Maryland and Gay Marriage

Maryland failed to pass a gay marriage bill last spring, but a new bill is being filed now and may pass. Governor Martin O'Malley is supporting a bill that balances authorization of equal marriage rights with language exempting religious organizations who object from performing ceremonies for gay couples. I suppose the language, if drafted correctly, could exempt a religious organization that objected to heterosexual marriage from performing those ceremonies as well -- it would only be fair.

Here is a link to a Washington Times story about O'Malley. And here is a link to Marylanders for Marriage Equality. A tip of the OOTJ hat, actually, to Mark Weikel of www.gaydatingsites.net, which is sponsoring an online petition and fundraising drive in support of this initiative. Good luck to Maryland voters!

Here is the current status of Same Sex Marriage in the US:

Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*, Iowa, Vermont, New Hampshire, New York and the District of Columbia Recognizes same-sex marriages from other states: New York, Maryland Allows civil unions, providing state-level spousal rights to same-sex couples: Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note: In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.) Grants nearly all state-level spousal rights to unmarried couples (domestic partnerships): California, Oregon, Nevada, Washington Provides some state-level spousal rights to unmarried couples (domestic partnerships): Hawaii, Maine, Wisconsin and the District of Columbia * The California Supreme Court ruled on May 15, 2008, that same-sex couples have the right to marry in California. Proposition 8, which amended the California Constitution to define marriage as between one man and one woman, was passed on Nov. 4, 2008. On Aug. 4, 2010, a federal district judge ruled that the same-sex marriage ban in Proposition 8 violated the equal protection provisions of the U.S. Constitution. Enforcement of that decision has been stayed pending appeal. California does not currently allow same-sex marriages to be performed. Same-sex marriages performed before Proposition 8 was passed remain valid.

(from an excellent and quite current report on the wonderful website at the National Council of State Legislatures.) It's a terrific resource for all sorts of data!

A Treasure Trove from the British Library

The British Library has launched a major new digitization project, the British Newspaper Archive, which currently offers around 4,000,000 searchable pages from over 200 different newspapers. The papers were published in the United Kingdom and Ireland, and date mainly from the nineteenth century, although some newspapers' runs extend back to the mid-eighteenth century. Searching the Archive is free, but viewing the content, either through the pay-per-view option or by subscription, is fee based unless you access the Archive in person at one of three British Library Reading Rooms. The project is a collaboration between the British Library and brightsolid, a British digital publishing firm. Digitization continues at the rate of 8,000 new pages a day, with the goals of scanning 40,000,000 newspaper pages over the next ten years.

Newspapers have been called the "raw material of history" by no less an expert than historian Henry Steele Commager. In the British Newspaper Archive, researchers will discover

Exhaustive coverage of crime and punishment ... Eyewitness accounts of social transformation ... Illustrations and advertisements ... first-hand accounts of [newsworthy] events ... and countless vivid details of how our ancestors lived and died.

At the moment, only newspapers that are out of coyright are included in the project, but the collaborators have secured "permission from one publisher to digitise newspaper runs up to the mid 20th century."

Who's a Person Now?

One of the pet peeves of the Occupy Wall Street and its myriad offshoots is the person-hood of corporations. The recent Supreme Court decision, Citizens United v. Federal Election Commission truly shoved the idea into the faces of American citizenry that corporations are not only citizens but have rights to lobby politicians freely. The decision actually also covers activities of unions as well, but that is not what is animating protesters right now.

The case involved Citizens United, a conservative non-profit organization which aired a film criticizing Democratic candidate Hillary Clinton. The McCain-Feingold Act (more formally titled The Bipartisan Campaign Reform Act of 2002, Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356) prohibits "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by for-profit and not-for profit corporations as well as such ads paid for by unincorporated organizations using money from union or corporate funds. The Court, by 5-4, found this major provision of the McCain-Feingold Act violated the First Amendment free speech rights of the corporations. Citizens United does leave McCain-Feingold controls on foreign corporations and foreign individuals contributing to political campaigns.

I am quite in sympathy with the OWS protesters – I do not like the idea that large corporations’ lobbyists can purchase my legislators’ favors! But I think that the movement that says we should strip corporations of the status of “person” under the law needs to stop and think about the range of unintended consequences that might flow from that action.

I am not a corporate law specialist. When I practiced law, the only corporate law I really focused on was how to “pierce the corporate veil.” I was a poverty lawyer, and as a law student worked for APPALRED, which did a lot of environmental law, too. Piercing the corporate veil means to show that the corporation was set up as a sham, insufficiently funded, just in order to shelter the individuals from the legal consequences of what they were doing – so they could take unfair advantage of the legal fiction of the legal person that a corporation affords.

That fiction was allowed centuries ago, according to Mark Peters, writing in the Boston Globe Ideas section today, and quoting from William S. Laufer has written in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability, corporations began to be given some aspects of personal property rights in British law as early as the 1300's under King Edward III. Corporations’ march toward personhood continued in British law, and by 1765, Laufer and Peters can quote from the Common Laws of England (not clear, but possibly Blackstone?)to distinguish between natural persons (us!) and artificial persons created by law such as corporations and “bodies politic.” The idea is to shelter the board of directors and shareholders of a corporation from liability for any wrongdoing by the corporation, or from bankruptcy if the corporation fails.

When a corporation such as Enron acts as outrageously as it did, this seems so counterintuitive. But, imagine how few people would be willing to take the risk of forming a really large corporation, when they would be liable for the actions of thousands of employees they would never meet. How few people would be willing to take the risk even of forming a less complex corporation if it failing would mean they would lose all of their personal assets! How many people would serve on boards or buy stock if being a part owner or a director meant they would be personally liable for bankruptcy or torts committed by the company? And if that happened, the economic engines of our world would just grind to a halt. Even small businesses would be fewer and much more cautious.

What other unintended consequences would we have to think about? I suspect the bankruptcy laws would have to be overhauled if we changed the status of corporations. I think we would certainly have to change the tax codes.

So, am I bothered by corporate personhood? Yes. In a lot of ways I am. But the legal fiction is intertwined in a lot of different ways into our laws. We would have to be careful in pulling it out by the roots. I am just saying be careful and take your time. But, there is another part to this...

Maybe the fault, dear Brutus, is not in our stars, but in ourselves... That is, perhaps we need to change, not the laws that allow corporations to hold some of the attributes of persons, but the fundamental problem that we are complaining about – their lobbying of legislators. The fact that legislators require funds for campaigning, and that they are susceptible to lobbyists, whether from corporate interests or any other kind, is what really should be troubling us.

The British Library Steps in It

The venerable British Library has been accused of "undermining struggling independent book shops by piloting a website initiative that redirects visitors to Amazon to purchase titles," according to an article in The Independent. Independent bookstores in England, like their counterparts in the United States, have been struggling to survive because of competition from Amazon, which can sell books more cheaply thanks to its ability to buy books in large quantities.

The library's online catalogue lists more than 13 million of the more than 150 million titles owned by the library. The website's newly refurbished search system now offers browsers the option of clicking on "This item in amazon.co.uk", which redirects users to a page where they can buy a copy of the book from the online retailer.

British booksellers feel that the move by the British Library undercuts them and threatens the very existence of independent bookstores in England, despite their "cultural and educational value." At the same time, they are worried about the effect of tablet computers and e-readers on their business. The Booksellers Association has been lobbying the government to lend its support, and launched the Keep Books on the High Street campaign in October as a way to dramatize the plight of independent bookstores in England.

A New Role for Professor Warren

When I worked at the Biddle Law Library at the University of Pennsylvania, I served as the liaison librarian to Elizabeth Warren, who was teaching there at the time. She taught Contracts, Bankruptcy, and other commercial law subjects, and was one of the most popular professors at the school. Thanks to her strong communication skills, she had the ability to reach different audiences. Penn students loved her because she was an effective teacher, had a good sense of humor, and was very accessible. I remember her as having a great deal of common sense and little pretentiousness; she was grounded and down to earth. For the women students, Professor Warren was a role model, a woman who had a high-profile career while raising a family. In addition to all this, she is a serious scholar, especially in the area of bankruptcy law and policy. Her books, co-authored with Teresa Sullivan and Jay Westbrook--As We Forgive Our Debtors: Bankrupcy and Consumer Credit in America and The Fragile Middle Class: Americans in Debt--were groundbreaking, among the first efforts to bring empirical research techniques to bankruptcy. "Crisscrossing the country, often with a portable photocopier strapped into the airplane seat next to her, Warren visited countless courthouses, where she pored over records and interviewed judges, lawyers, and often the debtors themselves. ... Warren ... paint[ed] a picture of an increasingly vulnerable middle class." Her work has shone a light on the disproportionately harsh effects of debt on women, and has encouraged other scholars to use court records as the raw material of their own research projects.

Professor Warren, who is now on the faculty of Harvard Law School, is a candidate for the Massachusetts Senate seat currently held by Scott Brown. She is the subject of an insightful profile in the current issue of New York Magazine. Dubbing her "the saint with sharp elbows," the profile highlights her trenchant criticism of the deregulation of Wall Street that began in the 1980s and

allowed "the big financial firms, the titans of Wall Street," to "start selling ever more dangerous mortgages, ever more dangerous credit cards, ever more dangerous car loans, which they then repackaged and sold again, producing, in addition to huge profits and bonuses, huge risk. After the market took a downturn, all that risk that's been built into the system starts to come home, somebody's got to pay, and those same CEOs on Wall Street basically turn around the American people and say, 'Whoa, there's a real problem here, and you better bail us out or we're all gonna die.' And so we did, that was TARP. And now we're about to write the last chapter in this narrative."

A passionate advocate on behalf of America's embattled middle class, Professor Warren was chosen by President Obama to set up the Consumer Financial Protection Bureau, which was her brainchild, and most people assumed she would eventually be nominated to head it. President Obama chose not to appoint her, however, knowing that the confirmation process would be difficult if not impossible. It is worth noting that Obama's ultimate choice, Richard Cordray, is facing stiff opposition from the Republicans in Congress and may never be confirmed. The profile points out that Professor Warren has moved on from the disappointment and disillusionment she must have felt about not being nominated to head the CFPB, and is now hoping to channel her energy and intellect into "rebuilding America's middle class."

Victory for the Consumer Caucus

On Saturday, November 5th, the AALL Executive Board unanimously approved a motion to recognize the new AALL Caucus on Consumer Advocacy. This wonderful result was the culmination of efforts led by Michael Ginsborg that built on years of work by other law library consumer advocates: Kendall Svengalis, Jack Montgomery, and Joe Stephens, who continue to guide and inspire us. We should also express appreciation for the instrumental endorsement of the Caucus by the Private Law Libraries Special Interest Section under the leadership of Steve Lastres. As a long-time member of the Academic Law Libraries Special Interest Section, I would have liked to have seen ALL-SIS join PLL-SIS in endorsing the petition. That did not happen. However, no law library today is immune from the pressures of the marketplace, and we need to stand together in advocating for the needs of our institutions and users. I hope that the ALL-SIS leadership will come around to this point of view. In the meantime, however, although I know that the really hard work is still ahead of us, it feels good to savor the victory.

New Blog on Legal Education

The National Law Journal recently launched a new blog on legal education: The National Law Journal's Law School Review. Its mission is as follows:

Rising tuition. Misleading employment statistics. Inadequate skills training. Law schools have faced plenty of criticism for their role in the struggles of young lawyers today. The National Law Journal has assembled a panel of legal educators and law graduates to discuss whether law schools are facing a crisis, and how they should respond to their mounting problems.

Indeed, a number of well-known academics have been recruited to blog about the issues above: William Henderson (Indiana), Erwin Chemerinsky (UC Irvine), Brian Tamanaha (Washington University), Michael Olivas (Houston, and AALS President), and it is interesting to read their opinions and the lively responses to them. This is a blog worth following.