Arizona State Law Journal

Archive for April, 2012

This contribution was written by guest author Mark Glover.  Mr. Glover is a Teaching Fellow and Assistant Professor of Professional Practice at Louisiana State University’s Paul M. Hebert Law Center.  This post is based on his articles A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle. U. L. Rev. 427 (2012) and The Therapeutic Function of Testamentary Formality, 61 U. Kan. L. Rev. (forthcoming).

The estate planning processes can be unsettling.  Because the preparation of an estate plan and the implementation of that plan through the execution of a will and other estate planning documents necessarily requires the testator to acknowledge that at some point he will die, estate planning can be psychologically tumultuous.[i]  Indeed, few enjoy contemplating their own mortality,[ii] and this reluctance to acknowledge the inevitability of death causes some to avoid the estate planning process altogether.[iii]  As Michele de Montaigne, the sixteenth-century essayist, explained, “You can frighten [ordinary] people by mentioning death…; and since it is mentioned in wills, never expect them to draw one up before the doctor has pronounced the death-sentence.”[iv]

Although the estate planning process can evoke unpleasant thoughts and emotions, it ultimately can have a therapeutic effect.  Consider, for example, Ludwig van Beethoven’s experience of executing a will.  Beethoven, the great German composer and pianist, began to lose his hearing while in his mid-twenties.  As a result of the fear that his worsening deafness would impede his musical career, Beethoven experienced severe despair and thoughts of suicide.[v]  With these concerns in mind, the composer traveled to the small Austrian town of Heiligenstadt in the spring of 1802 with the hopes that seclusion would prove therapeutic.[vi]  His time there not only influenced his future compositions but also inspired Beethoven to draft his will.[vii]  Known as the Heiligenstadt Testament,[viii] Beethoven’s will bequeaths his entire estate to his two brothers and extensively describes the psychological turmoil that he experienced as a result of his impaired hearing.[ix]

Beethoven, for example, recalled instances in which others heard music and sounds that he could not, and he described the intense emotions evoked by these occurrences in his will.  As he recounted, “[W]hat a humiliation for me when someone standing next to me heard a flute in the distance and I heard nothing or someone heard a shepherd singing and again I heard nothing.”[x]  Beethoven’s condition placed him on the brink of suicide, as the composer described:  “Such experiences brought me close to despair; a little more of that and I would have been at the point of ending my life.”[xi]  Similarly passionate descriptions of Beethoven’s anguish fill the text of the Heiligenstadt Testament.[xii]

Fortunately, the expression of these thoughts and feelings through the exercise of his testamentary power was therapeutic for Beethoven, as he overcame his suicidal compulsions and continued his life’s work.[xiii]  Indeed, one historian explains that “Beethoven’s sheer act of writing the Heiligenstadt Testament…seems to have granted its author the will to go on with life, turning even the defeat of deafness into a victory of will.”[xiv]  As Beethoven’s testamentary experience illustrates, the estate planning process provides the participant an opportunity for self-reflection and self-expression.[xv]  This expressive quality of estate planning contributes to the overall therapeutic nature of the estate planning process and can help counteract the anxiety that accompanies the contemplation of mortality.[xvi]

In addition to this opportunity for self-expression, the estate planning process has a number of other therapeutic qualities.  For example, the ability of the testator to direct how his property should be distributed after his death allows the testator to exercise autonomy over important and intensely personal decisions.[xvii]  Additionally, the process also provides the testator an opportunity to consult an estate planning attorney, who can help prepare an estate plan that fulfills the testator’s testamentary wishes and who can therefore serve as a therapeutic agent for his client.[xviii]  In sum, a variety of aspects of the estate planning process can ultimately transform the unpleasant experience of preparing for one’s death into a therapeutic experience.[xix]

Although the estate planning process can have both positive and negative psychological consequences, therapeutic concerns have largely been ignored in the evaluation of potential reforms of the law of succession.[xx]  By contrast, the emerging field of therapeutic jurisprudence urges that these psychological qualities of the law should be weighed alongside other policy considerations when policymakers implement law reform.  As Professor David Wexler, a major proponent of the field, explains, “[therapeutic jurisprudence] focuses on the law’s impact on emotional life and on psychological wellbeing;” it “focuses our attention on this previously underappreciated aspect, humanizing the law and concerning itself with the human, emotional, [and] psychological side[s] of law and the legal process.”[xxi]  By turning policymakers’ attention to these psychological concerns, the goal of therapeutic jurisprudence is not to ensure that the law is reformed in the most therapeutic manner but is instead to simply “bring[] to the table some of these areas and issues that previously have gone unnoticed.”[xxii]  With this goal in mind, scholars have applied the therapeutic jurisprudential framework to a variety of areas of the law, including criminal law and family law.[xxiii]

Because the estate planning process can raise a variety of psychological and emotional concerns and because they are frequently overlooked, the law of succession provides a ripe opportunity to expand the reach of therapeutic jurisprudence.  Indeed, therapeutic jurisprudence can be used to analyze a number of areas of the estate planning process, including not the psychological effects of the law on the individual testator but also therapeutic issues related to those who stand to benefit from the testator’s estate plan, such as his friends and family.[xxiv]  In sum, therapeutic jurisprudence provides a new framework to evaluate potential reforms of the law of succession, a framework that encourages policymakers to consider the psychological and emotional aspects of the law and that ultimately seeks to maintain the overall therapeutic nature of the estate planning process.

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This article was written by guest author Michael C. Macchiarola.  The author is a Distinguished Lecturer at the City University of New York.

On March 15, a panel of three Second Circuit judges stayed a proceeding in the courtroom of Judge Jed S. Rakoff of the Southern District of New York. The stay is pending resolution of Citigroup’s appeal of Judge Rakoff’s rejection of its proposed settlement with the Securities and Exchange Commission (“SEC” or “Commission”) in connection with a civil enforcement action accusing the bank of substantial securities fraud in connection with the sale of collateralized debt obligations. In granting the stay, the panel was persuaded that Citigroup presented a “strong showing of likelihood of success” in having Judge Rakoff‘s rejection of the original settlement set aside. The full appeal will be heard on the merits by a separate Second Circuit panel that remains “free to resolve all issues without preclusive effect” from the March 15th Order. While commentators were quick to declare the Commission and Citigroup as victors or characterize the stay as a “stinging rebuke,” the Second Circuit’s actions are far from a deathblow to Judge Rakoff‘s crusade. And, no date has yet been set for the appeal.

 

The recent Second Circuit order notwithstanding, reports of the demise of Judge Rakoff’s on-going argument with the SEC are greatly exaggerated. While the Second Circuit’s stay reveals an unsympathetic panel, the merits of the dispute will ultimately be heard by a different group, with the judge’s position briefed by counsel. And, while commentators have spilt much ink on the high-profile defendant, appealing facts or colorful judicial language of the Citigroup controversy, the value of the judge’s opinion is found, more basically, in his insistence that the proper role of the courts be respected in interactions with administrative agencies. It is unfortunate that the three Second Circuit judges issuing this week’s unsigned order do not seem to share the point of view. By requiring that the courts function to protect the “overriding public interest in knowing the truth,” Judge Rakoff has shown fidelity to Montesquieu’s warning (echoed by James Madison) that the power of judging should remain separated from the legislative and executive powers. At the same time, the judge has questioned an ad hoc brand of bureaucracy that allows the government to dispense a highly volatile and unpredictable version of regulation.

 

The judge’s credibility is bolstered by at least two facts unmentioned by the Second Circuit panel. First, Judge Rakoff’s actions have already shown tangible results in the earlier Bank of America controversy. Most notably, the judge’s effort exposed the facts surrounding some of the greatest transgressions of our Great Recession – facts that otherwise would have remained in the dark. His persistence also resulted in substantially increased reparations for the victims of Bank of America’s iniquities versus what the SEC had initially negotiated on their behalf. Second, the Commission remains free to negotiate any private arrangement that it would like with a defendant – without involving any court.

 

In civil litigation, it is well established that a dispute can be resolved by contract between the parties, and courts remain nearly powerless to shape their private bargain. An established public policy in favor of settlement reduces the number of trials, and is consistent with the civil justice system’s overall goal of ensuring a just, speedy, and inexpensive determination of every action. A deferential role for courts in evaluating consent judgments negotiated by government agencies finds root in the U.S. Constitution, with prosecutorial decisions exclusively an executive function.

 

Today, over ninety percent of SEC proceedings are settled. And, the overwhelming majority of courts have approved settlements rather routinely, without scrutinizing their factual bases or requiring substantive adjustment. This “rubber stamp” has persisted despite the fact that public agency settlements can be distinguished from the best private settlements because they (i) regularly impact third parties, (ii) often lack good faith negotiations between two equals, and (iii) generally derive from less noble motivations.

 

Today’s proposed SEC settlements routinely include boilerplate language prohibiting the settling party from engaging in similar violations in the future, and from making any public statement denying any allegations in the government’s complaint. This “non-admission / non-denial” posture seems unconcerned with the truth of an underlying allegation — typically disfavoring truthful facts in favor of a comfortable contrivance that each party can live with. Such a posture seems hostile to both the Commission’s charge to protect the integrity of the nation’s securities markets and a court’s duty to defend and ensure the public interest. The inattention to truth represents a particular absurdity within a regulatory structure that regularly calls upon registrants to abide by full, fair and accurate disclosure.

 

While not required, the Commission has increasingly sought court approval of each settlement, in an effort to gain the courts’ contempt and injunctive relief powers if a settling party subsequently violates an agreement’s terms. Yet, despite the formidable nature of the contempt remedy, by its own admission, the Commission has not frequently pursued civil contempt proceedings. In fact, the Commission admitted to Judge Rakoff that it does not appear to have initiated such proceedings against any large financial entity in the last ten years.

 

While the Second Circuit panel was quick to assert that “[i]t is not . . . the proper function of federal courts to dictate policy to executive administrative agencies,” it left unanswered just what authority a court retains if its judicial powers are given to the SEC as a matter of course and free of any real cost or inconvenience. With no real price to pay, it is no wonder that the Commission routinely seeks the judicial imprimatur. And, in that regard, the Second Circuit’s order says more about how the panel values judicial authority than anything else.

This article was written by guest author Rory Bahadur, Associate Professor of Law at Washburn University School of Law.

The recent news media coverage of the so called “Florida Stand Your Ground Law,” illustrates succinctly the sleight of hand that selective nomenclature sometimes facilitates.  The so called “Stand Your Ground Law” is actually a combination of three separate statutes and the stand your ground provision is perhaps the least radical and controversial.  These statutes are as follows:

1. Fla. Stat 776.012 titled “Use of Force in Defense of Person.”
2. Fla. Stat. 776.013 titled “Home Protection; Use of Deadly force; Presumption of Fear or Death or Great Bodily Harm”
3. Fla. Stat. 776.032 titled “Immunity from Criminal Prosecution and Civil Action for Justifiable use of Force”

The least controversial and least radical change to the common law doctrine resulting from enacting of the statute is the permission to stand your ground.  , The media and supporters of the law have coined the statutory scheme “Stand Your Ground” in order to deflect from the more controversial and radical provisions.  776.013 allows a person who is attacked to meet force with force without having a duty to retreat.  Under the statute the attacked person may use deadly force whenever he “reasonably believes” deadly force is necessary to “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

The only difference between this statute and the common law is that there is no duty to retreat (or to avoid the use of force) before using force.  All this section of the statute does is expand the so called “castle doctrine” from a person’s house, which was considered their castle which could be forcibly  defended without first retreating, to any area where the person has the right to be.  The statute requires however that a person using deadly force “reasonably believe” the use of the force is necessary.  This reasonable standard is an objective standard which will justify the use of deadly force only if a reasonable person would believe it was necessary.  It is not a free for all blank check to use deadly force whenever a particular individual feels it is necessary but only permitted when the use of that force is objectively reasonable.  Judges and juries routinely evaluate whether the reasonableness of actors based on the particular facts before them in the American legal system.  Therefore, a defender takes a chance that his use of deadly force will not be deemed reasonable after the fact.   As noted, this section only permits the use of reasonable force by someone who is attacked.

The rest of the statutory schemeis where most of the controversy should exist.  But the media has largely ignored this statutory language.  Section 776.012 separately establishes that use of deadly force is justified without a duty to retreat when a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”   Additionally, section 776.013(1) presumes the existence of “reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another” in a wide variety of circumstances.

Once that presumption has been established, the person using deadly force is “immune from criminal prosecution and civil action for the use of such force,” according to Florida Statute 776.032   The statute further explains that once the presumption is established, law enforcement may investigate the use of force, “but may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.”  Civil suits for wrongful death against the person using deadly force are also discouraged as  776.032 provides that if the user of force is found to be immune from prosecution the court “shall award reasonable attorney’s fees, court costs, compensation for loss of income and all expenses incurred by” the person using the deadly force.  The Florida Supreme Court has recently stated that a judge rather than a jury should determine the existence of the immunity.  Dennis v. State, 51 So. 3d 456, 458 (Fla. 2010).

The presumption, and therefore immunity, exists whenever two conditions are met.  The first is that the deadly force  was used against someone who was “in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.”  The second condition is that the person using the deadly force, “had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

This second condition is the radical change.  Under the common law, the use of force after the danger had passed was presumptively retaliatory and not legally considered self-defense.  See Linsley v. State 101 So. 273, 275 (Fla. 1924) (explaining “[t]he taking of human life is neither justifiable nor excusable, where one fires the fatal shot or strikes the fatal blow after danger or death or great bodily harm to him from the deceased’s attack has passed.”)

This is why presumably a Florida judge recently threw out a case against Greyston Garcia when according to the Miami Herald the facts were as follows:

The incident took place on Jan. 25, when Roteta and another youth were behind Garcia’s apartment at 201 SW 18th Ct. According to police, Roteta was stealing Garcia’s truck radio.Garcia, alerted by a roommate, grabbed a large knife and ran downstairs. He chased Roteta, then stabbed him in a confrontation that lasted less than a minute, according to court documents.The stabbing was caught on video. Roteta was carrying a bag filled with three stolen radios, but no weapon other than a pocketknife, which was unopened in his pocket and which police said he never brandished.

See “Miami Judge Decides Fatal Stabbing was Self-defense,” Miami Herald, Mar. 21, 2012, at http://www.miamiherald.com/2012/03/21/2706789/miami-judge-stabbing-in-the-back.html.  According to the Herald, the judge granted immunity.  The investigator in the case objected.  He  questioned how a chase like this could be considered standing your ground.  The investigator was apt to realize the case had nothing to do with standing ground as provided in 776.013.  In reality, the case had to do with the largely ignored, broad grant of immunity in sections 776.013(1) and 776.032(1).

As the Treyvon Martin case continues, it is important for the media to inform the public on the breadth of the Florida self-defense law that results in immunity from prosecution rather than continue to focus on the unremarkable stand your ground provision of the law.  The stand your ground provision of the law permits investigators to assess the reasonableness of the conduct and the necessity of using the deadly force.  The presumptions and immunities, on the other hand, are the really radical laws which do not require reasonableness in the use of force.  The media needs to make the public aware of these sections of the law rather than focusing on the catchy but toothless “stand your ground” refrain.

This contribution was written by guest author Joe Dryden.  Mr. Dryden is an Assistant Professor of Education and Law at Texas Wesleyan University in Fort Worth, Texas.  Mr. Dryden’s research interest include student First Amendment issues , the collateral impact of educational policy, dilemmas in educational leadership and effective classroom instruction.

Despite the widespread calls for guidance, the Supreme Court recently denied certiorari in three cases dealing with the balance between off-campus student expression and the compelling interest of the state to protect the learning environment and those within it from cyber bullying and cyber harassment.¹ There is a desperate need for a uniform standard that can be consistently applied to reduce variability in intervention efforts, and litigation outcomes. The vacuum of guidance leaves a legal landscape marked by the misapplication of Tinker’s substantial disruption test, a test developed over 40 years ago when no one could have foreseen the Internet or the proliferation of electronic communication devices.²

The least troubling byproduct created by this misapplication is contradictory federal court decisions.³ Far worse is the damage generated when school administrators are forced to operate in a legal quagmire where intervention may violate a student’s constitutional rights resulting in expensive and protracted litigation, while inaction leaves victims with inadequate avenues of recourse.⁴ Inconsistent outcomes fail to provide adequate notice to students regarding the limits of protected off-campus expression.⁵ School administrators are unsure of the limits on their authority culminating in polarized reactions. In some cases, school officials over react and implement disproportionate consequences for protected off-campus student expression.⁶ In others, they elect not to intervene which can lead to tragic outcomes.⁷

Judges are forced to manufacture illogical arguments and apply unsubstantiated assumptions to arrive at conclusions that lack judicial wisdom. The Third Circuit applied the following incoherent and incongruous explanations in ruling against school officials in J.S. v. Blue Mountain and Layshock v. Hermitage.

• If school officials cannot catch every student involved in the publication of off-campus websites that create a substantial disruption of school operations, they cannot punish those they do.⁸
• Using school computers to access a website created off campus to show classmates does not constitute on-campus expression.⁹
• A student, who has a propensity for lying, can avoid all responsibility for posting malicious and defamatory lies accusing a school official of crimes of moral turpitude simply by claiming he was only joking.¹⁰
• If the student can show that an immediate supervisor didn’t believe the contents of a malicious and defamatory fake profile, then it is safe to assume  no one believed the content to be true.¹¹
• If school officials use filtering software to prevent student access to inappropriate websites then no child will be able to view a malicious and defamatory fake profile of a classmate or school employee.¹²
• It is the reaction of school officials that is the proximate cause of disruptions associated with off-campus student expression.¹³

In Kowalski v. Berkeley County Schools, the Fourth Circuit used Tinker’s substantial disruption test to support school officials where one student conducted a targeted cyber-attack on a classmate from an off-campus location. Several students were invited to reply, and many did, but the incident did not produce a substantial disruption of school operations.¹⁴ In cases of student-on-student cyber bullying, the results may substantially interfere with a student’s educational opportunities, but this does not satisfy Tinker’s substantial disruption test. Courts should consider Tinker’s second prong, expressions which interfere with the rights of others,¹⁵ or the application of the deliberate indifference standard where sexual harassment creates a hostile environment.¹⁶

Another misapplication of Tinker’s substantial disruption test lies in the misguided efforts of those who invoke Tinker to protect expressions that are threatening, defamatory, or designed to intentionally inflict emotional distress. The Tinker decision protected political, symbolic, non-disruptive speech, ¹⁷ far different from the content of most off-campus student expression cases. Todd Erb captured this distinction well by stating “[i]t would be hard to argue in a judicial proceeding . . . that websites allowing students to vote on who’s the biggest slut in the school”¹⁸ deserves the same protection as political speech regarding matters of public concern.

Denying certiorari in the cases endangers the emotional wellbeing and safety of children by perpetuating the status quo. This issue is ripe, dozens of lower court cases have been adjudicated and hundreds of legal scholars have proposed solutions. The Supreme Court’s failure to act is inexcusable.

 

 

 

 

 

 

 

 

 

Citations

¹ Kowalski v. Berkeley Cnty. Schs., 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-461); J. S. v. Blue Mt. Sch. Dist., 80 U.S.L.W. 3425 (U.S. Jan. 12, 2012) (No. 11-502); Layshock v. Hermitage Sch. Dist, 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-502).

² Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) [hereinafter Tinker].

³ Compare J. S. v. Blue Mt. Sch. Dist., 593 F.3d 286 (3rd Cir. 2010) [hereinafter Blue Mt.] (ruled in favor of the school district), vacated and rev’d en banc 650 F.3d 915 (3d Cir. 2011), with Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (3d Cir. 2010) (ruled in favor of the student), vacated and aff’d en banc 650 F.3d 205 (3d Cir. 2011).

⁴ See Joe Dryden, It’s a Matter of Life and Death: Judicial Support for School Authority over Off-Campus Student Cyber Bullying and Harassment, 33 U. LAVERNE L. REV (in press).

⁵ Id. at 10.

⁶ See Coy v. Bd. of Educ. of North Canton City Schs., 205 F.2d. 791 (N.D. Ohio, 2002).

⁷ See Rutgers Student Suicide Renews Debate Over Cyberbullying (Oct. 1, 2010), http://www.foxnews.com/politics/2010/10/01/rutgers-student-suicide-renews-debate-cyberbullying/.

⁸ Layshock, 496 F. Supp. 2d  at 210.

⁹ Id at 217.

¹⁰ Blue Mt., 593 F.3d at 921.

¹¹ Id. at 930.

¹² Id. at 929.

¹³ Id.

¹⁴ Kowalski v Berkeley Cnty Schs., 652 F.3d 565 (4th  Cir. 2011).

¹⁵ See Martha McCarthy, Student expression that collides with the rights of others: Should the second prong of Tinker stand alone?, 240 WEST’S EDUC. L. REP. 1, (2009).

¹⁶ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).

¹⁷ Tinker, 393 U.S. at 504.

¹⁸ Thomas Erb, A case for strengthening school district jurisdiction to punish off-campus incidents of cyber bullying, 40 ARIZ. ST. L. J. 257, 284 (2008).