New Jersey Employment Lawyer Blog - Law Offices of Costello & Mains, P.C.

New Jersey Employment Lawyers

webmaster@lawyercentral.com (Lawyer Central) — Sun, 05 Feb 2012 07:33:44 PST

The Law Offices of Costello and Mains, P.C. focus on providing New Jersey workers with legal advice and assistance regarding their employment law issues. They are dedicated to protecting the rights of employess throughout New Jersey. Kevin Costello, a certified Civil Trial Attorney, has been named a Super Lawyer for five consecutive years. Trust 'The Employment Rights Lawyers' to fight for your rights.

Consumer and Civil Rights Trial Lawyer Discusses Bill Prohibiting Attorney's Fees for 'Technical Violations of the New Jersey Consumer Fraud Act'

webmaster@lawyercentral.com (Lawyer Central) — Wed, 01 Feb 2012 07:33:44 EST

The First Nail in the Coffin of Consumer Rights

Assembly Bill 1444, prefiled for introduction for the 2012 session of the New Jersey State Legislature, and sponsored by Assemblyman Reed Gusciora, seeks to amend New Jersey's Consumer Fraud Act to prohibit attorney's fees to plaintiffs who prove what the bill terms as merely "technical violations" of the New Jersey Consumer Fraud Act.

As everyone knows, I am an unapologetic champion of individual rights against corporate rights. I am an unapologetic champion of the rights of working families and individuals against vested interests, whether those interests be government, banking, corporations, insurance, the medical lobby or the neoconservative agenda, generally.

Governor Chris Christie, to give him credit, is an exceptionally canny politician, who has chosen to cast his lot entirely with neoconservative "pro-business" interests. Because corporations are by definition paper creations and are, therefore, soulless and without consciences, this alleviates the people who advocate for corporations from any responsibility for what corporations do, and how they harm. Lawmakers and lobbyists who think that the only thing that matters is corporate profits often feel that one of the easiest ways to accomplish this, especially during "hard" economic times, is by whittling away at the rights of the individual to challenge corporate hegemony and power.

The New Jersey Consumer Fraud Act has existed for many decades as a check and balance against corporate power. Corporations make large amounts of money by cheating large numbers of people out of small dollar figures.

Imagine, for example, a corporation which sells ten million units of a product that costs only $5.00 by fraudulently representing that the product is capable of doing something. In fact, versions of the product from competitors that cannot do the same thing sell for only $4.00. This corporation, however, has decided it wishes to get an edge over its competition and, therefore, charges $5.00 for the product. In order to justify the higher price, they simply lie about its capability, thus cheating ten million people out of only one dollar each; a ten million dollar profit obtained by fraud. Yet because the value of each person's loss is so "insignificant" and because the failure of the product, as driven by its value, is so meaningless, this would be a classic "technical violation" that the above-bill would render unavailing to parties and their attorneys.

Most fraud does not have a significant enough individual economic value that, when a portion of that value is considered, it fairly and adequately justifies an attorney filing suit for the amount of time and risk that they undertake in trying to help the victim. In short, there's no way, without resort to fee shifting anti-fraud law, for a person to have a lawyer recover that money.

Conservative lawmakers and their corporate allies know this well. The way that they "spin" these types of amendments is that it is "pro-business" and deprives "greedy lawyers" of "exploiting" "technical" breaches in the law for their selfish benefit. That is their spin. Here is the true spin.

By slowly whittling away pieces of the Consumer Fraud Act and any other pro-consumer or pro-civil rights statute, which are designed to shift attorney's fees in order to make small violations that mean a great deal hurt for the perpetrators, and by lying to you about why they are doing it and what it really means, the corporations are trying to gradually strip away all your individual liberties and rights and render the courts a corporate playground. They have succeeded in large part over the last 30 years by doing it in bits and pieces, by seizing their opportunities during bad economies, by publicly "spinning" events like this to their disadvantage with their considerably greater resources than individuals and their attorneys have, and by trying to put one over on party faithful and undecideds.

This bill is bad for anyone who is going to get cheated by nefarious contractors, car dealers, businesses, etc. It is going to take away a class of remedies that, right now, you can actually litigate with the assistance of a lawyer, free of any worry that the lawyer's fees are going to be your responsibility. In other words, right now, you can still challenge "technical violations" that cause real harm because the law continues, for the present, to protect that right by "shifting" attorney's fees to the wrongdoer.

If this bill is passed, it will begin to whittle away the rights that the Consumer Fraud Act affords you. Don't listen to the lies of those who apologize for this bill or suggest that the bill is good for business. It is "good for business" in a sense that it gives business something at your expense, and while that may be "good" for certain fraudulent businesses, it is not really good for you, and that makes it not good for the people of New Jersey. What is not good for the people of New Jersey isn't good for New Jersey, and misguided lawmakers need to be told this in no uncertain terms by you.

I am a consumer, civil employment and individual rights trial lawyer, and I am telling you this bill is a bad idea. Take it to the bank because if you don't, the corporations will take your money to the bank.

Employment and Civil Rights Attorney Applauds Appointment of First Openly Gay Supreme Court Justice in New Jersey Bruce Harris

webmaster@lawyercentral.com (Lawyer Central) — Wed, 25 Jan 2012 07:33:44 EST

I've been blogging a lot lately because it feels like a lot has been happening.

I'm not a GLBT person but you can see my other blog entries where I discuss how important it is that we bring justice to all minorities, including sexual minorities. I have no time for religious and political bigots who think that GLBT people are still the only minority whom it's "okay," politically, to openly hate, berate and deny due to "accepted cultural" (read: religious) tradition.

By all accounts, beginning with the Kinsey studies in the mid 20th century, we've known as a people that a substantial percentage of our population is "GLBT" (gay, lesbian, bisexual or transgender). Of course, we really didn't need those surveys. The entire recorded history of mankind, and the several million years of unrecorded history, provide ample, historical and anthropological evidence that homosexuality is not a choice but a product of natural selection and the "chaos theory" that attends mamillian genetics. There are gay animals, have always been gay animals, and always will be, and humans are one of the animals that sometimes end up producing gay individuals.

It's perfectly natural, perfectly "normal," and it is about damn time that our highest and best institutions begin to reflect the diverse reality of life in New Jersey.

I hope I don't have cause to criticize Justice Harris for being too conservative on all the issues that are important to us, and believe me, it won't matter to me at all that he's gay if I decide that he's rendered a decision which in my view undermines employment, civil and individual rights. For now, however, I can be proud of our state and I think everyone who lives here that is reading this blog should be, too. It takes courage to make that appointment, and I have to congratulate our governor for exhibiting that courage, even if perhaps it's a calculated exhibition of courage to appeal to a certain segment of the voters in 2016...maybe. Either way, good for us, good for Justice Harris, and good for the people of New Jersey.

Good for progress and good for justice.

Employment Rights Lawyer Discusses Arkansas' Supreme Court Declaration of Punitive Damages 'Cap' as Unconstitutional

webmaster@lawyercentral.com (Lawyer Central) — Wed, 11 Jan 2012 07:33:44 EST

Corporations Don't Behave Unless You Make Them Behave

A case that began about negligent contamination of rice with genetically modified rice ended with the Supreme Court of the State of Arkansas striking down a legislative "Cap," or limit, on punitive damages. The Cap was approved by the State's General Assembly in 2003, but the Court's Ruling concluded that this Cap conflicted with the State's Constitutional Prohibition on the General Assembly's ability to enact laws limiting the amount Plaintiffs can recover for tortuous acts.

Obviously, the Arkansas State Supreme Court got it right. Any Court that invalidates attempts to usurp the function of a jury gets its right. I can't comment on how the Arkansas State Constitution would read in comparison with that of New Jersey, but I can tell you this: New Jersey has a Cap on punitive damages and as far as I know, there has never been a challenge that the Cap is unconstitutional.

It is, however, unconstitutional. Why?

If you've been reading my Blog for any length of time, you know who I am, what I do and how I feel about the propensity of institutions (such as corporations) to act morally and correctly without a hammer ready to crack them on the skull if they don't. The fact remains that corporations are a paper construct in American Law. They are an abomination before all that is right and proper. They insulate from personal responsibility the directors and employees of the corporation because no matter what wrong they do, they do it "in the name" of the corporations' profit and that alleviates from all moral (and usually legal) responsibility for what they do in pursuit of money.

If we threw CEO's of corporations that went into Bankruptcy in Jail, we'd have fewer Bankruptcies. If we threw CEO's of corporations that made products that harmed or killed, we'd have safer products. But we don't. We think that would be "bad," because somehow, the right of the corporation to strive for profits above all moral, ethical and other considerations is a hallmark of the American economy.

So how do we balance that hallmark in Court?

It starts, and ends, with you, regular people, serving on juries.

Juries have the right to "punish" wrong actors. Just because someone does something negligently doesn't mean the punitive damages happened. They are not allowed to happen when someone only does something "careless." On the other hand, when someone does something recklessly or intentionally to cause harm, especially when they do it in the name of dollars over fairness, morality or fundamental justice, then punitive damages may be awarded by a jury to deter that conduct in the future.

Do you really think that the people responsible for the debacles at AT&T, Enron, Tyco, WorldCom, and other companies would do the right thing simply out of a moral responsibility to do it? Of course not. They do the right thing only when they fear the consequences if they don't.

Punitive damages deliver that fear. They represent a stabilizing influence on what would otherwise be a runaway fascist economy run by corporations without any checks and balances. Just because a corporation is made to compensate someone that they harm doesn't mean that the corporation hasn't profited by the harm. Corporations often do calculations to decide how many people it can harm, how much it will cost in the occasional lawsuit, and how much more profit they will make than that cost. Thus, they decide to do the harm anyway.

Punitive damages make the corporations afraid that there will be an unintended and immeasurable consequence if they do wrong and so they don't do wrong.

Or at least, that is how the theory goes.

At Costello & Mains, we applaud the Arkansas Supreme Court and call upon New Jersey's Legislature to eliminate its Cap or upon the Courts to eliminate the Cap as unconstitutional. I don't know that it will happen, but it ought to, because the power currently, at least for now, and should always, belong to the people who sit on juries, not to the Judges and Legislatures.

That is how we see it.

New Jersey Civil and Employment Rights Lawyer Discusses Penn State and Syracuse Sex Abuse Cases

webmaster@lawyercentral.com (Lawyer Central) — Tue, 20 Dec 2011 07:33:44 EST

Sexual Abuse Isn't About Sex, But About Abuse of Power

As an employment and civil rights lawyer doing a great deal of work to act against both work and school sexual and other forms of bias-based harassment, I'm often asked, sometimes smugly (and thus always in those situations ignorantly), whether or not sexual harassment is "really" as bad as "they" (whoever the hell that is) make it out to be. I'm paraphrasing here, but you can anticipate the many and varied forms in which the question often comes. Some people, no doubt, are genuinely interested and are perhaps even respectfully skeptical, but willing to be educated. Some people, usually the types that listen to conservative lunatics on television or on radio, already imply the answer with their question because they have long ago abandoned "changing one's mind" in the face of competing facts as politically (or otherwise) weak.

Sexual harassment is about power. It's almost never about the type of traditional "power" we conjure in our minds when we think about absolute dictators and people with guns and tanks. It's not the sort of power we imagine when we imagine the white police hosing down or setting dogs upon civil rights workers.

People in every relationship exchange power. Children are within the (hopefully well exercised) power of their parents. That's why parenting is such a profoundly important thing. Parents have to exercise that power not for their benefit, but for the benefit of the children they raise, so that those children turn out to be valuable, happy and to the extent possible, well adjusted contributors to the society into which they grow up. To a lesser extent, but still importantly, every friendship involves an exchange of power. And obviously, teachers have a derivative but very similar type of power as do parents and as do the educators appointed to supervise the activities of the teachers.

And as well, and obviously, any worker "A" who works for employer "B" is yielding some degree of power to employer "B." The reality of this economic power is the reason why we have a union movement and labor laws. This is so because, sadly, everyone has to admit that at the bottom of the barrel, a human being is generally selfish and self-absorbed. We are only recently evolved animals and animals we once more become when sufficiently provoked. There's an old expression that human society is only "nine meals away from barbarism." Truer words were never spoken. "Good" people are people who manage to tamp down, for the betterment of themselves, their families, their communities and society, our base human urges to exploit, to exercise dominion and control, and to do that which is best for us and not best for everyone else.

We have laws for the same reason that we have labor unions, collective bargaining agreements, and anything else that "evens the playing field" in human relationships.

Sexual (and racial and other types of bias-based) harassment can be what happens when someone abuses that power equation. Obviously, there are many ways to abuse the power equation. Bosses who decide simply to vindictively fire people or hold people to unreasonable standards are clearly abusing their power, but that is sadly so typical of human relationships that the law does not choose to intervene except in limited circumstances (such as in the breach of a contract or a union agreement or in civil service scenarios, etc.). Generally, "shitty employment situations" are not ripe for litigation because the law doesn't choose to intervene. As has often been said about our civil rights laws in New Jersey, they are not "general civility codes."

At the same time, we have a special interest in preventing bigotry. When someone in a bigoted way abuses their power, that's one of those situations in which the law - and lawyers like me - are empowered to act.

Sexual harassment is one of the most vile forms of this type of bias-based abuse and it is exceptionally and horridly vile when exercised against helpless or defenseless children. At least, those children are "helpless or defenseless" when compared with similarly situated adults. What happened at Penn State and what is happening at Syracuse is not even the tip of the tip of the iceberg. We could talk about the church (and any other religious situation where the coercive power of spiritual punishment can make children so terrified into silence that the truth almost never comes out as often as it should). We can talk about scoutmasters, teachers, tutors, family guardians, babysitters and yes, even close family members, who abuse the special gift that being responsible for (at least in part) molding a young mind represents.

It's a shame too, really, because in our modern day and age, everything is media fodder. In addition to all of the "valid" news that we still need to listen to (and that I was used to listening to on three news networks and through two newspapers as a kid), we have to sort through orders of magnitude more garbage than we once upon a time had to sort through. In other blogs, I have posited that this "media smorgasbord" is actually one of the ways in which the corporate power structure keeps the American public ignorant and distracted about what is really being done to our rights, our environment, and the fabric of our society, but I digress.

In this media suffused culture, we tend to make dramatic and hasty judgments about large data sets from increasingly smaller and biased data samples. There are many people out there that now are terrified to send their kids to football camp because of the Penn State coaches and who will no doubt next be afraid to send their kids to scout camp because of a bad scoutmaster.

Yet for the same reasons that we still drive cars despite the fact that some people drive drunk and still have campfires despite the fact that some people are arsonists, everyone needs to take a deep breath and realize that good people are everywhere and they outnumber the bad people (see above for the definition of "good").

Yet what do we do with the "bad" people that abuse their power, especially when they are abusing that power concerning children?

Our New Jersey Law Against Discrimination punishes this conduct in any "place of public accommodation," which includes camps, schools and even private institutions like the boy scouts or churches when the religious mission of the entity has nothing to do with the abuse.

The law is meant to not only punish the person who undertakes the conduct but also the institution that failed to protect the people abused by their representative. Yes, the law allows us to sue for money, but if not money, what then? When someone invents a time machine that allows a jury to transport everyone back in time to a point where the wrong has not been done, you let me know, and I'll be happy to start putting that into my complaints. Until then, I can't litigate for comic books, apple pies, groceries or widgets. The only thing that our society recognizes as a medium of exchange is money and therefore, it's not a dirty word to ask for it in complaints. We ask for the same money damages that corporations ask for when they sue other corporations, by the way - they don't ask for apple pies, either. Our Law Against Discrimination is a substantive and far reaching civil rights statute which is meant to end the "cancer" (legislature's word, not mine) of all sorts of discrimination.

It's fortunate indeed for the people at Penn State and Syracuse that, as fiercely as I'm sure the people seeking redress in the courts will litigate their matters, they didn't commit their wrongs in New Jersey, because in New Jersey, we have a particularly strong statute that speaks to this sort of vile abuse.

The New Jersey Law Against Discrimination is a necessary - and, as I'm sure you can all agree having listened to what's going on out there (and imagining what might be going on and not addressed) - important, law to have. It's one of the reasons I do what I do and it is one of the safe harbors on the "journey to justice."

New Jersey Civil Rights Attorney Opposes Christie's Remarks About Judge Feinberg

webmaster@lawyercentral.com (Lawyer Central) — Thu, 27 Oct 2011 07:33:44 EST

If You Can't Say Something Nice...

I'm a big boy now. I understand that politics is a dirty business no matter whom you happen to support. I get that our governor has his fans, fans who will excuse anything he does because, having drank the kool-aid, there's nothing he could do that isn't "necessary." This is an extreme view. I'm hoping that even those extremists might have a place in their view for reason. Take a deep breath and consider: Governor Christie has made some mistakes, since he's been in office. One of those was removing Judge John Wallace from the Supreme Court, in a move unprecedented in our state and which now opens the door to "tampering" with our judiciary. Removing Judge Wallace was one way of tampering. Recently, Governor Christie revealed yet another arrow in his quiver of "judicial modification through intimidation:" outright disrespect and conduct unbecoming an attorney in bashing a judge who applies the law.

Governor Christie was a licensed attorney when he practiced. That means that, whether he took it seriously or not, he swore an oath to abide our rules of professional conduct. This is an oath not lightly set aside, and certainly one that should never be set aside for the sake of political grandstanding. Some prices are simply too steep to pay to sacrifice one's personal honor as an attorney. Governor Christie did not violate his obligation to the rules of professional conduct when he removed Judge Wallace from the bench - though it was a dirty, disrespectful move that weakens our government for everyone - but I believe that he has in personally castigating and belittling a sitting judge of the State of New Jersey, Judge Linda Feinberg, for her decision in the matter of DePascale v. State.

Judge Feinberg ruled last Monday that the Pension and Healthcare Benefit Act, enacted in June, is unconstitutional as applied to judges.

Governor Christie didn't like the decision. Why he didn't like the decision is not germane to my point. That he didn't like the decision could have been made evident in a hundred ways, any of which, while "on the boarder" of good taste, would not have violated the code of conduct that governs licensed attorneys. That code of conduct speaks to many aspects of an attorney's conduct. Because we are the servants of the law, we must protect it and encourage respect for it by not acting in a way which denigrates it or the people who serve in it. Judges are certainly included in that latter group. Specifically, Rule of Professional Conduct (RPC) 8.4 says that it is professional misconduct for a lawyer to "...engage in conduct that is prejudicial to the administration of justice."

This RPC is a "catchall" portion of the RPCs which has been used to discipline attorneys who, for example, have publicly embarrassed themselves and their profession by publicly castigating a judge. By the way, judges have their own code of judicial conduct in addition to being governed by the RPCs; judges may not publicly castigate lawyers either. Even when judges are unhappy with what a lawyer does, they must be respectful and even-tempered just as lawyers must be respectful when addressing the court, whether they agree or disagree with what the court has said.

Governor Christie used words like "elitist" and "self-interested" to describe a decision which correctly applies the law the way a judge should; regardless of whether or not their decision would please those who hold purse strings or who make judicial appointments. The president of the State Bar Association said it best; "Governor Chris Christie's comments today are yet another attempt to intimidate the courts and unduly influence the judicial process." She also said that the Governor's continued attack on the judiciary "denigrates the separation of powers and the independence of the judiciary as a separate branch of government."

I get that Governor Christie has larger aspirations when his term as governor ends than returning to the private practice of law. I'm also just as certain that if he chooses to do so, the bar will almost certainly elect not to attempt discipline for this conduct. Yet I do believe that Governor Christie has misconducted himself, not as Governor who became a Governor after a career in some other profession, but as a former attorney. Despite the underserved and unfairly negative impression that the public now has about attorneys, some of which has no doubt been created by attorneys themselves, attorneys are a profession that polices itself rather aggressively, certainly more than physicians or other professionals with whom I'm acquainted.

I believe that Governor Christie will certainly shrug aside anyone criticizing him for his remark and I'm certain that privately, he has no remorse whatsoever for it. I'm sure he considers it an appropriate political gambit and appropriate lip service to the right wing and conservative elements that support him and his attempts to cast any judicial activity that he doesn't like as "activist." What's far darker and even more concerning about these comments, however, is the fact that they're clearly being used to intimidate a branch of government that is supposed to be independent and not "worried" about what the other two branches of government might do to them if they don't please those other two branches of government.

I hope that some of you who are reading this who are huge fans of the Governor will be able to put aside your temporary relationship with him - he won't be in office forever - and think about the long haul for the State of New Jersey and for government in America generally. Are you comfortable with the idea that a chief executive officer of a state or of a nation from either party should have the right to essentially castrate the third branch of government? Don't you feel better knowing that the several centuries-old plan laid down for this country is being followed by an independent judiciary?

Remember, the worm turns. I'm a progressive. I don't like a number of judges on the United States Supreme Court, but I would be even more uncomfortable if, because of the nature of their decisions, which are clearly pro-corporate and against individual and civil rights, were a democratic president to simply remove them for cause. I'm sure you can appreciate why. My happiness would be temporary. In due time, a republican president would come along and then effectively castrate the next democratically appointed Supreme Court for the same reason. After a while, the judiciary would simply cease to have relevance; we'd be left with two branches of government and sham for the third, the third which is supposed to balance the first two. The system of checks and balances are served well. Governor Christie is a reasonably intelligent man and should have known better. Anyone taking a deep breath and looking at the situation should, I hope, know better, as well.

Allowing this Governor to set the precedence with regard to an independent judiciary that he has will create huge potholes on the road to the journey to justice.

New Jersey Harassment Lawyer Discusses Gay Bashing Statements by Public School Teacher

webmaster@lawyercentral.com (Lawyer Central) — Fri, 14 Oct 2011 07:33:44 EST

Shocking Gay Bashing Statements by New Jersey Public School Teacher

Frankly, the title really doesn't convey just how unbelievable - and yet sadly believable - this breaking story seems to be.

From what we can glean, and as reported in the October 13, 2011 Star Ledger, Union Township school officials are now "investigating" homophobic gay bashing in certain Facebook postings by a public school teacher at Union High School.

The comments seem to be in response to the fact that the school was celebrating October as "lesbian, gay, bisexual and transgender history month." The exhibit consisted of the names and photos of famous LGBT Americans. Teacher Vicki Knox seems to be the "culprit" in a series of Facebook postings expressing severe homophobic and anti-gay sentiment, though no final determination has yet been made.

Early in the Facebook conversation, a friend asked Knox about the history exhibit, asking whether or not it had "really" been put up at the high school. The response was, "Yes they did!!! And it's still there! I am pitching a fit!" Later in the conversation, Knox appears to have stated, "I think battle lines are going to be drawn soon."

Toward the end of the conversation, Knox posted "Homosexuality is a perverted spirit that has existed from the beginning of creation...I know sin and it breeds like cancer." She went on to say: "Union is not South Orange [or] Maplewood where one out of four families consists of two Mommies or daddies...Why parade your unnatural, immoral behaviors before the rest of us? I/we do not have to accept anything, anyone, any behavior or any choices! I do not have to tolerate anything others wish to do."

Still later in her rant, Knox states: "...That's what I teach and preach ma'am!"

So where to begin? Obviously, I suppose the fair minded civil rights lawyer within me starts with individual rights, so let's discuss those. Let's discuss hers.

Does this teacher have the right to believe anything she wishes about homosexuality or about anything else? Of course she does. The Constitution, which I have repeatedly lauded as the most valuable document created by the mind of man, and which governs our imperfect but successful republic, says she has that right, and no one can take it away by force or by intimidation.

Whether or not we agree with the reasons she believes as she does, of course, makes no difference, for the same reason that Jews have the right to believe as they do, Christians the right to believe as they do, Druids, Pagans, Wickans, Atheists, etc. The very plurality of religious or non-religious or philosophical belief systems in our country is not only one of its strengths, but also one of the reasons why it is impossible for the state ever to oppress or favor one over another. It's the reason why such beliefs must remain out of government and why government must be protected from such beliefs when it comes to secular lawmaking. If our laws and public conduct are inspired by one or more particular religious or philosophical systems that preach that one or more groups are inferior, then this society is not fairly run.

So does this teacher have a right to go to her house of worship and believe as she likes alongside others who believe similarly? You bet.

On the other hand, what she has the right to believe on the one hand, and what she has right to do on the other, are two different things. So let's move to the next level of analysis.

The exercise of individual liberties by A cannot result in the deprivation of individual liberties for B. That eternal balancing is why republics are never perfect and whey ours is never perfect. When we decide what Vicki Knox can or cannot say or endorse publicly, we don't look at her in a vacuum. We look at her taking into account the public position she holds, the public trust she enjoys and the power she wields to access - and affect - large numbers of young minds. We must examine what she says in that light, and consider the special capacity that she has to make her statements - as opposed to purely private statements by someone who doesn't work for the school district - publicly heard and publicly felt.

We have a strong anti-discrimination law in this state. It applies everywhere, including in every workplace and in every school. It prevents "free speech" which, in certain locations and within certain relationships, effects discrimination of types our society has decided to eliminate. Thus as a restriction on free speech, the law is still Constitutionally valid and acceptable, because it prevents an even greater harm - what happens when someone is discriminated against - even though it must do so with a "small" harm: moderate restriction of free speech of only certain vile types in certain relationships where the victim of the speech is particularly vulnerable to it and powerless to avoid it.

Thus the LAD restricts free "hate speech" in employment settings, contract relationships and in places of public accommodation, like schools. Specifically, the LAD prevents schools from allowing students to "gay bash" or to otherwise discriminate on the basis of race, sex, gender, sexual orientation, age, disability, religion, etc. Obviously, what students cannot do to other students, school professionals certainly cannot do to students.

So we have a conflict on the one hand between Vicki Knox's right to free speech outside of school grounds, speech which is not specifically directed at any student, gay or straight, and on the other, the right - indeed, the obligation - on the part of the employer to protect students from feeling vilified by a teacher and to prevent that teacher from inspiring others to spout similar hate speech.

What to do?

Well, Vicki Knox and her apologists will say that this is purely private speech on her private Facebook page, that she's not saying these things in the classroom nor is she saying them directly to her students or as a representative of the school district. Yet that's intellectually dishonest and obviously incorrect on a practical level.

If President Obama had a private Facebook page and said anything bashing this country, the entire country would be up in arms. There's a certain point at which a public employee in a position of public trust and in a position to speak with the apparent authority of that public position must yield some of their rights to private expression because of the price that others must pay when that "private" expression is undertaken irresponsibly.

I don't know whether or not Vicki Knox did or said these things. It's possible that the investigation may reveal that someone hijacked her Faceboook page and that Vicki Knox personally doesn't have any of these views. Obviously, the people who know Vicki Knox well both in and out of the school environment will be able to shed light on whether or not these are the sorts of things that Vicki Knox would say. If they are, then the investigation will probably yield a result incriminating her personally.

So as much as I believe in free speech, I do not believe that free speech can be used to oppress, humiliate or denigrate in violation of other civil rights laws, such as the above discussed LAD (the "Law Against Discrimination"). Vicki Knox, whether she intended to do so or not, was publicly humiliating every gay, lesbian, transgender or bisexual student in her school and every parent, friend and loved one of such students, who would hear her words. And that her words would be heard in a widespread way is in inevitable truth of our age. God Bless the internet, I suppose. With the power of immediate widespread expression comes responsibility. So while some might say that her Facebook page is purely private and that no one has to read it, the minute that something like this gets out and around, her ability to appear as a neutral and fair-minded educator is destroyed. How can students take her seriously when she says things like this? How can anyone take her seriously? I don't know what subject she teaches, but, of course, it doesn't matter. Even if she teaches math, which has little or nothing to do with her personal philosophy, it's unfair and unrealistic and unacceptable to expect a gay, lesbian, transgender or bisexual student, or a student close to such a student, to sit in her classroom and know that they're listening to a hateful, ignorant bigot discuss differential equations.

Things are hard enough for students today without asking them to endure that. There are plenty of non-bigoted teachers who can teach math.

If it should turn out that the investigation does reveal that Vicki Knox made or endorsed these statements, then she's got to go. She's abused her position of trust and has made herself unsuitable to a secular government position; there are plenty of others who are principled enough not to do so and who are capable of teaching whatever it is she teaches.

This is not "the thought police," it's simply common sense and fair play. If someone wants the perquisites and power that come with a teaching position such as hers, then one must exercise those rights and powers responsibly.

The Occupation of New York City - What it Means to You

webmaster@lawyercentral.com (Lawyer Central) — Fri, 07 Oct 2011 07:33:44 EST

I had an opportunity to watch the news regarding the protest movement called "The Occupation of New York City." I also had an opportunity to review the "declaration" document of the group that sponsored the protest, the "Direct Democracy Occupation Group."

As I watched the coverage, and as I read the declaration, I recalled my younger years first as a high school student, then as a college student, as a law student, as a young lawyer, and finally, as an "aging" lawyer (though I am not quite ready to call myself an "old" lawyer yet).

At each of those stages, I "evolved" my thinking about what "freedom" meant to me and, by extension, my ideas on "fundamental human rights" and "civil rights." I don't know that everyone engages in this thought process, regardless of their educational background or level of cultural or professional sophistication. I'm reasonably certain that, along with the great majority of doctors, architects, and other formally educated people doing "other things," even lawyers who don't do civil rights work don't spend a great deal of time thinking about these notions.

Being a civil rights attorney, however, and writing as I do about the issues near and dear to my practice and, therefore, near and dear to me, I think a great deal about issues raised in this protest.

My personal philosophy is not strange to you if you've read even a minority of my blog entries. I'm very much comfortable with being an extreme progressive. I don't consider myself a "liberal" because frankly, that has become a pejorative term (and I never really knew what it meant in the first place). To me "liberality" simply means freedom, but only in the abstract. The idea, on the other hand, of being a "progressive," means that I embrace change and that I believe that change is not only the fundamental nature of the universe but also the best way to make things better. If things aren't the best that they can be, then we always ought to strive to make them better. Only a fool, however, thinks we can ever reach a state of perfection. Likewise, only a fool believes that by "standing pat," and by never changing except to retract or rescind, that we can make things better.

So I am a shameless progressive and I believe in equal rights for all. I believe in severe restriction on the right of religious organizations to politically lobby or to have a say in how a secular democracy runs. I believe in restrictions on the free market (because unrestricted freedom to build enormous wealth for an elite means suffering for the majority) and that corporations must be restrained from doing harm or they will do harm without restraint and without accountability. I believe that corporate leaders must be held personally responsible for what they have the corporation do. I believe that money corrupts and that money, neither in its possession nor in the quest for it, should be used as a justification to do wrong on any level and for any reason.

Yet, I also don't consider myself an anarchist. I'm not one to take to the streets and "march" because I just don't believe that that gets much attention unless it's negative. Protests and marches don't directly confront someone to change their mind in a peaceful way. As Phil Jackson says in his recent television campaign, "anger" is the enemy of instruction.

That having been said, protests do accomplish a lot now-a-days. They get people thinking and talking. I think that's really why protests happen now. I don't think the protestors are expecting that anyone is actually going to be physically present and emotionally moved by what the protestors have to say. I think the protestors hope that, through the press coverage, people will have dialogues and that through dialogues, perhaps hearts and minds can be changed and things can improve.

So I wouldn't have taken part in the Occupation of New York City. It's too hot, there's not enough access to bathrooms, and I get grumpy when I'm not fed. As well, there are things I can do which, I hope, better serve the aims of the protest. One of those things is to talk about why I empathize with the protest.

In the declaration document, I expected to find, as a 45 year old man, that most of the declarations made therein were too progressive, philosophical or unrealistic for my taste. I expected what I suppose would have amounted to a pseudo-socialist (or outright socialist) rant that I, obtained a degree in political science and having lived quite a while in the world of the law and civil rights, would have known instinctively was unattainable and, therefore, to be readily discarded.

Yet, nearly everything I found in the declaration resonated with me, not just as a civil rights lawyer but as an American and as a human being. More than that; it resonated with me as a husband to a wife, a son to two dead parents who had a vision of what they hoped the future might bring for their descendants, and as a father of an eight year old child. I found myself wanting very much to have the sort of world that the "occupiers" want.

And here's the thing; I bet that when I share their declarations through the filter of this blog (and hopefully you trust my perspective more than you might have trusted kids with shaggy hair and hacky sacks and signs), you'll come to see the simple wisdom in their position.

They start by saying that "the future of the human race requires the cooperation of its members." Well that's obvious enough, isn't it? Either we all pull in the same direction or we're going to lose the fight for our planetary and species survival and prosperity to war, religious ignorance (and the wars, hatred, overpopulation and starvation factuous religion inspires), to pollution, ecological ruin and disease. They also say that the "system must protect our rights, and upon corruption of that system, it is up to the individuals to protect their own rights and those of their neighbors." Also easy, and obvious, and frankly, this should resonate with any American; it's what the American revolution was all about. The right to "alter or abolish" tyranny is enshrined in our Declaration of Independence.

They go on to say that no true democracy is attainable when the process is determined by economic power. This, I'm not so sure I agree with, not because I don't want the world to work that way (I do) but because I can't see that it ever will as long as humans run things. Human nature being what is, greed is fundamental to the human condition. Those who "don't have" may speak loftily of their "ideals" in wishing to redistribute what they don't have, but give enough people that don't have something that something, and they'll grow possessive over it. The way to maintain a rational but better society than the one we have now is by allowing everyone freedom to acquire, but with practical limits that don't allow misery for the many as the price of privilege for the few.

Here are some of their other "planks" in their platform. Remember that the "they" of whom they speak are the same "they" of whom I speak in my other blogs and of whom we all speak when we complain about the greed, corruption and vanity of the elite corporate creatures who manipulate our politics, our laws, and our rights. The "they" is the tiny minority of the population that holds the reigns to controlling the vast majority of wealth (and thus power) in this country. Here are the planks which resonated with me:

"They" have taken bailouts from taxpayers with impunity, and continue to give Executives exorbitant bonuses;

"They" have perpetuated inequality and discrimination in the workplace...;

"They" have poisoned the food supply through negligence, and undermined the farming system through monopolization;

"They" have continuously sought to strip employees of the right to negotiate for better pay and safer working conditions;

"They" have held students hostage with tens of thousands of dollars of debt on education, which is itself [education] a "human right;"

"They" have consistently outsourced labor and used that outsourcing as leverage to cut workers' healthcare and pay;

"They" have influenced the courts to achieve the same rights as people, with none of the culpability or responsibility;

"They" have deliberately declined to recall faulty products endangering lives in pursuit of profit;

"They" determine economic policy, despite the catastrophic failures their policies have produce and continue to produce;

"They" have donated large sums of money to politicians supposed to be regulating them;

"They" continue to block alternate forms of energy to keep us dependent on oil;

"They" continue to block generic forms of medicine that could save lives in order to protect investments that have already turned a substantial profit.

There are other more general allegations that are not generally supported by fact although they certainly feel intuitively true. The ones in which I am interested, however, appear above. Now, if you're a rational, reasonable, hardworking, loyal and patriotic American whose loyalty and patriotism is to the ideal of what America should be rather than to a political party or a political pundit, then I'm guessing that you agree with most, if not all, of the above statements.

Which raises an interesting question: why aren't we all acting in accord with these beliefs? Why are we letting the relatively few and admittedly "protest" inclined "occupiers" of New York City do all the heavy lifting for us? Why am I?

My easy escape answer is, of course, that I don't. I try to redress some of these issues in the courts through my civil rights practice, but at the end of the day, I can really only redress a few, and only in my own way and as the present law allows. The law is administrated by judges who must follow what the legislature passes, and when the corporations effectively own most of the legislative process, the judges are hamstrung in delivering justice; discretion can only go so far.

Do any of us think that this country has not been largely subordinated to corporate power? Do any of us really think that there's anything approaching a fair chance for people who aren't part of the economic elite to achieve what the economic elite has already achieved and covetously guards? Plainly, many of you reading this blog may be, as most of us are, somewhere in that vast "middle class" from the lower to the middle to the upper. I'm guessing that no one reading this blog is part of the economic elite that throws seven figure sums around like they mean nothing. So it's to those putative readers I speak when I ask the above questions and when I ask these: does anyone think that the bailout doesn't make them sick to their stomach and that the money hasn't been misused? Does anybody really think that some of that bailout money wasn't used to increase already ridiculously bloated bonuses and perks for executives of the companies whose malfeasance necessitated the bailout in the first place? Does anybody think our food supply is safe despite the level of toxins still poured into that food supply? Does anybody really think that educational opportunities are fairly administered or that the pharmaceutical companies aren't being ridiculously greedy in hoarding cures or overcharging for remedies? Does anybody really think that educational debt is fair or that students have meaningful choices to do good work for less pay?

That last question, by the by, is pretty near and dear to me as a lawyer. In another blog, I've railed against the idea that law school is becoming more and more expensive and that only people with silver spoons in their mouths, or people willing to live hand-to-mouth, can afford to do work for "people" as opposed to "corporations" when they get out of school. Law students are faced with a ridiculous choice of either serving the corporate power structure for the kinds of salaries that allow them to support the increasing law school debt - work of which I am sure they don't feel particularly proud - or being poor (or ruining their credit score) and literally living on macaroni and cheese by accumulating that debt and yet trying to serve the interests of regular families (which isn't as nearly financially rewarding at the start of one's career).

My favorite line of all, however, is the fact that the corporations have influenced the law to the point where the corporations are treated as "people" with none of the accountability. I've railed against that in many of blogs before and I rail against it every day and I've said it to juries. It's insidious and disgusting and yet that idea is as enshrined in our law as many other principles as old as the law itself.

If I as a person do something wrong, then I as a person am responsible for it. But if a corporation, treated as a person when it comes to asserting its rights against others, does wrong, the corporation is held accountable but not the people that directed the corporation to do the bad thing.

That's nice. We hold a piece of paper creating the corporation responsible for injury, corruption, death. But not the people who hide behind the paper. We call that "the corporate veil" and it is one of the most shameful and unacceptable Faustian bargains our economy has made in order to be "successful."

We fight against that particular legal fiction every day with varied success. We fight against that fiction for you. We do that for individuals and people who don't realize how "evil" corporations really are until they're personally wronged by corporate arrogance and greed.

I found myself empathizing a great deal with the Occupation of New York City. I'm going to start supporting that group and I'm going to remember that when one person cries out for justice for himself, it is a good idea for other people to listen. Martin Luther King once said that "injustice anywhere is a threat to justice everywhere" and truer words were never spoken.

The Occupation of New York City and more importantly, the ideas that it was meant to represent and foster, are necessary way-stops on the journey to justice.

The End of 'Don't Ask Don't Tell'

webmaster@lawyercentral.com (Lawyer Central) — Wed, 21 Sep 2011 07:33:44 EST

I'm 45-years-old now. When I was a kid, my father told me "Don't judge a man unless you've walked a mile in his moccasins." It was an old saying when I was young, but in our haste to continue our national "evolution", we've developed some blind spots when it comes to folk wisdom. Young generations, and even members of my generation, have forgotten or never learned the wisdom of that phrase (and of others). We feel impatient or irritated with what we now consider to be "cliches" like that one without remembering that there's a reason they were old sayings when we were young.

So, recalling that maxim, I will readily admit that, despite thinking I have a pretty good brain and a pretty decent imagination, I will never understand what it's like to be a woman, or a black person, or a member of the last minority constituency in the Country that it's still politically acceptable to openly denigrate and disparage (if you're on the extreme right or hide behind the dubious barrier of religion): GLBT people.

When I was a young boy, I instinctively knew that I was straight, as many billions of human beings do by the time they reach a certain age. The Kinsey "spectrum" of sexuality notwithstanding, everybody pretty much knows where they fall out on that line.

So while I had to deal with many challenges in my life, and I had to try to think, fight, study, test or work my way through many barriers, one barrier with which I never had to contend was having to be ashamed of who I felt compelled to love.

That was then and this is now, as another old saying goes, and yet as much as our society has done good work in doing away with active prejudice of all kinds, having made great strides in women's rights and civil rights issues, we've lagged shamefully and inexplicably behind on the matter of respect for sexual minorities.

Of course, there's a reason for that. One can't justify racial hatred from the Bible unless one is truly a crackpot interpreter of that book (or of The Koran). On the other hand, someone intending to mount an "intellectual" defense of bigotry against sexual minorities can find much fodder in the active pronouncements of modern religious movements. It is for these reasons that it's still "OK" to bash homosexual people publically, especially if you're from the right wing.

One of the ways that this prejudice has most actively festered was in the military's policy of "Don't Ask, Don't Tell," which prevented service people from openly declaring themselves to be homosexual in exchange for the dubious "protection" of not having to worry about being asked by anyone else about their sexual preference while in uniform.

In other words, what the saying really meant was "stay in the closet and we'll pretend you're not in there." I was never in the military, but I've had family members who were and at one time, I aspired to be (but I got too tall to do the particular thing I wished to do in the Navy). I don't understand, therefore, why people can be asked to literally risk their lives and follow orders into danger but at the same time told to be ashamed of whom they are and who they love.

Frankly, if someone is willing to lay down their lives to protect my freedom, then frankly, I'm happy to let gay people do it, straight people do it, women do it, etc. Anyone who wants to serve with honor and courage ought to be allowed to serve while remaining who they are.

This doesn't mean that it's now open season on public displays of affection. Military discipline is undermined by either gay or straight displays of that kind. A soldier is a soldier and a sailor is a sailor, regardless of gender (and now, regardless of sexual orientation). That means everyone must act the part of a disciplined warrior and that means refraining from conduct unbecoming, whether you happen to be "conducting" yourself with a straight partner or with a gay partner.

Service people who've been dismissed for having "violated" the policy by simply being who they are will be invited to reenlist and, presumably, their records will be expunged of any "taint" associated with their prior departure. Service Chaplains will, presumably, despite still ignorant objection, be trained and permitted to conduct same sex marriages, which cannot but have tremendous - and positive - impact on the national movement to require fairness in marriage rights for GLBT people.

As a Civil Rights Lawyer, of course, I support this repeal. I also support the repeal because I'm an American citizen and I believe in freedom and fairness. I also support the repeal because I have a wife and a son and I want them safe. Which means to me that anyone willing to courageously put themselves in harm's way to protect them is a hero to me, whether they're gay or straight. I support the repeal because I'm a human being and the ban seems to me to be the most offensive kind of passive aggressiveness.

And thus we lay one more paving block on the road on the "Journey to Justice."

Justice is About More Than Money

webmaster@lawyercentral.com (Lawyer Central) — Fri, 09 Sep 2011 07:33:44 EST

The attacks on the jury system in this country continue in their vociferousness, their ignorance, their dishonesty and their hatred. The corporate, banking, insurance and financial worlds have all combined, since the early 1980's, in a very clever campaign to besmirch our justice system and undermine the intellectual neutrality of juries.

As a trial lawyer, I know this instinctively every time I pick a jury. Every jury selection for the past ten or even fifteen years has involved having to try to get around the poison that's been spewed into the ears and hearts of New Jersey citizens and citizens across the fifty states. Yet, armed with the ability to at least ask questions to potential jurors, we do sometimes find out which jurors are most unsuitable and most unable to be neutral. We have, at least, that ability. Yet, nearly every juror, I suppose fortunately in terms of truthfully, answers, "Yes," when they are asked whether or not they think there are too many lawsuits.

In fact, there aren't too many lawsuits. In further fact, the rate at which lawsuits have been filed in our country has actually gone down per capita over the last twenty years, but of course, the people that are trying to poison the jury system don't admit that and don't spread that information. Corporations are filing more lawsuits than ever, of course, but as far as they're concerned, they own the court system, just like they own everything else. They can seek justice as often as the like. Just not you.

They've been largely successful, but I recently had an experience which continues to restore my faith in the community of jurors called upon to deliver justice.

I took to trial a sexual harassment case in which my client was inappropriately spoken to on several occasions and inappropriately touched on another. On no occasion was there a witness to any of these acts and her employer, a solo practitioner doctor, seemed very satisfied that he would be able to convince a jury that the conduct had never taken place or that, even if it had, it wouldn't matter.

In addition, the doctor trotted several witnesses in to represent that, although my client had told those witnesses what the doctor had done, that my my client had not done so.

Yet the jury saw through those defenses and delivered substantial justice. Here's why the case was such a pleasure, however, to try.

During the direct examination, my client, very honestly and earnestly, and certainly without having rehearsed it, turned to the jury and told them that she wasn't even concerned about money, she was only concerned about making sure that the doctor was found responsible for what he did. It's not something that I was particularly concerned about one way or the other, because it was sincere and truthful. She did only care that the doctor be found responsible. In fact, she'd been waiting for her trial date for a number of years specifically and essentially only for that reason.

Happily, our Law Against Discrimination rewards people for such perseverance and for such courage, and also for such selflessness. In the end, even though the jury did award a moderate amount in damages, which certainly satisfied my client, it truly wasn't why we were there.

What feels so good is that this jury of people from the community listened attentively, listened carefully, paid attention, and then patiently sorted through the evidence to reach a substantial and just verdict. It validated the process, it validated the Law Against Discrimination, and such verdicts as this always renew my faith, not only in my practice, but also in the jury system.

It works. Never forget it and never let anyone tell you differently.

Proud to be an American

webmaster@lawyercentral.com (Lawyer Central) — Wed, 03 Aug 2011 07:33:44 EST

As a Civil Rights Lawyer sworn by oath to defend the interests of those least capable of defending themselves, I often find cause to define the phrase "Proud to be an American" in a way different from the typical. This is understandable; by dint of professional training for three years in law school and twenty years since, I have been given to understand the phrase in the context of a rich and not always entirely consistent legal history of the United States to which most people not trained in the law never learn in detail.

In light of that history, a few examples of which I'll discuss in just a moment, I've had to reconcile my pride in American ideals versus American conduct which is sometimes in poor service to those ideals. Most people don't make that distinction. For example, Ann Coulter, a toxic, dishonest and cynical right wingnut, suggests that any criticism of American conduct is the act of a traitor... until "W" was out of office and Obama stepped in. Then, of course, criticism of the government is the act of a patriot. Sadly, her fanatic 'fan base' doesn't have the intellectual honesty to see this divergence, plain though it is. "America: love it or leave it" is another inane expression of a 'blind, deaf and dumb' - and thus childish and dishonest - way of being 'proud' to be an American.

That kind of pride an America true to her ideals in their highest expression doesn't need. That kind of love and pride is like that of a child. It's like loving a movie star for the character she plays and her conduct on screen, but not for the person she is when takes off her masque. In order to truly be 'proud' to an American, we have to be knowledgeable and honest about what America is, and what she's done. You can't love someone unless you know them.

Nearly everyone has heard of the Declaration of Independence. They think of it as a noble document, and in many ways, it is. It took great courage to draft, and even greater courage to defend with blood, in war. Yet it was drafted by white Christian men, some of whom were slave owners, all of whom denied the right to vote to women, and who wrote not all "people," but instead all "men," are created equal. It goes without saying as well that the word "men" did not, at the time, contemplate men of color.

The Constitution is also often mentioned by everyone, even those who never learned much else is school, as a nearly religious document forming the foundation of all our country is and does, yet, again, nearly no one outside of politics, government and the law have bothered to read it critically, rationally, and fairly. Drafted by a similar group of white Christian men, some of whom were again slave owners, the document also espouses noble sentiments. It was the first of its kind on the planet and, in the highest expression of flattery in the history of civilization on Earth, has been copied many times over.

Yet the document declared that slaves of the southern states, none of whom could vote, counted as "three fifths" of a person. Three fifths of a human being. And that was a compromise. It's a sordid story. The newly formed government was to include two branches of the legislature, formed on the model of the British Parliament. The Senate, then as now, would contain two senators per state, regardless of state population. The House of Representatives, however, would base membership by state population. Then, as now, the southern states contained vastly fewer people - slaves and non-slaves - than the northern states. And so an odd, very unsettling and cynical debate arose over this point.

The northern non-slave owning state Constitutional delegates didn't want to count slaves at 'persons' at all, while the southern delegates, from states where owning a human being was the same thing as owning a chair, wanted every slave counted as a person. Of course, these southern delegates had no intention of allowing those slaves to vote for the representatives their numbers would send to the capitol, and so their insistence that their slaves were 'persons' was the worst and most horrid dishonesty, but there it was. The northern folk for whom slavery ranged from unfamiliar and discomfiting to outright abomination didn't want to consider people to be 'people' for the purpose of interpreting the document which would guide the very conduct of our nation, and the people for whom slaves were like any other owned animal wanted to count those slaves as 'people.'

So should we all be 'proud' that such a debate could even take place? It depends, doesn't it? If you're proud that, having begun thus, we've cloven to the ideals of the Constitution without holding the original words, then yes, pride is exactly where you want to be. But be that kind of proud, you have to know what I just explained. If you didn't your love was not as informed as it should have been.

There are other blemishes on our nation's history, when this country acted entirely inconsistently with at least the sentiment, if not the outright meaning, of the words in our historical documents.

In addition to allowing human beings to be owned as cattle, and in addition to denying women the right to vote, our nation allowed children to go without school and to work 10, 12 and 14 or more hours per day, for what amounted to slave wages that created a standard of living even lower than most slaves endured (at least most slaves did not have to purchase food, water, medical care and shelter, but 'free' working children did or they and their families went without).

This situation persisted in our country for longer than it hasn't; child labor laws were only passed in twentieth century and, at about the same time, historically speaking, as a woman's right to vote was recognized. The United States didn't allow women to vote, and did allow children to work excessive hours in dangerous labor conditions, for longer than it has not.

Even after a woman's right to vote was recognized, even after labor unions were finally allowed to exist (though not before the 'entrepreneurs' of the late 19th and early 20th centuries, now lionized as the fathers of our modern super economy, battered and beat the labor leaders, and manipulated a partially corrupt political and judicial system, in an effort to kill the labor movement entirely), even after child labor laws were passed and even after slavery ended, this country still acted disgracefully when it came to Civil Rights.

In World War II, the United States imprisoned Japanese Americans some of whom were citizens of this country, simply because they looked different than we did. There were no "internment camps" for Italian Americans or German Americans, only for Japanese.

Even as recently as 50 years ago, African Americans were not recognized by law in their right to vote and were treated as subhuman, relegated to substandard accommodations and substandard water fountains, transportation and other public privileges that white Americans had been taking for granted throughout the entire history of the country.

I know many of you know some of this, in truth, and very few might know all of it, but now that you do, what to think about your country? What to feel? Pride, nonetheless, and notwithstanding. Pride, for the same reason that we're proud of our children who learn lessons in how to behave and become better people, pride in ourselves when we do the same. What is more deserving of praise than lessons learned, wrong conduct honestly acknowledged, higher ideals espoused and implemented?

It is, as Thomas Paine said, "the duty of a patriot to protect his country from his government." And so it is because we all want to be proud to be Americans that we do so.

I am a Civil Rights Lawyer who believes in the Rule of Law and who believes that the weakest and least capable of our society deserve the greatest degree of protection. Thomas Paine also said "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." Martin Luther King said, expressing similar sentiment: "Injustice anywhere is a threat to justice everywhere."

And that, simply, is what it means to be proud to be an American when your pride comes from knowledge of where we've been and where we've come, and where we have to go. When you make sure you want, and that your government delivers, justice for all and not just for those with money, or the right gender, or the right religion, or the right race, or the right sexual orientation... and when you're ready to sacrifice for those ideals... then you're an American, and you should be proud.

And so I do not believe in "mob rule" and I do not believe in "pure" democracy because that's just another way of saying mob rule. I believe in a republic where intelligent, capable and dedicated people are elected to do a specific job so that the rest of us don't have to think about roads, taxes and wars every day and so that the rest of us can on about our lives without having to attend sixteen hour a day town meetings to vote on national policy. Yet they who serve must aspire to the highest ideals of what it means to be an American or they're not fit for service.

Of course, the system doesn't always work; not everyone who serves in public office has ever been, or currently is, a font for all of those virtues. Yet we can hope, being human, that as many public servants as possible are a font for as many virtues as possible, and the ones embodied in Paine's and King's words foremost of all. We will never have better than that ideal. That said, and given that we can only use human servants to serve our republic and our democracy, we do the best we can.

I'm proud to be an American because I can write this blog. I'm proud to be an American because I have the right to criticize my government, whether a Republican or a Democrat sits in the White House. I don't agree with everything that President Obama has done despite the fact that I voted for him. I'm possessed of the right to say so, as long as I'm a thinking person who bases his opinion upon reason and fact and not upon passion and irrationality.

Yet there is a time for passion. I prepared this blog during the week of our national holiday, though it will be posted between the Fourth of July and Labor Day. I've outgrown fireworks and the sometimes regrettable jingoistic, childish "patriotism" that often attends Memorial Day, the Fourth of July, and now September 11th. Instead, on those days, I think of how we've outgrown the imperfect words of our founding documents and reached for the ideals behind them. Sometimes, 'sacrifice' in service of that reaching is simply abandoning passionate and childish ideas about our country, which gets harder as we age. And sometimes, for an honored and select group, that sacrifice means much, much more.

With that pride does come possessiveness, I admit. Like the great quote from Animal House when the fraternity pledges were being abused by other than the fraternity leadership ("they can't do that to our pledges!" "Yeah, only we can do that to our pledges!"), I don't like it when people from other countries who don't shoulder the burden of being an American - and all the educated insight, honesty and duty that requires which comes for citizenship in such a unique and powerful country - presume to criticize cynically.

During Present Kennedy's Administration, the Secretary of State, Dean Rusk, was in France. During the early 1960's when Charles de Gaulle, then the President of France and a former General in World War II, pulled out of the NATO Alliance, President de Gaulle told Rusk that he wanted US military out of France as soon as was practical.

In reply, Rusk quietly asked "Does that include those who are buried here?"

When in England, at a large conference, former General and Secretary of State Colin Powell was asked by the Arch Bishop of Canterbury if President Bush's plans for Iraq were "just an example of Empire building," by George Bush.

The answer made no reference to President Bush at all, who was deservedly criticized by many for a lot of things. Instead, General Powell chose to accept the criticism as a desire on the part of America to empire build and answered: "Over the years, the United States has sent many of its fine young men and women into great peril to fight for freedom beyond our borders. The only amount of land that we have ever asked for in return is enough to bury those who did not return."

These are instances where one is reminded that America has tried her best and has succeeded more often that she has failed. Since we ask no more than that from ourselves or from anyone else, how can we hold America to a higher standard? She does her best, and for that, I am proud to be an American.

The Steady Slide Toward Theocracy in the United States

webmaster@lawyercentral.com (Lawyer Central) — Tue, 10 May 2011 07:33:44 EST

Although nothing coming out of this Supreme Court should really surprise me anymore, the shear chutzpah of the reactionary justices on the Court is sometimes shocking.

On April 4, 2011, the United States Supreme Court, in a five to four decision typical of the divide between Justices who respect the Constitution and Justices who don't, refused to hear a petition by Arizona taxpayers who claimed that the state had unconstitutionally subsidized religion through its tax system. Since the inception of the plan in question, the cost to Arizona's citizens has been nearly $350,000,000.00 in diverted tax revenue. The majority opinion by Justice Kennedy said that taxpayers lacked standing because the funding of religion they challenge comes from a tax credit, rather than from a tax appropriation.

In the case of Arizona Christian School Tuition Organization v. Winn, the taxpayers complained in the District Court of Arizona that Section 43-1089 of the Arizona Code violated the establishment clause of the First Amendment to the Bill of Rights of the Constitution as made referable to the states by the Fourteenth Amendment to the Constitution. As readers may or may not be aware, the First Amendment to the Constitution is the first of the original "Bill of Rights" which softened the Constitution enough to allow for a balancing between the interests of states versus the federal government, and the balancing of interests between any government, whether it be state or federal, on the one hand, and the rights of individuals on the other. These fundamental liberties guaranteed by the Bill of Rights are so entirely fundamental that it's hard to imagine how the Constitution could even have been contemplated without their inclusion, yet the debate over whether or not to include them at all was bitter and created quite the divide.

The Arizona act allowed Arizona taxpayers to obtain a dollar for dollar credit of up to $500.00 per person for contributions to school tuition organizations that use what would otherwise be state income tax revenues to pay tuition for students at private schools. Of course, some of these schools discriminated on the basis of religion in selecting students. To put it bluntly, some of these schools are religiously governed, teach religiously, and teach, often, a biased view of others possessed by the religion governing the institution in question.

The fact that these schools discriminated inspired the suit. The District Court dismissed the suit as jurisdictionally barred by the Tax Injunction Act, a federal statute. The Court of Appeals reversed the District Court's decision and the United States Supreme Court agreed and affirmed in the case of Hibes v. Winn, in 2004.

On remand, the Arizona Christian School Tuition Organization and other interested parties intervened. The District Court once more dismissed the suit, this time for failure to state a claim. Once again, the Court of Appeals reversed. It held that respondents had standing to sue under a case called Flast v. Cohen, from 1968, and that the respondents had stated a claim that the Arizona statute violated the establishment clause of the United States Constitution.

The Court granted "certiorari," which essentially means the right to put the dispute before it, and found that the respondents had no standing under Flast because Arizona had made no "appropriation" of funds.

In essence, what the Court was arguing was that since the Arizona government had not affirmatively undertaken itself to set aside the finds, it had not, in essence, "acted." The fact that it was allowing citizens to act nonetheless with the government's imprimatur, however, should have meant the same logical thing. How the tax money is diverted shouldn't matter; that it's being diverted for the benefit of religion is what matters. It's obvious, and, no doubt, was obvious to the reactionary judges who pretended not to see it.

Justice Scalia, joined by Justice Thomas, said that taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. They acknowledged that the Flast case created an exception for taxpayers raising establishment clause challenges - religious challenges - to government expenditures. They also said the majority would "repudiate," or invalidate if it could, the "misguided decision," referring to Flast, which, of course, allows taxpayers to challenge religious spending.

Yes, you read that right. They don't want citizens to question tax actions by the government which suggest the government is violating the anti-establishment clause of our Constitution. If that frightens you, it should. It's nothing less than an attempt to establish religion in government after all. It's theocratic fascism, and it's coming.

Justice Kagan in his dissent said that cash grants and targeted tax breaks are means of accomplishing the same governmental objective: to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from one form of subsidy or from another. Either way, "The government has financed the religious activity" and so either way, Justice Kagan said, "taxpayers should be able to challenge the subsidy."

If I am in care of a toddler and I push the toddler in front of a moving train, I've committed murder. No less have I committed murder, however, if all I do is allow the toddler to enter the train tracks of his own accord, fully aware that the train is coming. That is how clear the meaningless distinction between an affirmative "appropriation," on the one hand, and a passive "voluntary" diversion, on the other, is.

When the day comes that America ceases to be what it is and becomes just another thuggish theocracy where one dominant religion imposes it's power on everyone else, where individual freedom is a memory, when oppression and suppression of political religious and minority opinion is no longer the exception but the rule, when searches and seizures without constitutional protection predominate, and when law enforcement and military authorities are forgiven any sin in the cause of "security," we'll have no one to blame but ourselves.

This is why judicial appointments by presidents are so important. Once a Supreme Court Justice is appointed, they can either do tremendous damage for their entire career, or do tremendous justice. The Court is presently doing tremendous damage in support of corporations, banking interests, insurance interest, overzealous law enforcement and now, establishment of religion.

At this civil rights law firm, we decry this decision and hope that something of this blog has sunk in when it comes time to cast your next presidential vote. You are not just voting for a president you are voting for your posterity's legal future. You're voting to protect what it means to be an American.

The 'Nullification' Amendment and the Destruction of America

webmaster@lawyercentral.com (Lawyer Central) — Fri, 18 Feb 2011 07:33:44 EST

When the very brilliant and prescient framers of the Constitution wrote the document which was the first of its kind in the world and which has withstood the test of time and political tidal action to form the bedrock of the American way of life, they created a balance of powers as between the Federal entity America was, on the one hand, and the states, each an entity unto itself, on the other.

They did things that way for a reason. The Federal government was given certain powers - to make war, to enact treaties, to regulate commerce between the states, to protect the guarantees of the bill of rights, and to do other things that nations must do to function as a nation and to relate to other nations - and reserved all other powers to the states. Neither party was to tread into - or upon - the rights of the other. As impermissible as it would be for the Federal Congress to pass a law in New Jersey changing the state bird would be an attempt by New Jersey, for example, to pass a Federal law affecting the rights of citizens in North Dakota.

But alas for the politics of today, which are bitter, personal, and deeply emotional, rather than rational. The modern 'conservative' distorts and tortures the meaning of the word from respect for time-tested institutions to disdain for such institutions. They embrace, today, a frantic and contemptuous drive to destroy by alteration that which offends them. Those who support this agenda are catered to as spoiled, screaming children who demand an America which fits their discomfort and fears; those who talk to them, and who talk for them, are smart enough to manipulate this. Think Tea Party. All this means that, since they're numerically inferior to more rational American constituencies and always will be, that they're not going to win fair and square in their fight to control how everyone else lives.

So there is a movement afoot, sponsored by the extreme right and by the Republican Speaker of the House, to create a 'nullification' amendment which would allow two-thirds of the states to repeal federal legislation with which they do not agree.

This unprecedented and nothing short of an outright urination on the Constitution. It entirely obliterates it and renders it so much soiled tissue paper. The Federal system, which has erected a proper balance between Federal and State prerogatives, will now be erased by a tyranny of the minority, one which fears progress and change, which will, without hesitation, use this horrid, neutered new Constitution to reverse everything scientific, progressive and right. In so doing, the 30% of the population living in 66% of the 'red' states will dictate terms to the 70% of America which lives in a minority of the states.

Gone will be any hope of a woman's right to choose being the province of law. It will instantly become the province of statute. Gone will be equal rights for many minorities, fair and rational immigration polic ies, funding for important medical and scientific research, environmental regulations, laws which keep religious bias out of public institutions, consumer protection measures. This country will become incapable of accomplishing anything the neo-conservative minority doesn't want done.

This horrid initiative is the result of extreme polarization of politics. It is the result of everyone moving physically, electronically and politically to places where they don't have to deal with anyone else's opinion and where they get all of their news from self-reinforcing 'echo chambers' such as the talking heads, political pundits and skewed news services that say things that people want fed to them like so much soft food they don't have to chew.

This is the price we've paid for going from three news networks to three hundred. It's the price we've paid for getting our news in small sound bites and for allowing networks like Fox to even exist. It's the price we've paid for putting hands over our ears and singing 'la la la la' when we don't like what the other person has to say. It's what we get for being afraid of change, afraid of cultural, political, scientific and other types of evolution, and it's going to doom this country.

If this 'nullification' amendment is passed to change our Federal Constitution to remove powers from the Federal government and give them to the states, we're going to stop being a powerful, international superpower which is formed as a 'republic,' and we're going to become a second rate world power along the lines of a 'confederacy." Eventually, we'll go the way of Yugoslavia and the way of the gooney, as the extreme red states persist in their cultural, political and religious isolation.

One day, perhaps much sooner than the right wing would like if they pursue this kind of nonsense, America is going to cease to exist.

This is a political and national disease, nothing less. If this nullification amendment is passed, it is going to destroy this country faster than any other force could possibly do, and we'll have no one but ourselves to blame.

Honorable Republican Against Tort Reform

webmaster@lawyercentral.com (Lawyer Central) — Fri, 04 Feb 2011 07:33:44 EST

Some of you may know the name Fred Thompson, the actor turned Republican senator from the state of Tennessee. I've never known too much about his personal politics, because I've never made it my business to know much about Tennessee and, admittedly, as a Progressive, I tend to make assumptions about Republicans which, I suppose (infrequently), I place upon them the burden to disprove. Fred Thompson, at least in the area of 'tort reform,' which thinking lawyers call 'tort de-form,' seems to have said the right things and has actually taken what I consider to be a principled stance against the misinformation and scare tactics to which the right and its allies are so frequently prone to resort.

In the online periodical The Tennessean, which I admit I don't know much about (so I don't know whether or not it's the online version of the print periodical or purely online), Senator Thompson said some interesting things about Tennessee's civil jury system, which, like those of so many states, is under attack by right wing interests seeking to limit access to courts for people and to limit and 'cap' recoveries in an effort to protect the corporate and other wrong-doers of this nation.

I've often mentioned in my other blogs that I consider the corporate and right wing 'conservative' assault on civil justice - which, in truth, basically means an assault on the scale and nature of remedies that individuals can obtain against vested interests like corporations - to be nothing more than a cynical and dishonest attempt to brainwash the American people into gladly giving up their civil rights when corporations not only don't give up rights, but also obtain more and more of them every day.

The concept of the jury is centuries older than America and is at the core of a functioning, capable democracy with a judiciary capable as standing independently as one of the three branches of government. Only through the power of a jury of regular citizens can the vested interests of government, corporations, banks, insurance companies and powerful lobbies be kept somewhat in check. Are juries tampered with? Yes. Are juries sometimes plain wrong one way or the other? Absolutely, but juries mostly get things mostly right most of the time, and given that we're not yet at a point where we can have computerized juries and we haven't quite found the planet Vulcan, our fellow American citizens are all we have.

The fact that most juries get it right most of the time irks the right more than anything. Corporations don't like having to surrender their power to juries. That's why arbitration, which is neither 'fair' nor 'inexpensive,' but which is billed to be both by the right wing, is so popular these days. Unfortunately, most American citizens are so personally consumed with distractions, economic worry, war worries, health concerns and the like, and some of them are so philosophically and ideologically wed to the right wing and its pundits, that they simply can't conceive that the right wing may not have their best interests at heart after all.

I have to admit that, even though I liked his performance in The Hunt for Red October and in a few other movies, I never assumed Fred Thompson was a principled man when it came to most issues that Progressives feel are important because he was a Republican. I'm prepared to admit that I was wrong. Fred Thompson did what appears to be an op-ed piece in The Tennessean and said some things about the jury system that, coming from a Republican, I think will even more sway, and ought to induce more thoughtful consideration in, everyone who reads this than would usually be the case.

I thought about putting only the 'pertinent' parts of his comments into this blog for length's sake, but, honestly, I liked everything he had to say, so here it is in full:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to "tort reform."

Republicans and conservatives are supposed to be for anything called tort reform. However, I've never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants - regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system "ain't broke." It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.

Were Senator Thompson still in office, I doubt that he would have written this. That having been said, he's a considered 'conservative' in the true mold of that word. It's an interesting debate and one that I won't strain the length of this blog to discuss, what it means to be 'conservative.' Mostly, the people that call themselves 'conservatives' are, in fact, the worst kind of anti-progressive reactionaries, willing to change anything if it means changing it for the benefit of the religious/banking/insurance/medical/corporate lobby. They are simply foolish, misguided and ignorant people who have come to believe that anything that is said about law, society, culture or politics is not to be trusted unless it comes from Sarah Palin, Ann Coulter, Rush Limbaugh, Bill O'Reilly, Sean Hannity, etc. They don't think for themselves anymore, because they've surrendered their judgment to those who think for them. They are not conservatives any more than I'm a communist because I believe in socialized medicine.

Anything which takes away a trial by jury or limits the power of a jury is bad for society. I'm not saying this because I'm a lawyer and I practice in front of juries and depend upon them to make awards to my clients so that I may make a living. Doctors ask for money before they heal, because they need to make a living, too. So do nurses. Even clergy need to make a living, so let's stop suggesting that anyone who needs to make a living isn't to be trusted when they have a valid opinion about the law or our society.

I believe in justice for all. I believe in the American ideal. I believe that average citizens, especially in a group, can do the right thing so often (though not all the time) that there's no better option out there. In fact, any other option is a step toward the sort of fascist state that we've gone to war against more than once and that we ought to strive never to become.

I am glad that there are principled Republicans who speak these words because I'm hoping that someone will listen to them. I just hope that enough people, perhaps even enough conservatives, one day realize that they're being led down the primrose path of war, corporate fascism and 'anti-progressiveness.' America works best when it's an even playing field and when everyone has the same rights.

Thank you, Senator Thompson. I was wrong about you, and I'm glad to admit it.

Don't Change the Consumer Fraud Act

webmaster@lawyercentral.com (Lawyer Central) — Tue, 01 Feb 2011 07:33:44 EST

The partnership at Costello & Mains, committed civil rights attorneys for two decades, announce their strong opposition to assembly bill A-3333, which would severely damage, in the firm's view, the protections afforded by the Consumer Fraud Act. Partner Kevin Costello also sees this bill as an attack on private rights of citizens, rights which have been specially protected and given social value in New Jersey for many decades.

Assembly measure A-3333, says Kevin Costello, is the "clear product of a panicked economy" wherein legislators from both sides of the aisle feel pressure from commercial and business lobbies to pass laws advantageous to business and disadvantageous to individuals. "It's a cycle we see any time there's a panic," Kevin says. "When times get tough, people become frightened. When people become frightened, there are always a few smart, cool-headed people who take advantage of that that fright. During the stock market crash of the 1920s, these were smart investors who gobbled up the stocks that people were selling at low value and who afford to wait until the stocks reasserted their value after the crash. During any crisis, and certainly during the most recent crisis, the smartest people are the people who remain cool and calm and who exploit the fears of others."

"This bill is clearly a product of that mentality," Kevin says. "The business lobby waits for its business opportunities and takes maximum advantage at times of economic panic to slowly continue its agenda of rolling back protections for individual citizens and advancing the cause of corporate profits over the rights of families in New Jersey and in America. The more rights the corporations have, the less rights people have."

The partners at Costello & Mains warn that this bill weakens this statute, which protects against all consumer fraud perpetrated against individuals and their families, in several significant ways. First of all, the way the law is currently written, it doesn't matter how much the fraud was in terms of finding help from an attorney. This is so because a citizen who is defrauded by a commercial entity has the right to have their attorneys fees "shifted" away from themselves and onto the party perpetrating the illegal fraud. This is an important provision of the law, Kevin says, and removing it, as A-3333 does, removes a financial incentive for lawyers to protect victims from fraud. 'How,' Kevin asks, "Can someone who is defrauded of $100.00 or even $1,000.00 find redress if shifting fees are eliminated? What lawyer could possibly help somebody and put in the dozens or even hundreds of hours that a consumer fraud trial requires, if shifting fees are eliminated? This is the end of consumer fraud protection in New Jersey even though the supporters of the bill will make it sound otherwise," Kevin says.

If fees are "capped" or otherwise tinkered with, and if judges are allowed to make fees discretionary rather than mandatory, it will completely remove the incentive to challenge consumer fraud practices in businesses. Even worse, businesses will be able to cheat lots of people out of a small amount of money, become enriched thereby, but depend on the fact that each individual will not be able to assert their rights because their rights are not financially significant enough to interest an attorney in what would amount to charity work in order to protect those rights.

"It's like saying that fraud only matters if it's above a certain amount," Kevin says. This is nothing less than a cynical and ill-advised attack on the people and families of this state, regardless of their political or social or cultural backgrounds, and it hurts everyone except a few businesses that practice fraud as part of their business plan. This is a huge mistake."

Costello & Mains strongly opposes the bill and urges its friends and clients to voice their strong opposition to the bill's measures. "Any attack on rights which don't have a lot of economic value but have a great deal of moral value and which are protected by 'fee shifting' is an attempt to attack all such rights," Kevin says. "We cannot allow businesses to take advantage of times of stress like this, when they already have it so good in this state. This is nothing but cynical greed and it has to be stopped. The fact that this is a "bipartisan" bill only makes it more seductive and dangerous. Whether you're a democrat or a republican, you need to oppose this bill in clear terms and let your legislators know that you are going to hold them accountable if they support it."

New Jersey?s Anti-Bullying Law Not Tough Enough

webmaster@lawyercentral.com (Lawyer Central) — Sat, 01 Jan 2011 07:33:44 EST

Although I do applaud the legislators who have the courage, in a poor economy, to pass New Jersey's recently enacted "anti-bullying law," I'm sad to say that I think the same sort of political spin that often attends such "feel good" legislation is at work here. This law's been called the 'toughest' of its kind. In light of what it doesn't do, we need to redefine the 'tough.'

I make no apologies for the fact that my calling is to bring lawsuits on behalf of individuals who have been harmed in their civil or employment rights. My belief is that the only way you hold someone accountable for a wrong is to make them responsible for the consequences of that wrong. Simply telling people, by way of a legal 'slap on the wrist,' that they have done wrong, and they ought not do it again, does not work.

See my endless stream of anti-corporate, anti-right blog entries prior for more amplification on how important litigation is in ending fraud and civil rights abuses. I do not believe now, and never will believe, that corporations, public entities or anyone who is not personally at risk really learns from anything other than painfully, or that they modify their conduct for any other reason that they wish to avoid pain. Businesses and public entities are not people, and they have no consciences, despite their PR. People do. Sometimes.

Think about it--when you were a child, which lessons did you remember best? The ones that hurt. Human beings simply don't learn well with positive reinforcement, despite every talk show and every feel good psychologist who urges that that method works. The moments I remember most vividly in my childhood deterring certain conduct were the moments where I suffered emotional, physical, financial or other consequences. Embarrassment, Loss and Pain: These were the things that taught me lessons. Lawsuits are the civilized world's version of how to teach those lessons to people and to corporations and other entities without violence. Courts are the place in which painful lessons are taught.

Therefore, I'm always suspicious and critical of statutes which seem to create a new prohibition on conduct that we as a society want to prohibit - and all but the most psychotic of us want to prohibit harassment and bullying in schools - but which don't provide a remedy in the event that the prohibition doesn't take. This new anti-bullying law asks a good deal more from school entities and personnel about record keeping, standards, deterrence, investigation and prevention than the law has asked before. It would seem, certainly, that things will get better now, given these new standards, and they probably will.

However.

What happens when the districts fail to do what this new law asks? What happens when Sally, tormented daily because she wears hand-me-downs or is socially awkward, finally, in despair, suffers mental breakdown or worse, ends her life, as we know some victims do? What if the school district ignored this new law and the 'standards' it imposes? What can Sally's family do?

From what I can see, nothing they couldn't do before the law was passed, and that's not much, because this new law creates no private enforcement mechanism - law suits - to make the lesson of failure count.

Do you think the district as a paper entity cares when none of its people will be held personally responsible? Do you think it's insurance carrier cares?

Tell your legislator that the law has to be given teeth. Until it is, it won't be as effective as it might otherwise be. Some lives will be saved, some suffering prevented, but as a state, as a society, we should want better for our kids.

California Elects its First Transgendered Judge

webmaster@lawyercentral.com (Lawyer Central) — Wed, 15 Dec 2010 07:33:44 EST

I'm not much for talking about what other states do, because I'm a New Jersey practitioner and because I, for the most part, work with New Jersey laws. But when something happens that affects what I do even indirectly, from across the country, I think it's pretty noteworthy.

It's no secret that I'm a progressive and forward thinking person who believes that change is the essential essence of life. As a science-minded person, I know that every physicist, chemist and biologist will tell you that it is an axiom for their fields of endeavor that change is the absolute and unalterable state of the universe. Nothing ever stays the same. Things always move forward. Since there is no ability to move backward because time only flows in one direction, all change is forward and therefore, all change is progressive.

I don't mean this to sound like I'm founding a new religion. For me, it's all just basic common sense. In order to make things better, you have to move forward. Sometimes, people will get it wrong, but mostly, I think if everyone has an open heart and an open mind, change is a good thing.

Take California, for example, which just elected its first transgendered judge. On one level, that sounds momentous. It is momentous. Of course, it's sad why it's momentous, the answer of course being that there is a tremendous amount of prejudice against sexual minorities. Transgendered people, in turn, are often the red-headed stepchildren of the sexual minority community. As openly permissible as it is for the most bigoted conservatives to publicly lambast sexual minorities today, it is even more acceptable to do so with regard to transgendered people, because to the ignorant, uninformed and afraid, transgendered people are abominations, barely even human. So it is momentous that California, usually at the front of the march, has finally broken another glass ceiling for sexual minorities.

Judge Victoria Kolakowski declared victory Monday night in a race for the Alameda County Superior Court, she having won by a fifty-one to forty-eight percent vote. Hardly a mandate, but then again, today, mandates are becoming increasingly rare.

Did some people vote for her because she is transgendered? Perhaps, though probably a minority. In fact, I'm sure that that minority percentage was probably matched by the number of people that voted against her for the same reason.

So yes, it's "momentous." On the other hand, why should it be so? Why couldn't people have simply looked at Judge Kolakowski's credentials, compared them favorably against her opponent's, and selected the best judicial candidate for the job? The belief that gives me hope is that, in all likelihood, most of the people who did the voting probably did just that, just as I'm sure that most of the people that voted in the last presidential election voted based on party affiliation, beliefs in certain policy positions, etc., rather than on the race of the candidates.

No doubt, there will be people, usually of an extreme religious or socially conservative bent, who feel that a transgendered person is, by her nature, deficient in some moral quality or some other character trait simply because she is a transgendered person. These are the people whose minds have to change, and if they can't change, then those attitudes need to die out. I'm actually hopeful that they will. The new generation that seems to be emerging is so technologically inclined, and so communicatively inclined, and so desperately dependent on the march of science forward to give them the gadgets and conveniences they so love, that I do believe there will come a day when religion worldwide will simply have to adapt itself to a more modern, gentle and non-judgmental progressive planetary culture. Is that an article of faith for me? Almost certainly. I can't see the future. Then again, however, most successful bookies do make a living by predicting it. As a student of the law, and as a student of the culture in which I must serve the law, I keep a keen eye on these things. My vision is certainly lengthening (I just started using reading glasses for the first time), but from what I see, Judge Kolakowski's victory is the shape of things to come more than it's a shout in the darkness.

I applaud Judge Kolakowski and hope that she always, as all judges must, tempers justice with mercy, while protecting the vision of the law, rather than the letter of the law.

I also say to all people who feel as if they are, from time to time, a member of a minority (no matter what the nature of the minority), and all people who feel themselves to be "different" (because at some point, we all are), that, in America, it seems that anything is still possible if you want it badly enough and if you work hard enough.

Congratulations, Judge Kolakowski. I hope you're the first of more to come.

P.S. - After editing this Blog for posting, I learned that another Transgendered judge also took the bench in Texas...in TEXAS. Truly, there is hope for us all.

Happy Holidays.

What I'm Thankful For

webmaster@lawyercentral.com (Lawyer Central) — Thu, 25 Nov 2010 07:33:44 EST

I thought, for a change, I'd try to keep it a little light hearted while still delivering the message.

I'm thankful that New Jersey has a Law Against Discrimination which protects everyone from discrimination on the basis of race, ethnicity, gender, gender orientation, sexual orientation, perceived sexual orientation, disability or handicap, perceived disability or handicap, gender identity, gender expression, religion, creed, country of origin, parental status, etc. I'm thankful that it allows attorneys to push for a better, more clear-thinking society that looks past surface differences at the heart of a human being.

I'm thankful for a country that, though politically divided --- viciously so at times --- in its heart, still wishes to aspire to the greatness of its original and unique vision.

I'm thankful that we have a peaceful system of elections that allows everyone to make their opinions heard, regardless of how diverse those opinions may be, and that power transfers in an orderly, non-violent fashion.

I'm thankful that my mother thought I'd make a good lawyer.

I'm thankful that New Jersey places great store by the rights of workers and backs up that public policy with legislation that allows attorneys to protect workers.

I'm thankful that we have both state and national legislation to protect workers from the abuses of overtime without proper compensation. I'm thankful that we fight constantly against wage slavery.

I'm thankful that we have enlightened family leave laws that allow people to protect what's truly important --- their health and their families. I'm thankful that, for now, we have a system of trial by jury that keeps the power where it belongs...in the hands of the people.

I'm thankful for an excellent partner, associates and staff that make this hard work a little less hard.

I'm thankful for every client who believes that our firm is the answer to their problems and who trust us to deliver those solutions.

I'm thankful for an excellent judiciary that mostly gets it right and mostly always tries even when they don't.

I'm thankful for so many colleagues that trust us to do the right thing by their own clients.

I'm thankful that I have a family that understands and supports what I do, why I do it, and why it's important to make a better society.

Finally, I'm thankful that my wife believed in me and that she believes in me still.

The Beginning of The End For 'Don't Ask, Don't Tell'

webmaster@lawyercentral.com (Lawyer Central) — Mon, 18 Oct 2010 07:33:44 EST

A federal district judge has begun the final and well deserved death of one of the more ridiculous anti-civil rights policies this country has maintained. "Don't ask, Don't Tell," coined during the Clinton administration to describe the irrational military ban on homosexual soldiers and service people, has been given a great deal of attention of late. Now at last, it seems, the courts have begun to insist that the military stand up to the American Ideals of freedom and equality it so often champions.

A little background...

This country does not have a good civil rights record. I love the United States and I love America; I'm a patriot. But what I love about this country is the ideals that we are supposed to espouse through the better angels of our nature. Our ideals - and our striving to make them real - are what make this country great, not it's symbols, songs, flags, biases and jingoism. Nothing is uglier than calling someone a traitor who, through love of country, criticizes to make the country better.

I am not, therefore, an irrational or foolish patriot who feels that you must "love it or leave it" and who blindly accepts whatever the government does or says. True patriots, like many of the founding fathers and like many of the greatest Democrats and Republicans since, have always felt that loving and fair minded but often harsh criticism of the government is what a patriot does to manifest their patriotism.

Marching in lockstep with a party line is an expression of ignorance and a type of intellectual cowardice and fascism.

I want to see America succeed. I want to see it be the greatest country on earth and I want it to be the place where my son grows up and raises his own family. I want it to continue, always, to be a beacon of hope for the world, a place where we truly welcome the "wretched refuse" who crave " the light of freedom". These are not just words. Cynical conservatives who blindly accept what Rush Limbaugh, Ann Coulter and Sarah Palin and other right wingers have to say are not patriots. People who hate others because of sexual orientation, race or religion are worse than not patriots. They're the kind of enemy America was meant to fight.

Because I love my country, I've always been harshly critical when it fails to live up to its own aspirations and standards. This country was " conceived in liberty," where "all men (and all women and all minorities) are created equal".

The problem, of course, is that many of the framers were slave owners who did not believe that slaves were men and who did not believe that women were capable of participating in the exercise of government. Yet we've come a long way since then, and not even the staunchest, most foolish conservative would now dare argue that women are not deserving of the vote, of fair wages in the workplace, etc. It has simply become political suicide to espouse that view if you have any hope of mainstream success. Likewise, the same staunch conservatives and right wingers could never get away with arguing that people who are not Caucasian are similarly unsuited to participate in government were to possess the same rights in full measure as Caucasians possess.

They possessed these ideas once ? and they acted upon them and fiercely defended the 'rightness' of them, but in time, change came. Now, those ideas are seen as universally wrong.

Yet, homophobia persists.

Homophobia is the easiest prejudice to get away with having in today's America. Everything nowadays for young people that doesn?t meet with their approval is "gay", even if it?s the fact that the toast has been burned. The word "gay" is so often used, that it has become literally impossible to separate it from concepts to which it has never been before attached. Thus does homophobia persist in pop culture and in almost every text message young people send. Boys giving compliments to other boys are playfully ? and sometimes destructively and not so playfully ? teased for being gay or a homo. Some say 'not gay' as a humorous defense to the accusation to beat out anyone preparing to tease them.

So it's no surprise that it's still politically acceptable to bash homosexuals by claiming that they have a "secret agenda" and by claiming that they are trying to "erode" the country and/or family values. This is the ridiculous clarion cry that the right wing uses to rally its religious automatons who will blindly vote for any candidate who says the right mantras against the "gay agenda". I have a feeling that religious right wingers would vote for Adolf Hitler if they thought they could elect him into office and that he would prevent "the gay agenda" from ruining their precious insular little lies about the world.

I am a straight man with a wife and a son who has no problem with the fact that some people are not straight. I have no problem with the fact that those people would like to have loving marriages and pay the same fees, fines, taxes, and have the same rights, as my wife and I do. I have no problem with the fact that these people want to adopt and raise children or that they want to conceive children and raise them in a loving, supportive family environment.

And I have no problem with the fact that a gay man or woman might want to pick up a gun, fly a plane, drive a tank, or provide military support for love of their country. My son is seven years old; I do not know what his future holds. He may decide to enter military service or he may not. The world may change enough where he is pressed or drafted into military service. He may find himself in harm's way one day. I don't want to think about the fact that he might be killed or maimed because someone was not there to help him. That someone might have been a homosexual or lesbian soldier who was perfectly willing to pick up a gun and walk into battle with my son. If they were not there, however, because, being out and proud, they were unwelcome in the military, then the soldier who saves my son's life won't be there to do it. Maybe there is no straight replacement. Maybe the straight alternative isn't a good shot. Maybe they tortured a prisoner and got sent home to face charges.

Maybe my son dies because my country is still, in the third decade of the 21st century, being run by bigots.

I shouldn?t have to worry about that. No one should.

I have heard from whence this bigotry comes. I understand why many people in the military have had seemingly forever, this view, though I doubt it mattered during the War of Independence. The fearful bigots seem to feel that somehow, homosexuals are not "man enough" or "predictable enough" in their actions to trust in combat. They're worried about sexual "come-ons" in the barracks. Yet this same military has a not very proud history of sexual harassment between the sexes which it constantly sweeps under the rug, condones, accepts and defends. I find it ridiculous that a military which is so riddled with sexual harassment and historic mysoginy would, with a straight face, argue about worries over sexual "come-ons" in the barracks.

It?s simply not reason enough to stop men and women from wishing to serve in the Armed Forces. Serving in the Armed Forces is not easy. The training is rigorous. Training for the Special Forces is even more rigorous. It requires, for front line combat troops, pilots, infantry and calvary, the willingness to lay down one's life for love of country and love of duty. Anyone who is willing to do that probably has the personal discipline to keep it in their pants when they are off duty; if they don't, the military code of justice is there to punish them for that, and for many other infractions unrelated to sex.

"Don't ask, Don't Tell" should have been killed by Bill Clinton, and in a very sterling eight years as president, I find it one of the few reasons I have to greatly criticize him. For the same reasons, I criticize Barack Obama. I don't forgive George Bush for failing to do anything about it, because he was a fool and the tool of other fools and I don't expect anything other than foolishness from fools.

From people of conscience, vision and progressiveness, however, I expect better. I am glad that the court is finally doing its job as the third prong of our democracy and striking down what ought to be stricken and which has persisted for far too long.

I hope that "Don't ask, don't tell" dies an undignified and well deserved death soon, and that it joins such memorable American hypocrisies as WWII internment camps, slavery, denying women the vote, permitting child labor, union busting, race-segregated military service and other winning ideas whose times came and went.

If it does, it's one more paving stone on the journey to justice.

No Compelled Defense Medical Exams in New Jersey Discrimination Cases

webmaster@lawyercentral.com (Lawyer Central) — Fri, 15 Oct 2010 07:33:44 EST

Finally, a win for Plaintiffs.

Judge Kane in Atlantic County recently ruled that a worker who brings claims for emotional distress damages as part of a job discrimination suit under the Law Against Discrimination can't be made to undergo a Defense Psychological examination.

Usually, in any tort based physical injury or even psychological injury case, a Defendant can often compel exams of Plaintiffs. These exams are most often conducted by doctors who are loyal to defense, insurance and corporate interests, and who rarely, if ever, give fair reports.

More specifically, in emotional distress environments in discrimination cases, Defense psychological exams are most often used to harass, intimidate and bully the Plaintiff into feeling that the process of litigation is so daunting that he or she might as well give up now and go home, rather than submit to an abusive, one sided examination.

Just as commonly, the results of these examinations are questionable at best but often used to deceive and trick juries. Defense lawyers may urge their experts to castigate the Plaintiff for possessing personality disorders or other psychological ailments that made the Plaintiff difficult to work with or which otherwise undermine the Plaintiff's credibility and/or undermine their Civil Rights.

I applaud Judge Kane's decision because it's the right decision. I don't begrudge my Defense colleagues the opportunity to conduct a true and fair defense medical examination.

But in Law Against Discrimination cases - in other words, cases brought under our Civil Rights statutes - Judge Kane has drawn the line against an often abused discovery tool.

I support his decision and I think it was the right one.

Unfair Doesn't Mean Illegal

webmaster@lawyercentral.com (Lawyer Central) — Fri, 01 Oct 2010 07:33:44 EST

As the summer comes to a close, I finally have some breathing room to talk about what's right, and what's wrong, with employment law in New Jersey today.

First of all, here's what's wrong.

Right now, the economy's in trouble. Things are slugging along.

Politicians know this and are sensitive to this. Therefore, anything that sounds " good" for business, no matter how unfair and unjust, is going to get a more ready ear nowadays than otherwise.

The "right wing," which of course includes banking, insurance, corporate, business and socially conservative interests, always, like any oppressor, seizes upon times of trouble, uncertainty or fear to pass its agenda. In New Jersey, and nationally, the agenda of "the right" includes restricting access to the Courts for every day human beings, working people and their families, while preserving access to the Courts for corporations and for the wealthy.

Right now, New Jersey legislators have to be especially on guard against whispers in their ear about how it would "please" "constituencies" to "shore up" the economy by passing anti-worker, anti-employment rights and other "take away" legislation.

Of course, taking away the rights of workers does not drive the economy nor does it really make things better for businesses, except that it makes businesses more willing and able to get away with hurting people without being held accountable.

It's disgusting, dishonest and cynical for the right wing to do these things when they do, but as long as the workers of this state let them get away with it, why shouldn't they keep trying?

Now is the time, therefore, to be especially on guard. Write your legislators and let them know that you don't want restrictions of your rights as workers. You don't want remedies for discrimination, harassment and violations of your civil rights taken away from you simply because by allowing businesses to get away with hurting you, somehow, the economy is going to get better.

Fight the right. Don't let them try to convince you that hurting working people and their families in the Courts is a way to make the economy better. Putting more money in the pockets of fat corporate cats is never the way to make the economy better.

Here's what else is wrong.

Every day, workers in this state are constantly bullied and harassed in the workplace, without there being a component or feature of that harassment that would make that bullying or harassment actionable under our Law Against Discrimination. Approximately 90% of the people that contact our office about bullying, intimidation and abuse in the workplace can't be helped because the bullying is not "vectored" under the LAD.

What this basically means is that if the bullying isn't gender based, age based, disability based, race based, religiously based, etc., then there's nothing we can do to help them.

People are so shocked when they call and get this answer. Sometimes they' re even angry at us, as if we have control over what the legislature passes and doesn't pass. We tell them that we hope that the Workplace Anti-Bullying Law, which has been before the legislature for some time, will be passed, but unfortunately, that's perceived as "anti-business" because it holds wrongdoers accountable. And, of course, now is not a great time to hold wrongdoers accountable, goes the conventional thinking.

So just understand that "unfair" doesn't mean "illegal." Just because someone does you wrong or does you dirty or does you inconsistently or dishonestly, doesn't mean you have a resort to Court. As it is, your rights are pretty severely restricted in New Jersey and if the right has its way, rights will become more restricted over the coming months or years, especially under a conservative governor, who seems to put the interests of his moneyed friends above the interests of working people and their families. If legislators without courage don't stand up to those efforts, regardless of what party they are affiliated with, then you stand to lose ground in your battle to protect your civil and workplace rights.

Did I mention what was right?

What was right is that we still seem to have a relatively independent judiciary, although our Governor has begun to erode that independence, threatening to not re-appoint judges who do not agree with his conservative agenda. We still have pretty good anti-harassment, discrimination and whistle blower retaliation laws in this state for now. And we still have jury access for now.

But beware of concepts like "mandatory arbitration," of "tort reform" and of other concepts that, in pure Orwellian fashion, are meant to seem like a good thing but are really an awful thing. Those things restrict your rights and those things prevent your access to the Courts. Once your rights have been sufficiently restricted and your access to the Courts sufficiently impaired, businesses will have no reason to do the right thing ever and you'll be left holding the stick.

Every now and then in this blog, I warn you that that threat never ends and the right is always waiting for its chance. Be careful and be wise and don't let them fool you.

No one said the Journey to Justice was easy.

Everyone vs. Everyone Why South Park?s Treatment of Sexual Harassment in Schools is no Joke

webmaster@lawyercentral.com (Lawyer Central) — Wed, 01 Sep 2010 07:33:44 EST

First of all, let me just say this: I?m not a stick in the mud. I get what the creators of South Park are all about. They?re making fun of ?normal? points of view taken to silly extremes. Their brand of satire requires several pieces to work. First, the issue has to be one that involves two sides or more. Second, both sides of the issue have to have something valid to say, when expressed rationally. Finally, and most importantly, for their brand of humor to hit the target, both sides have to have gotten out of hand ? silly.

When they make fun of both sides ? with the kids usually being the voice of question and moderation (I?ve learned something today??) ? that?s funy. But what about when SP?s writers make fun of only one side ? in this case, the victims of a pernicious and dangerous course of conduct ? when that side hasn?t expressed any extreme or silly points of view? Still funny? Still fair game?

Not so much.

I watched a recent episode addressing sexual harassment in schools. I don?t know how old the episode is, because in it, Mr. Garrison is still ?Mr.? Garrison. But now is when I saw it, so now is when I?m having this reaction.

I get making fun of political figures and celebrities and their causes ? they have resources, they have thick skin (or they should) and they?re no strangers to criticism and lampooning. I get extending this concept to movements and causes even without political or celebrity backing when the movements get silly or extreme.

But helpless kids? Kids being abused in schools by their peers using wolfpack tactics, physical violence and damaging psychological attacks? Kids falsely depicted as performing sex acts using technology available at the public school level? Kids who all too often think violence or suicide is the only way out?

Really? That?s funny? I guess I?m getting old. I don?t think it?s so funny. I suggest that the writers of South Park have crossed out of acceptable bad taste into unacceptable stupidity.

Kids commit suicide over this. I doubt very much whether the South Park writers know any of these kids personally or their families, or they wouldn? t have written this episode.

Really what this was, was yet another attack on the use of litigation to address wrongs, as if the founding fathers, were they brought back to answer for how they drafted our Constitution, would have to apologize for creating Courts at all.

The episode suggested that any attempt to hold school officials responsible for failing to prevent or stop this conduct is somehow stealing from schools and students.

I shouldn?t have to keep saying this: As long as people have no fear of being held accountable in Court, they will not work harder, spend more, or otherwise go the extra mile to do the right thing. Sorry, but I don?t trust the inherent goodness of school administrators and board of education officials to do the right thing in the face of sexual harassment without the threat of being called to account in Court.

In fact, there are not nearly enough law suits holding school administrators, school boards and school professionals responsible for sexual harassment of which they are aware and which they fail to stop. Teachers and administrators take the view that it?s just ?kids stuff.? Because kids are doing it to other kids, it?s not to be taken seriously.

Every study to which we have access suggest that the vast majority of kids who suffer damaging sexual and same sex sexual harassment at school don?t report it. Of the small minority of students who do report it, most suffer retaliation from other students such as being labeled as ?rats.? They often find that the harassment is increased in intensity or even that administrators and teachers simply side with harassers who might be better students or have more social pull at the school.

I sincerely hope that the South Park guys don?t know kids whose lives are altered or damaged as a result of what happens to them at this vulnerable period in their lives.

I won?t suggest that they need to apologize, because they never admit they?ve gone too far, but I will suggest that they?ve made fools of themselves. As long as Courts are there to hold people accountable, our society will endure without resorting to violence to settle disputes. If access to Courts to sue for damages is taken away, any way that happens, you?re left to trust bureaucrats, corporate types and others to do the right thing without fear they?ll be held accountable if they don?t.

Do you think they will?

We?ve had Courts of one kind or another since civilization began. We cannot go on without them. Don?t let politicos ? or irony ? sell you on the idea that going to Court is anti-American. Oppression is anti-American.

The Defense of Marriage Act (DOMA) is Unconstitutional

webmaster@lawyercentral.com (Lawyer Central) — Sun, 01 Aug 2010 07:33:44 EST

A federal district court judge sitting in Boston, Massachusetts has recently ruled that Section 3 of the Defense of Marriage Act, which establishes the federal government?s definition of marriage as ?between one man and one woman,? is unconstitutional.

The context of the fight is important, however, in understanding the subtleties and potential outcomes of this ruling.

First of all, let me say that personally, and to the extent that I speak for my law firm, we are fully in support of full equal marriage rights across the United States.

In order to be a lawyer in New Jersey, and indeed, I presume in every State of the Union, an attorney must swear an oath to uphold and defend the Constitution against all enemies, both foreign and domestic. Anyone who seeks to interpret the Constitution for religious reasons, or in support of narrowly political points of view, is, in my view, an enemy and we must protect the Constitution against those people. I can understand non-lawyer religious bigots, zealots and crazies arguing against full equal marriage rights, even though, when pressed, not one of these people can explain how opening marriage to others affects their marriage.

I cannot understand, however, or, more properly, can?t stand, when attorneys, who have sworn this oath, put aside the oath and pick up a religious book and argue that the religious book, and not the Constitution, ought to ground civil law.

Now that that is out of the way, let?s talk about this ruling and what it actually means.

The judge was ruling that each State has the right to define marriage on its own and that the federal government?s attempt to usurp that power was an unconstitutional ?over-reaching.?

In the context of Massachusetts, therefore, this was a ?good? ruling, in the sense that the Commonwealth of Massachusetts has already stated that it wishes to define marriage in terms of civil rights rather than in terms of gender or religious rights. On the other hand, to the extent that this ruling survives through the appellate process and even through and including the Supreme Court, it doesn?t necessarily mean good times are ahead across the entire Untied States.

Put bluntly, since I don?t have to worry about upsetting people in conservative States, there are States in this country where people have backward ways of thinking, where religious policy infiltrates and poisons civil policy, and where people feel afraid of any sort of change or granting of civil liberties to gay human beings. In those States, I have no doubt that, if this ruling in Boston survives the process, they will seize upon it as an opportunity to ?protect? marriages against the ?gay agenda.?

That having been said, I am not sure whether or not this ruling will survive the appellate process. The next step is the circuit court of appeals, which may or may not adopt the district court?s ruling and/or reasoning for that ruling. Even if the circuit court does so, the next step of course would be the United States Supreme Court, which is currently ?right leaning.?

So I don?t know how to feel about this ruling, really. On the one hand, it?s a good thing for the people of Massachusetts and it?s a good thing for any State which, if this ruling survives, chooses to use it in order to fairly and decently define marriage for the people of a particular State. On the other hand, I can see, if it survives, this ruling being used as a weapon by conservative States.

I am a straight person who is married with a family. My marriage is not threatened by broadening the definition of marriage to include two people of the same sex who are in love. If someone paid me 10 million dollars, I couldn?t make any good faith argument that my marriage would be in any way affected by such an opening of the definition. I therefore question the integrity and honesty of anyone who attempts to make that argument against civil and equal rights.

'Full Marriage Equality' Editorial

webmaster@lawyercentral.com (Lawyer Central) — Wed, 07 Jul 2010 07:33:44 EST

Here is what was recently published in the New Jersey Law Journal, authored by me, in response to a conservative attorney who continues to argue against civil equality by using reference to 'natural law' when she really means 'religious' law. But she knows better than to argue a position in direct contravention to the Constitution.

I remind you all, regardless of how you may personally or religiously see this issue to remember that when we decide to live by 'natural' law, it's whatever the strongest person says it is.

Here's the Voice of the Bar piece, with acknowledgment to the New Jersey Law Journal:

"Subjective Religious Concepts Have No Place in Civil Law
New Jersey Law Journal
July 2, 2010

Dear Editor:

Please accept this letter in response to Grace Meyer's latest offering in her continuing, one-person rant against civil equality ["Bar's Same Sex Marriage Stance Is Retreat From Natural Law," Voice of the Bar, June 28].

As long as Ms. Meyer continues to feel it appropriate to laud "natural law" ? an entirely subjective, amorphous and unknowable concept ? as a policy grounding for civil law in New Jersey, and as long as she continues to ignore her oath to uphold and defend the constitution in so doing by ignoring the establishment clause, I feel she must be responded to.

New Jersey law is not founded on religious concepts, thus it cannot be driven by religious principals. Private definitions of marriage have nothing to do with civil definitions of marriage, which are entirely economic in nature. As long as this is so, all citizens must have the right to access the same benefits, liabilities and obligations of marriage.

Ms. Meyer and those like her can call marriage whatever they like in their churches, mosques, synagogues, druid circles and temples. For the rest of us, who derive our civil rights from civil law, "natural law" is a nonsensical concept that can be used to justify every manner of cruelty, horror, slavery, oppression, theft and abuse. Natural law means the strong prey on the weak, and that no one has any rights except from the barrel of a gun or from the point of a sword. Unless we are prepared to return to "natural law" in all ways in which we live in this state, then we cannot pick and choose subjective pieces of natural law to suit religious objection to full civil rights.

I continue to respectfully suggest that anyone with a law degree ought to feel great reluctance to suggest nonlegal and subjective religious concepts ought to inform civil law in this state, regardless of their personal religious agendas."

Governor Christie Makes History By Politicizing the New Jersey Supreme Court

webmaster@lawyercentral.com (Lawyer Central) — Thu, 01 Jul 2010 07:33:44 EST

We have three branches of government for a reason. They're supposed to stay separate and equal. The judiciary should not be weakened and subordinated to the political will of either of the other two branches.

Governor Christie has recently made history in a couple of ways, none of them particularly distinguishing. For example, he is the first Governor in New Jersey history to refer to school children as ?drug mules? for the New Jersey Education Association and the first to suggest to voters to not pass school budgets.

Yet as obnoxious and incredible as those acts are, he's gone even farther.

Now, he is going to be the first governor to politically posture in the process of appointing and reappointing Justices to the New Jersey State Supreme Court.

The New Jersey State Supreme Court was recreated in its modern form when the New Jersey State Constitution was updated in 1947. It is the envy of many States which don't have a political appointment process for their judiciary and which instead depend upon the mud slinging ?populist? agendas of political candidates in order to fill judicial vacancies.

In New Jersey, as much as the process was never perfect - - no process ever is - - there was a respect and a decency about the judicial appointment process that every governor, of both parties, always observed. Never before, to my knowledge, has a governor of either political party refuse to appoint a sitting Justice simply because that Justice was appointed by his opponent.

In refusing to reappoint Supreme Court Justice John Wallace, Governor Christie makes history as the first governor to lower himself to political thuggery in administrating the judicial process in the State.

It was not the intention of the 1947 Constitutional framers that incoming Governors should start playing ?political games? with judicial appointments to our Supreme Court and try to satisfy the whim and whimsy of voters who pay attention to serious political issues only a few times every few years.

One quick look at the Washington, D.C. process utilized in appointing Justices to the United States Supreme Court is all we really need to see to determine how badly this process goes when political litmus tests and political whim and whimsy come into the picture. The modern era of judicial appointments has been an era marked by political attacks, political posturing and nonsense.

As the outgoing president of the State Bar Association recently said, candidates for the bench should reflect ?the rich tapestry of people who make New Jersey the most diverse State in the country, and they should be absolutely free to make decisions on a reasoned basis, untethered from the influence of partisan politics.?

This has never been more true than now, at a time when special interests, many of them corporately powered, attempt to politically influence not only the passage of laws for the public good, but now, through pet legislatures, the process of the administration of those very same laws.

Justice Wallace, whom Governor Christie has decided not to reappoint, has been an outstanding judge. His decisions have been thoughtful and well rooted in the law, even though there is no lawyer in the State who has agreed with all of them. He has been fair-minded and he has protected the integrity of the bench, of the New Jersey State Constitution, of the law, and of New Jersey?s people, even though 99% of them were never aware that their rights as New Jersey citizens were being protected in this fashion.

In addition, he happens to be the only African-American member of the Supreme Court, in a State with a sizable African-American population. Governor Christie?s decision to deny tenure is an affront not only to Justice Wallace, but to the Supreme Court as a body and to the judiciary of the State of New Jersey, as well as to the people of this State whether they know it or not. It is an insult to New Jersey?s image before the country as a State whose judiciary is of the highest caliber. It is an insult to everything that makes the judiciary an independent part of our three tiered system of government.

This action by Governor Christie is unprecedented in its temerity and it is not an act of which any of his supporters should be proud. If you voted for Governor Christie, you need to ask yourself whether or not you are comfortable with the idea that he is now embarking on a course that no New Jersey governor has ever embarked upon. If you validate this action and you support him in taking it, then you must be prepared for the next Democratic governor who takes office to do the same thing. No doubt that Democratic governor?s politicking will displease you, and no doubt that any Republican replacement to that Democratic governor will please you in his subsequent politicking.

Very soon, I fear as an attorney that we will have a State Supreme Court that resembles the United States Supreme Court, which has become a political animal more than it has become a place of high justice and fair justice. Justice Wallace deserved better than this, and as did his brothers and sisters on the Supreme Court and in the judiciary at large, and as did the people of this State.

Many things have frightened me as a lawyer over the last 5 to 10 years.

Many of them appear in other blogs of mine.

This act of Governor Christie?s frightens me as much as the most frightening things I?ve seen.

I challenge law makers of both political parties to call Governor Christie to task for this, and I call upon the citizens of the State of New Jersey of all political stripes to tell Governor Christie not to politicize the administration of justice in our State. Our integrity as a model of judicial fairness and ideals depends on it.

School Bullying Results in 800000 Verdict

webmaster@lawyercentral.com (Lawyer Central) — Tue, 01 Jun 2010 07:33:44 EST

The ?L.W.? case, in which a student was consistently bullied in school based upon sexual orientation but the school didn't stop it, has become black letter law in New Jersey.

The decision was recent, only a few years back, but it certainly resulted in a lot of school districts ?waking up? to the idea that bullying is the school district?s ?responsibility,? and that it?s not something to which a district ought turn a blind eye.

When I first started doing employment and civil rights work, I vowed always to bring to the work that I do a common sense, blue collar grounding that emerges from the way I was raised (See my earliest blog entries for a bit of that). Having been raised in a working class Brooklyn family in the 70's, I had to deal with bullying personally and I had to watch it happen to others.

When a kid wasn?t a strong athlete and didn?t constantly act like he was prepared to fist fight, for example, he was called a ?faggot? and every other synonym in the book.

Some families approved of that, and some didn?t. Some were bigoted and thought it was hysterical that their children were growing up bigoted, too. I now see, as an adult and as a civil rights lawyer, what happens when this sort of mentality finds its way into the school place.

Kids? lives are ruined. Kids attempt suicide. Kids turn to drugs and other self-abusive behaviors. They don?t feel comfortable talking about it with their families because it?s so deeply humiliating, especially if their family is the type of family that uses racist or homophobic language itself. How can a kid who's being taunted for being gay (whether he?s actually gay or thought or portrayed to be) tell his father about it, when his father uses homophobic language in the home, unaware that his son is being similarly victimized? How does that kid think the father's going to respond? Will the father change his tune and realize that bigotry of that type has become personal? Or will the father blame his son for not taking care of the problem on his own?

Today, schools profess a zero tolerance policy towards fighting. Back in my day, if a kid got out of line, you decked him. That took care of the problem and frankly, at least in Brooklyn, the school officials silently approved of that because sometimes, a kid just needs to get his block knocked off in order to get him to shut his mouth.

That?s over now, as well it should be. As an adult, as a parent, and certainly as a lawyer, we can't have schools approving of a "handle the bully by hitting him" mentality. Which means the school districts have to act responsibly to end bullying. But what happens when they don't, in an age when taking care of the bully the old fashioned way is no longer an option?

It means that bullies now have a degree of immunity they?ve never really enjoyed before. Moreover, they have instruments they never had access to before: cell phones and the internet. MySpace, Facebook, Twitter, Tweeter (I can't count them any more) and any number of other future toys do and will allow bullies and their allies to passive-aggressively and anonymously - - anonymous means it?s very hard to see the personal affect of your conduct in the eyes of your victim - - to bully others viciously and continuously. It's now a team sport, because it's so easy.

It?s one thing to be called a name in the playground by your accuser, and to put a fist in his teeth. It?s another thing to have 20 accusers who are all cutting and pasting all sorts of images on to your likeness for their Facebook pages and then calling attention to that for the entire school. The new bullies wouldn't have had been bullies 40 years ago, but it's easier now, because it can be done at a distance.

Show one whiff of vulnerability, and it?s all over for you and there?s really nothing you can do about it except to tell the school. What can the school do about it except tell the parents, and what can the parents do except scold their kids (sometimes) or subtly suggest that their kids are being victimized in their ?free speech? rights (more often? "it's just kids being kids"?)?

In Michigan, a jury handed down an $800,000 verdict to a student who underwent years of bullying by his classmates. The school officials were aware and didn't do enough to stop it. I?m sure that the school officials disagree with the decision. I?m sure that they feel that there are practical limits on what they can accomplish. I?m sure that they feel that they were responsive enough. Perhaps they were, perhaps they weren?t. I don?t know what the facts of the case were. But New Jersey now recognizes these cases. We litigate these cases.

Of course, the schools have a special, enhanced duty to stop specifically bigoted harassment and bullying (as opposed to just general bullying without a bigoted taint) as a result of the L.W. decision. In essence, according to our Law Against Discrimination, students are entitled to the same protection as workers are in the work place, for the same reasons.

But you know what? Bullying has to "start stopping" in the home. People have to stop being bigoted. People have to just decide to get into the 21st century, get past the silly groupings into which we divide yourselves, get past things as unimportant as sexuality, religion (or atheism), national origin and ethnicity and get into being human. If more people do this, then more students will realize that there is no reason to bully students using these criteria.

Otherwise, we?re going to have a lot more fists in the face, either in court or out.

Big Brother is Watching Civil Rights Abuses by Schools

webmaster@lawyercentral.com (Lawyer Central) — Sat, 01 May 2010 07:33:44 EST

Every time I wonder if I'm becoming just a bit paranoid about the ability of government to intrude on our civil liberties and to further erode the Constitution, I'm reminded that just because you're paranoid doesn't mean they're not out to get you.

By the way, when I say "government," I'm talking about not just the federal government, but state and local governments, such as municipalities.

On February 11 of this year, a class action lawsuit was filed in Philadelphia by a student in the Lower Merion School District alleging that the school district was invading the privacy of students by using "spy cameras" imbedded in school issued laptops.

Sound like a science fiction movie? Sound like the rantings and ravings of the kinds of persons we usually marginalize when they come up with these theories?

Ask yourself this: what if most of the people that we tend to ignore because we've been taught to ignore them by the government are actually telling the truth: What if the government really is out to get us?

Don't worry, I'm not nuts. I don't believe that. But I do believe the government is counting on our complacency in chipping away at the bright, firm line our Constitution once established.

It turns out to be the case here, at least.

The school was spying on students using imbedded cameras in the laptops activated remotely by the school officials with the ability to monitor students whether they were using the computers at the time or not.

That's right. The school has confirmed in defending the lawsuit that in fact, teachers and officials could look at students in the privacy of their own homes, doing whatever it was that the students were doing, whether it involved the laptop or not.

How do we know this? How did this suit get started?

A student was eating candy but the teacher who was spying on the student through the hidden spy camera thought the student was taking pills. The school confronted the student with the picture obtained with the use of the embedded camera and, much to its embarrassment and much to what should be a cold feeling creeping up your spine, if you value your civil rights, they were wrong.

They were wrong, and as a consequence of being wrong, opened up a huge can of beans; the fallout has yet to be determined.

Do I hope that the class action civil rights suit succeeds? Of course. But what does that tell us about the state of affairs in the country today?

When I was a kid conspiracy movies were usually about people who were sane and who were trying to uncover illegal conspiracies that really were happening. The bad guys in those movies were the conspirators and their allies. Yes, the conspirators lied. Yes, they misdirected. But the sense in the film was always that the anti-conspiracy people were the "heroes." They had credibility and they were doing good work.

I don't think that's an accident. I think that was the sign of the times. When I was a kid, the Watergate conspiracy had blown the lid of the "virtuous" American government. The American government's atrocities in Vietnam for the cause of "freedom" had, I think at last, finally disabused Americans of the idea that "America, love it or leave it" was the way to relate to our government. The public was prepared to hold the government accountable for its conspiracies. We'd finally realized that patriotism meant the right to criticize.

Then a strange thing happened in the 1980s and 90s. The X-files came along. All sorts of shows and movies came along which were promoting the idea that there was a gradually evolving "lunatic" fringe of people who thought that there were conspiracies going on, but who were no longer the sane heroes of the 1970s. These were the marginalized lunatics of the 80s and 90s. By the end of the 1990s, popular culture had taught all Americans that anyone who felt that there was pretty much any conspiracy going on at any level was out of their minds. The very idea that the American government could ever be involved - - once again - - in something like Watergate, or the Agent Orange cover up, or the atrocities in Vietnam, or (take your pick), was simply ludicrous.

What the school district did is atrocious and disgusting. The fact that the school officials even considered the idea potentially appropriate, no matter what their motives, is so deeply objectionable to me as a civil rights lawyer, and should be so deeply objectionable to you as an American citizen, that we should all be outraged that there was even a culture that permitted a conversation about, let alone the actual deployment and activation of, secret spy cameras.

There has to be a limit where the government simply is not to be allowed to intrude on our personal liberties. There has to be a rational limit beyond which the government is powerless to stop us from destroying ourselves if we wish to do so. It's what freedom means. If that kid was taking pills, and he is able to hide that from his family, and his family is unable to detect it, then it may lead to a tragedy. I understand that the school's motivation was to potentially stop drug abuse, but where do we draw the line? Do the ends always justify the means? What if the school was making a moral judgment about what that student was doing whether or not it proved to be self-destructive? Would the school start monitoring the sort of websites that the kid visited? Would the school start monitoring the content of any political speech in which the child was engaged in the privacy of their own room?

I hope the Lower Merion School District serves as a stark and bright line in the sand for when it's okay and not okay for the government to step on the Constitution.

The problem is, I think we're in the middle of an alarming trend in the other direction. I think some people who read this are not going to care what the school did; they're going to say this was just a good intention gone wrong. By their logic, good intentions will justify any means, as long as the end desired is a good one. Some people just won't care because they think that security is more important than freedom.

You should care. You should care a lot.

This is why civil rights exist, and this is why I'm a civil rights lawyer.

Illinois Supreme Court Overturns Damages Cap in Medical Malpractice Matters

webmaster@lawyercentral.com (Lawyer Central) — Thu, 01 Apr 2010 07:33:44 EST

You?ve heard me blog on this before, despite the fact that I'm an employment lawyer, about the nonsense from the insurance industry on the medical malpractice 'crisis.' The insurance liars use doctors and nurses as unwitting pawns to spread lies about how ?tort reform? is going to drive down medical malpractice costs.

You?ve heard me tell you that the statistics do not defend this position, and that 90,000 people a year suffer as a result of preventable medical errors.

You?ve heard me tell you about how only 8% of malpractice which actually occurs ever enters a court room, and how only a fraction of those cases result in a positive verdict for plaintiffs.

You?ve heard me tell you that the real reason insurance costs rise for doctors is because insurance companies raise their prices; there's no control imposed by gutless legislative bodies, because insurance industries contribute so much money to their campaigns on both sides of the aisle. You?ve also heard me tell you that one of the reasons that insurance costs have risen across the board for all professions is because, since 9/11, and as a result of the bad economy, the insurance industry as a whole ? including the interconnected portions of it that are part of the medical malpractice writing group ? are trying to spread their risk around and make everyone pay.

All that aside, they never stop, because why should they? As long as there's a tight economy and legislatures are responsive to ?doom and gloom? predictions of lost jobs, insurance executives and their lap dogs will always seize an opportunity to erode the rights of the individual.

Yet finally, some common sense seems to be prevailing.

In Illinois, the short sighted legislatures passed a ?cap? on medical malpractice damages, as if to suggest that someone whose life is devastated or lost by a medical mistake may only recover a tiny portion of their losses because the ?poor, poor doctors,? driving in their Mercedes from one of their homes to the other, can?t afford the ?high? cost of medical malpractice premiums. Better to assist the doctors by capping damages ? which in fact doesn?t assist the doctors at all, but instead assists the insurance companies ? then actually making the doctors stop making the mistakes, or by making the insurance companies lower their rates.

The Supreme Court of Illinois has said ?no? to that nonsense in a recent decision. The Center for Constitutional Litigation argued that the ?cap? on medical malpractice damages imposed by the legislature usurped the function of the judiciary and with it, the function of the jury. The Supreme Court of Illinois agreed, halting, for now, the march of corporate and insurance greed.

I almost feel sorry for the doctors, because I know that within their particular field of science, they are very bright people. You would have to have been to have gotten through medical school. With that brightness, however, can sometimes come arrogance, because out of their element, they are no more knowledgeable about the way the insurance companies work than ?Joe the plumber? or ?Dan the ditch digger?.

The doctors and nurses are being lied to by their carriers. They are being told that their rates will come down if only jury verdicts are forced down. Of course, the rates will never lower even if the caps are imposed, because the insurance industry is going to find another reason why the rates have to stay high ?for now? until more changes to their liking are made in the fabric of our society.

It?s un-American and it ain?t right.

The insurance industry as a whole and, particularly, the medical malpractice insurance lobby, are lurking muggers on the ?journey to justice.?

That?s all for now.

Why Arbitration Agreements Are Un-American

webmaster@lawyercentral.com (Lawyer Central) — Thu, 18 Mar 2010 07:33:44 EST

I know that I blogged about this before, but the situation is only getting worse because the mood in the country is only getting more paranoid, suspicious and self-interested. Agreements to arbitrate employment rights claims, as well as claims involving many other rights, are being forced on Americans.

This allows corporate America to chip away at civil liberties while at the same time making everyone feel grateful that they ? or members of their family ? ?still have jobs.? It allows corporate America and its apologists on both sides of the political aisle to rationalize the destruction of one of the principals on which America was founded ? the right to a trial by jury ? under the guise of ?tightening belts? and ?economic efficiency.?

I had a client come to us the other day who had been viciously, repeatedly and horribly sexually harassed at work. The disgusting commentary and the smugness with which it was delivered by her co-workers and by management was truly outrageous. They never seemed very nervous about what she would do, and she always wondered why. She came to see me, explained the situation, and we initiated a lawsuit.

Once we initiated the lawsuit, I found out why the perpetrators were so smug. Although my client had forgotten doing so, she had signed an agreement to ?binding arbitration? of any ?dispute arising from? her employment relationship.

Before I get back to the case of Mrs. X, let me tell you a little bit about these ?binding arbitration? agreements, the people who arbitrate cases (usually) under these agreements and why they exist.

Once again, as usual, it?s a question of what the conspirators want you to believe and what is the truth.

What they want you to believe is what it says in the Federal Arbitration Act, what it says in arbitration agreements, and what any corporate type will tell you if you talk to them about the subject matter. Incidentally, it?s the same thing that most defense lawyers will tell you. It?s the same thing that most Republican legislators and quite a number of Democratic legislators will tell you. It?s the same thing that the Federal Chamber of Commerce will tell. It?s certainly what the HR and PR people in the pharmaceutical, manufacturing, financial, medical and any number of other corporate sectors will tell you.

What these people all have in common, of course, is that they do long range strategic planning for their companies and for their industry. They understand that a penny spent early is a dollar saved later. So what?s their ?penny? spent early?

It's paying an arbitrator fees to decide a case, rather than having the case decided in a court of law, where justice is essentially free. Why, you ask, would a company voluntarily pay an arbitrator as much as $400.00 or more per hour, racking up tens of thousands in arbitration fees over the course of the particular piece of arbitration, when it can have free access to a judge and jury?

The answer, of course, must be that the company thinks it's going to benefit from spending that extra money somehow. So how do you think it intends to benefit? It benefits, of course, because the arbitrators, by and large, don?t render the same kinds of verdicts that juries do. Arbitrators understand that for the most part, the corporation is paying their fees (we?ll get to what happens when individual litigants are expected to ?share? arbitrators' fees in a minute). They understand that it?s corporations, corporate attorneys and corporate lobbyists and their legislator allies who create anti-consumer and anti-civil rights statutes like the Federal Arbitration Act. These corporate types are the reason the arbitrators and the organizations which administrate arbitrations have a living.

In short, they understand on which side their bread is buttered and, for the most part, unfortunately, they tend to deliver accordingly. Arbitration results, by and large, are manifestly less favorable to plaintiffs than jury verdicts. Statistically, more cases are lost by employment plaintiffs in arbitration than are lost by employment plaintiffs in State court and even in Federal court, where the rules can sometimes be ?anti-plaintiff? and where some of the judiciary might be somewhat conservative in its leanings.

I?m not getting into, in this article the specifics of how, consciously or unconsciously, arbitrators lean in favor of corporations and how they tend to minimize their verdicts, restrict access to certain types of damages, restrict access to certain types of information that the plaintiffs need to prove their cases, etc. I really don?t care whether they are doing it consciously or unconsciously, what I care about is the fact that they are doing it at all.

All you need to see is the ?you know what? ? eating grin on the face of the corporate representatives and corporate attorneys when they leave in arbitration where they might have paid $20,000 or $30,000 in arbitrator fees but won a case that they would have lost in front of a jury, of where they minimized a verdict in a case where a jury might have done a considerably better job. They realize they're making an investment, over the course of many such cases, and that investment is going to pay dividends in the long term.

It?s why those companies will tell you anything they need to tell you in order to get you to support initiatives or statutes like the Federal Arbitration Act and why they constantly try to ?hide? pro-arbitration provisions in all sorts of bills having nothing whatsoever to do with the management of workers in this country. It?s why some defense firms are even attempting to get unions to waive the rights of its members in favor of arbitration of all work related claims in Collective Bargaining Agreements.

I?m going to say this without drama and without flare, because I want you to understand how important it is: arbitration of any dispute which is compelled or coerced is un-American and eats away at your civil liberties, whether you realize it or not, whether you want to admit it or not.

The day that corporations are looking for will not be long in arriving: when they can manage and anticipate the dollar cost of human suffering and simply decide when it's okay and not okay to hurt their workers, discriminate against them, retaliate against them and abuse them. They'll simply decide how much money they think they'll need to spend to win the arbitration, and then they'll do whatever they feel that they need to do, knowing that the cost is predictable and manageable.

The first time that a corporation does something voluntarily for the good of mankind will be the first time, in my book. Any time a corporation does something ?good,? it's got an angle. I don?t believe corporations will ever do the right thing or look for the right method of dispute resolution simply because it's fair and just. They'll look for the efficient, effective and inexpensive method of dispute resolution because it minimizes the cost of hurting people.

I don?t mean to insult all arbitrators, but I do mean to insult the ones that know where their bread is buttered and who act accordingly. I do intend to ?call out? the individuals who'll talk out of one side of their face, calling me an alarmist for ranting and raving about this, and suggest that arbitration is just fine while speaking publicly, but who'll privately giggle and laugh at the idea that anyone actually believes that arbitration isn?t an atrocity.

But it gets worse. Much worse. So far, I?ve been talking about the arbitration agreements that involve the corporation paying the full cost. These are unfair. They restrict access to information. They restrict the time within which the plaintiff can marshal information to bear their burden of proof. They restrict rights. They restrict damages. But at least the corporation pays the bill, which means that an individual earning a middle class living wage doesn?t have to worry about paying an arbitrator for the privilege of justice.

Yet courts will also enforce arbitration agreements that require the injured worker to pay half the cost of arbitration. The words ?equal? and ?fair? are used to explain this horrific practice, as if the corporation, possessed of hundreds of thousands, millions or billions in assets, is somehow ?equally positioned? to spend, when compared to the $39,000 a year worker discriminatorily discharged with two kids and a spouse to support at home.

What a joke.

The corporations know that this is piggish and disgusting. Yet they include this language in agreements every day. Want to know why? Because no matter whether a judge wishes to be fair or unfair about the impact of such agreements, the Federal Arbitration Act and the State Arbitration Act tend to tie judicial hands when attempting to interpret these agreements. Some judges, out of a sense of higher justice, will rule against the Act and fail to enforce those particular provisions of arbitration agreements while still sending the matter to arbitration. They will require that the corporation pay all fees on the grounds that any requirement that an individual pay anywhere from $5,000 to $15,000 in arbitrators? fees is as good as saying only the wealthiest workers in this country have any rights at all.

Most judges, however, will feel beholden to follow the law as they understand it and some are happy to see matters leave their court room and become someone else?s problem.

These arbitration agreements are even worse than un-American. They are fascist. They are as bad as a ?no frills auto insurance policy?, which provides basically no coverage whatsoever for a highly reduced premium. It?s the same as building a house in a swamp or buying a swaybacked horse. No matter how cheap the deal is, if you can make no use of it whatsoever, than it's no deal at all.

?Arbitration? agreements are not ?fair.? They are not ?equal.? They are not ?efficient? methods of delivering ?justice.? They are not ?alternative dispute resolution.?

These are tough economic times. Corporations are ?tightening their belts? across the country. Yet CEOs, board of directors? members and other executives seem to have record salaries despite the poor economic times. Tax payers seem to be called upon to bail out people who draft their own golden parachutes with the bail out money and then laugh at the rest of us because we were suckered into the bail out. Corporate wrongdoers still get to avoid jail when they should be held personally accountable for anything they do wrong in the name of service to the corporation's ever growing greed.

?Chambers of Commerce,? really just lobbying organizations for corporate greed, keep ?spinning? all kinds of nonsense about the need for ?tort reform? and whittling away at the system of justice instead of admitting that the system of justice is fine, but that the corporate culture in the country is toxic, un-American and horrid.

Fight arbitration agreements. Don?t sign them. Insist on negotiation. Don?t support candidates that support arbitration agreements. Insist they explain how and why this doesn?t hurt people. Explain to your bosses, co-workers and union representatives that you don?t want them.

Because on the journey to justice, arbitration agreements are land mines.

It's Time to Pierce the Corporate Veil in Discrimination Cases

webmaster@lawyercentral.com (Lawyer Central) — Mon, 01 Mar 2010 07:33:44 EST

One of the most frustrating doctrines of law for attorneys representing victims in discrimination and harassment cases is called the "corporate veil," which is a way of colorfully describing the legal "barrier" that exists between a corporation on the one hand and its owners, employees and agents on the other. Put very simply, the CEO of Exxon was not going to be personally liable for the oil spills, no matter how highly positioned in the company the CEO was, no matter how much money the CEO had, and no matter how much the CEO benefited from the practices that lead to the spill. The company was certainly liable, but not him, not unless his independent actions would subject him to other criminal or civil liability. Absent that special scenario, the fact that he was the "titular head" of the company didn't mean anything.

Here's an example closer to home.

Say you hire a contractor who works for a company that has a hand full of contracting employees. Say that they further operate out of a location that the business itself does not own, but that the owner of the company does own, through a third corporation. Say further that the contractor and his company cheat you and charge you great deal of money for either substandard or non-existent work.

You approach a lawyer and you wish to sue. The lawyer investigates the company and initiates the suit, only to find that the company immediately declares bankruptcy. After all, bankruptcy is a pretty easy thing for companies to declare. The company had virtually nothing in terms of real property, because the contracting company you contracted with does not own the business premises, it rents it. The company owns a couple of trucks with very little equity and very little book value, and perhaps some tools.

The owner of the company is loaded, has three homes and two boats, but you cannot get to him, even though he may be the guy that was undertaking the wrongful conduct in the name of his company.

Does that seem fair to you?

It does if you're a corporate type. "It's good for business," those people say, not really caring to explain or even confront the repeated unfairness that this works when individuals are victimized by "the corporate veil," shielding from ultimate responsibility the people who benefited from the wrongful practices by arguing that "the company" undertook them, not the person..

Often, application of the corporate veil can result in judgment proof companies and very rich owners simply declaring bankruptcy and moving on the next corporate shell game. It stinks.

The apologists for this system will continue to tell you that what's good for business is good for the economy, what's good for the economy is good for the country, etc. They might dress it up in terms of patriotism, they might call people who have objections to this system "communists" or "socialists," and who knows what other nonsense. At the end of the day, they simply do not like the idea that individual "fat cats" who benefit from corporate practices can then be made personally responsible for the consequences of those actions.

We see this a lot in small businesses where the tyrannical owners are sexists, homophobes, racists and other types of bigots. They act, and then claim that they did so in the name of the corporation only. So, despite the hateful and bigoted way that they acted, they attempt to separate themselves from individual liability simply because they were doing whatever they did in the name of the corporation at the time.

It's time to end this doctrine. I call on voters to discuss the issue with their representatives. Individuals ought always be responsible for what they do.

At least, that's how I feel.

Sexual Discrimination in Contractual Relationships

webmaster@lawyercentral.com (Lawyer Central) — Mon, 01 Feb 2010 07:33:44 EST

The New Jersey Law against Discrimination (The "LAD") has been described as a "civil rights statute," one of the more far reaching employment statutes in the United States. The mandate from the legislature, consistently reaffirmed by our courts, is to interpret the law against discrimination broadly and liberally, in order to achieve its purpose. Its purpose has been best described as that of eradicating "the cancer of discrimination." To this end, the LAD has been from time to time revised and expanded, sometimes by legislative intent, sometimes by reasonable court interpretation. Most of the attention paid by the Courts under the LAD has been directed to employment relationships as opposed to the other relationships the LAD governs, such as those involved in housing, obtaining loans, etc.

Two of the "under used" provisions of the LAD are the subsection which states that it is illegal to discriminate on the basis of any of the protected classifications (sex, race, etc.) in a "contractual" relationship and the closely related provision which prohibits discrimination in regard to entering and using places of "public accommodation." Some fact patterns involve both, such as the refusal of the part of the merchant to sell to someone against whom they have a racial, sexual or other type bias. This would constitute not only a denial of fair service since the business is a place of public accommodation, but would also constitute a violation of the prohibition against discrimination in the course of a contractual - in this case potential contractual - relationship.

We've certainly filed our fair share of cases alleging discrimination in these non-employment situations, but we have never had the need to go to the appellate division of our state on any of those cases, which have either settled or been tried to a conclusion without further appellate activity.

Further, all biased harassment is discrimination, but not all discrimination is harassment. Biased harassment is one type of discrimination, but there are many types of discrimination. If I am a bigot who has a problem with people of a different ethnicity, there are different ways that I can make that bigotry felt. I can harass the person while treating them otherwise fairly in the terms and the conditions of my relationship with them, or, on the other hand, I can be respectful and polite to their face while under-paying them or under-compensating them in other ways, for example. Those are two opposite sides of the same coins.

Of course, many fact patterns involve both.

In the context of "contractual" discrimination, however, there has never been a case that has held that sexual harassment is an example of the type of "discrimination" prohibited in the actual or pending contractual relationship. Put bluntly and clearly, if I refuse to buy my products from a female business owner because she will not sleep with me, for example, am I guilty of sexual harassment as a form of illegal discrimination? Our appellate court has answered that question with a clear "yes."

The recent decision in J.T's Tire Service vs. Untied Rentals North America Inc. has held that a refusal to do business because of a failure to enter to a "quid pro quo" sexual relationship is a type of sexual harassment and thus a type of illegal discrimination under our LAD. It's a decision the plaintiff's employment bar applauds, because it makes sense.

If a legitimate business owner is trying to pay their taxes, employ their workers and make a living to support themselves and their family, shouldn't she be free of the type of pressure that requires sex in order to do business? Once again, the "freedom" to be free of bigotry is not an illusion. It is something that we need to remember means different things to different people. It'd a lot easier for a Christian white male to say that there is "too much" ruckus about discrimination than it is for an African American, lesbian, disabled female to make the same observation. Perceptions mean everything. Our democracy means nothing unless we protect the most vulnerable of our citizens, and unless we adhere to principal.

I applaud this decision, because it was the right one, one more paving stone on the journey to justice.

The Truth About Who Files Lawsuits

webmaster@lawyercentral.com (Lawyer Central) — Wed, 28 Oct 2009 07:33:44 EST

As an attorney representing the rights of individuals rather than those of corporations, I can tell you that the “Journey to Justice” is slanted against the right of the individual; that it is seeded with landmines placed by corporate, banking, insurance, and vested interests who regard lawyers as an impediment to their abuse of normal citizens.

In your heart, do you really believe that the majority of the lawsuits filed in our Courts are filed by “frivolous” plaintiffs seeking to get something for nothing? Really? Or is that just something that it’s politically “hip” to say, or to agree with, when someone else says it?

In your heart, you know, don’t you, that that is not true? Don’t you ever find it suspicious that the only real conversation that seems to happen about this comes from the people with the most money to spend? Don’t you find it suspicious that the various “chambers of commerce” across the country, and the Federal “chamber of commerce”, are not really chambers discussing commerce, but really PR machines, designed to spend billions of dollars on anti-lawyer, anti-plaintiff and pro-corporate ads?

Please don’t be gullible.

Corporate disputes – that is to say, suits between businesses – dominate dockets throughout the fifty states. The majority of lawsuits filed in this country are filed by corporations and businesses against other corporations and businesses to protect their money, to advance their interests, to protect their patents and trademarks, to claim breaches of contract, fraud, defamation and other forms of relief, and, most importantly, to seek damages. How ironic it is that these very same interests are willing to take away your right, to claim damages, but to preserve their own?

Have you ever heard about “corporate tort reform”? Of course not. Why in the world would the corporations with the power to change the playing field want to tilt it against themselves? They're not fools.

They just assume you are.

The United States Supreme Court begins its October 5, 2009 term with a business heavy case load. More than half of the forty-five cases set for the new term focus on business interests and business rights. There are no plaintiff’s employment cases and no plaintiff’s environmental disputes which have been granted review.

On the other hand, there are plenty of cases on patent infringement, anti-trust law and white-collar crime matters on the docket.

So ask yourself the following question. As easy as it is to agree with the nonsense at the parties and barbeques and on TV, nonsense which has been spoon-fed to you by banking, insurance and corporate interests and their powerful PR machines masquerading as “neutral” statistics and news, do you really think, based upon the cases that are going before the Supreme Court, that it’s plaintiffs and their claims for damages which are a problem in our courts?

Be honest.

In addition to being honest, be smart and be brave. When people tell you that “lawyers” and “plaintiffs” and “claims for damages” are a “problem”, ask them for statistics. Don’t let them get away with quoting you Rush Limbaugh’s statistics, or statistics from the Federal Chamber of Commerce. Ask for neutral statistics. Ask them how many plaintiffs cases for individuals are filed in this country, as opposed to cases filed by corporations against other corporations, and businesses against other businesses. Ask them to tell you how many punitive damages verdicts there really are, versus the number the right tells you there are.

The truth will surprise you. The corporations in this country have long been gaining control over our lives; the Court and the politicians who appoint to it are the gem in their crown. Control justice, and you control America.

Ask yourself when you were a kid how many ads you saw for corporations that weren’t trying to sell a product in particular, they were just trying to sell their image? That’s a recent phenomenon, and it’s really only been around for the last twenty five or thirty years. Ask yourselves why they do that. Why would they spend the money to simply remind you that they are there, and that they are wonderful people?

I’m not trying to sound like a conspiracy nut. I’m simply telling you that corporations are selfish. They are soulless. They don’t care, because they are not designed to care. They are designed to make money. The people who run those corporations are relieved of individual responsibility for what they do in the name of the corporate quest for dollars. Don’t trust a word that a corporation tells you, and certainly don’t trust what their paid “hacks” tell you. Just look at the statistics. The real statistics, like the caseload before the Supreme Court above.

Then ask yourselves where the real problem is. Is it with lawyers, not spending billions on PR, but quietly going about trying to help people on an increasingly tilted playing field? Or is it the unfettered and unholy access that corporations have to our legislators and now, to our courts through the appointment of judges by those legislators?

I don’t like it, and neither should you.

Plausibility and Common Sense DANGER

webmaster@lawyercentral.com (Lawyer Central) — Mon, 10 Aug 2009 07:33:44 EST

One of the must consequential decisions of the Supreme Court’s last term didn’t look so consequential at first, but it has since.

In the case of Ashcroft v. Iqbal, an Arab-American sued the Bush Administration for abuse borne of racial profiling after the 9/11 attacks.

Of course, the anti-Arab hysteria rampant at the time affected many people, even some judges; the courts seemed willing to forgive racial profiling and even more obvious bigotry for the cause of security. I have my own issues with such an obnoxious view on the part of our courts, and how dangerous such a view is to the American ideal of liberty and presumption of innocence. I choose not to live in a country where racial profiling is the norm, and where civil liberties no longer exist, or no longer exist for certain minorities, in the name of “security.” I would rather be less secure and more free.

But that’s not my only problem with the case. My problem with the case is that it has a far more insidious and sinister potential impact on all litigation from the plaintiff’s perspective in federal courts throughout the entire United States. In fact, if I and others concerned over this case are right, this new sinister philosophy might even affect state court litigation, as well.

The Supreme Court must always act with restraint and care when it makes new law, because that law has a ripple effect throughout the entire court system. As one of my favorite comic book characters, Spider Man, used to say, "with great power comes great responsibility.

Yet on its face, the Iqbal decision merely found that Mr. Iqbal’s case could not proceed forward; yet something deeper and sinister happened.

In the 5-4 decision, the dissent was very troubled by the fact that a judge subjectively decided that he didn’t like the case and therefore decided to get rid of it. The majority, of course, led by ideologues who have no respect for the Constitution or for civil liberties because their corporate masters don’t have that respect, sided with the Bush Administration and held that federal judges can now be “gatekeepers,” deciding when a case lacks “plausibility and/or common sense,” in which case they are allowed to dismiss it.

Note those entirely relative and entirely dangerous and subjective words: “plausible” and “common sense”.

What in the world do those words mean to you? I bet they mean something different than they do to the next person. In fact, they mean something different to everyone. In further fact, the words can have no meaning unless those meanings are relative, individual and uniquely borne of each person’s experience.

The words are ridiculous and impossible. Yet now the Supreme Court has now given Federal judges a new power that they have never had and that the Constitution never contemplated they have: the power to decide when cases are not “plausible” or when they don’t make subjective “common sense” and then to dismiss them.

The old standing Supreme Court precedent was that a case merely needed to set forth some facts and a claim theory in order to survive initial review. It was then up to the discovery process to ferret out the actual proofs. Sometimes, when only in the complaint stage of the case, plaintiffs don’t always have the proof that they need; the defense often controls that proof. Under the old standard, the defendant was in theory required to turn over that proof if it existed and thus the truth would become known.

During discovery.

In this new post-Iqbal world, a lawsuit must now satisfy a potentially very skeptical and biased judicial gatekeeper before the plaintiff ever has a chance to see or seek the truth.

Law professors don’t like it, civil libertarians don’t like it, and pretty much every plaintiffs' lawyer in the country doesn’t like it. Defense lawyers love it, because it gives them yet another tool to use against the cause of justice. I don’t expect better from them. I expect better from my Supreme Court, but I’m not surprised given the caliber of the President who has just left office and the resulting caliber of the judges with which he stacked the Court.

Mark my words: Iqbal is dangerous. It’s going to result in meritorious cases being dismissed. It’s going to result in abuse. It needs to be overturned.

Of Free Speech vs. Hate Speech

webmaster@lawyercentral.com (Lawyer Central) — Mon, 31 Aug 2009 07:33:44 EST

One of the fundamental tensions in true constitutional thought is the tension between encouraging and protecting the freedom of speech on the one hand, and the societal duty to discourage and/or punish hate speech, on the other.

Anyone—whether a lawyer or not—who suggests that this is an easy tension to resolve is kidding themselves, and you, or they are simply ignorant of the true scope and nature of the problem.

By calling it a “problem” I don’t mean to imply that it is a problem that has a “solution”, i.e., something that we can do to make the problem go away forever. In fact, that tension should always be with us. The fact that the tension exists, the fact that people talk about it, is a sign of a healthy democracy, just as a temperature of 98.6 is the sign of a healthy body. That body temperature is a tension between the heat necessary to run the body and the point at which heat begins to damage the body. Just a few degrees too cool and the body beings to shut down. Just a few degrees too hot and tissues start to become damaged. That fine “knife edge” of temperature is right, as doctors sometimes say colloquially, “where you want to be”.

A healthy ongoing public debate about the nature of free speech vs. hate speech is “right where we want to be” as an American constitutional democracy. The day that it becomes too easy to prevent hate speech is the day that it becomes too tempting to overly discourage “free speech”, which would start us down the slippery slope towards the thought police, censorship and intellectual fascism. On the other hand, the day that we fail to acknowledge the powerful role that language has in shaping our society, i.e., the day that we decide hate speech no longer matters and that everyone is free to call anyone else whatever they wish, is the day that we stop acknowledging that a better tomorrow lies around the corner.

A recent story out of Missouri highlights this tension.

Along our highways, it’s now common to see “adopt-a-highway” signs indicating that a particular sponsor has either personally cleaned up a particular stretch of highway or has hired a contractor to do it in their name. Most often, we see civic groups and corporate sponsors “adopting” stretches of highway in this fashion, and most of the time, none of us are going slow enough to be able to read the signs, let alone particularly care who's adopted that stretch of road.

In the future, I now plan to take a moment to slow down, perhaps even pull over, if time allows, and see just who is “adopting” our highways.

A neo-Nazi group calling itself the “National Socialist Movement” (the words “national” and “socialist”, in combination, are usually indicative of some variety of “Nazi”), adopted a portion of a Missouri state highway in order to get their official recognition for it in the form of an adopt-a-highway sign. Because states cannot legislate the source of the content of speech due to free speech concerns – which is appropriate and reasonable lest the state become the official auditor of what the public may and may not hear from whom – Missouri was powerless to refuse these Nazis the opportunity to adopt the highway and get that official recognition. So they fashioned a rather clever sidestep.

They renamed the highway after a rabbi who had fled Nazi Germany to escape Nazi persecution. If this Nazi group wishes to clean up the highway, they are going to be cleaning up a highway named after a Jewish rabbi and civil rights activist who fought the Nazi way of thinking.

Obviously, some of the Nazis in that particular group objected, suggesting that it was “childish” for Missouri to do that. This, by the way, from people who wear red, white and black arm bands around their arms and who, as adults, mind you, march around with their hands in the air, worshiping a dead lunatic. So much for "childish.

Yet, there were other objections from Constitutional scholars who suggested that even this “sidestep” of renaming the highway amounted to “content-based” anti free speech activity on the part of the Missouri highway department. In essence, the highway department was judging the morality of the message, and responding with a deterrent.

I read the article, sent to me by a friend, and began to think about it. As a Constitutional scholar, as an attorney who swore to uphold and defend the Constitution against all enemies, including when an enemy happens to be a government, this posed a real conundrum for me.

On the one hand, the whole purpose of the Constitution is to protect the minority from the majority, even when the minority are a bunch of hateful, ignorant bigots. It is their right to be hateful ignorant bigots today that protects the next “free thinking religious conscientious objectors” (for example, like the Puritans who came here on the Mayflower) from governmental persecution tomorrow. No one – no one – is intelligent or wise enough, or great enough in soul and in spirit, to be solely responsible for judging the content of the ideas that flood the marketplace in a country with 300 million people. For these reasons, it is critical that we not allow the government to ever generally legislate the content of our free speech except in the case of the most outrageous abuses, such as yelling “fire” in a crowded theater, or publicly calling for violence.

When there is a legitimate purpose to legislating against free speech in certain environments, however, where certain people are more vulnerable, then, of course, it is also appropriate to do so, such as in New Jersey where we have anti-discrimination laws that affect the workplace and places of public accommodation, where hate speech is aggressively legislated against. Put simply, you can’t call your co-worker a racist name because you will upset the Law Against Discrimination, but you could call a stranger that racist name at a bus stop. Either way, the racist name is just as hurtful and just as objectionable on moral grounds, but at a bus stop, the state lacks the legitimate interest to legislate against that speech and therefore free speech concerns must reign supreme. In the workplace or in a school, however, or when the individual called the name comes into a restaurant to eat, it is especially inappropriate and therefore it is legitimate for the state to legislate against it.

That's the balancing act.

Part of me applauds the Missouri move. Technically, there is absolutely nothing wrong with renaming a stretch of highway to applaud and laud a civil rights activist. At the same time, however, it is very clear to me that they would not have made this move but for the particular content of the Nazi speech. Part of me is worried about that “trick”, even if it has the effect of offering counterbalancing ideas to Nazi thought. What if, the next time, some racists in the state legislature decide to rename the highway after Adolf Hitler just because a synagogue decides to adopt a highway?

Unlikely, of course, but then, once upon a time, everything that ultimately surprises us seemed very unlikely before it happens. As a Constitutional scholar, my job is to think about this, even when most people don’t, even when most people are smiling and clapping over the Missouri move.

For now, I guess more of me likes the idea than doesn’t. But it’s worth a discussion, and as I said above, the discussion is a symptom of a healthy democracy.

So discuss it.

I Didn't Sexually Harass Her But They Fired Me Anyway

webmaster@lawyercentral.com (Lawyer Central) — Wed, 29 Jul 2009 07:33:44 EST

We've heard this many times, nearly always from men facing allegations from women in the workplace. The standard fact pattern was usually a "he said, she said" scenario, where, given a choice of whom to believe, the employer chooses the female accuser over the male accused. Almost always, it seemed, the employer was playing it safe, risking an aggrieved male without a likely legal remedy over a female accuser with a certain legal remedy in the event the employer handled the accusations 'the wrong way.'

Until recently, the standard answer from our firm to such people was that we couldn't help. Employers, we explained, faced significant liability for failing to respond to allegations of sexual harassment, and if in the face of that liability, some employers simply chose to credit bare allegations, it was within their right to do so, however unfair it seemed. The historic pattern of sexual harassment of women in the workplace, combined with the policy requiring that, presented with accusations, the employer must respond in some reasonable way, meant that choices of whom to believe meant the choice usually favors the accuser.

To which the response from most of the callers has been words to the effect of “so then, someone can say anything they want about me and I can be fired?” My response is often, basically, yes, at least here in New Jersey. And since New Jersey’s Law Against Discrimination (LAD) is a fairly proactive, liberal and far-reaching civil rights statute, that was probably the way it was going to be in nearly every other state as well.

But that might changing. Slightly.

We've had some questions of late regarding a recent decision out of the 2nd Federal Circuit Court in Sassaman v. Gamache, issued May 22, 2009. Here's what happened in that case:

What happens when the male is fired not just because the employer wants to make the safe decision and believe the accuser for practical or economic reasons, but when the employer goes as far as to say words to the effect of “well, since you are a man, you probably did it anyway”?

Isn’t that sexual discrimination as well?

After all, isn’t discrimination for the most part based on stereotypes? And don’t stereotypes derive from broad-based assumptions about particular individuals, not judging them based on their individual conduct, but rather judging them on how they look or to what group they belong? And if an employer decides that women are inherently truthful about sexual harassment and men are inherently untruthful, isn’t that exactly the type of discrimination the LAD prohibits?

And if the answer to all of that is “yes”, collectively, does that really put employers in a “no-win” position?

It is important to read the Sassaman decision. The supervisor very stupidly stated to the male that he discharged words to the effect of “I really don’t have any choice. [The alleged victim of the harassment] knows a lot of attorneys; I’m afraid she’ll sue me and besides you probably did what she said you did because you’re male and nobody would believe you anyway.”

Well, that was stupid.

The 2nd Circuit Court decided that, combined with a failure to adequately investigate the allegations, the “gender stereotyping” inherent in the decision to fire the male was no different than any primary sexual discrimination which might otherwise be committed in the course of employment. Assuming that a male is going to lie about sexual harassment and is more likely to have committed the act than a female is to lie about the act having been committed is no different than, and certainly just as bad as, assuming other discriminatory stereotypes about men, women, straight people, gay people, black people, white people, etc.

The 2nd Circuit also noted that the rush to judgment and the failure to adequately investigate was very much akin to the failure to investigate when an employer is protecting an illegal harasser or discriminator. The “rush to judgment” here was simply an apparent validation of the employer’s pre-existing stereotypical impression of men as perpetrators and women as truthful victims.

Now, to be fair, in all the years we've been unable to help the general male in the general scenario absent evidence supporting the discriminatory assumptions about men, we've never heard a fact pattern like the one above. Had we, we would have accepted the case for the same reasons that the attorney in Sassaman obviously accepted his or hers, and I believe we would have prevailed.

It will still be a cold day in July when an employer or their agent is foolish enough to make the sorts of admissions that the employer’s agent in the Sassaman case made and escape liability for them. That won’t only be because most employers aren’t that dumb, especially not after many of them have read Sassaman, but it’s also because a lot of the time, gender stereotyping isn’t necessarily at the bottom of a termination of a male accused by a female of sexual harassment. Sometimes, it’s a gut reaction or a gut hunch that the employer has that the allegations are truthful. Sometimes it’s simply an economic argument; firing the harasser is less legally dangerous than believing the harassee.

Also, it should be very clearly noted that the Sassaman Court in no way authorizes a new breed of lawsuit for a simple failure to investigate adequately when such a failure is not coupled with the sort of “gender stereotyping” evident here. Nothing in the decision seems to open the door for “negligent failure to investigate” claims under the LAD on the part of fired alleged harassers, though common law defamation claims for such men have and continue to exist; they just don't have a great chance of success, or significant value.

While the Court thought that the failure to properly investigate and the “rush to judgment” were relevant here, it felt that they were relevant to the issue of admitted gender stereotyping. I don’t believe that the Court has opened the door, as some suggest, to create an independent cause of action under Title VII (or under any State scheme which mimics Title VII, such as does the LAD) based upon nothing more than an alleged failure to reasonably investigate the allegation. I don’t believe such a cause of action will ever arise statutorily, and if it does, it won’t be soon.

Obviously, what we can infer is that employers are going to have to be a bit more careful about making sure that they investigate claims of sexual harassment before they act, especially in “he said, she said” one-witness-on-either-side scenarios such as this one. It is also important that the employer not predispose or “prejudge” the fact pattern simply because a woman is making a complaint against a man, nor let any “gender stereotyping” infect how it deals with the issue.

Unlike many of the defense attorneys that I know who are panicked over this decision, both because they see a new potential cause of action against their clients and also because they feel that it puts their clients in a no-win situation, I feel that nothing has really changed. As long as an employer intends not to discriminate, and truly does not discriminate in its heart, I think it extraordinarily unlikely that a “Sassaman” type claim will find any footing. While some courts may not require direct evidence of gender stereotyping in firing a male harasser accused by a female alleged victim, I think many courts will require something more than simply a “hunch” or an “inference.”

Why Mandatory Arbitration of Employment Claims Is Un-American

webmaster@lawyercentral.com (Lawyer Central) — Tue, 05 May 2009 07:33:44 EST

I've spoken about the subject of forced arbitration recently. It stinks. It's un-American, and it’s a clear plot by corporate America and its allies to KEEP YOU OUT OF COURT where you can challenge them before a jury of your peers. Instead, mandatory arbitration agreements, which are becoming more common, sadly, especially in the context of employment law, compel you to have your claim heard before one person. Few of these people are fair. Many are former management lawyers who represented corporate defendants and who know who's paying their arbitration fees and supplying them with work. Worse, these arbitration agreements usually fail to give you and your attorney enough time to develop your case and deny you and your attorney fair discovery (information seeking) rights.

Yet arbitrators charge fees that judges don't, and even when the employer only splits this cost with you (when you can afford it all, which isn't often if you've just been put out of a job), it still costs more money to try a matter before an arbitrator than before a judge.

So why do they want it so badly?

Because arbitrators almost never award the kinds of verdicts that juries do, awards which truly compensate victims and which deter discrimination, whistle blowing and harassment. Forced arbitration is corporate damage control.

Over you.

And it's not only expensive for employers, but also for you, because some of these agreements require you to pay part of exorbitant arbitrator fees you simply can't afford. And if you can't? No arbitration, and no case. It's time for the states and Congress to kill this serpent once and for all and end mandatory arbitration forever. I'm an employer, and I'm not afraid of Court, because I know how to treat people.

Here's a good discussion of this evil from a recent edition of the LA Times by David Lazarus:

_______

May 3, 2009

If you have a credit card, a cell phone or even just a job, chances are you've already signed away your right to sue if something goes wrong.

Mandatory arbitration clauses have become a routine part of the fine print in most financial, telecom and employment contracts, as well as numerous other customer agreements.

They typically require you to abandon the right to a jury trial or class-action lawsuit, and to agree instead to take any grievances to a professional arbitrator.

But because of the way the system is set up, critics say, arbitration often favors the company and not the individual. So the likelihood of a positive outcome (for you) can be less than if you had pursued litigation.

Consumer advocates, sensing a shift in the political winds under President Obama, believe the time is right to challenge mandatory arbitration and have banded together to support legislation ending the practice.

"We have no problem with arbitration," said David Arkush of the watchdog group Public Citizen. "We just want people to be able to choose it if they want it, rather than having it be required."

He was speaking on behalf of the Fair Arbitration Now Coalition, an organization of consumer and community groups. The coalition released poll results last week showing most people have no idea they're giving up a constitutional right when they sign contracts containing an arbitration clause.

When details of mandatory arbitration are made clear, 59% of Americans say they oppose the practice and would back legislation requiring that arbitration be voluntary, the poll found.

Easier said than done. Although bills have been introduced in the House and Senate ending mandatory arbitration, they're strongly opposed by some of the most powerful industries in the country, including banks, telecom providers and insurers.

"We know it will be tough," Arkush said. "But we've probably got as good a chance now as we've ever had."

One of the biggest problems with mandatory arbitration clauses is their prohibition on joining class-action lawsuits. This effectively takes away consumers' single most powerful tool in seeking redress from companies for relatively minor grievances.

More often than not, such issues would be too costly to pursue in court individually. Class-action suits allow consumers to join together in dealing with a deep-pocketed business, leveling the playing field.

Another key problem with mandatory arbitration is that the company generally gets to pick the arbitrator, often a retired judge. These arbitrators thus have an incentive to keep the company happy if they want future employment.

"If a retired judge issued a significant anti-insurance decision, for example, there is no chance an insurance company would use him again," said Jeffrey Ehrlich, aClaremont attorney who has handled numerous arbitration cases.

"The deck is stacked against consumers because the arbitrators don't want to offend the people who hire them."

Fontana resident John Ramirez told me he experienced just such a situation after going into mandatory arbitration with his former employer, Tenet Healthcare Corp., in 2003.

Ramirez, 37, believed he'd been discriminated against because problems with a prosthetic leg forced him to miss about six months of work. He lost his own leg in a childhood accident.

"They started giving me a real hard time after I came back," Ramirez recalled. "I was forced to work the graveyard shift."

He filed an arbitration claim seeking back pay and compensation for his claim of discrimination. But the arbitrator ruled against him.

Ramirez thinks a jury would have been more sympathetic.

"If I could have sued, I might have won," he said.

Tenet declined to comment. But Wayne Kessler, a spokesman for the American Arbitration Assn., a leading arbitration provider, said procedures are in place "that are fair and neutral, and which give all parties to a dispute an equal voice in the selection of an arbitrator."

Or maybe not.

Geoff Lysaught, director of the Searle Civil Justice Institute at Northwestern University School of Law, said researchers have found evidence that companies involved in repeated arbitrations tend to receive more favorable outcomes than infrequent participants.

He said this may not necessarily reflect the fact that "repeat players" represent more revenue for arbitrators.

"The reason they may win more often is because they only arbitrate cases they think they can win," Lysaught said. "They settle all the others."

He said this theory might also explain why consumers tend to win about half the cases they bring to arbitration, whereas companies win nearly 84% of cases they initiate.

Perhaps. Or perhaps, as consumer advocates and lawyers say, it's because professional arbitrators know how their toast is buttered, and they have a built-in bias toward pleasing companies.

Seems to me that if arbitration is indeed fair to everyone, it shouldn't have to be crammed down consumers' throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.

By the same token, no company should be permitted to deny customers their right to a jury trial or to participate in class-action lawsuits.

In a perfect world, such things wouldn't be necessary.

But this isn't a perfect world.

New Jersey Considers Workplace Bullying Law

webmaster@lawyercentral.com (Lawyer Central) — Mon, 27 Apr 2009 07:33:44 EST

Assemblywoman Greenstein has sponsored A-1551, a bill to prevent abusive harassment and bullying in all workplaces in New Jersey, both public and private, and regardless of whether the abuse and bullying are discriminatory in nature.

    It’s about time.

    Oh, I am certain that some “employers” of the State of New Jersey and their advocates – the people that probably assume that they’re going to violate this statute on a regular basis and want immunity from doing so – will oppose this with their dying breaths. I recently had the pleasure to debate the issue with a noteworthy employment defense attorney on NJN News and it’s very clear to me that some of the opponents of this bill don’t really care about he rights of workers, but only about their freedom to do pretty much as they please, including reducing their workers to tears and illness.

    This amazes me.

    I’m an employer. In theory, I should be lining up with the other employers to worry about the “frivolous lawsuits” and other phantom boogie men that the employers and their conservative allies will throw into any discussion of this reasonable statue whose time has come. Yet, I'm not lining up with them. I wonder why?

    The cynical amongst you will say that I'm an employment lawyer, and that I stand to gain by bringing suits such as these. That's not why. It's because I'm not an ass who plans to abuse his workers.

    The statute doesn’t prohibit just any old rude, ignorant or unpleasant remark. It doesn’t prohibit asking for 110% from your workers. it doesn’t prohibit asking the workers to do overtime and telling that they might lose their job if they don’t. It doesn’t prevent setting exacting standards, nor does it even prevent favoritism, nepotism or unfairness.

    The statute is limited to dealing with severe and abusive, distressing conduct which, in fact, produces some degree of emotional distress supportable by medical expert testimony. Below that standard, there is no cause of action under this proposed law.

    It has been my experience as an employment rights lawyer that, out of the total number of people who contact our office each week, perhaps ten percent of them have potential cases. Of that ten percent, we decide to accept as clients perhaps half that number.

    Obviously, it is thus our statistical experience – based upon roughly seventy-five hundred inquires of this office in the just the last several years – that approximately 90% of all workplace bullying and harassment does not fall under one of the existing New Jersey laws meant to deter this conduct. New Jersey has two very progressive worker rights statutes: the Law Against Discrimination and the Conscientious Employee Protection Act. Yet those statutes are also very narrow. The Law Against Discrimination certainly deters harassment, but only does so when the harassment is motivated by one of the discriminatory categories contained in the law (race, gender, ethnicity, religion, etc.). The Conscientious Employee Protection Act only prohibits harassment which is retaliatory in nature and which is directed against someone who has engaged in “protected conduct” under the whistleblower statute which, in turn, is narrowly defined as opposing illegal conduct, opposing conduct violative of compelling public policies or which constitute fraud, or threatening to report or actually reporting such conduct, participating in investigations, and the like.

    There are some other minor and even more specific statutes in New Jersey, but those are the two big ones. As you will see from looking at the above descriptions, most of the harassment and bullying is motivated by concerns other than discriminatory motive and other than retaliatory motive (for the conduct that the whistleblower statute addresses).

    Most of the conduct is simply because some bosses really don’t respect the dignity of their workers, and that is something I think this statute is meant to change and something which ought to change.

    Let me be absolutely crystal clear: there is absolutely no excuse whatsoever for treating your work staff in a way which is so hostile, so abusive, so belittling and so designed to rob someone of their dignity that they are reduced to true psychiatric illness. Like I said at the beginning of this entry, there are far too many things the employer can still do to get what they want without also keeping on the list the most extreme conduct meant to truly wound and injure.

    The work’s compensation statutes, the opponents say, represent adequate remedies. They don’t discuss, however, how the worker’s compensation statutes provide very small dollar figures, and are generally insufficient to compensate the person for what they endure.

    Again, as an employer, I say that the time for this statute has come, and the only people it’s going to harm are the people it’s designed to harm, the employers who, by forcing their victims to go on worker’s compensation, spread the cost of their own bad acts to all of the employers of New Jersey. I don't think that’s fair. If the employers of our state think about that for a while I suppose they might start to resent the fact that their own worker’s compensation rates increase as a result of abuse that they don’t themselves commit.

    Maybe it is not such a bad idea to make the abusers to pay directly after all.

    We applaud Assemblywoman Greenstein and we hope that the New Jersey legislature has the wisdom, foresight and character to make this bill law.

Racial Harassment in Bergen County-Justice for Roberth Morales

webmaster@lawyercentral.com (Lawyer Central) — Fri, 10 Apr 2009 07:33:44 EST

Roberth Morales was a 17 year employee of the Bergen County Parks Department, having enjoyed a successful career and looking forward to supervisory and managerial level positions in his future.

    That all changed in 2004 when he received a promotion to interim supervisor and came directly under the control of two Mike Rand and Todd Cochrane. Both began to criticize Roberth’s ethnicity (Roberth was from Ecuador). Sometimes, Mr. Rand did this right in front of Mr. Cochrane, who is the assistant superintendent of the entire parks department. Sometimes, Mr. Cochrane would join in.

    They would talk about how Hispanic people were only good for getting drunk, drinking and joining gangs, that they were constantly bringing booze and weapons to the county parks and generally making sure that Roberth felt as low as he could possibly feel, he being an Hispanic man.

    The county hadn’t trained Cochrane and Rand not to engage in this behavior and hadn’t trained Roberth in how to deal with it. Roberth internalized the harassment, trying to keep his head up, but inside, it deeply affected him, as it would have anyone whose ethnicity and race were being so callously and viciously impugned by their own bosses.

    Finally, during a cold three days in April of 2009, Roberth got justice. Before a jury ofBergenCounty residents, cognizant that they were awarding a verdict against their own county that they would have to personally support in some measure by their own tax dollars, they awarded Roberth Morales compensatory damages. The Court will then follow suit to award attorney’s fees as well.

    Cochrane denied the conduct right down to the end, and county counsel was obliged to deny the conduct, too. In the end, however, justice won the day, reinforcing my faith in the jury system and in the power of eight strangers to come together and to deliver justice in the way that the original framers of the Constitution intended.

    There was no doubt that it was a hard case – defense counsel all but called Mr. Morales a liar – but in the end, the jury went with their gut and picked the truthful party.

    I was proud to represent him and proud to be a part of obtaining justice, one victory at a time.

Third Circuit Rules It Is Illegal to Discriminate Against an Employee For Having an Abortion

webmaster@lawyercentral.com (Lawyer Central) — Mon, 23 Mar 2009 07:33:44 EST

In a recent and controversial ruling by the United States Court of Appeals for the 3rd Circuit, it was decided that Title VII of the Civil Rights Act - and by extension, the New Jersey Law Against Discrimination - prohibits an employer for discriminating against an employee for having an abortion. This was a case of first impression.

Because Title VII and the LAD bar discrimination on the basis of sex, these same laws also pertain to pregnancy. Pregnancy, in turn, has been defined as including child birth or related medical conditions. As long as a woman is "affected" by pregnancy, that counts as "pregnancy," and thus as gender or sex.

The plaintiff in this case had contended that she had undergone a surgical abortion and that she was discriminated against and terminated as a result. The defense to that particular claim had been that there was no protection under the law for an individual who had decided to have an abortion.

While the 3rd Circuit has been normally somewhat conservative as of late, and while employees generally don't enjoy a high rate of success there, the 3rd Circuit obviously did the right thing here. As long as a woman's right to chose is still alive, and as long as it is a constitutionally protected right, an employer cannot discriminate simply because a woman exercises that right or experiences complications or medical issues as a result.

The plaintiffs' employment bar is encouraged by this correct and reasonable decision.

Courts Unfriendly to Employment Plaintiffs-Harvard Study

webmaster@lawyercentral.com (Lawyer Central) — Mon, 16 Mar 2009 07:33:44 EST

The Harvard Law and Policy Review, the Official Journal of the American Constitution Society for Law and Policy, cites what seems to be a generally bad track record for the fair handling of plaintiff's employment cases in the Federal Courts.

As an employment practitioner in New Jersey, I am fortunate enough to have an excellent New Jersey statutory system protecting worker's rights, most known of which are the Law Against Discrimination (LAD) and the Conscientious Employee Protection Act (CEPA). These statutes allow me to go to New Jersey Courts in order to handle those statutory claims. Once in a while, however, because we are dealing with citizens of different states (for example, my client is a worker in a New Jersey setting, but the company is based outside of New Jersey), I am forced by the defense to fight the matter in Federal Court.

The Harvard study deals with all of the federal courts across the United States, but it is important to understand how the Federal Courts are organized in order to appreciate how the study affects your rights in New Jersey.

The Federal Courts are divided into a number of "circuits" which each contain a certain number of states and territories. New Jersey belongs to the Third Circuit. In each Circuit, all of the individual district trial courts send appeals to the appropriate Circuit Court. So, therefore, if you were to file an appeal from the decision of a Federal District Court in New Jersey, you would go to the Third Circuit Court of Appeals. If you still felt aggrieved after that, you would appeal to the United States Supreme Court from the Third Circuit.

Obviously, each Judge is his or her own person, and each district and each circuit are individual entities. Yet the study identifies some very troubling overall trends.

These are ominous findings, and not to be lightly cast aside, no matter what your political or cultural meanings may be. Obviously, people without integrity will argue against this study on the grounds that the finding itself is biased (anything that comes out of an Ivy league university is usually attacked by the right wing) or on the grounds that the study is too vague or doesn't take into account other factors. Obviously, someone who is committed enough to ignoring the truth - for whatever reason, perhaps because it serves their interest to do so - will certainly find a way to ignore this study. Yet the study is compelling and unsettling.

From 1979 through 2006, federal plaintiffs won only 15 percent of job discrimination cases. By comparison, plaintiffs in cases not involving job discrimination won 51 percent of the time. That's a startling disparity. The study asks many difficult and troubling questions about why this disparity might occur. Some wonder about whether or not it's a lack of minorities on the bench, others wonder whether or not the burdens of proving job discrimination are simply too high to be fair, and still others cite a variety of reasons ranging from the short periods of time that plaintiffs are given to gather evidence in federal court to the infiltration of corporate and other vested financial interests controlling the judicial appointment process.

Obviously, employment defense lawyers see no reason to agree with the study. An attorney at Proskauer Rose, an employment defense firm, was quoted in a recent article commenting upon the study; "if it's a real case, they settle, employers aren't dumb." This comment, of course, pre-supposes that all defendants readily settle meritorious claims - they don't - and that any claim which doesn't settle must lack merit.

I of course take issue with this comment, although I don't personally know the attorney to whom the comment is attributed. Obviously it is all very easy for a defense lawyer to say something like that. On the other hand, what the comment doesn't acknowledge is the fact that defense firms attempt to "paper" plaintiffs to death in most cases. They attempt to assassinate the plaintiff's character, make investigation into jobs that the plaintiff had both before and after the affected job in the case, and in other ways seek to intimidate that plaintiff - and other plaintiffs - from filing valid lawsuits. In addition, many defense firms and their clients take the view that if they settle any case, then they appear to be a "soft target" for other individuals who would then bring more groundless claims.

No, I'm afraid that comment by the defense lawyer doesn't fairly portray the employment rights warfront at all; we here at the firm would know, as we're there fighting, every day.

Yet even as an employment lawyer exclusively representing plaintiffs, I am not entirely unsympathetic to what the attorney says. Clearly, if you look at a large enough population sample - there are over 300 million people in the United States - you are going to find idiots of every stripe. There are certainly cases in every area of the law - filed by corporations as well as by individuals - which lack merit and which ought not to have been filed. There are, however, in employment cases, many defenses which lack merit, as well as there are defense tactics which lack merit and/or which are unfair, that are pursued without hesitation. Documents are purposely withheld and/or destroyed, forcing plaintiffs to endure constant Motion practice in order to obtain the documents, which Motions of course have the effect of exhausting and rendering irritable Judges who finally "give up" and stop rendering fair decisions.

This tactic is akin to the first kid in the back seat who keeps irritating the second kid, causing the parent, eventually, to blame the second kid when he yells 'ouch' one too many times.

In many states plaintiff's employment practitioners have been paring down or even eliminating their practices, leaving victims of discrimination and retaliatory whistle blowing to the mercy of less capable attorneys and/or to the vagaries of the EEOC and/or state administrative agencies.

Of course, in states like New Jersey, where there exist powerful state statutes protecting workplace rights which tend to at least duplicate if not go father than the federal statutes, there is usually no reason to go to Federal Court in the first instance, unless a plaintiff is moved there involuntarily by a defendant on the grounds of different citizenship of the parties or for other reasons, as noted above.

I am also not suggesting that there is an inherently unfair approach taken by New Jersey judges in Federal Courts. I know the New Jersey magistrates and judges attempt to be fair. The problem is that they are working with a system of court rules which is not fair, at least not in my view. For example, in New Jersey, when I file an employment discrimination case in State Court, I am given 450 days of discovery in order to gather the proofs I need to win. On the other hand, in Federal Court, the initial discovery schedules are significantly shorter than that, and this of course inures to the detriment of the plaintiff, whose burden it is to gather evidence to prove their case. What seems fair - the fact that there is a short discovery clock which affects both parties - actually isn't fair, because it is really the plaintiff that bears the burden of proof and if both sides are deprived of the opportunity to gather evidence, it is usually the plaintiff that is going to suffer.

Another example of the inherent unfairness of the federal system in my view is the easy Summary Judgment standard that defendants need to meet in order to dismiss cases. No matter how fair minded a Judge wishes to be, they must follow the law. If the law itself is flawed, as I contend that federal summary judgment standards are, it is simply more difficult for a plaintiff to survive the summary judgment process. In the State Courts of New Jersey, on the other hand, the process is simply more fair, because the law has been written in a fairer way and judges are compelled to follow it.

After I read the article about this study on line, I took a look at the "comments" posted by individuals on line who had read the comments. These are also very troubling. People seem to be very impatient with the idea that social justice is still something for which the United States should strive. They seem to feel - and I'm certain that many of these people are Christian white males who've never known what it's like to suffer discrimination - that the United States is "just fine" and that women, racial minorities, disabled individuals and other historically disenfranchised individuals ought to just "suck it up" and accept the fact that discrimination is institutionalized. As a white male myself, I am embarrassed by such an attitude. The people who have been benefitting from unfair standards ought to be the first people who want to change those standards. It's easy not to see a problem when it doesn't affect you, or worse, when the practice benefits you at someone else's expense. I'd like to hope that many of these commentators don't live in New Jersey, and I'd like to hope that they don't show up on our juries.

Think about fairness as it affects people other than yourself and think about whether or not it's time to start changing the people who in turn have the power to change the federal judicial system. It was envisioned as a check and balance against the legislative and executive power. It's supposed to be fair. The statistics suggest otherwise.

Finally-Religious Based Harassment is Truly Illegal in New Jersey

webmaster@lawyercentral.com (Lawyer Central) — Fri, 06 Mar 2009 07:33:44 EST

Until the New Jersey Supreme Court's Recent Decision in Cutler v. Dorn, victims of religious based harassment in the workplace in New Jersey have labored under a significant disadvantage. As a result of a regrettable 1999 opinion from the Appellate Division in Heitzman v. Monmouth, religious harassment victims had been forced to meet a higher standard of proof as to what constituted a religiously hostile workplace than had other hostile workplace victims, such as those suffering racially or sexually hostile workplaces.

The Heitzman Court, with all due respect, seemed to pick and choose which evidence it considered to support the hostile workplace claim, seeming to torture the fact pattern so that evidence which was strongly supportive of the plaintiff's claims was not considered, while 'weak' evidence was. The result was an opinion which seemed to set the bar higher for religiously hostile workplace claims than for hostile workplace claims of any other type.

And boy, did the defense bar jump all over it. In every case of religious harassment - and in many other types of harassment cases - the defense bar attempted to use the Heitzman decision to start chipping away at the gold standard for a hostile workplace claim in New Jersey as set forth in the Lehmann v. Toys 'R' Us decision.

Heitzman had since 1999 therefore represented a road block against a number of meritorious cases, resulting in unfair and early dismissal or impaired value, for many years, until the recent decision of Cutler v. Dorn.

Finally, as a result of the Cutler v. Dorn decision, religious harassment cases are now adjudicated in exactly the same way as are other workplace harassment cases. The standard for religious harassment cases is now higher than it is for other types of harassment cases.

The employment bar is most encouraged by the elimination of the Heitzman decision and by the placement on equal footing of religious based harassment claims with other types of harassment prohibited under the New Jersey LAD.

Corporate Greed

webmaster@lawyercentral.com (Lawyer Central) — Sat, 20 Dec 2008 07:33:44 EST

Folks, I can't say it better. This is from a CBS news analyst and speaks eloquently to what I do, why I do it, and why it's time to change the culture in this country and bring the business world to heel. Here it is:

"Made in America: Corporate Gall"

Dec. 20, 2008

(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News and
CBSNews.com.

Like the child who kills his parents and then begs for mercy because he is an orphan, the U.S. Chamber of Commerce now is begging President-elect Barack Obama to protect corporate interests in the nation's civil litigation system as a way of restoring jobs and bolstering an economy shattered largely (as we now know) by corporate greed and misfeasance.

Talk about your gall.

Here is what the president of the Chamber's legal arm wrote in an open letter to Obama: "We understand the critical necessity of revitalizing the economy by restoring American jobs, encouraging the growth of U.S.
businesses, and protecting the savings and investments of millions of Americans. However, we are concerned that the potential expansion of legal liability significantly impairs these much needed steps toward a national recovery."

The quote may be roughly translated this way: "Now that corporate America has helped screw everything up and led us into the greatest economic crisis since the Depression, we need to make sure that corporate America isn't aggressively punished for its misdeeds or legitimately thwarted from misdoing them again."

This is either an astonishing hypocrisy - Is corporate America unaware that the rest of us are in on the secret of the causes of the recession? - or the clearest indication there can be that Big Business is, always has been, and always will be about protecting Big Business.

The Chamber has been pushing tirelessly for decades to rein in plaintiffs' attorneys (who look to punish corporate negligence or fraud with civil lawsuits), deregulate industry and commerce (we all know how well Wall Street did with its freedom), and nullify important consumer protection laws (like the one in Maine which is allowing smokers to go after tobacco companies for false advertising). The lobbying effort has been national and local, highly-public and super-secret, and devastatingly successful.

Thanks in part to the Chamber and its Orwellian-named Institute for Legal Reform, the Securities and Exchange Commission backed off its scrutiny of screwy deals and schemes, the Congress was lax in its oversight of the mortgage industry, litigators were thwarted or punished, and the White House and Justice Department pushed a legal doctrine ("preemption") that almost always helped employers over employees.

All of these things, and more policies and practices endorsed by the Institute, helped unshackle the savageries of corporate America and left individuals less protected against an ever-freer and more predatory market.

Indeed, aside from the occasional Supreme Court decision that has helped the little guy, and the heroic efforts of states to help protect consumers and the environment, the history of our "litigation system" (as the Institute puts it) over the past 20 years is one of unremitting advances for the Chamber and its fellow travelers in law, politics and governance.

The Environmental Protection Agency has been reduced to a shadow of its former self so that polluters have gone unpunished, the Madoffs of the world have been nurtured and coddled and thus have flourished, and the brutal Savings and Loan crisis of the late 1980s has been made to look like a bake sale compared to the trillions of investment dollars lost and the hundreds of billions soon to be spent by our government.

Even the Web site for the Institute reads like a cruel parody. Not surprisingly, it does not highlight the personal stories of the millions of victims of corporate greed or managerial incompetence. It does not measure the number of lives saved, and fortunes protected, and pollution cleaned through these lawsuits. Instead, under the banner of "lawsuit abuse," it tracks the lives of people who believe for one reason or another that they have been unfairly sued.

[Now, tell me, have you ever known someone who believed that he or she had just been fairly sued?]

Plaintiffs' attorneys aren't responsible for the mortgage-fueled economic meltdown. Class-action litigation isn't, either. And don't blame overzealous regulators or greedy employees who want better pay or conditions in their own factories. The people with whom the Chamber and the Institute do battle are not the people who invented or allowed the great pyramid schemes which brought down Freddie Mac and Fannie Mae. They did not force consumers to spend more than they earned or save less than they should. Corporate America is directly responsible for what has just happened to corporate America, and if you don't believe me, ask the folks at Ford, GM and Chrysler.

The economic meltdown came about because business interests were able to greatly decrease the vital tensions between industry and regulation, between oversell and oversight. And it will take the restoration of those tensions by government leaders not just to help bring us out of our slump but to help ensure that the next downturn doesn't come again for a long time.

So it seems to me that the last things the Obama administration ought to do once it takes over is further shackle lawyers, or stifle well-meaning state laws, or make it easier for businesses to avoid liability and culpability for their actions.

The Chamber and the Institute want us to believe that one of the problems which created our misery also happens to be one of the solutions to it. They call it "reform."

I call it nonsense.

Bigoted Pediatrician

webmaster@lawyercentral.com (Lawyer Central) — Thu, 10 Apr 2008 07:33:44 EST

I had a same sex female couple come in to my office to see my partner and I the other day. They had a beautiful little girl who was only a few weeks old. They live in New Jersey. Bear that in mind as I tell you the story, because, while this story's facts might not be shocking in more backward thinking and ignorant parts of the United States, it is particularly shocking having taken place in New Jersey.

These ladies went to a pediatrician. Now, whether or not this pediatrician knew that this was a same sex couple is open to debate, but be that as it may, they made an appointment for the little one's vaccinations.

When they went to the doctor's office, the doctor asked them who the mom was, and then who the father was. The couple replied that there was no father, but that the baby had been conceived through artificial insemination, and the birth mom indicated that her same sex partner was the baby's other parent.

Now, before I go on with the story, a brief moment for some background.

Last year, New Jersey appeared to have adopted a "Civil Union Law," this in response to a decision by our Supreme Court which suggested that full rights of marriage must be available to same sex couples... all rights, that is, except the name 'marriage.' The decision opted instead to call such unions 'Civil Unions' and essentially directed the legislature to pass a law which enabled the decision.

This law was supposed to have finally dispensed with the many inequities, loopholes and other defects of the prior "Domestic Partnership Act," which was essentially an abject failure. Not only did it not carry all the same rights as married couples had - only about 8% of those rights were protected in the Act - but it also overlooked the basic, human truth that words have power. The word 'marriage' was missing from the Act, and that enabled many ignorant people to treat Domestic Partners as less than marrieds, with all the bigotry that would entail.

So yes, indeed, the Civil Union Law was to finally equalize the field, grant all the same protections, and end the bigotry... but it still would not use the word marriage. Why? Why omit the word? Because aside from the irretrievably bigoted people on the one hand and the advocates for equality on the other was this vast sea of people for whom this issue was not particularly important either way, but who were still 'uncomfortable' with the idea of using the word 'marriage' to describe a same sex relationship. So the 'separate but equal' inequity of the Civil Union Law would remain after all. Yet, it was hoped, things would still get better.

Now let's return to the story.

My clients went and got 'Civil Unioned' (It doesn't even flow grammatically, not like 'married'), but, according to law, they still couldn't use the word 'married.' Which, I suppose, made them less than spouses in the eyes of the state, and, as a result, in the eyes of this doctor.

When the doctor looked up in surprise that a second mother was indicated, she proceeded to treat my clients in an increasingly hostile and humiliating way, culminating in a crying baby (babies pick up these vibes), two very humiliated people, and an order to "get out of my office."

My first thought when I spoke to these clients was that they were dealing with a "religious nut" doctor who was going to make some sort of biblical argument against same sex marriage and/or against the same sex orientation. The fact that there was a crying, presumably straight little baby girl at stake here would have made any such argument ridiculous - because any objection to the orientation of the mothers had nothing to do with the baby's needs - but frankly, I don't know whether or not the doctor had that as an issue.

What I do know is that this little episode teaches us a further lesson about the utter failure of New Jersey's civil union law. Notice I no longer capitalize it. It doesn't deserve capitals.

Using the word 'marriage' involves force and power, and carries with it thousands of uses in nearly every diverse culture on the planet. The word means something immediate, having only secondarily to do with gender. It carries with it an immediate appreciation of a life long commitment, of love, of desire to dwell with, support, and care for one another, and perhaps to raise a family. Say the word to someone from nearly anyplace, and any when, and these are the ideas that their definition of marriage involves.

Paradoxically, that might be one of the reasons why bigots, hate mongers and the ignorant are so steadfastly against the idea of using the word 'marriage' to describe a love relationship in a same sex people. Had these two women gone into the doctor's office and proudly declared that they were married, then the doctor would have had to have understood that, as a matter of law, marriage implies automatic adoption and automatic parentage. The phrase 'civil union,' on the other hand, implies confusion and uncertainty, and provides exactly the kind of fertile ground for the ignorant to do what this particular doctor did.

It doesn't matter if you are gay or straight, religious or not. What's fair is fair. Don't be satisfied with civil unions, because injustice anywhere is a threat to justice everywhere.

Governor Corzine Lets Down The People of New Jersey

webmaster@lawyercentral.com (Lawyer Central) — Fri, 25 Jan 2008 07:33:44 EST

For years, the American Association for Justice and the New Jersey Trial Lawyers Association have been trying to right a long standing wrong in New Jersey. New Jersey remains one of only 10 states which still do NOT ALLOW pain and suffering damages to survivors when they lose a loved one as a result of negligence. Even most conservative states allow these damages now.
Yet even a democratic governor is capable of bowing to corporate pressure. Despite passage by the state Assembly and Senate of an Amendment to the State's Wrongful Death Act which would allow grieving families to collect compensation for their pain and suffering over the loss to negligent death of their loved ones, the Governor "pocket vetoed" the bill, which meant he refused to sign it and let it expire.

So. A liberal governor doesn't even act to protect victims. What chance do we have to halt the slippery slope toward corporate/banking/insurance fascism in this country? Very little.

But we'll keep trying. You should, too. Elect people ready to tell vested money interests in this country to go to hell.

Racism in the Jury Box

webmaster@lawyercentral.com (Lawyer Central) — Fri, 25 Jan 2008 07:33:44 EST

Here's another in the never ending list of stories we as civil rights attorneys have to tell, in order to bang through the heads of Americans to get them to understand that racism is still ALIVE AND WELL in the USA. Of course, it's alive and well all over, but aren't there places we all expect it NOT to be? Places where, as objectionable as racism is on general principles, it's especially not ok for it to exist?

How about in the JURY ROOM in a lawsuit, where a jury is called upon to deliver JUSTICE, in a FAIR and EVEN HANDED WAY?

Take a look at this story from Seattle, perceived as a "liberal" leaning city:

"Alleged racial comments made by jurors during deliberations in a medical negligence case have prompted a Spokane, Wash. plaintiff attorney to seek a new trial. Attorney Mark D. Kamitomo asked for a new trial after learning from two jurors that a number of their fellow jurors allegedly referred to Kamitomo as "Mr. Kamikaze," "Mr. Miyashi" and "Mr. Miyagi," behind closed doors. A judge is scheduled to hear Kamitomo's motion for a new trial on Jan. 25. AP, Seattle Times 01/15/2008"

Ok, so what does this tell us? What lessons are there to learn?

Lesson 1: If people are comfortable crapping on their oaths as jurors this blatantly, then imagine what prejudices, biases and secret grudges they carry into their duties in other cases.

Lesson 2: The corporate/insurance/conservative/pro-business smear campaign against lawyers, judges, the courts and the law is WORKING, if people consider judge shows and this kind of conduct appropriate treatment of one of the institutions which is a foundational rock of our freedom.

Lesson 3: Juries are NOT "running away with pro-plaintiff verdicts." Apparently, most juries are still sticking it to people for all the wrong reasons.

Lesson 4: RACISM IS EVERYWHERE. If you deny it, you're not paying attention. If it can happen in "liberal" Seattle, where might it also happen? Here. That's where. Anywhere.

So what are you prepared to do about it? Any opinions or jokes you'd like to have back? Does this embarrass you at all if you care about our country?

Me? I plan to keep fighting.

The McDonalds Myth

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 07:33:44 EST

Ever hear someone rant and rave about the "McDonald's Coffee Case?" About how "that's what wrong with our Court Systems," and other ignorant nonsense? They're wrong. They're spouting - and repeating - MYTHS. Here are the FACTS...

MYTH #1: "The Coffee wasn't that hot..."

FACT: McDonalds coffee wasn't just hot, it was scalding, capable of almost instantaneous destruction of skin, flesh and muscle (see below).

MYTH #2: "Stella Liebeck was acting like a fool, driving and handling the cup."

FACT: Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds. The grandson stopped momentarily so that Liebeck could add cream and sugar to her coffee. She placed the cup between her knees and tried to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

MYTH #3: "I heard she wasn't even that badly burned..."

FACT: The sweat pants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. She had to undergo painful, repeated debridement treatments.

MYTH #4: "She held out for millions..."

FACT: Liebeck sought to settle her claim for $20,000, but McDonalds refused.

MYTH #5: "Poor McDonald's was caught by surprise..."

FACT: During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees to maintain optimum taste. The McDonalds witness admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder," since the location of the writing would not warn customers of the hazard.

MYTH #6: "This case is about crazy juries giving millions away..."

FACT: The jury awarded Liebeck only $200,000 in compensatory damages despite the seriousness of her injuries. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. In order to punish McDonald's for its horrid, willful conduct, however, the jury also awarded Liebeck $2.7 million in punitive damages. Yet that amount is equal to about two days of McDonalds' coffee sales.

Yet, even given that paltry amount, the trial court ALSO reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful. No one will ever know the final ending to this case.

MYTH #7: "So what? How does this verdict even matter? Nothing's gonna change..."

FACT: Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees.

SO, what have we learned? First, don't shed a tear for corporations. Second, don't believe the thirty second sound bytes, especially not the ones from conservative commentators, who've taken lies and half-truths to an art form. Third, be wary of "secret settlements" which let corporations make millions off the PR of "poor us" while GAGGING the victim.

Fourth, finally, and most important of all: LAWSUITS CHANGE CONDUCT AND MAKE US ALL SAFER: CORPORATIONS AND THIER POLITICAL STOOGES DON'T.

The parties in this case, at the insistence of McDonald's, eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned.

Caps On Damages Dont Work

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 07:33:44 EST

"Caps on Damages Don't Work" This excellent editorial appeared on Newsday.com on Oct 17 2007:" Darrie Eason is a penetrating example of what's wrong with proposals to cap damages for pain and suffering in medical malpractice cases. The high cost of malpractice insurance is a problem. But adding insult to patients' injuries by arbitrarily limiting jury awards is not the answer.

Eason was told she had cancer. One double mastectomy later, doctors told her the devastating diagnosis was a mistake. Her tissue sample had been mislabeled. She never had cancer. Tragically, by then her breasts had been removed.

If it's proved that her travail was caused by somebody's negligence, she can collect economic damages - lost wages and the cost of hospitalization, surgery, physical therapy and the like. But that just covers her expenses. So, what else is there? Whatever a judge or jury considers just compensation for her pain and suffering.

Under current law, without caps, she could be awarded millions of dollars. Impose the cap sought by President George W. Bush and congressional Republicans, and she could get no more than $250,000. Would that be just? What's the anguish of losing two healthy breasts worth for a single, 35-year-old woman? Right now that's for jurors to decide, as it should be.

Virtually all the other actors in malpractice dramas - insurers, doctors, lawyers, hospitals, laboratories - have deeper pockets than the typical person who sues. People like Eason shouldn't be forced to bear the brunt of the cost of fixing the nation's malpractice insurance problem." Every independent study done on caps on damages awards compels the same conclusion: THEY DON'T WORK. The caps issue is, in simple terms, a corporate and insurance HOAX perpetrated on the public and on the professionals - including lawyers - who pay insurance premiums. Don't vote for candidates who sing this song, because they're almost certainly taking BIG campaign contributions from insurance and business executives. Do you think people like that have best interests at heart? Well, neither do their pet candidates.

A Rose By Any Other Name - Marriage

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 07:33:44 EST

The NJ Supreme Court's decision in Lewis v. Harris, which recognized as fundamental a same sex couple's right to have all the benefits of marriage, was, in the classic sense, a compromise borne of cowardice.

My point is not to 'debate' same sex marriage. There is no debate. Marriage only comes in two forms: a religious ceremony, performed by a cleric, which carries no civil effect, and a civil marriage, which is the state's recognition of an economic relationship. Despite the pomp and frippery of a religious ceremony, it is the state that makes it official.

As long as no law can tell a temple whom it can marry, then it follows that no temple can tell the law whom it can marry. Any objection to same sex marriage equality is thus a religious objection. It is therefore of no consequence in or to a secular republic. Folk who are not satisfied with holding and expressing their religious beliefs within family and church and who insist that their religious values should dictate state policy should move to Iran to some other such place where religious 'values' dictate policy.

I was involved in the Lewis case. I represented one of the amicus parties, along with other counsel. We wished for more. We wished for a rose by any other name. We wanted marriage equality, and now, the battle begins again.

NJ's attorney general Rabner recently disappointed us in that effort by suggesting that NJ would 'recognize' marriages from outside of NJ as 'civil unions' only. This is, of course, an insult both to the principle, and also to those couples - and to the states from which they come - who were married where legislatures are braver.

It's 'just' a word, is marriage, but then, so is 'justice.'

What Workplace Harassment Says About Our Society

webmaster@lawyercentral.com (Lawyer Central) — Tue, 13 Nov 2007 07:33:44 EST

In my last entry, I said I hoped that this blog reveals who I am as a person, because those who come to me for help should have complete faith in my ideals, as well as my skills. Here's the first of those peeks behind the green curtain; it has to do with why I do this work.

I know the title references the workplace and our society, but I ask you to bear with me as I start that topic in the past - my past. There's a reason I start this discussion thirty five years ago, in Brooklyn, NY.

My mother, who's no longer with us, was Jewish, and dad, who survives her, was Catholic. Nowadays, I suppose, you could call him an agnostic. Neither of them were much religious, and our house was one in which there was no formal discussions of, or resort to, deities. The religious culture was more for both of them about family traditions than belief.

As you might expect from such a blend, holidays were many, and were celebrated in what was for our home a pretty unique manner. I remember Christmas Trees and Chanukah menorahs in the window at the same time, sausage and peppers on Passover, potato latkes on Easter, and Catholic and Jewish relatives laughing and eating - and eating and eating - the same dishes, in the same house.

I never felt odd as a little guy, having two religious cultures in the same house, because both families loved me. To a child, happily, there's not much more he needs; metaphysics and sociology come later. If there were pressures, or prejudices, between members of the family, I never detected them as a young child, and I remain happily ignorant of them in the present if such ugliness was ever there at all, now that almost all of those adults I remember as a child have left us.

But as I got older, I learned the first truth about prejudice and ignorance: it's taught, it's not in-born.

In Brooklyn, NY, during the late 60's, 70's and early 80's, my childhood and then young adult-hood was a rich blend of cultures and ethnicities. There was a little bit of everyone and everything. Most of the time, closeness, tolerance and a common sense of "we all live here and the place isn't getting any bigger so let's get along" was enough to maintain relative harmony. Sometimes, it wasn't.

"Your (or 'our') own kind" was, sadly, a phrase you might expect to hear from just about every quarter. Jewish parents used it to tell their daughters not to date me because I wasn't Jewish enough. Catholic moms said it for much the same reason. African American students didn't spend as much time mixing with Caucasian students as they might have, and vice versa. Of course there were examples otherwise, noteworthy for their rarity, and so I thought of my childhood landscape as I grew not as a porridge, where everyone became a harmonious part of the whole, but rather as a stew, in which chunks of this and that maintained a distinct taste though on the same plate.

I don't recall at what age I remember starting to hear those words - you know the ones of which I speak, or ones like them - but I remember them suddenly becoming part of the background of my life. I remember hearing them directed at others, and I remember hearing them directed at me. In my ignorance, I said them too, as much because the sense of wrongness attending their use was not as compelling as the day to day reality in which those words were so common.

Non-Jews called me a 'kike' and a 'hebe' and Jews called me 'half-gentile,' or worse, 'half-goyim.' I suppose half an insult was intended as a more accurate description. 'Gay' and 'faggot' and the like were used to describe the real thing and to imply insult when it wasn't the real thing. The labels were everywhere. All the worst ones you can imagine were sprinkled liberally into the neighborhoods, into the classrooms - though not where a teacher could hear, even if those teachers might secretly sanction the use of those words themselves - and into the homes, the street games of stickball, the bike rides to the playgrounds.

The worst - and really, as I look back now, the strangest - part of it all was that, most of the time, there was less malice in the use of those terms than there was a sense that the observer was just stating the obvious. As often as not, I remember kids using those terms to talk to each other even as they laughed, or even though they were friends. It looks odd now, but then, I suppose, it was the only social system I knew, and it was hard to imagine another. I had no reason to imagine another.

I won't bother with the justifications for this way of relating to one another, because everyone has stories like this. "I didn't mean anything by it" would make someone a billionaire if they could patent its use in that context alone.

But is that enough to explain those times, those behaviors? "I didn't mean anything by it?" "Don't be so sensitive?" Are those phrases, and the endless cousins of such, enough to justify bigotry as the background wallpaper of my life? Of anyone's life?

How does that feel to you, as you read this in private, recalling those times when you were needlessly hurt by bigotry, or needlessly hurt others? Are you thinking the above excuses work for you, should work for our society? That trying to do better is a waste of time, or represents too much 'political correctness,' or represents the 'agenda' of some group trying to undercut our way of life? Or that there are 'more important things' about which to think?

When I was a kid, I suppose it was. After all, was there something better?

Yet I went to college, I got out of Brooklyn, I learned that there's always a way to build a better mousetrap. I become exposed to ideals which, being abstractions, are never really attainable, but the striving for the ideal is what ennobles us, not the attainment; and certainly not the abandonment of the effort to reach those ideals.

So what, as I ask at the start of this entry, does workplace harassment say about our society?

I'll certainly talk at greater length in other, future entries about the specifics of the law of workplace harassment, about the elements of such a claim, about developments in the law of NJ and in the law of the nation relating to such claims. Today, in closing this entry, I'd rather talk about the disease, instead of the symptoms and diagnosis.

Disease, as I come to think on it, is a pretty good metaphor.

When we're sick, we make decisions about how to respond, and our response depends on so many unique variables, there's no point in listing them all. But one of the main issues for us in deciding what to do when we're ill is how sick we are, and what's going to happen to me if I don't do something about it?

If we have a cold, we don't do much, because we don't worry much. If we have acne, some of us care more than do others, so some treat it, some just ignore it. For some diseases, some people have surgery, some don't.

Sometimes, a disease seems chronic - it will always be with us - but not quite enough to inspire us to make big changes in our lives. If you have high cholesterol, is it easier to change diet and exercise to lower it, or take a pill and eat that pizza?

Our society is sick. The reasons for it have as much to do with myths - which persist in misinforming people about how the early business of the United States was conducted - as with traditions and grievances brought here from other nations and from other cultures and religions. The sickness is one of those conditions which is persistent and seems unlikely to disappear on its own. Yet for many people, the symptoms of the disease are just not irritating enough to warrant major intervention. They ignore it, because it's easier than addressing it.

I know some people are angry reading this. They believe I'm not seeing the good in America, or Americans, that I'm a negative person, a naysayer, what have you. I'm not. I love the ideals upon which this country was founded. But I'm a realist, and I therefore know that no society has ever been perfect, and none will ever be. The goal isn't perfection, or a rose-colored refusal to see imperfection out of some misplaced sense of patriotism or stolid refusal to recognize problems. The goal, as I said above, is the striving for a better vision of the ideal.

The problem is that the disease of bigotry is insidious. Bigotry claims victims quietly, wearing them down, burning from them the passion to grow, the strength to achieve. Worse, these victims in turn might themselves become embittered transmitters of the disease, feeling that if they suffered, so should others. And even worse, the entire society suffers when the victims of bigotry fail to make the society a better place, instead becoming at best watered down participants in it or even enemies of it.

The next gay man beaten to death might have cured cancer. The next black kid shot by a racist cop might have become the man who saves the Mars mission at its critical moment. The next woman who, in the face of sexual harassment, quits her physics research career might have been the person who finds the fusion solution to the world's energy problems.

It would be easy for me to ask if we can afford such waste, expecting a resounding 'no' from everyone. That's a cheap question, because it's an abstraction, and thus easy to answer without much effort. Here's the harder question: What are you prepared to do about it?

Think about it more often than you have. If you do, I'll be satisfied that this blog has been worth the effort. What do I do about it?

I'm a civil rights trial lawyer, and I'm trying to make a point about how to treat one another with dignity and respect, one case, and one client, at a time.

The Road So Far

webmaster@lawyercentral.com (Lawyer Central) — Mon, 12 Nov 2007 07:33:44 EST

Welcome to my first blog entry. This feels strange, I have to admit. Even given as much writing as I've done professionally and in expression of my personal muses, I have to admit that the idea of authoring a blog still seems odd to me. In time, I'll get used to the idea. My sense of humility tells me that no one else besides my family and friends will be interested in my thoughts on the law and how the law relates to society. Yet clients and referring attorneys have asked so many questions so often, and suggested I author this blog so often, that I've given in.

My intention in the Journey to Justice is to talk about the law. For the most part, I plan to focus both on the specific areas in which I concentrate my trial practice, and more specifically, as to New Jersey, the state in which I maintain my practice. Yet I also plan to raise awareness about the law generally, and the state of our society and culture as a reflection of the law, and as affected by the law.

In talking about my areas of concentration in the practice - employment discrimination, workplace harassment, sexual harassment, wrongful discharge, failure to accommodate, sexual orientation discrimination, gender rights discrimination, workplace retaliation, wage and hour, whistleblower law - I plan to talk about the cases, the changes in the law as it evolves, the people affected by those changes, and what this critical area of the law says about us here in New Jersey and in America.

When I address the law generally, I hope to correct misapprehensions about the law, and to restore respect for it, and faith in it, as the best means by which we can resolve disputes. It'll never be perfect - nor will any other institution conceived by the minds of human beings - but our goal ought to be to make it as fair, and as good, as we can. That's not just the job of the legislatures, it's the job of every one of us as citizens. We're responsible for the people we elect and what in turn those people do; we're not blameless when we vote for the wrong people and when those people harm the electorate with their actions. We're also responsible for the examples we set, so we're responsible for how we talk about the law, and whether we instill in the next generations respect for it and faith in it. If we treat it with disdain and hostility, then we deserve what we get.

To punctuate that last point, I'll close with a quote from Dr. Martin Luther King, who was also human and therefore far from perfect. He said "Injustice anywhere is a threat to justice everywhere."

If we all remembered that not only when we interact with the law, but when we relate to others, we'd be doing a great deal better than we are.

Something upon which to meditate until we can talk again.