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On The Merits

Monkey See, Monkey Do, Monkey Does Not Profit

Making light of the legal system by pointing out silly lawsuits has become something of a cottage industry in recent years, although deciding whether a potential legal claim actually has merit takes some deeper digging into the facts because, well, things are not always as they seem. After all, writing a sensational headline is easy; completing a proper legal analysis requires quite a bit more effort.

Case in point: What if you heard that a legal dispute led to a recent ruling by the U.S. Copyright Office that animals – monkeys in particular – cannot own copyrights? Sounds less like the real world and more like Tina Fey’s “lawyer who’s a monkey” bit. But if you dig a little, you’ll find a real-world dispute about exactly who owns the photographs taken by a monkey. Seriously.

Here are the facts: British nature photographer David Slater was working in the Indonesian forest in 2011 when a macaque monkey grabbed his camera and began snapping photos. The monkey apparently liked the sound the camera made when the buttons were pushed, resulting in hundreds of photos, including a picture of the photographer and this amazing monkey selfie.

When the U.S.-based Wikipedia posted the photo, Slater objected, contending that it was a copyrighted photo. Wikipedia officials responded to Slater by contending that they did nothing wrong because, as their Chief Communications Officer put it, “monkeys don’t own copyrights.” As true as that statement might be, Slater’s argument was a good one. He makes his living as a photographer, and he takes thousands of photos in the hope that he can sell them for profit. Wikipedia’s actions, Slater argued, cost him a large amount of money that he could have earned on the monkey selfie alone.

U.S. copyright law, however, generally says that whoever presses the button owns the copyright. And in this case, the button was pressed by, well, you know. So, the Copyright Office decided, apparently, to provide its own clarification. Under the laws in Slater’s native England, the photo would have been covered under the Copyright Designs and Patents Act of 1988 based on the notion of “intellectual creation,” although media reports indicate no such trial has taken place in UK courts.

So is this dispute silly or important? We all benefit from the work of professional photographers, through Wikipedia or otherwise, and both Wikipedia and the photographers have a lot at stake here. And anytime money and livelihoods are at stake, the proper resolution of a legal dispute is anything but silly.

Posted: 9/11/2014 9:11:14 AM by On the Merits Editor | with 0 comments

Forty Years of Providing Legal Services to the Disadvantaged

The Legal Services Corporation is celebrating the 40th anniversary of its founding in 1974. LSC is the single largest funder of civil legal aid for low-income Americans in the nation, distributing more than 90 percent of its total funding to 134 independent nonprofit legal aid programs with nearly 800 offices. Former Secretary of State Hillary Clinton and Supreme Court Justice Antonin Scalia are among the luminaries who will help mark the anniversary later this month.

Though LSC provided services to some 2 million Americans in 2013, it estimates that as many as 61 million Americans qualify for civil legal aid. The vast majority of cases involve typical bread-and-butter legal issues in family law, housing and foreclosure, consumer issues, employment, income maintenance, assistance to military families, and assisting disaster victims.

And while funding for the LSC has sometimes been controversial, there is no question that it has made a huge difference for those lucky enough to take advantage of its services. In order to reach even more deserving citizens, LSC is now exploring ways to take advantage of technology to improve the delivery of legal services.

Happy anniversary to LSC, and kudos to all those who work to provide necessary legal services for those who cannot afford them.

Posted: 9/4/2014 1:21:40 PM by On the Merits Editor | with 0 comments

What We Know, and What We Don’t

When law, politics, and the media collide in one colossal news story, the resulting discussions can be an unfortunate mess for those who prefer reasonable discourse to sound bites and shouting. But we are witnessing just such an event right now with the recent indictment of Texas Governor Rick Perry over his veto of funding for the Public Integrity Unit in Travis County.

Reactions from the political sphere were predictable. Some Republicans denounced the indictment as a politically-motivated sham.  Some Democrats demanded an immediate resignation. On the media front, the pundits weighed in, saying that the indictment was bad for Perry and good for Democrats. Or, that it was bad for Democrats and good for Perry.

But what of the legal front? Rather quiet there so far, because unlike politics and punditry in the information age, everything does not happen with lightning speed nor does it spread instantly across the country via cable TV and online forums.

And with good reason. Law is supposed to be deliberate and methodical so as to get it right, as in doing justice. So, let’s take a step back and evaluate – strictly from the legal perspective – what we know and what we don’t know at this very early juncture.

Gov. Perry claims that he has a constitutional right to veto the funding at issue. And he does, in the abstract. But the allegation, as stated by Texans for Public Justice, which filed the complaint, doesn’t take issue with that:

The governor rightly argues that he has absolute authority to veto the Public Integrity Unit’s budget. Texas law does not, however, grant him authority to threaten another public official—even one who behaved as wretchedly as Lehmberg did. Notably, we filed our criminal complaint before Perry vetoed Public Integrity funding. After all, it was the governor’s threats—not his veto—that broke Texas law prohibiting an official from using the power of his or her office to coerce another official into taking an action, such as resignation.

So who’s right? It’s simply too early too tell. Gov. Perry certainly knows what happened, and he is entitled to the presumption of innocence. The prosecutor knows what evidence he has, but we won’t know the full extent of that evidence until trial, if the case gets that far. As for the rest of us, we simply don’t know. All the talking heads and political types issuing dramatic statements can’t change that basic fact:

Yet the legal fight is far more complex, and won't be swayed by campaign videos or choreographed media events. While Perry's public strategy has been to make the case the governor had a responsibility to exercise his constitutional powers to remove an official who had lost the public's confidence, Perry's attorneys must make the case (that) the way in which he exercised his constitutional powers wasn't unlawful. Since the evidence presented to the 12 Travis County grand jurors is confidential, it's difficult for outside legal experts to speculate on the latter.

Difficult, indeed. Even those who filed the original complaint admit that they don’t know how all the facts:

Although we filed the complaint that triggered the Perry investigation, we don’t know exactly what evidence [the prosecutor] amassed for the grand jury. A trial would not only give Governor Perry his day in court but would let the public — and skeptical Beltway pundits — judge for themselves whether [the prosecutor] has the goods.

They are absolutely right. When both sides have presented their case, we will see for ourselves whether the indictment was legitimate or a political witch hunt, or something in between.
And that is as it should be. In fact, it’s exactly why we have judges and juries.

Posted: 9/3/2014 8:51:36 AM by On the Merits Editor | with 0 comments

Justice for Sale?

The often thin line between law and politics was again thrust into the spotlight recently when a trio of sitting justices on the Tennessee Supreme Court faced fierce challenges from conservative groups and business interests determined to change the court’s makeup.

Justices on the Tennessee high court are appointed by the sitting governor before facing retention elections. Following every eight-year term, the justices must win another public election. Only one sitting justice had been voted from the court in the 10 years prior to the recent vote.

Tennessee Chief Justice Gary Wade and fellow Justices Cornelia Clark and Sharon Lee all were appointed to the court by former Tennessee governor Phil Bredesen. They became conservative targets after the five-member court appointed Robert Cooper Jr. as the state’s attorney general in 2006. Cooper is a Democrat.

Although campaigning and fundraising for Tennessee Supreme Court posts essentially has been unheard of for decades, this year’s contest saw the three targeted candidates hosting fundraisers and campaigning statewide against a barrage of criticism in television ads and other media sponsored by their detractors.

In 2006, Justice Clark was reelected with 74 percent of the vote without raising or spending a dime. This year, the justices and their opposition spent more than $1 million combined for television ads alone. In the end, all three justices were reelected, albeit by much smaller margins than history would have predicted.

The sudden infusion of cash in the Tennessee race can be traced to a new political strategy targeting statewide judicial posts. The thinking is that it is far less expensive to influence state high court elections compared to other statewide offices such as those held by senators, governors, etc. Unfortunately, blurring the lines between law and politics is not a good thing for our system of justice.

Unlike elected politicians, judges are not supposed to be swayed by public opinion or political pressure. They do not represent specific constituencies, such as geographical regions or political parties or ideologies. They are equally beholden to every citizen and should not represent the interests of any of them over the others.

Judges are not to decide cases based on how they feel about particular litigants (antipathy for large corporations or certain religions, for example). They are supposed to follow, in good faith, the law regardless of where that outcome leads them. They are the ultimate arbiters and sit in the one place in American democracy where every citizen is entitled to feel that they can state their case and get a fair and impartial hearing.

In that context, a blitzkrieg of political advertisements not only does a very poor job of picking the best impartial legal minds, it also suggest to the very public it is supposed to serve that the courts are just one more example of a system rigged in favor of those with money or influence.

In the times and places where America is at its best, our judges are wisely selected and they, in turn, issue wise and impartial decisions without factoring in the ability to raise money or explain their reasoning in a 30-second TV ad. Let’s hope we don’t lose that.

Posted: 8/28/2014 2:11:30 PM by On the Merits Editor | with 0 comments

Passing the Other Bars

The American Bar Association, in cooperation with the Hazelden Betty Ford network of addiction treatment centers, is conducting a wide-scale study to assess the alcohol, drug and mental health issues found in the legal profession. Although those results won’t be available until next year, similar studies in the 1990s found that lawyers have 3.6 times the rate of depression as other occupational groups, as well as higher rates of alcohol and substance abuse.

An ABA survey published last year found that 76 percent of issues addressed by lawyer assistance programs were related to alcohol abuse, followed by prescription drug abuse at 9.8 percent. Such statistics may be the unfortunate byproduct of the pressures and competition inherent in the legal profession. For lawyers, some specific signs of alcohol or drug impairment may include missing court dates, failing to file documents, and appearing in court intoxicated or impaired.

Experts say there’s evidence of a growing number of lawyers with multiple addictions beyond alcohol, such as abuse of prescription pain medications, antianxiety drugs such as Xanax and Valium, and stimulants that include Adderall, particularly among younger attorneys and law students.

While it’s important for attorneys to be prepared to self-analyze about any addiction problems, unfortunately it’s often up to peers, judges and disciplinary panels to refer lawyers to one of the many assistance programs that are available in virtually every state. The outstanding Texas Lawyers Assistance Program operated by the State Bar includes experienced counselors and a confidential network of peer support and education. TLAP can be reached 24 hours a day at 800-343-8527.

Posted: 8/26/2014 8:10:30 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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