Archive for November, 2011

Southern Hospitality or Racial Discrimination?

By Sarah Berent and Ashley Davidson

More and more, chivalry and civility are relics of a time when men were men, women had fainting spells, and society was governed by proper etiquette. And ever since those damn Yankees tore across the good Ol’ South in the War Between the States, things just haven’t been the same.

The New York Times wrote about today’s schizophrenic take on etiquette following a highly publicized trial in Atlanta, Georgia. The events leading up to the trial began in 2006 when two African-American men sat down at a bar at upscale restaurant, Tavern at Phipps. While the men, a former NBA player and a lawyer, were enjoying their appetizers, the bartender asked if they would kindly give up their seats for two women who were standing behind them. They refused. And although the bartender offered them a free round of drinks if they’d relinquish the seats, they wouldn’t change their minds. So the Tavern’s operating partner phoned the police and had the All-Star and his attorney friend escorted out of the restaurant.

The two gentlemen sued the Tavern for having a racially discriminatory policy masked by a standard of civility. According to them, there were several white males at the bar and none of them were asked to move.

The case went to trial and after deliberating for a mere fifteen minutes, the jury concluded that this was a case of chivalry, not racism.

Like the Times, several media outlets (see here and here) made some mention of the trial, but didn’t delve into the legal niceties of the case.  Was the jury’s decision an aberration in racial discrimination cases?  Though it might depend on the societal mores of the area, the answer is: Not really.   (more…)



And Now There’s Third-Hand Smoke

By Jessica McElroy

We all know about the dangers of first and second-hand smoke, which are easy enough to comprehend.  According to the Environmental Protection Agency, directly inhaling smoke from a cigarette, or first-hand smoke, is a known cause of lung cancer.  Second-hand smoke, the diluted smoke exhaled from a smoker or emitted from the burning end of a cigarette is also a carcinogen.

But it seems the dangers of smoking reach even further.  In recent years Scientific American, MSNBC and the University of California have reported that third-hand smoke — the mixture of cigarette smoke toxins and chemicals that linger in material around them, including on the fabric of smokers’ clothing — poses a threat to the health of nonsmokers.  A 2011 article by the Mayo Clinic states that third-hand smoke can cling to “hair, skin, clothes, furniture, drapes, walls, bedding, carpets, dust, vehicles and other surfaces, even long after smoking has stopped.”  Infants, children and non-smoking adults may be at risk of tobacco-related health problems when they inhale, ingest or touch substances containing third-hand smoke.  Studies indicate that infants and children are especially susceptible to these harms, but even adults may be at risk.

Well, whatever odor sticks to Aunt Sadie’s jacket when she smoked earlier today can’t be so bad, right?  So it’s fine if she now cuddles with Baby Bobby?  Think again. According to the New York Times, third-hand smoke can contain a bunch of fun stuff including hydrogen cyanide, butane (found in lighter fluid), toluene (found in paint thinner), arsenic, lead, carbon monoxide and polonium-210 (a highly radioactive and toxic carcinogen).  And all of it is resistant to normal cleaning. Yum!

So it was only a matter of time before companies started imposing new rules against third-hand smoke – that is, people smoking on their own time away from work.

Last month, Fox News reported that Christus St. Frances Cabrini Hospital in Alexandria, Louisiana will expand its anti-smoking policy to ban third-hand smoke beginning July 1, 2012.  This expansion will prohibit the smell of smoke on employees’ clothing, as well as the use of tobacco products while at work, including while on break.  The hospital’s ultimate goal is to have its employees stop using tobacco products permanently and Cabrini has offered support services to help their employees quit.

Since Cabrini’s new policy will impose on its employees’ activities when they are off-duty, there would seem to be some potential legal landmines associated with the ban.  The media didn’t examine them. LASIS will.   (more…)



The World, and Law School, According to Dilbert

By Nadia-Elysse Harris

“If all you know is how to be a gang member, that’s what you’ll be, at
least until you learn something else. If you become a marine, you’ll
learn to control fear. If you go to law school, you’ll see the world
as a competition. If you study engineering, you’ll start to see the
world as a complicated machine that needs tweaking.” – Scott Adams, Dilbert.com

If what Mr. Adams proposes is true, then law students learn more than just how to draft contracts and analyze cases in their three years of law school. Also learned:  it’s a rat race out there.  A dog eat dog world.  There’s only so much of the pie to go around.  If you aren’t winning, you’re losing.

You get the idea.

I’m a law student, so I have an opinion about the kind of person I’ll be when I have a an “Esq.” appended to my name.  But sometimes you have to get a second and third and15th opinion before making any concrete assertions. So I took to the halls of my law school and asked the class of 2012 three very specific questions: (1) Who were you when you walked into law school on Day 1? (2) Do you think you’ve changed and if so, how? and (3) Do you think law school has made you more competitive?

All of the 15 students I asked had different stories to tell about what brought them to law school and who they were when they first entered. They were artists, recent college grads, accountants, single moms, poets, college history professors and Wall Street businessmen. But on who they are on the way out of school and headed for the bar exam, their stories were remarkably similar.

I questioned all the students individually, and all their responses were made independently of one another

More numb to the horrific. Eight of the students I interviewed mentioned that after reading rape and murder cases and having to reconcile this country’s history of discrimination against certain groups of people, they’re not as shocked at injustices in everyday life as they used to be. Brad Smith, a 3L who took a very Criminal Law intensive curriculum, said, “I watch the news and I’m less sensitive to horrific crimes.  I like to pick them apart and see if there’s a strong case on either side.”

More detail oriented.  Sure, it’s the thing that each and every one of us wrote in our entrance essays for law school and will continue to write in cover letters as we apply for jobs in the future: “I pay attention to detail.”  But, after dedicating full class periods and countless study hours to the difference between “or” and “and” in a statute, 12 of the 15 people I spoke to told me that they pay much more now attention to small details; I know I do — even when reading for pleasure.  Katherine Smelas, president of the NYLS Chapter of Lawyers Without Borders said, “I am way more meticulous in how I write. Actually, I think I’m more thoughtful about how I present myself generally, too.”

More confident.  This is a win for the Socratic method, I think. Thirteen of the students I interviewed stated they will leave law school more confident than before embarking on their legal education.  “I’m a quicker learner in general, a better writer and a more confident person overall,” said Nyasha Foy, a third year student and research fellow with the Institute for Information Law and Policy.

But are we, as Dilbert’s Mr. Adams would have it, more competitive?   (more…)


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The Courts Weigh in on Obese Children

By Alison Parker

I have been active, healthy, and fit my whole life.  As a young girl I tried out every sport to see what would stick — from softball, soccer and basketball, to gymnastics, cheerleading and dancing. I caught the running bug as a teenager, and since starting law school I have competed in triathlons. The truth is, I just don’t feel in touch with myself if I’m not active.  It helps keep me sane.

But though I never suffered from a serious weight problem personally,  I grew up with a keen understanding of the struggles overweight children endure –my mother, an avid runner, nutritionist, and registered dietician, specializes in treating them.

“After spending a decade in a pediatric clinic for overweight children, none of the children I saw had an endocrine (read: genetic) problem for their obesity,” Kathryn Parker, (mom) told me, when I asked about the role of nature versus nurture in overweight children. “As a mother it was clear to me that children don’t have purchasing power and they don’t have any say of what food is brought into the home.” She further believes that a child’s weight problem will only worsen if the parents don’t take action.

Obesity is defined as having a body mass index (BMI) of 30 or above, which translates to being about 30 pounds overweight. According to the Center for Disease Control and Prevention, 17% of our children and adolescents aged 2-19 are obese. Obesity can lead to problems like heart disease, stroke and type 2 diabetes — and diabetes can lead to complications such as amputations, blindness and kidney failure. One out of three children born after 2000 will develop diabetes in her lifetime if current lifestyle trends continue.

Obesity can also scar a child psychologically. A current classmate of mine struggled with obesity as a child and young adult; although she is slim now, the emotional wounds will never fully heal. “Kids were really cruel growing up,” she said. “They’d call me ‘fatty boombaladdy.’ Eating was like an escape from my problems, but it was also the cause of my problems. It was a vicious cycle.”

The severe and long-term damage done to children who are allowed to become obese is being recognized by our legal system.  As The Wall Street Journal recently reported, some courts are ordering a change in custody if a child is obese. This got LASIS wondering, under what circumstances does a court step in to change the living arrangements of an obese child?   (more…)



A Man’s Dying Wish and a Judge’s Decision

By Jessica McElroy

Judge Lloyd Zimmerman recently contributed a piece to the Modern Love section of the Sunday New York Times Magazine, which showcases stories about “contemporary relationships, marriage, dating, parenthood.”  Recent stories in this section have told the tales of a wife’s marriage to her transsexual husband, an interracial couple challenging their families’ expectations, and a woman navigating the ins and outs of being a single mother in New York City.

Judge Zimmerman’s piece, “Making a Judgment on Love”, caught our attention for two reasons.  It tugged at our heartstrings and touched on potential legal issues.

The story in a nutshell:

Hospice social worker Cheryl Waldman was caring for 77-year old Thomas Robert David, who had recently been released from his hospice unit.  He was sent home so he could die peacefully, with life partner, 57-year old Donna Rudebusch at his side.  After 38 years together, Mr. David and Ms. Rudebusch, who had planned to marry for some time, asked Ms. Waldman to help them wed. Time was of the essence, and Ms. Waldman tried her best, phoning 15 judges, but failing to reach any of them.  Call number 16 was to Judge Zimmerman.

When the phone rang in his chambers, Judge Zimmerman writes, he was in a particularly grumpy mood after a grueling day on the bench.  “To be honest,” he says, “I almost didn’t answer the phone.”   He did, though, and – no – he didn’t tell Ms. Waldman “I’ll do it!” right away.   He hesitated.

And this is where the legal issue that we found intriguing comes in:  He worried that if he agreed to Ms. Waldman’s request, he might later be sued by an angry, disinherited heir or criticized by a higher appellate court for performing a marriage that did not comply with legal specifications.

Hang on. In what way could Judge Zimmerman have faced liability? Could a marriage between Mr. David and Ms. Rudebusch have been legally challenged? The judge doesn’t explain, so LASIS takes a look.   (more…)