstone———-

America has become such an uncomfortable place to live nowadays. When I say “uncomfortable,” I thoroughly understand that such terms are relative. But being an American has meant that we worry about a lot less than those in other countries and I understand that.

Yet, to wake up every morning to the headache of political soap opera is taking its toll on me. I am more irascible than usual; quicker to yell at the morning news and yell at my family from dawn until dusk. This is not good, for there is a thin line between being a lovable curmudgeon and a raging lunatic. What to do?

And there it is. Shining through the gloom like a landing beacon on a dark runway; like Lady Liberty in the harbor; like Mom’s chicken soup, a Nathan’s hot dog or pastrami on rye from Katz’s Delicatessen. Goodness knows, its done it before; brought hope where there was none and salvation to the depths of hell. Opening Day.

Yes, Virginia, there is a new tomorrow, and sacrilegious as it may be, God lives only 60 feet, 6 inches from home plate. In fact, whether you believe in God or not, you can still believe in baseball.

You can be a Democrat and believe in baseball. You can be a Republican and believe in baseball. You can be a Democrat or a Republican, sit side by side in the same temple, and believe in baseball together. You can speak English, Spanish, Greek, Serbo-Croat, even Pig Latin, and believe in baseball.

You can belong to the N.R.A., the A.C.L.U., the National White People’s Party, the N.A.A.C.P. or the Mickey Mouse Club and believe in baseball. Because, as it says in an oft-forgotten footnote in Genesis: “And G-d saw baseball, and it was good.”

Have you ever noticed those old pictures of men in suits and hats, sitting in ball parks during the business day? Why weren’t they at work? One of them, a young attorney in New York City, nearly lost his job because he kept sneaking out to Giants games at the Polo Grounds.

Nonetheless, the kid made good, but never forgot the magic of baseball. So, when he worked his way up to being President of the United States and the country he led was in the depths of soul-shattering gloom following Pearl Harbor, Franklin Roosevelt knew one thing that would cut through the fog: baseball. He declared that the Axis could do many bad things, but it could never stop baseball, which continued throughout the war.

Time and time again, baseball has been that never changing point in an ever-changing American universe. To those of us who were at Shea Stadium on September 22, 2001, it was much the same thing. Roosevelt’s words to Judge Kenesaw Mountain Landis, baseball’s Commissioner in 1942, still rang true: “I honestly feel that it would be best for the country to keep baseball going[.]”

I suggest that we need baseball now more than ever (as if there was ever a time we didn’t.) I think everyone should stay home from work on Opening Day and head to the ballpark instead.

If need be, dig up that old note from your mother, the one that says “Arthur could not be in school today. He has Dengue Fever.” If you can’t find it, I’m sure you can still forge her signature the way you did on the original. Eat a hot dog. Have a beer. Most important, let it go.

Nothing is so bad if it’s Opening Day, where all the past is prologue. Sure, it could turn out lousy, like the 1942 Brooklyn Dodgers, who had a phenomenal season, were in first place until September, only to lose the pennant to St. Louis. But on Opening Day, the Boys from Brooklyn took the opener, 7-5.

Opening Day is all about tomorrow. It always has been.

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Gunfire in the Classroom is No Accident

The story popped up yesterday that a teacher in California “accidentally” fired his gun in a classroom. He was teaching a class in gun safety at the time.

Headline after headline read that way: Accident. Accident. Accident.

No. No. A thousand times no. ‘Twas no accident. It was negligence. There’s a difference, for this was preventable with the exercise of reasonable care.

I covered this ground in 2013 when the NYPD changed its Accident Investigation Squad to the Collision Investigation Squad. According to then Police Commissioner Raymond Kelly, “In the past, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.”

An accident it when a dear bolts into the path of a car. A collision occurs when a second car is following too closely and slams into the first. One may not be avoidable, no matter how much due care you use. The other, very much avoidable.

Accidents do not simply “happen.”

And so it is with guns. Accidents don’t really happen.

As Jim Wright points out at Stonekettle, “there are no accidents with guns.”

For example, if a child picks up a gun to play cops and robbers with a sibling and shoots it, it is not an accident. It was negligence by the gun’s owner for leaving a loaded pistol in an unsecured place.

Part of the problem here is that the use of the word “accident” has been ambiguous. Similar to bimonthly meaning either twice a month or every other month. Or the word “sanction” meaning something has been approved (a sanctioned event) or is a punishment.

Accident has been unfortunately used in both matters where there is fault and matters where there is not. But there is a massive difference in meaning, particularly with news events such as this, where a shot is fired in a classroom.

Media headline writers should recognize this problem. They are, after all, in the word smithing business.

It’s lazy to use the word accident when it doesn’t actually convey the true meaning of what happened. It makes negligent conduct appear as if there was nothing that could be done to stop it.

And that is the media being negligent, for with the use of due care, the persistence of such ambiguous conduct can easily be crippled.

 

 

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Dumbledore’s Army Comes Alive In Gun Debate

Cameron Kasky, a 17-year-old student at Marjory Stoneman Douglas High School in Parkland, Florida, confronting Sen. Marco Rubio live on CNN for his support for the NRA.

(We interrupt our regular programming to bring you this off-topic, special message that might affect your life.)

Like many people, I’ve watched in awe as an army of teenagers has taken on the National Rifle Association and the extraordinary proliferation of guns across America. As organic as any movement ever created, it spontaneously erupted from the survivors at Marjory Stoneman Douglas High School in Parkland, FL, who were cowering in classrooms and closets as their classmates and teachers were gunned down.

It started with three busloads of kids, some coming straight from funerals, going to Tallahassee to vent their anger at those who are supposed to  represent them.

That awe comes from watching kids use their old playrooms to meet and organize on one of the great political debates of the day. That’s a helluva thing, no matter what your political persuasion. After all, at every graduation I’ve ever attended — and probably every one that you attended too — the mantra has always been that the graduating group are our future leaders. And there they are leading, whether they were prepared for it or not.

To put this into kid-perspective, consider that the Columbine massacre happened in 1999. And many more have taken place since then. That means that today’s high school seniors, born in 2000, have always lived with instructions regarding potential attacks, lock-downs and places to hide.

The objectives list, on our basement chalkboard that my kids have used throughout their lives.

But kids brought up to hide are not hiding now. They’re out there now in force, not only in Florida, but around the country. One of my own teenagers, just days after starting a Facebook group to organize and see how students here in Westchester County can assist, had 500 members in just days.  And that’s for a strictly local group in a place that already has decent gun safety laws. Kids are interested in doing what they can. Big time.

My oldest — soon bound for college — met with some friends in the basement playroom this weekend. An initial objectives list they put together on their old chalkboard is shown here.

In the Harry Potter series, the Hogwarts kids form  Dumbledore’s Army to combat the dark arts. Today’s kids were raised on these books, which  inspired so many to become active readers. That fantasy world of a kid army at Hogwarts, in one sense, seems to be springing to life around us as they mobilize.

Battle, of course, can take many forms. None are so stupid as to believe that a magic wand will suddenly make them safe.

Raised in the era of social media, they know that their weapons of choice will have nothing to do with physical (or magical) arms, but the art of mass movements, protest and persuasion. And voting as they all come of age.

The #BoycottNRA movement has already caused the NRA to lose valuable relationships with car companies, airlines, hotels, banks and insurance companies. One would expect that less money means less financial support for politicians that have been doing its bidding in exchange for contributions.

Decreasing the power of the NRA is already underway. And that is before any nationwide boycotts or walkouts have occurred to help bring yet more attention to the issue. In other words, it is likely that the Florida kids are already making a substantial political difference.

Some have now started pushing their older brothers and sisters to avoid Florida for spring break, to pressure pressure their legislators to act.

As they organize, they will, of course, make mistakes, though none will be as grave as those that allow guns to be purchased willy-nilly, with less regulation than a driver’s license.

Like others who’ve preceded them in the gun debate over the decades, some will allow themselves to get sucked into semantic discussions about what constitutes an assault weapon, and lose sight of the fact that 30,000+ people are killed each year in the U.S. by firearms. It’s the easy access to guns in some states that has had an extraordinary impact on suicides, drunken rages, homicides (of the “regular” kind) and accidents.

Others will get sucked into debates over protecting schools, as if malls, movie theaters, restaurants, and the entrances to sports/music venues (among other places that people gather) couldn’t also be targets for madmen and terrorists alike.

And still others will get sucked into Second Amendment debates. They should not. For it isn’t a question of “supporting” the Second Amendment, but of its (mis)interpretation. Even under the deeply strained logic of D.C. v. Heller that reversed prior law to say that the Second was an individual right instead of a collective one belonging to a well-regulated militia, it didn’t say that all gun safety laws were unconstitutional. It said that an absolute ban was.

Given that many states that have good gun safety laws have withstood legal challenges — and those laws correlate to lower rates of gun deaths that those with lax safety laws — one should not stop arguing for gun safety.

Most folks don’t know that New York has one of the lowest rates of gun deaths in the nation, not just because of our gun safety laws, but because our surrounding states also have them making it less likely that they will be trafficked into New York. The graph you see here is extraordinary, with that grouping states in the lower left corner of NY, CT, MA, NJ and RI.

If the kids were asking me — and none of them have, though it hasn’t stopped me from offering up my two bits — I’d urge them to do everything possible to maintain the focus on tightly restricting access to guns of all kinds. It’s the big picture of 30,000+ annual gun deaths that counts, and they shouldn’t let anyone try to play small ball with them.

As the kids step forth into politics, they might well be asking how it is that, when an overwhelming majority of America wants gun safety, it hasn’t yet happened. They may find themselves looking for the first time at how the influence of gerrymandering and pubic financing for elections has resulted in radicals being elected to office. The subjects are related.

Hopefully, they will also figure out fast not to overstate their case, giving opponents material to latch on to in order to distract the conversation.

The gun debate is hardly new, and was the subject of an early ’70s All in the Family episode when I was growing up. It’s been fought over long before this generation was born. The question is, will our Twenty-First Century Kids succeed where my generation has failed?

Don’t let anyone tell you “it’s too soon” after a tragedy. It has been going on for decades. It will not magically end on its own.

Go kids, go. Your parents are cheering you on to accomplish something that prior generations have been unable to do.

Go forth into the battle for gun safety laws. All of our lives depend on it.

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The Lacrosse Ball and the Lawsuit

Addy Tauro head shot, Syracuse University

I’ve got this thing about sports, injuries and lawsuits. And that’s because of two things that seem to be in conflict: First, I bring lawsuits regarding injuries for a living. But second, I am also the race director for a 13-mile trail race.

And you know what? Folks get injured while trying to run fast over rocks, roots and other hazards that include other runners. The risk of wiping out comes with the territory.

So over the past years I’ve written about injuries (and lawsuits) from snowboarding, softball practice, horseback riding, auto racing, and water slides.

With that intro now over, we turn to lacrosse and a decision from last week.

The lacrosse drill at Syracuse University was conceptually simple for the women’s varsity team: Athletes ran down the sidelines while a line of coaches roll balls to them from about 20-25 feet away. The athletes scoop them up and toss them back to the coaches. Then repeat with the next coach.

According to the suit that was ultimately filed, the ground ball part of the drill had never been performed any other way. Except that one coach decided on this one day in the middle of the rolling drill to wing the ball overhand to Addy Tauro as if it were a pass.

Now if Tauro survived said winging of said lacrosse ball without injury, would I be writing about this today?

When one of the coaches whipped it at her head, it was wholly unexpected and she “never even saw it coming,” as she stated in her affidavit.

She suffered a concussion.

She claimed in her suit that throwing a hard rubber lacrosse ball at someone’s head, when she’s not expecting it, is grossly negligent and reckless.

So. Does this case get dismissed under New York’s assumption of risk doctrine because, when engaging in recreational activities, she consented to the commonly appreciated risks of the sport that flow from such participation?

I’ll wait while you ponder. Time’s up.

Rather than answer the lawsuit and go through discovery, Syracuse moved immediately for summary judgment based on the assumption of risk doctrine, and also based on a written waiver that Tauro had signed. They countered her version of events.

And the answer is: Summary judgment for Syracuse was denied on both counts and the case goes forward.

The Appellate Division (Fourth Department) first dispensed with the waiver issue, since such waivers are against public policy for people who act with gross negligence or recklessness. (see Gross v. Sweet and GOL 5-326)

And on the assumption of risk doctrine, the court stated that if the claims by the plaintiff were true (and at this early stage a court must make that assumption) that she did not assume these kinds of risks. This risk was not part of the game, as this was a practice. Nor was it an anticipated risk of a pick-up drill that a ball would be thrown at her head.

The court held that a player will not assume the risks of reckless or intentional conduct, or dangerous conditions that the coach created over and above the usual dangers that are inherent in the activity.

Assumption of risk goes to the anticipated and appreciated risks. Which is why, if one is writing a waiver, it might be wise to educate the participant as to all of the anticipated risks. Thus, while a waiver might not excuse negligence based on public policy grounds, it might be quite useful for assumption of risk grounds.  “Look!,” a defendant could now safely claim, “she knew about this risk!”

You know those sports waivers written in ALL CAPS that appear designed to dissuade the participant from actually reading them? They are for shit, in my opinion, and really don’t serve the purpose of educating to real risks. Because they are not being read. Nobody reads them except for the lawyers that wrote them. And then they hope that the legal mumbo jumbo somehow imparts knowledge of the risks?

The one I wrote for my trail race gets read. And I know that because people will routinely come up to me and tell me so. It was crowd-sourced  years ago, with the idea of doing everything possible to make it readable, and therefore useful for actually educating people on the risks of participating. If anyone decides to create a Waiver Hall of Fame, I’m going to submit it.

The case is Tauro v. Gait and Syracuse University

 

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