Law School Rankings Unkind to Michigan Law Schools

Once again, the highly controversial national law school rankings have been published by the US News & World Report. Although you have to pay to see them in full, University of Cincinnati Law Professor Paul Caron has published a segment of the rankings; peer reputation vs "overall" rankings.

Some movement was observed at the top of the rankings.  The University of Michigan Law School, for example, fell three spots from 7th to 10th.  Harvard also fell a spot.  To the USN&WR editor: really; what changed at UM and Harvard to merit the drop?  Go figure.

Proving that it never hurts to associate with a huge public university, Michigan State University's "College of Law" [formerly the unaffiliated Detroit College of Law] is now ranked #82 overall; that would not have occurred in the law school's "stand alone" days.  Not yet "first tier", but improving.

MSU bested Wayne State, which now sits at #112 overall; that never would have happened in the 1980s.

While my law school alma mater, University of Detroit Mercy, did well in the NCAA men's basketball tournament seeding, in the law school rankings, er...not so much; stuck at #178 in the peer reputation category with an "overall" ranking simply noted as "tier 2" and trending downward from its whopping 169 rank back in 2009.  Guess that means, "second rate".  What's going on over there?

Finally, we would be remiss if we did not at least mention Michigan's other perennial basement dweller in these confounded rankings: the mighty, albeit somewhat narcissistic, Thomas M. Cooley Law School; ranked at #184. 

If you care enough to drill into Cooley's own website, however, you will see that they persist in publishing their own law school ranking which places them second [to Harvard] based on a variety of class-size factors.  And perhaps that is as it should be, with a whopping 3727 Juris Doctor candidates currently enrolled [yes folks, that's Three Thousand Seven Hundred Twenty Seven students; can you say, "you are just a number...].  The next highest enrollment is Georgetown University, with 1982 students.

Again, we have to ask, do we really need that many lawyers out there on the street?  Really?

                                                                      www.clarkstonlegal.com

                                                                     info@clarkstonlegal.com

Shariah Law and Divorce

In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on the application of Shariah law.

Specifically, the Hammoud case involved the imposition of spousal support in a realaitively short-term marriage. The Court of Appeals was troubled that the family court conditioned the duration of the "open ended" support on wife obtaining an "Islamic divorce" decree, noting:

As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum.  The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent.  Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

The implication, as held by the Court of Appeals, was that the family court pressured the husband into agreeing to an Islamic divorce when, under the establishment clause, it had no power to do so.

The Court of Appeals was not impressed with the lower court, the litigants, or their attorneys.  The case also featured an [untranslated] Arabic language prenuptial agreement proffered by husband to support his position that his wife agreed to forgo any spousal support.

The Hammoud case received national attention with a reference in Law Professor Eugene Volokh's law blog; the Volokh Conspiracy.

We here at the Law Blogger agree that family court is not the place for the implication or enforcement of religious laws; that is for the house of worship and is a private matter between the litigants.

www.clarkstonlegal.com

info@clarkstonlegal.com

Social Media Not Mixing with Jury Trials

It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

www.clarkstonlegal.com

info@clarkstonlegal.com

What Happens to Frozen Embryos After A Divorce?

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

www.clarkstonlegal.com

info@clarkstonlegal.com

Google's Privacy Policy Gets Look From Attorneys General

By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' policy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

www.clarkstonlegal.com

info@clarkstonlegal.com