Tag Archives: Supreme Court

Same-Sex Marriage Legal In 50 States & How To Open Dialogue About It At Your Firm

States must recognize unions of same-sex couples, the Supreme Court ruled today.

In a 5-4 decision in Obergefell v. Hodges, it was Justice Anthony Kennedy who was considered the pivotal swing vote in the case. In the end, he wrote the majority opinion (via NPR).

The four justices—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito—who voted against the ruling each wrote dissenting opinions.

Keep in mind, before today’s landmark ruling, gay marriage was already legal in 36 states and the District of Columbia by legislative or voter action; or by federal courts that overturned state’ bans (see a chart on NPR.org).

Summarizing our legal process, the courts explained:

“Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law.”

In polls, support for same-sex marriage is at an all time high.

Interestingly, about three-quarters (73%) of those who say they personally know a lot of gays and lesbians favor same-sex marriage; whereas a majority (59%) of those who know no gays or lesbians oppose same-sex marriage, according to Pew Research Center.

One of the leading factors in determining support for same-sex marriage (outside religious beliefs) is political alignment. According to the same polls, 65% of Democrats and an identical percentage of independents favor gay marriage. However, only about one third (34%) of Republicans favor it, reports Pew.

Therefore, depending on where your law firm is located, and the political composition of your employees, this might become a point of contention or at least conversation.

Maintaining a positive and supportive culture within your firm is just as important as being prepared for the transition of your workplace and human resources policies given this ruling.

Control workplace gossip and negative opinion, if there is any. While Justice Roberts has the right to speak out in dissent, it’ll likely breed resentment and hostility inside your firm.

Need help? Take C4CM’s audio course “Managing the Most Difficult People at Work: 15 Cornerstones for Handling Constructive Confrontations” to gain tips and tricks for knowing what to say on a potentially divisive subject.


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New Supreme Court Ruling On Free Speech & Social Media: What Your Law Firm Should Know

Among the myriad possibilities that the Internet age brought to Americans—such as online shopping and instant GPS location—came an equal number of threats to our sanity and security—like cyber attacks and online bullying.

Courts are still reviewing the legal status of the digital businesses that may or may not add value to society, like Airbnb and Uber, or conflict with First Amendment Rights. But yesterday, in an 8-1 decision, the Supreme Court made strides to rule on free speech and social media.

The Supreme Court ruled in favor or a Pennsylvania man who posted violent messages on Facebook and was convicted under a federal statute. The man, Anthony Elonis, testified that some of his violent posts on Facebook were partly inspired by rap star Eminem and posted as a therapeutic response to cope with depression.

Elonis’ lawyer emphasized, “The First Amendment’s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable,” according to CNN.

The Supreme Court agreed with Elonis. The Court decided that intent must be firmly established before a person can be criminally prosecuted for words they post online, whether or not the average person may perceive these words as threatening.

“Wrongdoing must be conscious to be criminal,” Chief Justice John Roberts Jr. wrote for the seven-member majority.

“Our holding makes clear that negligence is not sufficient to support a conviction,” continued Chief Justice John Roberts Jr.

Although the Court decided that the legal standard to convict Elonis was too low, they did not tackle the larger constitutional issue at hand: what is the proper standard?

“There’s one way to love you but a thousand ways to kill you,” Elonis wrote in one post, according to the New York Times.

“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined,” he wrote in another.

At what point can online messages constitute a real, tangible, and prosecutable threat?

Has the Internet become a field of free-reign when it comes to expression? How can lawyers establish intent based purely on statements expressed via social media?

At the same time, had the Supreme Court upheld Elonis’ previous conviction (for which he was jailed 44 months), suddenly Americans would be held accountable to a criminal degree for every statement they make online—even when the posts are simply meant to vent, not threaten.

Justice Thomas, however, would have upheld Mr. Elonis’s conviction. In a minority opinion (via NYT), he said:

“This failure to decide [by the majority] throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

That it does.

In today’s Facebook world, lawyers have an obligation to perform research on social media sites during investigations. And, knowing where the line is drawn is crucial to keeping out of ethical trouble.

Even when it’s not the primary source of prosecution, like in Elonis’ case, social media profiles are a potential treasure trove of information in litigation.

But using social networking can ensnare attorneys in ethical traps in two different ways: (1) when accessing information in someone else’s profile, and (2) when an attorney’s own profile information might be used against them.

So, how can you effectively use social networks to gather information to gain a legal edge while ethically keeping out of trouble, particularly in light of this SCOTUS ruling?

Take the Center For Competitive Management (C4CM)’s comprehensive webinar, “Using Social Media in Legal Investigations: Traversing the Ethical Minefield,” which explores key strategies to improve your legal investigation on social media while keeping yourself safe from legal and ethical pitfalls.

This webinar, along with other online training resources, can be found online here.

The Supreme Court may not want to address the larger ethical issue at hand with social media and free speech, but your law firm can.

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Prepare Your Case With Google–Or Watch The Supreme Court Do It For You

From reply-all senior associate dunces to technologically-inept lawyers to polls that show 15 percent of bar holders use a computer only when “absolutely necessary,” accounts about technologically-impaired attorneys abound.

And, law firm professionals seem to think it’s acceptable to ignore advances in technology when it comes to lawyering.

However, for those lawyers who eschew e-discovery or e-filing practices, and those firms that remain unaware of trends in legal technology, the jokes on you.

These days, even Supreme Court Justices Google. So when your firm is slow to upgrade its online resources and know-how, you may not survive the next court case.

Because, it turns out, Supreme Court Justices have been supplementing your briefs with their own online research for years.

A former clerk to retired Justice David Souter recently studied 15 years worth of Supreme Court decisions. Allison Orr Larsen, who is a professor at William & Mary Law School, found more than 100 examples of asserted facts from authorities that were never mentioned in briefs attached to the same case.

Additionally, in 120 high-profile, newsworthy cases from 2000 to 2010, Larsen found nearly 60 percent contained facts researched in-house.

“Virtually all of the justices do it regardless of whether they are traditionally labeled liberal or conservative,” explains Larsen, via the article “Should Supreme Court justices Google?” by Robert Barnes for the Washington Post, “and they cite authorities they find themselves on a wide range of subject matter (from biology to history to golf).”

Is this due diligence or simply judicial curiosity?

The fact is, information is exceedingly accessible today. It’s impossible to ignore it.

“Now the justices (and their clerks and their librarians) are flooded with information literally at their fingertips. Social science studies, raw statistics, and other data are all just a Google search away,” writes Larsen.

“If the justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building.”

Many lawyers are starting to question the validity of this practice.

For example, in 2011, the court found a California law forbidding the sale of violent video games to minors violated the First Amendment. Justice Stephen G. Breyer in a dissent offered 13 pages of studies on the topic of psychological harm from playing violent video games. Justice Clarence Thomas cited 59 sources to support his view that the Founding Fathers believed that parents had absolute control over their children’s development—an overwhelming 57 of them were not in the briefs submitted in the case.

Is this organized legal justice or vigilante Supreme Court intervention?

Lawyers are welcome discuss this topic at length. But, wherever your firm stands on the contentious argument, the fact of the matter is, Justices do check the Internet.

When it comes down to your case, what will they find? And, more importantly, do professionals at your firm possess the technological skills to adequately prepare?



Fear your firm may be falling behind? Start with The Center For Competitive Management’s course, “Excel® Charts and Graphs Made Easy.”

And, read C4CM’s blog post, “Why Integrating Legal Technology Will Save Your Firm Time And Money.”

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U.S. First Amendment & Employment Rights For Religious Figures (Like Andy Warhol?): On The Supreme Court Decision

Two bits of controversial news had the legal community going bananas yesterday.

First, a questionably copyrighted image in the public domain—specifically a banana illustration on a music album cover—is the subject of a trademark lawsuit that was filed by The Velvet Underground.

In 1967, the band used the image of a banana and the signature of Andy Warhol on the cover of its “The Velvet Underground and Nico” album, which critics labeled as “one of the most influential rock recordings of all time,” according to the complaint.

The band’s founders, Lou Reed and John Cale, claim The Andy Warhol Foundation infringed on this design by licensing it to third parties, reports Bloomberg.

The design was initially a collaboration between the band and artist Andy Warhol, but The Warhol Foundation now claims it has copyright interest in the image, according to the lawsuit, since the banana illustration was taken from an advertisement in the public domain.

Warhol’s copyrighted works have an estimated market value of $120 million. The Warhol Foundation has earned more than $2.5 million each year licensing rights to those works, according to the complaint (via Bloomberg).

When this much money (and artistic expression) is at stake, the subsequent jury trial will certainly garner much media attention.

“The banana design is a significant element of Velvet Underground’s ongoing licensed merchandising activity,” the group reportedly said to Bloomberg, and use of the design as a trademark by the band “has been exclusive, continuous and uninterrupted for more than 25 years.”

Yesterday, marking roughly 225 years of constitutional freedom, a Supreme Court decision not only upheld the First Amendment by protecting religious liberty in America, but the legal precedent set by the court also, arguably, expanded these rights.

In this second bit of significant news, the Supreme Court–on Wednesday–recognized “ministerial exception” as applicable to employment discrimination law in America.

In other words, the Supreme Court decided that churches and religious groups should be able to hire and fire employees at will, without government restriction, interference, or legislation.

“’The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,’ Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity.’ But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission,’” reports the New York Times.

The landmark case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, a former teacher. Ms. Perich alleged that she was fired from her school, which is part of the Lutheran Church-Missouri Synod, for pursuing, under U.S. law, an employment discrimination claim for her disability of narcolepsy, according to Bloomberg.

Narcolepsy is a neurological condition that is typically protected under Federal Law as a medical disability. In the case of this religious-school teacher, however, the school–as part of the Lutheran Church–does not abide by the same anti-discrimination laws as secular institutions. Therefore, the Supreme Court ruled, the school was within its rights to fire Ms. Perich.

The decision certainly emphasizes the importance that the separation of church and state holds in the eyes of Supreme Court Justices. However, the implications of the ruling, in terms of turning a blind eye to instances of employment discrimination, will be pervasive in American society.

For example, the court’s ruling does not address the entire scope of its religious amnesty—does it apply to all priests and ministers, how are these titles defined, and what are the impacts for secular teachers in religious schools?

Furthermore, the decision begs the question, are religious leaders now exempt from racial, religious, or sexual discrimination and harassment in the workplace?

For lawyers representing religious institutions, it is, now, even more important to brief your clients on pertinent employment law.

Truman Capote wrote about Andy Warhol, “He symbolises things to desperate people. They come to him and tell him all their troubles. They cling to him as a source of strength, as a kind of semi-religious figure in their lives.”[1]

So, who constitutes a religious figure and what are their employment rights? Today, a Warholian Supreme Court is starting to draw lines.


1. Truman Capote, as quoted in Edie: An American Biography, Jean Stein and George Plimpton (1982)

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Getting Inspiration & Education From Supreme Court Oral Arguments

William Howard Taft said, “Presidents come and go, but the Supreme Court goes on forever.” 

And so, An Associate’s Mind wondered, “What are the most amazing Supreme Court oral arguments of the past few years?”

With technology today, lawyers can download transcripts of the majority of court cases for free. It’s a great way to study the language and argument style of some of our history’s greatest legal orators.

According to An Associate’s Mind (via Reddit) the following cases include some of the most impressive Supreme Court oral arguments of the past few years:

  1. Snyder v. Phelps – Whether the First Amendment protected protests of public protestors at a funeral against tort liability. The Westboro Baptist Church folks.
  2. Lawrence v. Texas – Struck down the sodomy law in Texas. Held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment.
  3. Gonzales v. Carhart – Upheld the Partial-Birth Abortion Ban Act of 2003. 
  4. Jones v. U.S. – Currently under consideration.  The Court is considering the question of whether the warrantless use of a tracking device on a motor vehicle violates the Fourth Amendment. 
  5. Bush v. Gore – Ruled that the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. 
  6. New York Times v. United States – Whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. 
  7. Brown v. EMA – Struck down a California law enacted in 2005 that bans the sale of certain violent video games to children without parental supervision. 
  8. Elk Grove Unified School District v. Newdow – (1) Whether Newdow had standing as a noncustodial parent to challenge the School District’s policy on recitation of the Pledge, and (2) if so, whether the policy offends the First Amendment.
  9. Heart of Atlanta Motel v. US – Holding that the U.S. Congress could use the Constitution’s Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964.

This Friday, when you’re struggling to concentrate, get inspired by some of Supreme Court “greats” of the past.

Reading transcripts from past court cases can not only help develop a lawyer’s own argument style, but they also serve as a useful reminder of and education on what is required in any successful litigation.

Once you’ve gone through some of these gems, locate audio arguments of successful cases. This will help you practice the proper cadence required of courtroom orators.

Ask your local court reporter where you can locate such audio files (see, for example, Utah). More than likely—in the twenty-first century digial world—they’re available freely online.

They say practice makes perfect, so download a few inspirational cases to your iPod and play them during your morning commute. Sometimes, in a bleak economy, a person needs reminders for why they pursued work in such a competitive industry.

Law is our society’s medium for the delivery of justice and hope; at least, that’s why Irving R. Kaufman said, “The Supreme Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.” Gain practice and pragmatic knowledge from the past.


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Social Media Shames Juvenile Offenders: New York Looks To Reform, Canada On Its Way

We all make stupid decisions sometimes—especially during those moody teenage years. But, when your stupid decision is a criminal offense, how harsh should your punishment be?

In 2005, the Supreme Court held that it is unconstitutional to sentence a person with capital punishment if they committed the crime under the age of 18.[1] And last year, the Supreme Court also decided juveniles could not be sentenced to life without parole for any crime less severe than murder.

For most states, juveniles are classified as 17 years old or younger. Thirty-seven states, the District of Columbia, and the federal government have all set the age of criminal responsibility at 18.

However, for 11 states, the age of criminal responsibility is 17, which means 17- and 18-year-old teenagers can be tried in adult courts if accused of a crime.

New York and North Carolina are the only states in the nation that try all 16-year-olds as adults.[2]

Through its previous rulings, the Supreme Court decided adolescents are not in complete control of their actions, thus less culpable for their crimes, leading to lesser legal consequences for them.

In New York State, where 45,873 youths between 16 and 17 years old were arrested last year, Chief Judge Jonathan Lippman would agree with Supreme Court opinion.[3]

Historically, via the pillory or stocks, criminal sentences were aimed to pain and shame the offender. Today, the question remains, how effective is this method at reducing the youth recidivism rate?

Lippman supports a less punitive, and more rehabilitative, approach to 16- and 17-year-old criminal defendants, reports the New York Times.

His proposal for leniency is supported by studies that show adolescents who are tried as adults are more likely to commit other crimes in the future than those tried as juveniles, the New York Times reports.

Even if a lesser punishment for juveniles is helpful for rehabilitation, there is still the issue of public humiliation.

In Canada, a statue called the Youth Criminal Justice Act prohibits anyone—journalist, organization, or individual—from identifying and naming someone underage who is charged with a crime.

“It’s an attempt to allow people, who, in the innocence of age, do really stupid things, to have a life after they make amends,” writes Kevin Harding of Politics Respun.

In America, we name names.

But even Canada makes bad decisions on occassion. 

“I was really troubled today to see James Moore, the Minister of Canadian Heritage, post a story that named a 17-year old suspect. The story explicitly says that the accused is a member of an under-18 water polo team,” continues Harding. “[Below is] a screen grab of the Minister’s facebook page. I’ve blurred the kid’s name because it could be against the law to publish it.”

With social media, online journalism, and Internet forums abound, confidentiality for court cases is seemingly impossible. So, even if juvenile legal punishments are dampened, how are youth offenders supposed to reintegrate with society when their ill repute remains public, even permanent?

Adopting Canada’s Youth Criminal Justice Act will not transfer Canada’s peacekeeping reputation to its North American neighbor. But, amid a clear desire for juvenile justice system reform, maybe it’s a start.


[1] Roper v. Simmons.

[2] Secret, Mosi. “New York Judge Seeks New System for Juveniles.” NewYork TimesSeptember 20, 2011.

[3] According to the New York State Division of Criminal Justice Services via the New York Times.

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Has The Definition Of Disability Gone Too Far?

Discrimination is a stigmatized word, and most workplaces would prefer to sweep the entire topic under the rug. However, just like those awkward conversations at Sex Ed class in your preteen years, certain facts of life should be addressed—and the sooner the better. Whether based on gender, sexual orientation, race, or medical condition, discrimination in hiring practices or office behavior is commonplace. It only takes a quick look at the numbers published by the U.S. Equal Employment Opportunity Commission (EEOC) to see that workplace discrimination is rampant nationwide. Whether representing a claimant in such a suit or victim to one, law firms should be aware of a few legal developments in the area of employee discrimination.

Discrimination complaints have risen to a record high. For the 2010 fiscal year, the EEOC handled 99,922 workplace discrimination charges. Through various enforcement, mediation, and litigation programs, the EEOC recovered roughly $404 million as a result of these suits. Although racial discrimination continues to make up the vanguard of discrimination complaints filed with the EEOC, retaliation charges were actually number one in 2010, with 36,258 claims filed.[1] In light of this week’s changes to the definition of employee disability, however, it won’t take long for disability discrimination, currently at 25,165 claims, to take the lead. As of March 24, more employees qualified for disability benefits. The EEOC announced the final bipartisan regulations for the ADA Amendments Act, which broadens the scope of people who qualify for disability accommodation. HIV infection, diabetes, epilepsy, and bipolar disorder are among the additions to the definition. As such, “More disability lawsuits can be expected to be filed, and importantly, those lawsuits will become much harder to defend against at an early pleading stage,” according to Seyfarth attorney Condon McGlothlen.[2]

Even though these changes are recent, the Supreme Court is already facing momentous cases regarding discrimination and retaliation suits. For example, the Supreme Court will soon decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who was fired soon after returning from her disability leave. The controversy in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission surrounds the application of “ministerial exception”.[3] But, of equal note is the fact that narcolepsy, a sleep disorder, is considered a disability. It begs the question, how far must employers go to accommodate illness, medical conditions, or social disorders in their employees? Is a narcoleptic person—characterized by excessive drowsiness and daytime sleep attacks—an appropriate choice for a teacher responsible for the safety of students aged 10-14 years?

Only the Supreme Court can answer those questions. However, there are steps your firm can take to eschew retaliation and discrimination suits.

  1. Conduct employee training on discrimination and rights to disability accommodation. Ensure employees are accountable for attending training and reading and following your firm’s policy manual. The policy manual should contain procedures for discrimination avoidance and discrimination complaints.
  2. Keep up-to-date on the law. The law on discrimination and disability is fluid. As such, be sure your policy reflects these changes and send firm-wide updates on related legal developments.
  3. Good lawyers keep accurate and immediate records. Although lawyers are often trained to be weary of keeping written records of certain matters, discrimination is not one of them. Both employees who experience and employers who receive reports of discrimination based on gender, race, or disability should document all occurrences.    

The definition of disability will change over time. But when it comes to discrimination, the best policy is always the same—one of zero tolerance.




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