Category: Personal Blog (Page 24 of 27)

When you begin each chapter of a law book, the initial case or caption is almost always good law.  By good law, I mean accurate and moral.  This is law that makes sense and is unoffensive to those who value life, liberty, and property (but I repeat myself).  This shall henceforth be known as The Learned Sergeant’s Rule:  The first case in each chapter of a casebook is just law.  With each following case, the law becomes more diluted and unjust.  This rule applies to all law books and each chapter within.

Let us apply this rule to “public policy” exceptions to workplace law.  The first case in this particular book refers to a case in 1884, Payne v. The Western & Atlantic Railroad Co. where a business owner sues the local railroad company for threatening to fire employees who shopped at his store.  The court dismissed the claim stating that:

Great corporation, strong associations, and wealthy individuals may thus do great mischief and wrong; may make and break merchants at will; may crush out competition, and foster monopolies, and thus greatly injure individuals and the public; but power is inherent in size and strength and wealth; and the law cannot set bound to it, unless it is exercised illegally.  Then it is restrained because of its illegality, not because of its quantity or quality.  The great and rich and powerful are guaranteed the same liberty and privilege as the poor and weak.  All may buy and sell when they choose; they may refuse to employ or dismiss whom they choose, without being thereby guilty of a legal wrong, though it may seriously injure and even ruin others.  The law leaves employer and employee to make their own contracts; and these, when made, it will enforce; beyond this it does not go.

Now fast forward to 1980 and our next case, Sheets v. Teddy’s Frosted Foods, Inc.

Here we have an employee hired at-will.  In other words, an employee who can be fired for no reason at all.  This employee is the quality control manager who is fired after reporting to his employer that they are in violation of state quality control laws.  This employee sues, claiming that the company cannot fire him for that reason.  The court allows the case to go forward stating that it is in the best interests of the public to protect employees who report violations of law.

I will be the first to admit that the man shouldn’t have been fired, but poor behavior of an employer and the court making up law in contravention of the rights of an employer to fire an at-will employee is unacceptable.  But wait friends, the fun doesn’t stop here.

The following cases then proceed to protect employees who are fired for filing a workman’s compensation claim and refusing to commit perjury.  Next, in Nees v. Hock, a 1975 case, an employer is held to have wrongfully fired an employee who specifically requested jury duty when she could have been given a waiver because it would have kept her away from work for 2 weeks.

The problem with public policy, beyond the fact that it effectively gives judges the power to usurp the duties of the legislature, is that those public policies are then to be divined by what that specific court deems is important to the public.  Those policies are often arbitrary and in conflict to legitimate statutory interpretation.  It gets much worse than this friends.  This just so happens to be what I’m reading at the moment.  Public policy is one of the most vile abuses of the legal system pressed upon us by the judicial branch.

A video you ask?  Okay, you’ve earned it, but only if you read the post!

It always warms my heart, then makes me mildly uncomfortable, to see this kind of thing.  I’m delighted to see a company take a stand by attempting to influence public opinion rather than purchasing a lobbyist.  Were I to ever buy another ring, I’d have this company near the top of the list.

How about Brandy, not just by Looking Glass, but diversified with The Red Hot Chili Peppers and Kenny Chesney.  Yeah, seriously.

A letter to students of the University of Idaho College of Law, by Dean Don Burnett:

Dear Student Colleagues,

On February 13–16, the College of Law will host a special guest  who will conduct dialogues on professionalism and diversity with all students, staff, and faculty.  Dean Blake D. Morant of the Wake Forest University School of Law will hold dialogue sessions with 3L students in Boise as well as with 1L, 2L, and 3L students in Moscow, plus sessions with staff and faculty at each location.  The Boise 3L student session will take place on Monday, February 13, followed by three sessions in Moscow for 1L, 2L, and 3L students, respectively, on Tuesday, February 14.  (Faculty and staff sessions will be conducted on February 13 in Boise and on February 15-16 in Moscow.)

The purposes of the student sessions are to identify the elements and importance of professionalism in the academic experience and in future careers, and to illuminate the links between diversity and professional success.  For these purposes, “diversity” will be viewed in a comprehensive sense – including backgrounds and perspectives as well as demographic characteristics of our law school community, the legal profession, and the public served by the profession.  The sessions will not be “talk at” programs; rather, they will be guided conversations that encourage candid and respectful expression, personal reflection, and insight.

Dean Morant will bring to Idaho a distinctive set of credentials and experiences.  After graduating from the University of Virginia School of Law, he served in the JAG Corps of the U.S. Army, worked as general counsel to the District of Columbia Metro Transit Authority, and taught on the law faculties of the University of Toledo, University of Michigan, Washington & Lee University, and the University of Alabama before becoming Associate Dean for Academic Affairs – and now the Dean – at Wake Forest.  He is a scholar and consultant to the courts, as well as to American legal education, on issues of equal opportunity under law.  As you will discover, he is also a remarkably open, friendly, and thoughtful person.

These dialogues are a high priority for the College of Law.  Accordingly, all students, staff,  and faculty are expected to attend and participate in their respective sessions.  Classes will be rescheduled in order to assure full attendance.  When the specific time-and-date schedule is distributed to students, any student who has a serious, irreconcilable conflict will submit to Dean Albertson, in advance of the assigned session, a memo seeking an excused absence and detailing the conflict.  Roll will be taken at each session.  Attending students will have a certificate of participation placed in their student record files.  Any student who does not participate, and has not been excused, will have a memorandum to that effect placed in his or her student record file.

In Grutter v. Bollinger (2003), the U.S. Supreme Court, in a majority opinion authored by then-Justice Sandra Day O’Connor, observed that “numerous expert studies and reports [show] that … diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce ….  Major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

Our dialogues on professionalism and diversity are intended to give Idaho law graduates an advantage as they put their knowledge and skills to work in this  “global marketplace.”

–          Don Burnett

My comments:

I’m actually a pretty big proponent of diversity.  Just as you make your stock portfolio strong by diversifying your shares, we as a nation/school/community become strong through a diverse populace.  Additionally, I think it’s helpful to take the opportunity to see the world through another person’s eyes.  That isn’t to say that we should accept their beliefs.  That isn’t even to say we should tolerate all beliefs.  It is however, absolutely helpful to be able to understand the “why” behind a person’s beliefs.  In that way we can communicate clearly and either reach a common ground or have the moral high ground in a fight.

The University of Idaho is a generally tolerant community.  I imagine it’s probably more tolerant than most communities, but it certainly has it’s share of the intolerant.  I’ve been referred to as a “queer lover” within those walls.  I’ve heard and seen a lot of intolerance among both students and faculty.  I have also said some pretty controversial things, especially as directed toward organized religion, with special emphasis toward my Mormon friends.  Therefore, in my mind, some diversity talks may be of value.

However, we do not demonstrate our commitment toward respecting divergent beliefs by mandating attendance to these meetings.  Most importantly, YOU DO NOT THREATEN YOUR STUDENTS with adverse action on their student records.  The Dean may offer a carrot, but has no right to raise a stick. I dislike bigots, but I hate bullies even more.

Additionally, while this discussion may be of value, the mandatory nature of it causes those most in need of the experience to immediately recoil at the thought of having an agenda pushed upon them.  While this may or may not be the case for this specific instance, I have witnessed much more indoctrination at the law school than I ever did in the military.  A person would be right to be wary.

It’s rare that a reread a book.  I believe there are less than a dozen I’ve ever reread.  There are too many books to waste your time reading books you’ve already read.  I first read Way of the Peaceful Warrior following a recommendation from my friend John.  His suggestions are usually hit or miss, never mediocre.  The book was good; enough so that about 10 years later I cracked it again.  I figure being a little older and more experienced I would get something new from it.

I think I did get something new from it.  I guess at different times in our lives we can get different values from the same thing.  Or, it could just be that I have an awful memory and get the lessons all over again.

In the end, I found it to be a good book with great lessons if you could take out the Taoist overtones.  Giving up and just letting things happen is never a good attitude.  However, accepting what has happened and living in the present are excellent lessons.

One of my favorite lines sounds like something I would say:

“Moderation? It’s mediocrity, fear, and confusion in disguise. It’s the devil’s dilemma. It’s neither doing nor not doing. It’s the wobbling compromise that makes no one happy. Moderation is for the bland, the apologetic, for the fence-sitters of the world afraid to take a stand. It’s for those afraid to laugh or cry, for those afraid to live or die.”

I am reflecting on one of the stories:

An old man and his son worked a small farm, with only one horse to pull the plow.  One day, the horse ran away.

“How terrible,” sympathized the neighbors.  “What bad luck.”

“Who knows whether it is bad luck or good luck,” the farmer replied.

A week later, the horse returned from the mountains, leading five wold mares into the barn.

“What wonderful luck!” said the neighbors.

“Good luck?  Bad luck? Who knows?” answered the old man.

The next day, the son, trying to tame one of the horses, fell and broke his leg.

“How terrible.  What bad luck!”

“Bad luck? Good luck?”

The army came to all the farms to take the young men for war, but the farmer’s son was of no use to them, so he was spared.

“Good?  Bad?”

Anyhow, now I’m watching the movie on Netflix.

Today the Supreme Court handed down a rare opinion in favor of the fourth amendment.  Instead of doing my legal schoolwork I have instead poured over the decision at length.  It was a very entertaining read, and all in all a good decision, but it was riddled with many of the pitfalls that plague our current legal system.  The bottom line is that this will do for 4A, what Heller did for 2A, which is to make bold assertions, come to the proper conclusion, but leave plenty of room for the government to work around.  Given the fact that I should in fact do my actual schoolwork, I will give an analysis on it tomorrow.  However, for today, you can find the opinion here.

I also figure since I am not giving you a good lengthy post on the matter, you get a video day.  Hooray for you!  I’ve been listening to Gurf Morlix (and saying his name out loud at every opportunity) for a few weeks now.  I’m in love with this song.

Yes, polyphasic sleep was a poor idea.  Failures of course never stop me from additional foolish human experiments.

Yesterday I removed my bed from my room and began sleeping on the floor.  Well, technically I’m sleeping on top of a single blanket, but let’s call it the floor.  The first night was a little rough, but not near as bad as I had expected.  Why am I doing this?  Well, I don’t actually know that it will accomplish anything, but I have a few reasons in mind:

I prefer to live a more spartan existence.  Minimalism is good for the soul.  It makes us strong.

By rolling up my bed first thing in the morning I open an incredible amount of extra space in my room.

I believe that the nearer we are to doing everything, from exercise to diet, to sleep in the state of man the animal, the more likely we are to reap the mental and physical benefits of what we were evolved to do. In a manner, this is just a further extension of barefoot running and the paleo diet.

Finally, I read an article on the topic that piqued my interest.  Of special interest was the possibility of sleeping on hard surfaces increasing bone density and realigning the spine to its natural position.  I, like most people, have an anterior pelvic tilt which causes lower back pain.  Hopefully this will be at least a small step toward correcting it.

So who knows how this will work out.  I will stick with it until the end of the month to see how it feels and then either stick with it or revert back to my old bed.

Today however has been one of those days where I take a step back out of my skin and look at my life and habits and conclude that I am a strange person.  I mean, this is the bed I sleep in before waking up to take an ice cold shower:

Happy Birthday to the prophet John Moses Browning!

Yes, the 1911 warms my heart.  But the Ma Deuce tugs at my loins.

For your viewing pleasure, the Guns of JMB on History: