Lawmakers Want to Take Away Your Right to a Fair Trial #StopHR985

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Many civil rights and mass torts lawsuits, including cases similar to the one at the heart of Amelia Elkins Elkins, could never happen if Congress passes H.R. 985, the so-called “Fairness in Class Action Litigation Act of 2017.”

In Amelia Elkins Elkins, a “courtroom drama” retelling a Jane Austen’s Persuasion, the Elkins family turns to the courts for justice after the matriarch’s untimely death. This fictional lawsuit is similar to real lawsuits happening across the country that stem from unsafe vaginal mesh products made and/or marketed by companies like Johnson & Johnson, Ethicon, and Bard. H.R. 985, if passed into law and signed by Trump, would make it harder to bring these types of cases to court by changing the procedures for multidistrict litigation, including by imposing new requirements on where cases can be filed, forcing trial courts to stop cases mid-way through for endless appeals, hampering the settlements of medical device lawsuits, and forcing plaintiffs into trials in courts unfamiliar with their cases unless “all parties” consent to one.

Horrifyingly, H. R. 985 would also impede civil rights lawsuits by making it harder for plaintiffs to bring class actions (an efficient type of lawsuit in which many plaintiffs with similar injuries bring a single case in court). The proposed law imposes a virtually impossible standard for plaintiffs to meet in order to qualify as a “class” for litigation, requiring the proposed class to show that “each member has suffered the same type and scope of injury.” Plaintiffs in class actions have very similar injuries, but not necessarily the same injury because every person’s situation and experience of discrimination is unique.

These are just a few of the many problems with H. R. 985, which is moving eerily fast through Congress. Earlier this week, the House Judiciary Committee passed the bill out of committee without even holding a public hearing. If H.R. 985 becomes the law, we won’t be able to remedy many civil rights violations or hold corporate wrongdoers accountable for the harm they cause to the public.

If you are in the United States, please call your representative in Congress. Please tell them that H. R. 985 is unfair and should not be passed into law. The bill is named the “Fairness in Class Action Litigation Act of 2017,” but don’t let its title fool you. There is nothing fair about a law that protects corporations that make unsafe products and helps bigots get around our civil rights laws.

Here’s how you find out who your representative is. If your representative is a member of the House Judiciary Committee, you can see how they voted here (PDF). There is still time to stop this bill because the full House hasn’t voted on it yet.

Here’s a copy of the bill: H. R. 985 (PDF).

Here’s the press release in which H. R. 985’s prime sponsor, Rep. Goodlatte (R-Va), crows about passing it out of committee (achieved without a public hearing) and misstates what the bill does.

For more information on how H.R. 985 threatens our access to justice, check out Litigation and Trial.

Please spread the word about this incredibly unfair and dangerous bill. Thank you!

More Than a “Bathroom Battle”: An Update Now That Sessions is in Charge of the DOJ

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A Sad, but Unsurprising Update: On Wednesday, February 22, 2017, the Trump Administration withdrew the guidance that protected transgender students.

For more background on the guidance, and why it was important, keep reading (a post from February 13, 2017, before the Trump Administration officially withdrew the guidance):

Donald Trump’s choice of Jeff Sessions as the head of the United States Department of Justice (DOJ), confirms what we knew would be true the minute Trump seized the electoral college: our rights as Americans are threatened.

The DOJ is a federal agency with broad powers, including (but not limited to) the prosecution of federal crimes, the promulgation of regulations, the provision of grants to meet civil, criminal, and juvenile justice needs, oversight of various law enforcement agencies (like the FBI), and investigations (such as “pattern or practice” investigations into police misconduct).

It’s hard to believe a man like Jeff Sessions, someone who was once deemed too racist to be a federal judge, could possibly lead an agency with “Justice” in its title. His nomination to the federal bench in 1986 prompted Coretta Scott King to write a letter to the Senate Judiciary Committee. In this letter (available here), King assailed Sessions’s conduct as a U.S. Attorney, “from his politically-motivated voting fraud prosecutions to his indifference toward criminal violations of civil rights laws,” saying, “he lacks the temperament, fairness and judgment to be a federal judge.”

His nomination to the federal bench failed, but he became a U. S. Senator from Alabama, and now he is the Attorney General of the United States. The Senate confirmed his nomination after Sessions’s colleagues voted to silence Senator Elizabeth Warren for daring to read Coretta Scott King’s letter on the Senate floor.

So, what can we expect from Sessions as the Attorney General of the United States?

As the National Law Journal wrote last November in What to Expect from a Sessions Justice Department, “Immigration, violent crime, and undoing President Obama’s executive actions are expected to be on [Sessions’s] priority list if he’s confirmed.”

This agenda would be a departure from the DOJ’s actions during the Obama Administration, which sued states over race-based voting restrictions, made an effort to reduce racial profiling, investigated police misconduct, and fought for the rights of transgender individuals.

We are only in the early days of the Sessions DOJ, and already the signs suggest that Sessions does not care about equality for all Americans. Last Friday, the day after Sessions took over the DOJ, the Agency withdrew its request asking the 5th Circuit to narrow a temporary injunction that blocked the Obama Administration’s guidance on transgender students’ rights. The joint filing states that “the parties are currently considering how best to proceed in this appeal.”

I wrote about this case over the summer in More than a “Bathroom Battle”: The Rights of Transgender Children at School. At the time, the district court judge in Texas had just imposed a nationwide injunction that (1) allows Texas and other states to force transgender students to use bathrooms that do not match their gender identities and (2) prevents the United States government from investigating this type of discrimination across the country.

This lawsuit came in response to the DOJ and the U.S. Department of Education’s guidance document (May 2016), which clarified that Title IX prohibits schools from discriminating against students on the basis of their gender identity, defined as “an individual’s internal sense of gender” that “may be different from or the same as the person’s sex assigned at birth.”

From the start, this case was challenging for the government to defend because many people seemed to misunderstand the issue, thinking that the Obama Administration’s guidance forced schools to allow boys to use the girls’ bathroom, which seems to offend some people. But here’s the language from the guidance (a guidance I presume will disappear under Trump):

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Really, all the guidance did was clarify that schools must permit people who identify as girls to use the girls’ bathroom and those who identify as boys to use the boys’ bathroom. That’s pretty narrow.

I don’t purport to be an expert on trans rights, but I make an effort to understand the issue as best I can as a cisgender person (and I’m always learning). I’ve found that literature is helpful in this regard. For example, George by Alex Gino introduces us to a fictional transgender child who shows us some of the harms of forcing a child to use a bathroom that does not match their gender identity:

[George*] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

In this paragraph, we can clearly see how traumatic it is for this child to use the wrong bathroom. We can also see that it’s a health hazard. No one should go an entire day at school without drinking water or using the restroom.

George–who prefers to be called Melissa–is fictional, but there are children in our schools who face similar challenges in real life. It is a shame that our children have a government that isn’t likely to secure or enforce their rights.

__________________

*I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph in the novel. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.

**For more uplifting news, see Authors, Does Donald Trump Care About Your Name Change?

Love, Money, & Marriage: Would Jane Austen Be Astounded?

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Should a person’s motive for getting married matter when they get divorced?

Earlier this year, the North Dakota Supreme Court considered this question, among others, in Degnan v. Degnan. In this case, the marriage lasted for five years, the parties were both over 50-years-old when they said “I do,” and, according to witness testimony, financial considerations were among the wife’s motivations for getting married. The trial court used this motivation against the wife in the divorce, saying:

The Court finds that [the wife] entered the marriage for purposes of financial gain and security… Given [the wife’s] intentions in seeking the marriage, she should not suddenly find herself with a better lifestyle than she was associated with at the time of the marriage.

As a result, the trial court awarded only a small amount of spousal support to the wife and limited the percentage of the couple’s property that the wife would receive.

The North Dakota Supreme Court agreed with the trial court’s decision. Two justices, both women, concurred with the result, but wrote separate opinions to state that the lower court should not have considered the wife’s motive for marriage.

One of these concurrences — written by a justice who studied literature — is particularly interesting because it references Jane Austen. The justice writes:

Taken alone, [the language quoted above] suggests the district court is punishing [the wife] for considering future financial security as part of the decision to marry. Jane Austen would be astounded. Perhaps at twenty-five one enters marriage considering only love; one would be foolish to do so at fifty. Because the court also identified other factors to support its decision on property division, spousal support, and attorney fees, I concur in the result. (emphasis added).

Considering the fact that Jane Austen lived more than two centuries ago, there are probably many aspects of modern society that would surprise her. Would the negative inference associated with marrying for money be among them? I’m not so sure.

In Jane Austen’s time–and long before it–marriage was a method of obtaining and conserving wealth within families. Having a financially stable spouse was particularly important for women, who typically did not work outside of the home. Unsurprisingly, then, in Austen’s novels, a person’s financial stability was an important motivation for marriage. Why else would Charlotte accept the insufferable Mr. Collins in Pride and Prejudice?

However, as much as Jane Austen would’ve accepted that people marry for money, she probably wouldn’t have been particularly “astounded” by criticisms of that behavior along the lines of what the trial court said in the Degnan case. After all, in Persuasion (on which Amelia Elkins Elkins is based), Mr. William Elliot’s determination to gain wealth and independence through marriage is among his biggest flaws:

“Mr. Elliot married then completely for money? The circumstances, probably, which first opened your eyes to his character.”

Mrs. Smith hesitated a little here. “Oh! Those things are too common. When one lives in the world, a man or woman’s marrying for money is too common to strike one as it ought.”

Other Austen villains are guilty of similar behavior. For example, Pride and Prejudice’s Mr. Wickham sought Mr. Darcy’s sister for her fortune, and Northanger Abbey’s Isabella finds a way out of her engagement to John Morland when she learns he is not as wealthy as she had assumed. To young and naive Catherine Morland, “To marry for money I think the wickedest thing in existence.”

Today, as in Jane Austen’s time, individuals of all genders and backgrounds weigh practical considerations when deciding whether to marry. For women, despite having far more financial independence today than they had in Austen’s era, financial considerations may be important because they still don’t make as much money as men do for similar work. For some, then, marriage offers the financial stability that gender discrimination denies women in other areas of their lives. Hopefully, money isn’t the sole reason a person decides to marry, but no one should be astounded nor appalled because it’s a reason some say “I do.”

_____________

*If you’re interested in reading Degnan v. Degnan, the opinion is available on the North Dakota Supreme Court’s website.

**For more bookish court opinions of the past year, see Who Speaks for the Opossums?

Bookish Court Opinions: Who Speaks for the Opossums?

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As my daughter learned last summer when she mistook a PDF of the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin as literature on her Kindle,* court opinions are often dull to read no matter how important or interesting the underlying facts of the case may be.

Every now and then, though, I come across a line in an opinion that makes me smile. Some of those moments come courtesy of literary references that judges sprinkle into their treatises on the law for the sake of humor, to illustrate a point, or to show off their intelligence (depending on how pompous or obscure the reference is).

This week, I’m going to highlight a couple of literary references in court opinions over the past year.

Here is the first one, in which a court asks: who speaks for the opossums?

In People for the Ethical Treatment of Animals, Inc. v. Myers, a case decided by the Court of Appeals of North Carolina on April 5, 2016, the opinion begins with a reference to The Lorax by Dr. Seuss:

The Lorax speaks for the trees, but the question presented by this case is whether anyone may speak for the opossums, particularly those Virginia opossums (“opossum(s)”) found in Clay County, North Carolina, during late December through early January each year, who may end up in captivity as the main attraction at the annual New Year’s Eve Possum Drop event.

Despite its name, the Virginia opossum is the state marsupial of North Carolina, and apparently, the New Year’s Eve Possum Drop is an annual tradition in Clay County.

The event involves lowering a possum in a box in front of a large crowd of people on New Year’s Eve. As the Court explains, it’s a “rural replication of the dropping of the crystal-festooned ball in New York City’s famous Times Square New Year’s Eve celebration.” According to news reports, the shaken possum is released afterwards.

Believing this activity is inhumane to the captive possums, the plaintiffs sued the commission responsible for providing the captivity licenses to the person in charge of the event. Surprisingly, the North Carolina General Assembly subsequently passed a law specific to the facts of this case, entitled, “An Act to Exempt Clay County from State Wildlife Laws With Respect to Opossums Between The Dates of December 26 and January 2.” The current version of the law applies to the entire state. N.C. Gen. Stat. § 113-291.13 (2016).

As a result, opossums are no longer protected by state humane laws and regulations during the time Clay County captures them to star in their New Year’s Eve event. No captivity license is required.

So, who speaks for the Virginia opossums in North Carolina? Sadly, the  Court concluded, “General Assembly has passed a law which says, in effect, that no one may speak for Virginia opossums during the relevant time period. For this reason, we must dismiss this appeal as moot.”

_______________________

*I share a Kindle account with my twins. I send opinions to my Kindle to read on my commute to and from work. After the Fisher opinion, my kids have learned to avoid these PDFs.

Oh, The People You’ll Sue! (When You’re Dr. Seuss Enterprises)

Dr. Seuss Enterprises doesn’t want ComicMix LLC to publish Oh, The Places You’ll Boldly Go!, which borrows elements from Dr. Seuss’s iconic children’s books without paying a licensing fee for the privilege.

In a lawsuit filed in federal court earlier this month, Dr. Seuss Enterprises alleges copyright infringement, trademark infringement, and unfair competition against ComicMix and others involved in the project. According to the complaint, the allegedly infringing work is a mixture of Star Trek and several of Dr. Seuss’s books, including Oh, The Places You’ll Go!, Horton Hears a Who, How the Grinch Stole Christmas, The Lorax, and The Sneetches and Other Stories.

ComicMix knew a lawsuit like this one might happen, stating on their Kickstarter campaign (according to the Complaint, which is available here):

While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.

We’ll see what those “people in black robes” decide. If I were one of them, I’d say Oh, The Places You’ll Boldly Go! is clearly a parody that falls into the “fair use” exception to copyright infringement.

Excerpts of Oh, The Places You’ll Boldly Go! appear in Dr. Seuss Enterprises’s Complaint, including:

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Under American copyright law, an author’s estate has the exclusive right to a deceased author’s works for many decades after the author’s death.  Seuss died in 1991, hence the rise of Dr. Seuss Enterprises to posthumously make money off of his works. A derivative work like Oh, The Places You’ll Boldly Go! is not infringement if it’s “fair use,” which involves four factors:

(1) the “purpose and character of the use” (is it educational? Is it commercial? Is it transformative?);
(2) “the nature of the copyrighted work;”
(3) “the amount and substantiality of the portion” of the original worked used;
(4) the impact of the use on the original work’s market.
Copyright Act, 17. U.S.C. § 107.

Based on the excerpts in the Complaint, Oh, The Places You’ll Boldly Go! is a transformative work that meets the definition of a “parody.”  According to the United States Supreme Court, quoting the American Heritage Dictionary, a parody is a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (holding that a commercial parody may fall into the “fair use” exception to copyright infringement).

Who would confuse Oh, The Places You’ll Boldly Go! with any of Dr. Seuss’s original books? No one.

Would Oh, The Places You’ll Boldly Go! reduce Dr. Seuss’s marketability? Probably not. If anything, parodies like Oh, The Places You’ll Boldly Go! increase the marketability of the original stories because they encourage people to revisit them.

In this case, it’s hard to see how Oh, The Places You’ll Boldly Go! harms Dr. Seuss Enterprises. They assert that they’re missing out on a licensing fee opportunity, but a derivative project might not happen at all if the authors have to pay a toll for the privilege of borrowing elements from a previous work for the purpose of parody. Instead, by filing this lawsuit through their DLA Piper lawyers, Dr. Seuss Enterprises is using the court system to squelch creativity in the arts, which is the exact opposite of what copyright law aims to accomplish.

My other half, Mr. AMB, summed up Dr. Seuss Enterprises’s litigious behavior in his own parody of Dr. Seuss’s rhyming style:

Oh, the people you’ll sue! There is pain to be done!
There are artists to be gored. There are claims to be won.
And the magical things you can do with a corporate lawyer
will make you the free expression destroyer.
Rich! You’ll be as rich as grave robbers can be,
with social media trashing your brand with glee.

For me, it’s this unnecessary lawsuit — not the allegedly infringing work — that detracts from Dr. Seuss’s legacy. I’m less likely to share his books with the children in my life now.

The Author of Pride and Prejudice and Zombies: Did He Rip Off a Classic In A Subsequent Manuscript?

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On August 26th, Hachette Book Group sued Seth Grahame-Smith, known for Pride and Prejudice and Zombies and Abraham Lincoln: Vampire Hunter, for breach of a publishing contract for two new books, a sequel to Abraham Lincoln: Vampire Hunter and another book “on a subject to be determined by [Grahame-Smith & his company, Baby Gorilla, Inc.] with Publisher’s written approval.” He received an initial installment of half-a-million for each book in a four-million-dollar deal.

Apparently, Grahame-Smith delivered on the first book, The Last American Vampire, which Hachette published in January 2015. The manuscript for the second book, however, is a different story, at least according to Hachette.

In its bare-bones complaint, available here via Publisher’s Marketplace (PDF), Hachette alleges that the manuscript Grahame-Smith delivered (after a lengthy extension on the deadline):

  1.    Is not original to Smith, but instead is in large part an appropriation of a 120-year-old public-domain work;
  2.    Materially varies from the 80,000-100,000 word limit fixed in the Agreement;
  3.    Is on a subject that was never approved by Hachette in writing, as required by Paragraph 1(b) of the Agreement; and
  4.    Is not comparable in style and quality to Smith’s wholly original bestseller Abraham Lincoln: Vampire Hunter, as also required by Paragraph 1(b) of the Agreement.

Basically, the manuscript Grahame-Smith delivered was allegedly unsatisfactory because, according to Hachette, it “varied so materially and substantially from that described in the Agreement.” As a result, they want the $500,000 advance back.

I’m dying to know what public domain work Grahame-Smith allegedly ripped-off. In Covering the Classics: An Homage or a Rip-off?, I expressed ambivalence about the merits of adaptations of classics, explaining:

Part of the writing process is building a story from scratch, scene by scene, and it feels like cheating when a writer simply borrows a blueprint for a story that someone else developed 150 years ago.

To be sure, literary references are part of the creative process, and even Shakespeare borrowed plots from the earlier works of others. But should unoriginal derivatives be billed as stand-alone novels when there is little novel about them?

Needless to say, I’ve changed my tune since writing Amelia Elkins Elkins, a courtroom drama retelling of Jane Austen’s Persuasion, but that doesn’t mean I’d be okay with an adaptation that adds little to the original work. That’s essentially what Hachette alleges Grahame-Smith did.

We’ll see whether a jury, if it comes to that, agrees with Hachette. I wonder whether the lawyers will check out potential jurors’ Goodreads profiles before empaneling them.

More Than a “Bathroom Battle”: The Rights of Transgender Children At School

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Earlier this week, a federal judge granted a preliminary injunction that (1) allowed Texas and other states to force transgender students to use bathrooms that do not match their gender identities and (2) prevented the United States government from investigating this type of discrimination across the country. This preliminary injunction remains in effect until that same Court rules on the merits in the case. Basically, Texas and other states claim that the word “sex” under Title IX, the civil rights law pertaining to education, refers to a person’s genitals, not their gender identity.

This lawsuit, one of several across the country, comes after the U.S. Department of Education and the U.S. Department of Justice released a guidance document in May of 2016 in which they clarified that Title IX prohibits schools from discriminating against students on the basis of their gender identity, defined as “an individual’s internal sense of gender” that “may be different from or the same as the person’s sex assigned at birth.” They stated:

As a condition of receiving Federal funds, a [public or private] school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities… The Departments treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.

Regarding bathrooms, the Departments said: “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.”

Thus, according to the Obama administration, a school that forces a child who identifies as female to use the boys’ restroom has violated Title IX.

Texas and other states, however, disagree. Technically speaking, the Court hasn’t ruled on the merits of the case, but the Court so far agrees with the states. In its order on the preliminary injunction, the judge wrote: “It cannot be disputed that the plain meaning of the term sex… meant the biological and anatomical differences between male and female students at their birth.”

So, basically, according to the states and to this judge, all the matters is what’s between our children’s legs. That’s pretty creepy when you think about it.

It’s also concerning to me that the Court seemed to think that the “injury” to the states — that schools might risk losing federal funding because they can’t stop obsessing about what lies between children’s legs and forcing them to use the corresponding bathroom — outweighs the harm to the child of being forced to use the wrong bathroom.

Not only does being forced to use the wrong bathroom isolate and stigmatize transgender children, but it is also hazardous to their health.

Recently, I saw a reference in literature to this issue in Alex Gino’s George, in which a child who identifies as female must use the boys’ restroom:

[George*] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

No child should go all day without drinking water or using the bathroom because their schools force them to use the wrong one. It’s heartbreaking, and apparently, at least for the time-being, legal in the United States under Title IX.

_____________________

*I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.