Strictly Legal: Recent Episodes

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I'm excited to announce that the Oxford Research Encyclopedia of Criminology just published my article on Military Justice in Film in its volume on Crime, Media, and Popular Culture. To my knowledge, this is the most in-depth examination of this topic published to date. It took me several months to research and write this article, including long hours tracking down and reviewing dozens of films in this genre. The article will appear in the print edition of the encyclopedia, but for a limited time it is available here to read and download for free. I hope you enjoy reading it as much as I enjoyed writing it!

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Since taking office on January 20, 2017, President Trump has made good on several campaign promises by issuing a series of executive orders. The most recent order that has sent shockwaves around the globe is his executive order banning refugee immigration from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. Since then, green card holders have been detained at U.S. airports, and Syrian refugee families previously approved to enter the U.S. have been returned overseas, all pursuant to this order.

Under these circumstances, certain questions arise. Can the President really make such far-reaching change, in a seemingly unilateral fashion? Is an executive order a law, or something else? What about checks and balances?

To help answer these questions, here’s a simple explanation of executive orders, their place in the American legal system, and ways in which executive orders can be challenged.

Every kid who goes to school in the U.S. learns at some point about the three branches of government: Executive, Legislative, Judicial. At the highest level in the federal government, these three branches are embodied by the President, Congress, and the Supreme Court. Each of these branches plays a role in our system of laws in the United States. The most basic way to think about it is, the Congress creates law by enacting legislation; the Supreme Court interprets the laws through its judicial decisions; and the President enforces the law by taking executive action, through the many executive departments and agencies. So, an executive order is an order that the President issues to the executive agencies, telling them how to carry out their duties.

Moving one step beyond the basics, however, things get a little more complex. Although we think of Congress as the branch that creates laws, in a certain sense both the Court and the Executive “create” laws. When the Supreme Court issues an opinion--for example, holding that burning the American Flag is a protected form of speech under the First Amendment--that opinion is one that lower courts are bound to follow, and it’s an opinion that the Court itself will not readily overturn. (My former Pepperdine Law students will remember this from our first day of class, when we discussed stare decisis.) So in that sense, the higher court’s opinion becomes the law.
When it comes to executive orders, the President’s orders have the weight of law when they are issued pursuant to a law (statute) already enacted by Congress. Some statutes specifically state that the Executive has the authority to issue orders to bring the law into effect. In other statutes, this authority is implied. In any event, the U.S. Constitution specifically grants to the President “executive power,” and issuing executive orders to give effect to the laws of the United States is one of those powers.
So, does this mean that the President can issue executive orders at his whim, creating laws that to enforce policies of his choosing, with no limit to his action? No. As I just described, to have the authority of law, an executive order must be issued pursuant to an existing law. The Constitution states that the President must “take care that the laws be faithfully executed” -- not that the President can unilaterally create his own laws.
Second, any action the President takes must not violate the U.S. Constitution. The Constitution is the “supreme law of the land,” and cannot be contradicted by legislation, court decisions, or executive orders.

This leaves the big question - HOW can an executive order be challenged, or even invalidated? Here are some ways:* A person with standing (such as a detained immigrant) can bring a lawsuit to challenge the validity of the executive order. (Note - a U.S. District Court injunction is not sufficient to invalidate an executive order, but can start the process that could possibly lead to review by the U.S. Supreme Court.) * Congress can change or repeal the law that formed the basis of the President’s order, or pass a new law that would nullify the executive order. * The President could withdraw or change his executive order.

If you are wondering what YOU can do (assuming you don’t have standing to sue in court), you should consider the following:* Educate yourself on the issues through a variety of reliable news sources. * Avoid the echo chamber effect by considering valid arguments on both sides of a political issue. * Contact your senators and representatives to voice your opinion. * Volunteer your time or other resources to reputable organizations that can help advance your position.

President Trump’s executive order on immigration isn’t the first controversial executive order by a President, and it certainly won’t be the last. Hopefully, this article has helped to explain executive orders in the context of other U.S. laws, and provided some ideas for how to be more involved in the issues you care about.

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I recently had the pleasure and privilege of officiating the wedding of a good friend of mine. I have known her since she was 18 years old, so in many ways she’s more like a younger sister to me. When she asked me to officiate her wedding, I was at first touched and honored that she thought of me to perform this important duty for her and her groom. My second thought was, am I legally qualified to do this?
Marriage laws can be confusing because they vary from state to state; even individual counties within a state may have differing requirements. When I took family law in law school, we learned that parties first have to be eligible to marry. For example, the parties have to be of legal age (usually 16 or 18, or younger with parental consent), not closely related, and not already married. Second, the parties have to meet certain requirements necessary to enter into a valid contract, such as consent and capacity (the requisite mental state to enter into a legally enforceable agreement).
In the case of my friend and her groom, I had no qualms about eligibility, consent, or capacity. My concern was with the execution of the marriage itself, which requires both a marriage license and a legal ceremony. Obtaining a marriage license involves going to a county clerk’s office, filling out paperwork, and paying a fee. Once the license is obtained, the parties usually have a short waiting period and also an expiration date. For example, in Maricopa County, where I live, the parties pay $76 for the license, have no waiting period, and can obtain a wedding up to one year after the license is issued.
The marriage ceremony typically involves exchanging vows before a qualified officiant, usually in front of one or more witnesses, and the signing of a marriage certificate. In other words, a marriage license authorizes the parties to marry, and the marriage certificate is the legal documentation that the marriage has taken place. Again, different states and counties have different legal requirements. Usually, we think of weddings as either civil (before a judge or justice of the peace) or religious (before a minister or other clergy member). Because my friend was getting married in New York, I had to look up New York law on who is qualified to solemnize a marriage. I started to get a little concerned when I read that to officiate a New York wedding, I have to be either a judge, a mayor, or a minister of some sort. Simply being a lawyer would not suffice to perform a wedding ceremony. Of the options, the only feasible one seemed to be obtaining some type of online ordination.
Ultimately, however, I was able to perform the wedding ceremony without becoming a minister, judge, or mayor--and at the end of the evening, my friends were still legally married. How? Well, it turns out that the bride and groom had a civil ceremony when they obtained their marriage license. Thus, they had already met the legal requirements to be validly married. So, my role was to officiate a ceremony that was symbolic, rather than legal. Nonetheless, I felt I was still part of an important tradition. Formalizing your vows in front of friends and family demonstrates the couple’s commitment to each other, while also allowing family and friends to show their support for the newlyweds.
As for me, this may very well be my first and last experience as an officiant. I enjoyed being a part of this wedding mainly because of my connection to the bride and her friends and family. But, I won’t rule out the possibility altogether, especially if I become a full- or part-time judge in the future.

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At long last, I'm writing my promised article on class action lawsuits. I planned to write this last August, but the vagaries of life got in the way--moving, job interviews, Netflix queues--so instead, this will be my first article of 2013. And away we go!

Even if you don't know exactly what a class action lawsuit is, if you watch TV or get email, I can guarantee you have been exposed to class actions. Remember the scary-sounding TV commercials, discussing mesothelioma or transvaginal mesh, and urging you to check out a website like "badlunglawyers.com"?

Or perhaps you're really hip and you don't even watch commercials anymore, thanks to DVR or Dish Hopper or piracy. Even so, if you use Facebook you may have recently received an email along these lines:

| NOTICE OF PENDING CLASS ACTION AND NOTICE OF PROPOSED SETTLEMENT | | ANGEL FRALEY V. FACEBOOK, INC. | | You are receiving this e-mail because you may have been featured in a "Sponsored Story" on Facebook prior to December 3, 2012. | | A federal court authorized this Notice. This is not a solicitation from a lawyer. |

So what does all this mean? Well, for you intrepid readers, you can research the ins and outs and state/federal laws pertaining to class actions. For purposes of this blog, I'll just provide the highlights (also obtained by watching Erin Brockovich). A class action is a way to combine the common claims of similarly situated plaintiffs against (typically) one defendant. The advantages are efficiency in litigating or settling claims with numerous plaintiffs, as well as giving potential claimants an opportunity to benefit from a settlement without bringing their own lawsuits. As a downside, if do you want to bring your own lawsuit for the same claim, you must "opt out" by a certain deadline or be barred from doing so. Also, certain settlements can seem paltry by the time millions of plaintiffs are paid out--for instance, in a proposed settlement by Apple for in-app iTunes purchases, many claimants will only get a $5 iTunes gift card.

If you are an avid consumer, you may be eligible for lots of consumer-oriented class actions. Googling "open class action lawsuits" reveals many websites where you can browse for actions to join against "deep pocket" companies like food and drug manufacturers. Sure, this could trigger deeper thoughts about the litigious nature of our society--but a few $5 coupons can quiet those inner voices pretty quickly! To get the payout for smaller settlements, you usually just have to fill out an online form, and might have to include a receipt or proof of purchase.

To conclude, in no particular order I'm presenting my top 3 favorite class action lawsuits of recent history. As a disclaimer, I have no professional stake in any of these actions, although I have been known to use these products from time to time.

1. Nutella for breakfast: In a story perfect for morning TV news, two moms were shocked to read the label on the Nutella jar and realize they were essentially spreading chocolate frosting on their toddlers' toast every morning. Like any shocked moms would do, they channeled their anger and guilt into a lawsuit against Nutella for misleading advertising. In a settlement, Nutella agreed to change its slogan from "An example of a tasty yet balanced breakfast" to "Turn a balanced breakfast into a tasty one" (subtle) as well as pay out up to $20 per household of aggrieved Nutella eater (up to 4 jars at $5 per jar). Listen, I'm all for protecting the consumer, but could anyone really eat Nutella and think it's healthy? It is waaay to tasty to be health food. Status: CLOSED.

2. Watered-down Bud Light: Fresh off the tap and hot off the presses, this week brought news of a lawsuit against Anheuser Busch, claiming that Budweiser and other beers have less alcohol content than stated on the label (usually around 5%). I'm sure those of you who prefer more, ahem, flavorful beers are finding a lawsuit that claims Bud is "too watery" to be pretty silly. But there are real victims here, people--according to NBC news, "Pennsylvania plaintiffs, Thomas and Gerald Greenberg of Ambler, said they buy six cases of the affected Anheuser-Busch products a month." According to my back-of-the-envelope calculations, over the course of a year, that's like missing out on drinking a lot of other cases of Bud Light. Sadness. Status: OPEN.

3. Frosted Mini-Wheats make you smarter: Do you remember the commercials where the cute/creepy talking Frosted Mini-Wheats were comparing notes on how their respective kids would get better grades, thanks to eating bowlfuls of their (presumably nontalking) kin? Kellogg's was sued for making claims that Mini-Wheats improved kids' cognitive function by 20%. Kellogg's settled for $2.75 million and also agreed to change the commercials and donate $5.5 million of Kellogg's food to charity--but Kellogg's stands by its research and claims it did nothing wrong. Status: CLOSED.

If you have any class action stories, I'd love to hear them! Please leave in the comments below or on our Facebook page.

Happy Litigating!

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Season 2 of Serial focuses on Army Sergeant Bowe Bergdahl, the soldier who spent five years in Taliban captivity after leaving his outpost in Afghanistan, and who now faces a general court-martial for desertion and misbehavior before the enemy. As a former Army JAG with experience as both a prosecutor and a defense attorney, I have followed this story with great interest. Several legal commentators have offered their opinions on the possible effect of Serial on Bergdahl's court-martial. Rather than reiterate these views, I'd like to offer my thoughts on Bergdahl's explanation for his actions.

As I listened to Bergdahl's recorded conversation with filmmaker Mark Boal, his words struck me as oddly familiar. The more I listened, the more I realized he reminded me of many soldiers I had met during my twelve years as an Army officer. Somewhat naively idealistic, Bergdahl questioned the decisions of his superiors. He felt they were unwise, even dangerous. He wanted to call attention to the situation.

Similarly, many soldiers I encountered in the Army also privately questioned the decisions of their commanders and supervisors. I certainly did so myself, from time to time. It's not uncommon in the military, especially in a deployed environment, to receive orders that seem redundant, nonsensical, or dangerous. Few soldiers react like Bergdahl did, but many will harbor reservations even as they carry out these orders.

Two characteristics of the Army's "workplace culture," for lack of a better term, work in concert to produce these situations:

1. Rigid hierarchical structure. The Army does not act by majority vote. Commanders issue orders, and these orders are to be carried out, not questioned. Although soldiers have some administrative avenues to deal with perceived wrongs (e.g., complaints to the inspector general), the usual course of business is to follow orders without questioning them.

2. Lack of transparency. Typically, the soldiers executing orders are not privy to the decision making process behind the orders. A commander might make a decision after carefully considering input from her staff officers, but this input and the deliberative process typically does not leave the staff meeting. Many legitimate reasons exist for this lack of transparency, chief of which would be the need to safeguard classified information behind an operational decision. Nonetheless, the end result is that soldiers receive orders but do not know the "why" behind the order, or how it plays into the bigger operational picture.

In my opinion, a lesson to be learned from Bergdahl's story is the effect of rigid hierarchy and lack of transparency in an organization. Smart, thoughtful employees can easily be dissatisfied if they do not understand how their work tasks serve the overall mission, and if they do not have any input into the decision making process. Of course, I'm not advocating for the Army to overhaul its processes; the Army's unique mission requires respect for command authority. However, I do believe that Army leaders sometimes underestimate their junior officers and enlisted soldiers. Strategically sharing information regarding the deliberative process behind a decision could increase motivation and compliance. This holds true in civilian workplaces, as well.

Do you agree or disagree with these thoughts? Please share your comments below.

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I'm keeping this post short because I plan to write a bit more on Episode 3 regarding the Army Code of Conduct. For Episode 2, a few things stood out to me:

1. The Taliban captors had some misconceptions regarding Bergdahl that seem laughable to Western listeners. For example, they believed that Americans were always drunk, and that he must have been outside his base in search of drugs or women. Personally, I think it is good for the average American listener to hear these stereotypes. It shows how easy it is to draw broad conclusions about large groups of people based on limited information. In other words, if they're doing it to us, we're doing it to them.

2. The Afghan people who encountered Bergdahl were fascinated by his appearance -- his white skin, blond hair, blue eyes. One person said he looked like "a cat baby." In my experience in Iraq, soldiers who looked different did draw a lot of attention. I worked with a female paralegal who was tall, blonde, and a soldier. In other words, everything about her was nearly the opposite of local women, and the Iraqi men on the base were not subtle about staring. I'm certain in Afghanistan, in a location even more distant from Western culture, Bergdahl must have seemed like a unicorn. It makes me wonder whether it was easier for his captors to mistreat him because he was so different from them--his "otherness" depersonalized him to the enemy.

3. I was a bit surprised by how frank some of the soldiers from Bergdahl's unit were about their hatred toward him. Their attitude is understandable -- here's a guy who created all these problems, apparently voluntarily. But to hear a soldier actually say out loud that he would have killed him seemed surprising to me. I started to wonder if a soldier could get in trouble for something like that. His statement wasn't a threat, because it wasn't communicated to Bergdahl at the time. The punitive articles of the Uniform Code of Military Justice cover "inchoate" offenses, such as attempts, but a thought or statement with no action is not an attempt. At best, saying on public radio that you would have killed a member of your platoon might be considered "service discrediting" conduct under Article 134. But, soldiers still have a right to free speech. I think I'm conditioned by my experience as an Army JAG officer to believe that any questionable conduct is most likely violating a military law or regulation.

That about sums up what I thought as I listened to Episode 2. Agree? Disagree? Questions? Please let me know in the comments, below.

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And so goes the 2005 Kanye West classic (feat. Jamie Foxx), “Gold Digger.”  The narrative behind the beat describes a woman who goes after a man just for his fortune—thus necessitating the prenuptial agreement (prenup).

In reality, prenups can involve much more than protecting a rich man from a gold-digging lady—even if popular culture tells us otherwise. Nowadays, a prenup can be just as much about protecting a woman’s assets, depending on the potential bride and groom’s relative worth before entering their blissful union.  Beyond that, many couples are finding themselves contemplating post-nuptial agreements (postnups), due to changed financial circumstances or as a means to amicably resolve marital discord. Postnups can be especially tricky—more on that later.
But first, what exactly is a prenup?  In the simplest terms, a prenup is a type of contract, meaning that to be valid, it must have offer, acceptance, consideration, and a “meeting of the minds,” meaning a mutual understanding of what the contract is all about.  Beyond that, to be enforceable in court, the contract must also not violate public policy. That makes sense—I could make a perfectly “valid” contract with an illegal immigrant who mows my lawn to do my gardening for free in exchange for not turning him in to the feds, but no court would ever enforce that agreement. (I mean, I haven’t tested it out yet, of course.)
So far so good, right? A prenup is a contract, and the terms typically deal with dividing the estate between husband and wife in the event of a divorce (or “dissolution of marriage,” if you’re fancy and getting paid—or paying—the big bucks).  Depending on the terms, the prenup could be seen as protecting the “weaker” party to the contract (i.e., the party with fewer assets) by guaranteeing a payout. However, prenups often are used to protect the “stronger” party by setting a limit on what the other party can receive in case of a divorce. Depending on state law (marital or community property), a prenup could cost a divorcing party much more than what he or she could have received under the state's rules.
Now, at this point you might be wondering why courts would ever enforce a prenup, especially if it means the weaker party gets less after a divorce than he or she would have had there been no prenup. Indeed, up until the last few decades, courts were reluctant to enforce prenups. One argument against enforcement was the public policy argument—that such contracts undermined the true nature of marriage.  Times have changed, however, and the concept of marriage is evolving on what seems like a daily basis. Nowadays, all states will recognize a prenup as long as it was executed according to state law and meets the principles of contract law I described above.
Postnups, however, are still troublesome.  You see, once two people are married, as spouses they owe each other a special legal duty called a fiduciary duty.  Basically, this means each spouse owes a high duty of trust to the other spouse and to the marriage, including the duties to work toward the benefit of the marriage and to deal with each other fairly and in good faith.  Negotiating an agreement that “cuts out” a spouse from reaping benefits of the marriage seems to go against that duty, and could be difficult to enforce once the marriage is dissolved. 
Difficulty enforcing a postnup equals messy court battles. Mix in some high-profile celebrity types (the ones with lots of $$ who would most benefit from a postnup) and you get tabloid fodder galore.  A recent high-profile postnup battle involved rocketeer Elon Musk, founder of PayPal, Tesla motors, and SpaceX.  Musk made headlines in May 2012 when the SpaceX Dragon became the first commercial spacecraft to dock with the International Space Station.  A few years ago, however, he made headlines when his ex-wife Justine Musk wrote a series of blog entries about the “unconscionability” of their postnup.  (In case you were wondering, unconscionable is basically a fancy word for really unfair.)  In the end, the court enforced the postnup, meaning Justine Musk walked away with a hefty package—but no ownership rights in any of Elon Musk’s companies.
One would think that after that experience, someone in Elon Musk’s shoes would approach marriage and divorce quite cautiously.  Not so in his case; Musk married actress Talulah Riley* shortly after his divorce from Justine was finalized, then tweeted his intent to divorce her on January 18, 2012 after just a year of marriage. That’s right—a brilliant entrepreneur, who had already endured one very public divorce, used Twitter to announce his second divorce.  In my book, Elon Musk gets a plus in the awesome spaceship company column, but a minus in the judgment column.
What conclusions can we draw from all this?  I’ll give you my top three takeaways.
(1) Marriage can be an amazingly fulfilling relationship, but it’s also a business relationship with serious legal ramifications. If you think marriage is just about love, you might not be ready to get married.
(2) Before signing any contract (especially a prenup or postnup), get a lawyer, read it over, understand what you’re signing, and don’t write it on the back of a cocktail napkin.
(3) Although I’m a lawyer, I’m not YOUR lawyer and please don’t get your legal advice from this or any other blog/podcast/tweet/Facebook status update.
‘Til death do us part,Ann

*Talulah Riley is a British actress who played Mary Bennet in the 2005 adaptation of Pride and Prejudice starring Keira Knightley. An interesting fact, considering that marriage in Jane Austen's era seemed to be all about guaranteeing a woman's financial stability. I wonder if Ms. Riley signed a prenup?

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In film and television, the concept of the conjugal visit is well known, often portrayed for humorous effect. For example, Arrested Development featured a conjugal visit between George Sr. and Lucille (and Kitty) in the Season 1 episode “Visiting Ours.” Although you might be familiar with the term you may not know where the word “conjugal” comes from—and whether such visits really occur as a regular part of prison life. To clear up the first question, conjugal is actually derived from Latin (surprise, surprise). The word conjugare means to join together in marriage; that word is in turn derived from com (“together”) and jugare (“yoke”). So for all you marriage haters, here’s evidence that even in ancient times, marriage was considered akin to having a yoke placed around your neck. This definition further suggests that the modern conjugal visit is extended only to an inmate’s spouse, although in practice that varies (as discussed below). Turning to the second question, do conjugal visits really exist outside of prison films and sitcoms? The answer depends on where you live. At one extreme, conjugal visits are forbidden in the United Kingdom, although you can go to this site if you want to petition for a change. At the other end of the spectrum, Canadian inmates can participate in the Private Family Visiting (PFV) program. Qualifying inmates can have a visit of up to 72 hours once every two months in apartment-like units within the correctional facility. The facility even provides food in the “apartment” (although the inmate or his family has to pay for it). Furthermore, family visits are not limited to legal spouses; the qualifying inmate can be visited by common law partners, children, parents, and other persons “with whom, in the opinion of the institutional head, the inmate has a close familial bond, provided they are not inmates.” Meaning, no inmate-inmate action for our neighbors to the North. In the United States, conjugal visits are not allowed in the federal system. State practice varies, with most states disallowing conjugal visits. A brief Internet search reveals that only six states allow conjugal visits: California, Mississippi, Connecticut, New Mexico, New York, and Washington. Each state has its own rules as to who can visit and for how long. California, for instance, allows conjugal visits for same sex domestic partners; depending on the facility, such visits could last up to 72 hours in a small apartment (a la Canada). In comparison, Washington only allows visits by spouses whom inmates married before being convicted of the offense for which they are incarcerated. So as a takeaway, think twice before trying to hook up with an inmate. Chances are you won’t be able to get to spend “a weekend at the bone yard” (as California inmates put it) anytime soon. Of course, you can always get married to a Mississippi inmate. According to the Department of Corrections website, your conjugal visit will last one hour and include “soap, condoms, tissue, sheets, pillowcase, face towel and a bath towel.” If that doesn’t get your motor running, you’re just not human.

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Season 2, Episode 3 of Serial is titled "Escaping." This episode recounts Sergeant Bergdahl's early captivity by the Taliban, and how he unsuccessfully attempted to escape. During this episode, Sarah Koenig talks about how Bergdahl received only basic SERE (Survival, Evasion Resistance, and Escape) training, mainly consisting of instruction on the Code of Conduct for Members of the Armed Forces of the United States.
As I listened, I thought that most non-military listeners were likely unfamiliar with the Code of Conduct. So, I'm using this post to talk a little about the Code of Conduct--what it is and where it comes from.The Code of Conduct was created after the Korean War to provide uniform guidelines for military members captured by enemy forces. Take a moment to read the entire text of the Code of Conduct here. You'll note that it is quite short, consisting mainly of six articles. One thing to keep in mind, that was only tangentially mentioned in the podcast, is that the Code of Conduct is not punitive. In other words, a soldier cannot be punished for violating the Code of Conduct itself (although certain actions inconsistent with the Code could lead to prosecution under the military's criminal law system). Rather, the Code provides personal guidelines for a soldier's behavior in captivity. This is an important point, because Koenig discusses whether Bergdahl "violated" the Code by participating in his captors' propaganda videos. To that point, I'd also like to draw your attention to Article V. You've probably heard the basic idea that a captured soldier need only provide her name, rank, and serial number. This idea comes from Article V, but the actual language of this article has evolved over time. The original 1955 Code stated, "When questioned, if I become a prisoner of war, I am bound to give only name, rank, service number, and date of birth." This language was amended by Executive Order 12017 of November 3, 1977, to change "bound" to "required," and to eliminate the word "only." This amendment came about after the Vietnam War to reflect that captives may be pushed beyond their limits to resist further questioning. You can read more about this amendment in this excellent 1978 article from Airman magazine. Finally, you may have noticed by now that the Code of Conduct is an executive order. Executive orders have drawn a bit of media attention recently, as President Obama recently announced he would take executive action to reduce gun violence. Executive orders occupy a place in the hierarchy of U.S. law inferior to enacted legislation or judicial decisions. Rather, executive orders are the President's directives to executive agencies. Although often described as having the "force of law," executive orders are subject to judicial challenge and review. Thus, it makes sense that the Code of Conduct is an executive order. The Department of Defense is an executive agency; therefore, all members of the DoD are part of the executive branch of government and subject to the President's directives as both head of the executive branch and Commander in-Chief.Thanks for reading! Please comment below with any questions or reflections.

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Candidly speaking, I felt like episode 4, "The Captors," was a filler episode. A large part of the episode consisted of an interview with David S. Rohde, a New York Times reporter who escaped from the Taliban after seven months of captivity. Sarah Koenig interviewed Rohde regarding his experience with the Taliban to provide greater detail and context to Sergeant Bergdahl's ordeal. I got the impression Koenig interviewed Rohde as a proxy of sorts for Bergdahl, given that she is unable to interview Bergdahl himself. However, one part of Rohde's account caught my attention. He mentions at one point that he was often housed in areas with many civilians, especially children. His captors were concerned he would be the target of a U.S. drone strike, so they believed co-locating him with civilians would reduce the likelihood of a strike. As an Army JAG officer, I had to learn about international humanitarian law, i.e., the law of armed conflict. I also had to teach other soldiers about these laws. In my experience, most people are familiar with the general concepts of "human shields" and "collateral damage," whether from the news or popular culture. Fewer are aware of the legal foundation for these concepts. When I was training soldiers, I would cover the basic principles of international humanitarian law, such as distinction and proportionality. These principles are rooted in customary international law, and have been codified in Additional Protocol I to the Geneva Conventions of 1949. Here's how these two principles work:- Distinction: Only military objectives (people, places, things) should be attacked. Indiscriminate attacks, which do not distinguish between military objectives and civilians, are prohibited.- Proportionality: The military advantage gained by an attack must outweigh the incidental, or collateral, damage to the civilian population.In other words, strictly speaking it is not a violation of international humanitarian law to conduct an attack that kills civilians, as long as (a) civilians were not the object of the attack, (b) the attack was carried out in a way that distinguished between military objectives and civilians, and (c) the incidental civilian deaths were outweighed by the military advantage gained by the attack.Going back to Rohde's situation, his captors were mistaken in believing that Rohde himself would be the target of a drone strike. In no way does he qualify as a military target for U.S. forces. But, let's say the Taliban did have a legitimate military target -- could they immunize this target from attack, by surrounding him with civilians? The answer is, it depends on whether the military advantage gained by attacking this enemy outweighs the collateral damage.It's tough to think about human lives as variables in a balancing test. But, that's how warfare works. I'm reminded of a quote from President Carter: "War may sometimes be a necessary evil. But no matter how necessary, it is always an evil, never a good."

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Hello podcast listeners! New episode should be available on iTunes within the next 24 hours, based on my Fighting Words article from April 2011.

Thank you for listening and reading! Now that I'm settled in California, look for a new article soon on class action lawsuits (a.k.a. why lawyers had to save you from eating too much Nutella):

-ann

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Strictly Legal-ites: A new episode of the podcast is now available on iTunes, based on my previous post, "Annulled and Void." Check it out here.

Also, we have new music, courtesy of our sponsor Huge Beatz: The biggest beats in the business!

Stay legal,
-Ann

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Google “shortest celebrity marriages,” and the top results all mention Kim Kardashian, who famouslyannounced that she was filing for divorce after just 72 days of wedded bliss. Much more interesting than the Kardashian/Humphries union, however, is the seldom discussed 32-day marriage of Ernest Borgnine and Ethel Merman. The reasons behind their split run the gamut from accusations that Merman’segowasbruisedbyBorgnine’sgreaterfame to the allegation that Borgnine subjectedMermantothedreaded “DutchOven.” (Yikes!) But whatever the real reasons behind its demise, Borgnine and Merman’s union was undoubtedly one of the more volatile in Hollywood history.Now, you might be wondering why Kardashian and Borgnine filed for divorce instead of seeking an annulment. Among the uninitiated (read: never-divorced), an annulment seems like a quick and easy way to end a short-lived marriage. In reality, annulment can be a complicated legal procedure and even harder to obtain than a no-fault divorce. Finding its origin in the Latin nullus, meaning “no,” annulment can refer to both the Catholic Church’s procedure for declaring a marriage invalid and the legal process by which a marriage is essentially declared by a court to have never existed. A Catholic annulment is dictated by Canon Law, a body of ecclesiastical law so byzantine (pun intended) that there are actually canon lawyers trained in its interpretation. Therefore, this article will only discuss the civil form of annulment. (For more information on Catholic marriage and annulment, you can look here).So you wake up, Hangover-style, from a three-day blackout with a ring on your finger and a stranger in bed beside you. Can you get an annulment? Possibly. Unlike divorce, which dissolves an otherwise valid marriage, an annulment renders a marriage void—in essence, declaring that you are not only no longer married, but you were never actually married to begin with. The law presumes that a contract is valid until proven otherwise; therefore, you’d have to come up with at least one reason why your marriage wasn’t validly entered into. Grounds for annulment are a matter of state law, so for sake of simplicity we’ll assume you’re filing in Las Vegas and look at Nevadalaw. Like other states, Nevada distinguishes between void and voidable marriages. A void marriage is one that is invalid from its attempted inception, with no further proceedings necessary; in Nevada, a marriage is void if the parties are related or if one or both of the parties is already married. So in our example, if you wake up next to your brother—or if you happen to have a husband waiting for you back in Poughkeepsie—you’re in luck, your so-called marriage is void.If neither of these circumstances applies, you’d have to then look for a reason to declare your marriage voidable. A voidable marriage is one that is presumed valid, but capable of being declared void for a reason set out by state law. In Nevada, a marriage is voidable if either party is under 18 and did not obtain parental consent; if either party was incapable of entering a marriage for “want of understanding” (mental capacity); if consent was obtained by fraud; or for any other equitable reason that a court could find a contract to be void. So, depending on the circumstances, if you were underage, drunk, insane, or coerced into marriage by fraud, you could ask for an annulment, keeping in mind that when it comes to fraud, courts typically require that the lie go to the heart of marriage. For example, if a party lies about the intent or capacity to have children, this could be considered fraudulent inducement to marry.To complicate matters, even if your disastrous union appears to be voidable, a court could still refuse to grant an annulment if it finds that you and your spouse persisted in the marriage in spite of its voidable nature. For instance, if the parties become of age, sober up, restore their sanity, or discover the fraud, AND continue to live together as man and wife, they are no longer eligible for an annulment. What does this mean for you? Once you’ve figured out your marriage is voidable, you’d better move fast—in other words, inaction equals consent.So what if you’re unable to find grounds for annulment, or if you’ve moved too slowly and your once voidable marriage has become valid? Not to despair; you’ll just have to get divorced like everyone else. Or perhaps, once you’ve sobered up, regained your sanity, or come of age, you’ll realize that the schlub in bed next to you isn’t so bad after all. Even Ernest Borgnine has been happilymarriedtohisfifthwifefor the past 38 years, and if that lady can stand being Dutch-ovened by a 90-something Academy Award winner, there’s hope for us all.You may have noticed that “failure to consummate” is missing from this list. In Nevada, the inability or unwillingness of a party to seal the deal, so to speak, is not grounds for annulment. However, a few states (such as Ohio) permit annulment based on failure to consummate the marriage.

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It is a truth universally acknowledged--at least by those in certain professions--that everyone lies. Everyone.Doctors know this. “Do you smoke?” they ask. “No,” the patient replies, when she really means, “Only when I’ve been drinking with my girlfriends who smoke, and I bum a smoke, but they only smoke Marlboro Lights.”Piano teachers know this. “Did you practice this week?” they ask. “Yes!” the student replies, when she really means, “For the forty-five minutes before I came to this lesson, and only because my mom made me.”And, of course, lawyers know this. Whether it’s clients, witnesses, opposing counsel, even (gasp) judges, everyone lies. Or omits the truth. Or shades the facts. It’s human nature; there are no Honest Abes.Nonetheless, although most people (whether they want to consciously acknowledge it or not) realize that everyone lies at least some of the time, lying is a crime in our society. So much so, that certain crimes are categorized based on the element of lying they contain. The Latin term for such crimes is crimen falsi, quite literally, “crimes of deceit.” Generally speaking, crimen falsi involves forgery or another form of “official” lying, such as perjury. Moreover, crimen falsi occupies a special place among crimes when it comes to evidentiary rules during a trial. For example, when a witness is testifying, the lawyer conducting cross examination typically cannot bring up a prior criminal conviction to undermine that witness’s testimony--unless the conviction was for a crimen falsi offense. The rationale? In assessing a witness’s credibility, the judge or jury should know if the witness has “officially” lied before.In today’s society, however--where we acknowledge that everyone lies; where a lie is as ubiquitous as long-expired profile pics on Facebook--can we say with any degree of certainty that one lie inevitably leads to another? Furthermore, where do we draw the distinctions between “white” lies, morally repugnant lies, and criminal lies?The Ninth U.S. Circuit Court of Appeals recently attempted to answer that question in United States v. Alvarez, addressing the constitutionality of the Stolen Valor Act. In Alvarez, the court tackled the tricky question of what limits the First Amendment places on criminalizing speech, even if that speech is a lie. It acknowledged that in many circumstances, the government can criminalize falsehoods without running afoul of constitutional protections--in other words, most lies do not merit First Amendment protection. However, the 9th Circuit held in this case that the Act was overly broad--criminalizing a written or spoken lie about military medals, without requiring proof of fraud, injury, or benefit--and did not survive strict constitutional scrutiny. This decision has lit up the Internets, with commentators running the gamut from tempered disagreement to vitriolic outrage. Without delving deeper into the constitutional debate, it is worth noting the deep chord this decision has struck on the collective American psyche. In today’s society, technology creates an illusion of intimacy despite physical separation, requiring a higher degree of trust that others are projecting an authentic version of themselves. Furthermore, lies can be easily made and spread, but also live forever regardless of the speaker’s intent. This creates a sort of cognitive dissonance. We don't want to be lied to, especially about something noble like military awards. On the other hand, we practitioners of “harmless” puffery might prefer the government not be able to throw us in the clink when such exaggerations come back to haunt us.Alvarez’s fate may ultimately lie with the U.S. Supreme Court, but in the meantime this decision has opened no floodgates; crimen falsi offenses are here to stay, and many types of false speech continue to be unprotected and lawfully criminalized. In other words, even if they both lead to the same result, there’s still a difference between a padded bra and a padded resume.The Stolen Valor Act reads:“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both [one year for more prestigious awards like the Medal of Honor].”

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On May 1st, President Barack Obama announced to the world that U.S. forces had killed Osama bin Laden.

Among the predictable reactions was a large dose of skepticism, especially when the White House later briefed that bin Laden had been buried at sea. Naysayers across the globe demanded proof, namely photos or videos of bin Laden’s body. As of this writing, President Obama has decided not to release the purportedly grisly photographs.The clamor to see “the body” reminds me of the term corpus delicti. It is derived from Latin for body (corpus) and crime (delictum), so literally it means “the body of the crime.” As a legal term, corpus delicti has evolved to mean the body of evidence to prove a crime. So, for homicide it could be a literal corpus (but doesn’t have to be—more on that later). In other instances, however, the corpus delicti could be evidence like stolen items (for larceny) or a torched house (for arson). Many state jurisdictions still follow the common law corpus delicti rule, which prevents a defendant’s out-of-court confession from being admitted unless accompanied by independent evidence that the charged crime has occurred (the corpus delicti). This rule’s purpose is to prevent convictions based solely on an accused’s confession—important when considering that when the rule was developed a few centuries ago, false confessions stemming from mental illness or coercion were not uncommon.A look at a British case cited as one of the forbears of the corpus delicti rule demonstrates the drama that ensues when a murder victim shows up for dinner one day. In Perry’s Case, Mr. William Harrison went missing and his servant, John Perry, was cast as the prime suspect. Initially denying any involvement, Perry eventually confessed that he, his mother, and brother had killed Mr. Harrison and dumped his corpus in a swamp. Based solely on Perry’s confession, all three were convicted and executed. (Happy Mother’s Day!) Years later, Mr. Harrison returned, claiming he had been kidnapped by pirates and sold into slavery in Turkey, which apparently was the 1600’s equivalent of going to rehab. Good news for Harrison’s friends; bad news for the Perrys.Remember when I said before that the corpus delicti rule only requires evidence of the crime—it doesn’t literally require the prosecution to produce a body? In a hilarious misunderstanding, 1940s British serial killer John George Haigh thought that he could avoid being convicted of murder as long as made all his corpuses disappear. Now, if you’ve ever watched Dexter, you know that serial killing produces one unholy mess. So Haigh decided to give his victims a bath—a sulfuric acid bath, to be exact, reducing those bulky bodies to a compact slurry. Later on, inconvenient bits of evidence (gallstones, dentures, etc.) helped convict him, and he hung for his crimes, after earning the nickname “The Acid Bath Murderer” (seriously, that’s the best the British press could do?).So there you have it—even the “body of evidence” rule doesn’t require an actual body. Perhaps the President is making the best call; after all, our judicial system allows us to convict someone of murder based on the same amount of (or perhaps less) evidence than the government has provided to prove ObL’s demise. Nonetheless, some diehard skeptics will always need more than a gallon of slurry to prove that the body really has hit the floor.The federal system and several states have replaced the corpus delicti rule with a corroboration rule, which requires some evidence to demonstrate the trustworthiness of an out-of-court confession—not necessarily evidence that the crime itself has occurred. For a much better explanation than I can provide here, I recommend this Ohio State Law Journal article by Professor David Moran.

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My office building is downwind from a Love’s Bakery. In case you didn’t know, Love’s is “[t]he largest wholesale baker of original and distributed breads, bunds, donuts and pies in Hawaii.” (Don’t ask me what a “bund” is--that quote is direct from their website.) At any rate, those breads and bunds and whatever else they’re baking smell absolutely amazing. As I drove past Love’s tonight on my way home, I thought about bread, and flour, and a certain Mr. Byrne of Liverpool, England. About 150 years ago, Byrne was walking along Scotland Road when a barrel of flour fell from a second floor window and knocked him out. Apparently he had been walking by the window of the defendant’s shop (Mr. Boadle, I presume), who just happened to be a “dealer in flour.” Naturally, Byrne filed a lawsuit against Boadle to get some quid for his troubles. After all, barrels of flour aren’t just supposed to fall out of windows, right?Well, what seems like an easy question to answer wasn’t so easy for the Exchequer Court in 1863. To be awarded any compensation, Byrne had to show that Boadle had some responsibility for what happened. In other words, Byrne had to show that Boadle was negligent--that he had a duty to be careful, that he failed in that duty, and that his failure caused Byrne’s injuries. Problem was, Byrne couldn’t really show any action on the part of Boadle. One minute Byrne was ambling down Scotland Road, then next minute he’s waking up covered in flour. The witnesses’ testimony didn’t help, either--at best, one witness saw a barrel of flour falling from Boadle’s window, but couldn’t explain how it happened.So at the end of the day, are we left with some poor guy, laid up for two weeks, covered in flour and out of luck because no one saw Boadle do anything untoward with his flour barrels? Not so fast, wrote Chief Baron Pollock in his opinion. Barrels of flour don’t just fall on their own out of second-story windows; Boadle must have done something negligent for that to have happened. Or, as Pollock wrote, “There are certain cases of which it may be said res ipsa loquitur . . . . A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.” And with that, Mr. Byrne got his fifty quid.And thus was born the legal term res ipsa loquitur--the thing speaks for itself. In this case, “the thing” was the falling flour barrel; we don’t need other evidence of negligence when we’ve got 100 pounds of flying carbs to testify for us. Sometimes, the situation itself provides the explanation.(Side note--Chief Baron is a much hotter title than Chief Justice. In my opinion. Just sayin’.)-annByrne v. Boadle opinion

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“My client may be a bad husband. He may be a cheater and a sinner. But he is NOT a criminal.”
This less-than-ringing endorsement pretty much sums up the defense theory in the case of U.S. v. John Edwards. As of today the jury is still deliberating the fate of the perfectly-coiffed former Senator and one-time Presidential hopeful.

Edwards is accused of violating several federal laws involving the use of campaign contributions (yawn), to cover up an affair with crazy-lady-baby-mama Rielle Hunter (now we’re talking), from saintly cancer-stricken wife Elizabeth Edwards (zing!). Rather than de-emphasize Edwards’ rather awful behavior, the defense argues that the $900,000-plus used to squirrel away Rielle in a posh love shack were gifts—not campaign contributions. (Go ahead, sleep with her! She's not psycho!)It’s a legit defense, given that the jury is forbidden to find Edwards guilty based solely on his character as a bad husband.1 But what keeps this case at the top of the tabloids isn’t the price tag, but the sordid tale of love, lies, and betrayal. Underscoring the drama is the specter of Elizabeth Edwards, a constant presence in the trial despite succumbing to breast cancer in 2010. Shocking testimony describing a confrontation with Edwards where she literally bared herself to him while accusing him of cheating dominated the media and set the tone for this trial.Given these facts, it’s tempting to speculate how Elizabeth—also an accomplished lawyer—might have handled this situation were she still alive. Before her death, she separated from Edwards but didn’t file for divorce. She did, however, threaten one of Edwards’ former aides with an “alienation of affection” lawsuit. Now, if you’ve never heard of this concept, you’re not alone; only a handful of states still recognize this common law tort.2 But if you’re in one of those states and you’re tempted to get involved with a married guy or gal, you’d better read on.An alienation of affection lawsuit allows a wronged spouse to sue a third party for breaking up the marriage. Although Elizabeth Edwards threatened this lawsuit against the former aide who covered for his boss, alienation of affection is usually aimed toward a direct interloper, typically a the “other” man or woman. Given that John and Elizabeth Edwards are both from North Carolina (they met as students at my alma mater, UNC), let’s take a look at how that state defines it. A claim for alienation of affection requires proving each of these elements:(1) The marriage entailed love between the spouses in some degree; (2) The spousal love was alienated and destroyed; and (3) Defendant’s malicious conduct contributed to or caused the loss of affection.So as you can see, you don’t have to prove that defendant had sex with your spouse, which is why alienation of affection lawsuits could be brought against any third party (in-laws? World of Warcraft guild members? The possibilities are endless). (Your husband might be cheating with THIS guy.)But it gets tricky when you have to prove both love and its loss. These elements expose the law’s antiquated roots, bringing to mind concepts of chivalry and ungentlemanly conduct in an age where sexting someone on your iPhone is a form of social discourse.Don’t be fooled by the old-school language, however—alienation of affection lawsuits occur regularly nowadays, and the result can mean big bucks for the spurned spouse. A hefty verdict was handed down in North Carolina in 2010 in the case of Dr. Lynn Arcara. She sued her former BFF, Susan Pecoraro, who slept with Mr. Arcara while in town to help the Arcaras prepare for the arrival of their newborn. The jury found in favor of the wife to the tune of a $5.8 million judgment against the mistress.3 As Dr. Arcara’s attorney argued, “She came down and helped my client paint her nursery and in the process she helped herself to my client's husband.” Money may not equal happiness, but I’m guessing six million bucks might help to heal a broken heart.So let’s say you’re in a position to bring an alienation of affection lawsuit, but you’re nervous about proving some of the elements… like the genuine love and affection part? Well, depending on the state you may have another option, the lawsuit of “criminal conversation.” This common law tort essentially requires you only prove (1) someone had sex (2) with your spouse while you were married. However, it can sometimes be harder in court to prove sex, than to prove love—but that’s a topic for another blog.Until then, I encourage you to follow the advice of Dr. Arcara’s lawyer: “If you want to have an affair, you need to choose someone who doesn't reside in North Carolina [or Hawaii, Illinois, Mississippi, New Mexico, South Dakota, or Utah] to have it with because you are going to open yourself up to a liability if you do so.”Couldn’t have said it better myself.1. Generally speaking, Federal Rule of Evidence 404(a) prohibits use of character evidence to prove that the defendant acted in conformity with that character, to prove the charged misconduct.2. Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.3. You may be wondering how the jury came up with this figure; it’s based on the money Dr. Arcara lost due to the divorce. Her husband was a retired Army officer, so most likely the figure is based on future earnings and pension. I wouldn’t be surprised if it also included punitive damages against the mistress.Except for adding in a few more states, of course.

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Bring up the term "fighting words," and many cartoon fans of a certain age will recall the famous Looney Tunes short where Bugs Bunny dares Yosemite Sam to "step over this line" until he walks off the edge of a cliff. When it comes to cartoon taunts, "Them's fighting words" comes out only a nose ahead of Snagglepuss's "Put up your dukes, your duchesses, even!"

(so jaunty!)

In the legal realm, the Fighting Words doctrine refers to an exception to the First Amendment's protection of free speech. Exception, you say? Hard to believe that a country whose values seem to be rooted in being able to say whatever, whenever, would carve out exceptions to such a fundamental right. But if pop culture teaches us anything (or perhaps, everything), it's that even free speech has its limits. After all, you can't say "bomb" on an airplane, right?