Flying Blind

Major corporations often have large in-house legal teams. These internal lawyers review contracts and documents, advise human resources on employment law matters, and help to avoid expansion missteps caused by regional or national variations in regulations. Hiring a lawyer or lawyers to provide the first line of defense against expensive legal screw-ups is just a part of doing big business.

But smaller companies, especially those with less-experienced management, often forgo the hiring of in-house counsel or the retention of outside legal advisors, sometimes for years. Usually this is due to budget constraints, but even fast-growing young companies with money to burn can put off adding legal staff for far too long, confident that a lack of legal trouble early on means no legal trouble will ever develop.

But if a company has clients and hires employees, eventually they will find themselves in a legal dispute. It's inevitable; a predictable cost of doing any kind of business.

It is a common occurrence in any kind of employment practice to see employee agreements with horrible flaws, such as illegal provisions regarding hours and overtime, unnecessary arbitration clauses, unenforceable non-compete clauses, and the like.

Or you will see contracts signed with clients that lack vital terms of the deals - like payment schedules or rainy-day backup plans - leaving it up to a court to figure out what performance the parties owed to each other when they inevitably disagree and accuse each other of breach.

Too often small companies try to coast on their history of legal peace, confident that simply because they have not so far been sued by anyone that they will never be sued. But as they grow and employ more people and take on more clients, the odds of conflict increase dramatically. It's just a matter of statistics. The more people you work with, the greater the chance of legal dispute. Not every deal will work out. Not every employee will be compliant. Not every manager will behave themselves.

Though the majority of my practice is on the plaintiff's side of employment disputes, it would not hurt my feelings at all if more companies took the important step to add wise internal counsel to avoid or mitigate many of the conflicts that can arise in the usual course of doing business. The fewer employees who suffer discrimination, the better. The fewer client contracts that turn out to be huge legal losses instead of huge revenue gains, the better. The fewer managers who have to take the stand and risk the reputations of themselves and their companies by giving embarrassing testimony about their mistakes, the better.

Young and growing business owners: when it comes to legal issues, don't fly blind.

Copy Paste

Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.

Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.

Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.

Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.

But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.

Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.

What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.

Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.

In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.

The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:

George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.

The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.

Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:

...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

530 U.S. 290, 318.

Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").

Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.

Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.

There is No Right to Murder in the Second Amendment

In the new issue of Harper's, Rebecca Solnit has an interesting piece on the contradictory tenets of modern conservative ideology called "The Ideology of Isolation." She deftly notes that the rugged individualism and appeal to personal freedom among Republicans these days are not really liberating ideas for most people.

But she also weaves into her takedown one of the most common - and disingenuous - attacks on gun rights and the Second Amendment:

That there is a constitutional right for individuals to own guns is a gift of Antonin Scalia's radically revisionist interpretation of the Second Amendment, and it's propped up on the cowboy ethos in which guns are incredibly useful for defending oneself from bad guys, and one's right to send out bullets trumps the right of others not to receive them.

If you read carefully, you'll notice that Solnit is actually griping about two very distinct rights, only one of which Americans actually have.

There is still much scholarly debate about whether the Supreme Court's interpretation of the Second Amendment in District of Columbia v. Heller (that "gift" to which Solnit refers) was "revisionist" at all, let alone "radical." But it is true that because of it, Americans do, at the very minimum, have a federal right to keep handguns in their homes.

Put aside for a moment that in most states, the recognition of gun rights doesn't require interpretation (radical or otherwise) because those rights are explicitly spelled out in state constitutions using very clear language. Even if the federal constitution doesn't really convey an individual right to self defense despite what the Supreme Court says, that right is nevertheless prolifically protected in American law. I make no argument whether that's a bad thing or a good thing. It simply is.

Solnit obviously thinks it is a bad thing. But the problem with her line of attack is that she conflates one right - a right to own guns - with another right - the right to murder other people.

Americans only have one of those rights. And even though there is an obvious correlation between lots of owned guns and lots of gun murders, being free to possess a weapon does not mean one is also free to use it against other people, nor does it mean that possessing a weapon will inevitably lead to its violent use.

One thing almost universally overlooked in our debate about gun rights is not how many guns Americans own (something around 300 million), but the fact that almost none of the guns in America will ever be used to kill or injure other people, statistically speaking. If it were otherwise, almost all of us would be dead. Though American gun deaths are frequent and many (roughly 30,000 per year, more than two thirds are suicides) they are caused by a relatively tiny portion of the national private gun collection and by a relatively tiny portion of the national population. 

Nearly none of the millions of gun owners in this country will ever hurt anyone with their guns, and their guns are incapable of hurting anyone else without their owners' intentional or reckless actions. Simply owning a gun is not, by itself, an inherently violent act.

It is perfectly valid to oppose personal gun ownership from a political standpoint, and similarly valid to try to convince others to repeal the Second Amendment. Our rights are conveyed and protected by consensus, after all, and our constitutions may be changed through changing that consensus. Someday most Americans may actually want to disarm themselves, and they have that power.

But if you're trying to win people over to the idea that Americans should not be allowed by the government to privately own guns (the truly radical position, historically speaking), disingenuously arguing that a right to own a gun is the same as a right to use a gun aggressively may backfire. You will find that millions of peaceful gun owners don't much appreciate being lumped in with murderers simply because they exercise a right you dislike.

I'm as frustrated by the inconsistencies and hateful undercurrents of conservative politics as Rebecca Solnit. I, too, think "cowboy culture" and appeals to rugged masculinity are exclusive, dangerous, and cannot make our country better if widely embraced. But I also am not won over by bad arguments. So please, if you oppose gun rights, find a better way to argue your position than conflating the right to own a gun with the right to murder. We have never had a right to murder and the Second Amendment, even under the most radical of revisionist interpretations, will never convey one.

Gun Rights Could Survive the Repeal of the Second Amendment

The biggest hurdle to comprehensive restrictions on private gun ownership is the Second Amendment. It has been interpreted to protect an individual right to self defense, and local bans on handguns have been struck down under that interpretation. Other gun limitations have survived (so far), but at a minimum, the Second Amendment preserves a base level of individual armament.

But what would happen if both the Second Amendment and its state constitution counterparts were repealed? Would the government, either federal or state, be able to fully ban private gun ownership? The answer could very well be no for another reason than the one I discussed in my last post.

The Bill of Rights identifies specific individual rights, such as the right to free exercise of religion and the right to a jury trial. These rights are called "enumerated rights" and are entitled to strong protection from government interference. The right to self defense is an enumerated right.

But the Supreme Court has interpreted the due process clauses of the Fifth and Fourteenth Amendments to protect other rights beyond those specifically spelled out by the other Amendments. This process is called "substantive due process," and through it the Court has identified and protected certain "fundamental rights" that are not enumerated but are no less entitled to to strong protection.

One of these fundamental rights is marriage. The Bill of Rights contains no Amendment identifying marriage as an individual right, but the Supreme Court has long recognized that its importance to the exercise of personal autonomy is critical to citizenship and should be protected from unnecessary interference. The most recent case on this topic was Obergefell v. Hodges, which recognized a fundamental right to marry to which all people, regardless of sexual orientation, are entitled. Government therefore needs a very good reason to stop people from getting married.

Obergefell is very expansive in its language, and does not provide any clear test to determine if a claimed right is in fact fundamental. That wasn't really necessary in Obergefell, because the Court held that the marriage right sought by the plaintiffs in that case wasn't something novel but a very old right that had been repeatedly recognized as fundamental for decades. Gay and lesbian couples simply sought equal access to it.

By contrast, in the case of Washington v. Glucksberg, the plaintiffs asked the Court to recognize a fundamental right to determine the terms of one's own death, or, more crudely put, a right to die (through assisted suicide). The Supreme Court unanimously rejected this claim under a two-part test designed to ascertain whether a claimed right can really be considered "fundamental" enough to be protected by the Constitution (despite not being mentioned by it).

The first question is to determine a "careful description" of the asserted liberty interest. For a right to be fundamental it cannot be vague or nebulous. The second question to answer is whether the carefully described liberty interest is "deeply rooted in the Nation's history and tradition."

The Court in Glucksberg rejected the idea that there is a general fundamental right to "self sovereignty" or personal autonomy and that there is a right to end one's own life on one's own terms included in that. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Thus it narrowly defined the liberty interest sought by the plaintiffs as a separate "right to commit suicide" and be assisted while doing so.

Then the Court asked whether a right to commit suicide was deeply rooted in the Nation's history and tradition. Unanimously, the justices answered no. In fact, suicide and assisted suicide had been uniformly prohibited all across the country with nearly no exceptions. Thus, the right sought in Glucksberg was not fundamental and therefore not entitled to special constitutional protection.

There is an argument that Glucksberg has been displaced by Obergefell as the prevailing case on substantive due process, but I'm not convinced for the reason I stated above. Obergefell dealt with a right long previously recognized by the Supreme Court as fundamental. It simply struck down a form of interference with that right. Glucksberg, on the other hand, dealt with a fairly novel asserted liberty interest that had not been allowed or recognized almost anywhere before.

But I digress. The point I'm getting to is that even if you apply the more conservative test and holding of Glucksberg to the question of arms, the likely result is that a right to self defense, or, in the alternative, a right to privately own guns, must be considered a "fundamental right" even if it is someday no longer an enumerated one.

The right to bear arms, or the right to defend oneself, is clearly defined. In fact, it's much easier to define this right if you do so independently from the muddled, confusing language of the Second Amendment itself. A basic right to be armed for self defense is simple and clear cut. Perhaps a right to own private nuclear weapons would not be considered fundamental, but a right to own handguns and rifles certainly would be (since those weapons have always coexisted with the United States).

And a right to private gun ownership is most certainly "deeply rooted" in the national tradition. Private gun ownership predated the Second Amendment and has been allowed - in most states with very few regulations irrespective of the Militia Clause - from the Founding until today. Guns are as American as apple pie (tragically, perhaps).

Under the Glucksberg test, it is difficult to see how a right to bear arms would not be considered fundamental, and therefore retain its protected status despite a repeal of the Second Amendment and all other state constitutional analogs. Granted, a federal amendment explicitly prohibiting gun ownership (similar to the now-repealed Eighteenth Amendment's prohibition of alcohol distribution) would likely cancel out a substantive due process argument.

But if the Constitution were to go silent on the matter, it would be difficult to see how states or the federal government could use the repeal of the Second Amendment to enact total bans on ownership as long as substantive due process remained a viable line of constitutional attack. The Fifth and the Fourteenth Amendments would become the new sources of American gun rights.

The Federal Gun Rights Floor

The Internet continues to be embroiled with a debate on gun rights and what can be done to stop mass shootings like the recent one in Orlando. Now the law professors are going at it. Adam Winkler proposed a system of secret courts that can strip people of their rights based on accusations and suspicion alone. Josh Blackman responded sternly.

Rather than belabor the point that secret courts and the stripping of rights without normal due process is highly dangerous and prone to abuse, I'd like to discuss a potential conflict that could arise from a tightening of federal gun rules.

We have all heard of the federal Constitution and its Second Amendment. It has been interpreted by the Supreme Court to mean that all U.S. citizens have a basic right to self-defense and may purchase, own, and carry guns subject to some restrictions. But the federal Second Amendment is not the only source of gun rights in America. State constitutions also protect gun rights.

Consider, for example, the seventh "inherent and inalienable right" protected by the Section 1 of the Kentucky Constitution:

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Unlike the muddled language of the federal Second Amendment, with its weird justification clause about "a well-regulated militia," the language of Kentucky's Section 1 is very clear. The state recognizes an individual right of all people to bear arms in self-defense. The lone limitation on this right is spelled out: the state legislature may enact laws to restrict concealed carry.

And enact laws they have. Concealed carry is legal in Kentucky but only if you have a license for it. You can get a license by applying for one with your county's sheriff's department, taking a class, and paying a fee. A felony conviction is a disqualifier, as would be failing the instructional class (but I've never heard of anyone doing that).

Open carry is unrestricted with the exception of public buildings. You don't need a permit or a license to carry a handgun on your hip or a rifle slung over your shoulder in Kentucky.

But what would happen if the federal Second Amendment was repealed and U.S. citizens no longer had a federal right to self-defense? What if the federal government passed a sweeping ban on the sale or purchase of guns? People who live in Kentucky are also U.S. citizens, so one law under which they are governed would say one thing while another law under which they are governed would say something different. Could they be arrested for breaking the federal law even though the state in which they live allows their behavior?

This situation is not theoretical. It's actually a daily problem already. Some states allow the purchase of certain drugs like marijuana. But marijuana is listed as a "Schedule 1" drug by the federal government and is strictly prohibited under federal law. While residents of Colorado, for example, may legally purchase and possess marijuana under state law, they are breaking federal law by doing so. They can be arrested by federal drug enforcement agents in Colorado even though Colorado police can't arrest them.

This conflict was addressed, at least from one constitutional standpoint, fairly recently in a case called Gonzales v. Raich. California had passed a law allowing personal production of marijuana for medicinal use but federal agents were still seizing plants that had been deemed legal by the state. So a group of growers sued, arguing that principles of federalism should prevent the federal government from interfering with local behavior that was not part of national commerce.

The Supreme Court, by a 6-3 vote in which conservative Justices Antonin Scalia and Anthony Kennedy joined with the more liberal members, upheld the federal law enforcement actions. Under the Commerce Clause, the Court said, the federal government may regulate marijuana production, even if it's ostensibly for personal use only, because the risk that it may eventually enter the national drug market is too great.

The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so. Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana...Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.

So even though Californians could legally grow their own marijuana for medical use under state law, they could still be arrested by federal agents for doing so. And that is now the case in Colorado as well, where people can legally purchase pot and then be constitutionally arrested by the DEA as they leave the dispensary.

How this applies to a potential conflict between a new federal gun ban and a state constitutional amendment depends on the nature of the ban. If the federal government only banned gun sales, for example, they would have a good chance of prevailing on a Commerce Clause argument as they did in Gonzales. It is certainly arguable that legal gun sales in one state will affect the larger national market for guns.

BUT! (There's always a but). If a federal ban prohibited the mere possession of weapons, rather than the purchase, it might have a problem. In a case called United States v. Lopez, the Court had to decide whether a federal ban on carrying guns in and around local schools was constitutional. A high school student was arrested and convicted under the federal Gun-Free School Zones Act. He argued that the federal government had no right to criminalize local activity that did not affect interstate commerce.

In a 5-4 opinion, the conservative members of the Court agreed, ruling that gun possession at local schools was not part of interstate commerce and therefore not subject to federal law enforcement. Conceivably, this opinion would not have been any different even if the Second Amendment was not around. Chief Justice William Rehnquist, writing the opinion of the Court, never mentioned the Second Amendment at all. In fact, none of the Justices who wrote opinions concurring or dissenting mentioned it, either. The issue was whether the federal government had authority to regulate behavior that has little connection to actual commerce, not whether people have a general right to carry guns.

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.

Which brings us to what might happen should the Second Amendment be repealed and a federal ban on guns take effect. If the gun ban prohibits sale or purchase, it has a reasonable chance of being upheld as a constitutional regulation of commerce. But if the ban prohibited possession, it could easily be rejected as an overreach of federal authority that interferes with local police powers.

An important point to remember is that the federal constitution has long been considered a "floor" for individual rights. States may protect more rights than the federal constitution, but they can't protect fewer. States can't ban political speech, or establish a state religion, or conduct searches and seizures without probable cause. But they could, if they wanted to, protect obscenity, or ban prayer in legislative sessions, or require warrants for any and all police searches in any situation. Nothing can stop the states from being better stewards of individual rights than the federal government.

The Kentucky Supreme Court once recognized this when it struck down the state's old sodomy laws (which criminalized consensual sexual activity by gay people) more than a decade before Lawrence v. Texas.* In the case of Commonwealth v. Wasson, the Kentucky court noted:

We are not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court. The holding in Oregon v. Hass is:

"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this [United States Supreme] Court holds to be necessary upon federal constitutional standards."

So even if the federal constitution no longer protected an individual right to self-defense, states could still protect it. But conflicts between one and the other could create the kind of mess we've seen with drug prohibition, where people acting legally under state law are arrested and prosecuted under federal law. A Kentucky resident who was well within their rights to buy a gun under state law could find themselves in federal court on criminal charges, and they would have little recourse.

* Hat tip to Kurt Metzmeier for reminding me about this case.