May 15, 2017

Lessons in Diversity Jurisdiction from the First Circuit

The importance of subject-matter jurisdiction is axiomatic in federal courts. Parties must either get to federal court via a federal question or on the basis of diversity of citizenship. Given the centrality of subject-matter jurisdiction, Federal Rule of Civil Procedure 12(h)(3) mandates that cases that lack subject-matter jurisdiction must be dismissed. Even when issues of subject-matter jurisdiction are thought to be settled, new concerns can be raised at any time and force the court to reverse itself. Such was the case in an April 27, 2017 case from the First Circuit. Rule 12(h)(3) enables litigants to raise challenges to the court’s subject-matter jurisdiction at any time. As the First Circuit recently found in Hearts with Haiti, Inc. v. Kendrick, “any time” can even mean after the trial and during the pendency of an appeal. The case’s subject-matter jurisdiction was predicated on the diversity of citizenship, as it raised state tort law issues, rather than a federal question. In the underlying action, the founder of an orphanage in Haiti brought suit against Paul Kendrick for defamation claiming that Kendrick had falsely accused him of sexually abusing the boys in the orphanage. Kendrick further accused Hearts with Haiti—a non-profit charity raising funds [read more]
April 28, 2017

Microsoft v. Baker

Without the class action, many consumers would have no practical remedy for damages suffered no matter how good a claim they may have. For instance, when a consumer believes he is sold a faulty Xbox 360 that damages his $30 videogame disc, it makes no sense for him to pay the $400 filing fee to go to federal court—let alone hire a lawyer. As a result, without the class action, many consumers would not bother going to court, and giant companies that mass-produce products would be left with potentially millions in undeserved profits. Once a class action lawsuit is filed, the Federal Rules of Civil Procedure require the court to grant or deny class certification of the potential class. Last month, the Supreme Court heard oral arguments for Microsoft v. Baker. In January 2016, the Court granted certiorari to review the Ninth Circuit’s decision. The issue in the case is “Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims…” Baker v. Microsoft, 797 F.3d 607 (9 th  Cir. 2015). The district court denied the plaintiffs’ motion for class [read more]
April 9, 2017

Dairy Farmers & a Missing Comma: O’Connor v. Oakhurst Dairy

A missing comma caused much consternation over the meaning of a state’s employment laws at the First Circuit recently. In a March 13, 2017 decision, the appellate court worked overtime to analyze Maine’s Wage and Hour Law and a specific statutory exemption that would apply to drivers of enumerated food products. Specifically, this exemption noted that Maine’s overtime protection would not apply to workers involved in “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” 26 M.R.S.A. § 664(3)(F) (emphasis added). The emphasized portion was the core of the dispute, and the court’s reasoning provides insights for lawyers arguing about ambiguity before the First Circuit. The delivery driver plaintiffs argued that the exemption referred to the packing, either for shipment or distribution, of perishable foods. They neither packed product for shipment nor packed it for distribution. As the drivers were involved with the delivery, not the packing of these foods, they claimed they fell outside the exemption and, therefore, were allowed to collect overtime pay. The dairy farm defendants were steamed and contended in opposition that the exemption referred to two distinct activities, either [read more]
March 26, 2017

Electoral College: Outdated, but Here to Stay

The recent election has brought the United States’ presidential voting system, the Electoral College, into the limelight. Through this system, each state is awarded a number of electoral votes based on its number of representatives in Congress. In all states except Maine and Nebraska, the presidential candidate who wins the popular vote in that state is awarded all of the state’s electoral votes. A President then wins the election by receiving at least 270 electoral votes. This system of voting was originally adopted out of fear. The founding fathers were worried both about “tyranny of the majority” and that citizens could be manipulated by a powerful, persuasive individual in a direct democracy. They established the Electoral College to work as a check on the population, creating an additional body to oversee the vote of the President and ensure that the President was competent. In November’s election, Hilary Clinton, the Democratic presidential nominee, outperformed Donald Trump, the Republican nominee, in the popular vote by almost 2.9 million people, earning 48.2% of the popular vote as opposed to Trump’s 46.1%. Yet Clinton failed to win the election, earning only 232 electoral votes, compared to Trump’s 306. On January 20, 2017, President Trump [read more]
March 8, 2017

Legal Protection of a Digital Resurrection

Not long ago, the death of an actor also meant the death of his or her characters. If the actor died before filming was complete, there may have been no other choice but to scrap the movie altogether. Now, however, advances in technology have made it possible to digitally “resurrect” actors, thereby potentially saving both the characters and the films. Thanks to continuing improvements in computer-generated imagery (CGI) technology, when Nancy Marchand died while filming The Sopranos or when Paul Walker died while filming Furious 7, their characters were able to live on despite their deaths until the writers were able to write in a more natural exit for the character. Most recently, in December 2016, Peter Cushing virtually reprised his role of Grand Moff Tarkin in Rogue One: A Star Wars Story, despite his death in 1994. These digital resurrections are not flawless, but they are often unnoticeable to the untrained eye. Furthermore, the recent improvements in CGI quality suggest that a computer-generated actor that “will fool even experienced professionals” may not be far off. CGI technology may have a lot of positive benefits in the film industry. For example, the increasing quality of CGI technology has the potential [read more]
March 8, 2017

The Chase for 75%: The History of Steroids and Stigma in Baseball

From the seven-year old player on a Little League team to the Major Baseball League’s most decorated hitter, all baseball players have the same dream: to make it to Cooperstown, the illustrious Baseball Hall of Fame. Each year, the Baseball Writers’ Association of America votes on a list of eligible players for induction into the Hall of Fame. While some lucky candidates are voted in on their first time on the ballot in their first year of eligibility, many others have to wait several years, and exponentially more players never even get their name in the conversation. Here, the most difficult situation comes into play when an all-time great’s record is tarnished by their use of performance enhancing drugs during the “steroids era.” However, many of these players that were once declared forever banished from the Hall of Fame (such as Barry Bonds and Roger Clemens) are starting to see the tides change, as each year they slowly accumulate more percentage votes in an effort to reach the required 75% for induction. This year, they both exceeded the 50% threshold on their way to the 75% required for admission—and these players should both ultimately end up in the Hall of [read more]
February 26, 2017

A Slap on the Wrist for Domestic Abuse in Russia

There is a Russian proverb that reads: “If he beats you it means he loves you.” On January 27, 2017, Russia’s Parliament voted 380-3 to decriminalize domestic violence. This would remove criminal liability in cases where the violence does not cause “substantial bodily harm” and does not occur more than once a year. The rationale behind this bill is unpersuasive. Proponents of the bill argue that the law would protect traditional family values. Family members should not be imprisoned and labelled a criminal “for a mere slap.” This seems to suggests that family conflicts do not and should not constitute domestic violence. What is problematic is that decriminalizing battery, regardless of who commits it, fails to send the message that beating your wife and children is wrong. This is especially chilling not only because the aggressor will not be punished, but also because it will create a safe harbor for those who abide by the restrictions set forth in the bill. According to The Economist, Russia is one of three countries in Europe and Central Asia that do not have laws targeting domestic violence. The Moscow Times reports that, even before this bill was passed, police stations had rarely taken [read more]
February 8, 2017

Are the FTC’s Regulations of Social Media Influencers Sufficient?

Using celebrities to sell products is hardly a new or innovative practice. Throughout time, celebrities have endorsed almost every product imaginable, from clothing and makeup to cars, credit cards, food, and even milk. This practice has been so consistent over time because, put simply, it is effective: brands are willing to spend whatever it takes to get the sales boost that typically comes with a celebrity partnership. Social media is extremely prevalent in today’s society (the average person spends about two hours a day, or up to nine hours a day for teens, on social media). As a result, social media advertising through influencers (individuals that have the ability to impact an audience’s behavior through their social media posts, such as bloggers and celebrities) tends to be a highly effective way to for brands to interact with their customers. It makes sense that brands are moving their product endorsements from traditional media outlets to the social media world. Consumers put a significant amount of information about themselves onto social media sites, which allows for very specific tailoring of content to individual consumers. Further, social media advertising tends to be less expensive than traditional advertising channels. According to Liz Dunn, founder [read more]
February 8, 2017

Trump’s Muslim Immigration Ban – Concerning but Likely Constitutional

President Trump has recently signed an executive order, titled “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” that restricts visits and immigration from seven Muslim-majority countries: Iraq, Libya, Somalia, Sudan, Syria, Yemen, and Iran. Trump’s executive order has sparked widespread protest and backlash from Muslim support groups, and has routinely been characterized as “racist.” Some critics of the executive order argue that the immigration ban targeting solely Muslim-majority countries is unconstitutional. Current United States law and court cases, however, grant the President broad authority to restrict immigration from particular countries. In the decades following the ratification of the Constitution, the Supreme Court determined that the Legislative Branch and the Executive Branch had “plenary power”—absolute power— over issues concerning immigration. Since then, Congress has given away much of its shared plenary power over immigration to the Executive Branch. For example, Congress delegated to the Executive Branch the power to determine whether foreigners should be granted temporary protected status, whether a person is permitted to work in the United States, whether a person’s deportation should be deferred, and whether to grant a person permission to be in the United States when the person does not qualify for a visa. Despite the [read more]
February 7, 2017

Animal Advocacy During The Trump Administration

Many animal advocates opposed the election of Donald Trump.  The Humane Society called a Trump presidency “a threat to animals everywhere.” Kathleen Parker, a columnist for the Washington Post, warned of Trump’s “anti-animal animus.” The reality is more nuanced. While Trump seems likely to roll back some legal protections for animals, the change in administration might also create new opportunities for animal advocates. First, the bad news. The Trump administration seems less interested than its predecessors in enforcing animal cruelty laws. For example, on Thursday, February 2, the U.S. Department of Agriculture abruptly took down its webpage publicizing investigations of animal abuse. This move seems to signal a less zealous approach to enforcement by the USDA’s Animal and Plant Health Inspection Service. The new stance is not surprising given Trump’s earlier tolerance of animal cruelty by Ringling Brothers’ Circus. A second cause for concern is the Trump administration’s goal of empowering states to regulate wildlife currently covered by the Endangered Species Act. Several state officials have declared that they would reduce populations of wolves and other predators if permitted to do so by the federal government. On January 17, a federal judge blocked the state of Idaho from using telemetry [read more]
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Copyright 2014 by JLPP