The Second Battle of Blair Mountain

By Professor Daniel P. Selmi

The first paragraph of an appellate opinion is often bland, perhaps informing the reader generally about the legal issue involved and previewing the Court's ruling. It serves a functional purpose and is not intended to entertain. In contrast, the opening paragraph of Sierra Club v. Jewell,[1] a 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit, immediately grabs the reader's attention by launching into a brief description of a fascinating episode in American history:

The Battle of Blair Mountain is the largest armed labor conflict in our nation's history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600–acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.[2]

This blog posting recounts the story of the litigation over the Battlefield, in which I was one of the lawyers representing the appellants, and the Court of Appeal's opinion.

5 Things You Should Know About the California Election

By Professor Jessica Levinson

This post originally appeared on the Huffington Post.

Election day is upon us. What should California voters know?

1. Jerry Brown will be re-elected as the governor.

Drought-stricken California could be hit with torrential rain. Wildfires could sweep the state. A blue moon could shine for three nights in a row. Jerry Brown will still be re-elected.

Do you want to know why? First, because he is Jerry Brown. In California a synonym for "Jerry Brown" is "someone who holds elected office." Brown has held nearly every elected office in the state of California. We know him. We're comfortable enough with him. We're going to re-elect him (again).

Second, because he is running against that guy who oversaw the Troubled Asset Relief Program (TARP). Yes, that's right. You don't even know his name. It is Neel Kashkari, by the way. He is apparently running to see how badly he will lose against the once, current, and future governor. He had handed out gas cards to get people to campaign events, spent a week living as a homeless person, and run a television commercial with a drowning child. Translation? He is going to lose.

2. Gavin Newsom will be re-elected as the lieutenant governor

You know Gavin Newsom, right? He is the former mayor of San Francisco who ordered the city clerk to issue marriage license to same-sex couples back when that violated state law. Still don't know him? He is the one with the slicked back hair who had an affair with the wife of his former deputy chief of staff and campaign manager. I thought that would ring a bell.

Newsom is running against Ron Nehring. Newsom is going to a have "party preference: Democrat" next to his name, while Nehring will have "party preference: Republican" next to his. Since this is California, and Newsom is the incumbent who hasn't done anything disastrous (or otherwise), that means Newsom will win.

A Step Forward to Slay the Gerrymander

By Professor Justin Levitt

In the early days of the Republic, Patrick Henry and James Madison were bitter political opponents. Henry thought that the new Constitution jeopardized states’ rights and individual liberties, and blamed Madison. When Madison sought a seat in the new Congress he had created, Henry sought revenge. He reportedly convinced Virginia’s legislature to draw their very first congressional districts to hurt Madison at the polls.

The burst of partisan pique would feel quite familiar today. For 200 years, American politicians have drawn election district lines to punish their enemies, favor their friends, and lock in their own job security at the voters’ expense. When incumbents gerrymander districts, the public’s partisan preferences are distorted, and communities are carved into electoral bits, to give those in power the best chance of staying in power. We are the only industrialized democracy that permits this conflict of interest.

And New York voters have a rare chance to lead the way out.

Proposal 1 on the November ballot would change the way that New York draws district lines. But more important, it could also change the model for change, across the country.

Ten Years of Honoring Champions of Justice

By Professors Anne Bloom and John T. Nockleby

As law professors, we've noted how frequently first-year law students mistake good lawyering with being unpleasant toward one’s adversaries. They are often surprised to learn that litigators who routinely oppose each other in court can be quite friendly and not uncommonly have the highest regard for each other.

Loyola Law School created its Civil Justice Program in 2005 to both facilitate a better public understanding of the civil justice system and to honor its finest practitioners. Each year, the program holds a Tribute to the Champions of Justice dinner to recognize lawyers who make significant contributions to the civil justice system through their professional excellence, technical proficiency and uncompromising integrity. Tonight, it will soon host its 10th-annual installment of the honors.

The list of past honorees reads like a who's who list of the Southern California trial bar. Past recipients include: 2013 – Paul R. Fine ’72, founding partner, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP and Christine D. Spagnoli ’86, partner, Greene Broillet & Wheeler, LLP; 2012 – Gary M. Paul ’74; Waters, Kraus & Paul, LLP and David J. O’Keefe, Bonne, Bridges, Mueller, O'Keefe & Nichols; 2011 – Michael J. Bidart, Shernoff Bidart Echeverria Bentley LLP and Donna M. Melby, Paul Hastings LLP; 2010 – Samuel A. "Skip" Keesal Jr., Keesal, Young & Logan and Brian Panish, Panish Shea & Boyle; 2009 – Bob Baker, Baker Keener & Nahra LLP and Gretchen Nelson, Kreindler & Kreindler LLP; 2008 – Raymond Boucher, Khorrami Boucher, LLP and John Collins, founding partner of Collins, Collins, Muir & Stewart LLP; 2007 – Thomas Jerome Nolan, Skadden Arps Slate Meagher & Flom LLP and Mark P. Robinson Jr., Robinson Calcagnie Robinson Shapiro Davis, Inc.; 2006 – Bruce A. Broillet, Greene Broillet & Wheeler, LLP and Edith Matthai, Robie & Matthai, A Professional Corporation; 2005 – James J. Brosnahan Jr., Morrison & Foerster LLP- San Francisco and Thomas V. Girardi ’64, Girardi | Keese.

This year is the 10th anniversary of Loyola's annual tribute. To mark the anniversary, the dinner will honor the previously named Champions of Justice, plus announce two new ones: Louis H. "Duke" DeHaas of La Follette, Johnson, DeHaas, Fesler & Ames and William Shernoff of Shernoff, Bidart, Echeverria & Bentley LLP. The dinner will be held on Thursday, Oct. 30 at the Beverly Hilton.

Expression is the Better Part of Valor: Discretion and Good Faith in Entertainment Contracts

By Professor F. Jay Dougherty

It is not unusual for contracts in the entertainment industry to contain provisions leaving performance of an act to one party’s discretion. Often the other party’s attorney will request that such a provision also expressly require good faith. Sometimes, “good faith” is expressly added to the contractual language—after all, the client will act honestly in exercising its discretion. In the past, however, negotiators might reject the request, arguing that good faith and fair dealing is implied in all contracts anyway. In recent years, some courts have moved away from implying an obligation of good faith in a matter left to a party’s discretion. Other courts have implied the good faith obligation, even where a matter of subjective creative judgement is involved. Volatility and uncertainty in connection with implied covenants of good faith suggest that attorneys should be careful to draft such provisions clearly, leaving no ambiguity as to the intent of the parties.

In Third Story Music v. Waits[1], the plaintiff (“TSM”) had entered into an exclusive recording artist agreement with acclaimed singer-songwriter Tom Waits in the 1970’s, and had later transferred its rights under that agreement to Elektra/Asylum Records, a label in the Warner Communications family of record companies (“Warner”). Under the agreements, TSM would produce Waits’ records, and Warner would have the exclusive right to exploit and license those records. The agreement between TSM and Warner also specifically said that Warner “may at [Warner’s] election refrain from any or all of the foregoing.” TSM was to receive a percentage of amounts earned by Warner from the records, and a substantial advance for each album.

In 1993, an affiliate of TSM attempted to obtain a license from Warner to compile and exploit an album of some of the Waits recordings. Warner itself had no objection, but before it would agree to issue the license, it sought Waits’ approval, which he refused to give (assertedly to maximize the value of his later recordings made after the expiration of his agreement with TSM). When Warner refused to issue the license, TSM sued for damages for breach of the implied convenant of good faith and fair dealing. Warner demurred, asserting that the contract language expressly permitting it to refrain from licensing precluded application of the implied covenant. The demurrer was sustained, and affirmed on appeal.

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?

Loyola's Civil Justice Program on 'Injury as Cultural Practice'

By Visiting Professor Anne Bloom
Assistant Director, Civil Justice Program

Last week, the Civil Justice Program was excited to host an international symposium on "Injury as Cultural Practice." The conference featured presentations from an interdisciplinary group of scholars including lawyers, social scientists, anthropologists and social theorists. I was thrilled to collaborate with David Engel, SUNY Distinguished Service Professor at SUNY Buffalo Law School, in organizing and directing the program.

The purpose of the symposium was to continue a dialogue that began last spring on how the meaning of legal injury is constructed through social and cultural practices. For the symposium, we broke the topic into four parts, with three panels on the first day of the symposium and a fourth on the second day.

The first panel on Day One discussed "What Counts as an Injury?" Mary Anne Franks, Associate Professor of Law at University of Miami, led things off with a presentation on "Injury Inequality." Franks argued that the kinds of injuries that affect more powerful members of society tend to be overstated. David Engel presented next with a paper on “Chairs, Stairs, and Automobiles: The Interpretation of Injury and the Absence of Claims.” (One of the many things I learned from this presentation is that chairs are not particularly good for our spines -- still, no one considers the pain that results an "injury").

I presented next with my co-author, the legendary Marc Galanter, Professor of Law Emeritus from the University of Wisconsin Law School. Our paper was called “Good Injuries” and examined the line between "injury" and "enhancement" in contexts like tattooing and plastic surgery. The symposium participants then heard from Sagit Mor, Assistant Professor of Law at Haifa University in Israel, who presented on how injuries are understood from a disability perspective. Loyola's own John Nockleby was next with a fascinating historical paper on the different ways that law has responded to the harm caused by natural disasters.