Yesterday's touching memorial service ends one chapter in the story of Michael Jackson, but the story is by no means over.  The stage is likely to shift from the Staples Center and Forest Grove to the courts of California.  There may be dozens of actions arising in coming months, but for the fan of celebrity law, I think four areas are worth watching:

 

Case 1:  X. v. Estate of Michael Joseph Jackson.

Although the 2002 will currently before the court seems well-drafted and clear as to Jackson's intentions, there appears to be some tension between the Jackson family and the two men that the will names as executors, John Branca, Jackson's lawyer, and John McClain, a music executive.  It is possible that other wills may surface and that the family may challenge many of the tough decisions that need to be made over the coming months.  The estate has a lot of creditors, and must figure out what to do with obligations over Jackson's planned tour.  Nonetheless, there is huge value inherent in the Michael Jackson brand; one need only look at the example of the Elvis Presley estate and its postmortem success to see the potential.  Executors will need to balance the need to pay up the estate's debts while preserving the potential for huge future income for the estate (and its beneficiary, the Michael Jackson Trust).  At all costs, they need to preserve Jackson's intellectual property rights and regain control over Neverland.  If the executors appear to be selling core assets essential to the future earnings of the Jackson Trust, the family will likely try to intervene.  Branca, the lawyer that engineered Jackson's purchase of a stake in the Sony/ATV Music Catalog, an asset reportedly worth $2 billion, is well placed to pull off the delicate balancing act, but there are lots of pitfalls.

Of course, the family is only the most likely of several routine suits by creditors against the estate for debts, real and imagined, and perhaps a few from persons purporting to have familial ties.  Of course, the arrangement Jackson chose, a narrowly drafted will that rolls estate assets into a trust, is the best defense against the out-of-the woodwork wife and lost-lost child.

 

Case 2: In RE Michael Jackson Trust
The Michael Jackson Trust (MJT) (a revocable living trust ) is the named recipient of the will and while the details are secret, press reports indicate that  Jackson's children will receive a 40% share, his mother, Katherine (not his father) also receives 40%, and charities take 20%.  Reportedly, the charities are not listed in the trust document, but are to be selected by the trustee(s).  Who the trustees are is likely to determine if there are future conflicts; if it is Branca and McClain, as at least some reports have speculated, there might be trouble.  In particular, the trustees need to make sure that the charities chosen conform to Jackson's vision, not the interest of the trustee(s).

 

Case 3: In the Matter of P.M., K.M. and P.M..

Debbie Rowe, presumptive mother of Jackson's first two children, never terminated her parental rights under California law and could challenge the court's grant of temporary custody to Katherine Jackson, Michael's mother. Regarding Jackson's third child, it is possible that a surrogate mother might appear and claim rights. Reports indicate that Rowe is at least considering such a course and California law gives her strong legal rights, as a presumed mother, towards a a grant of some form of custody.  Nonetheless, there are hurdles; she has not had contact with the children for many years and she reportedly has signed documents abjuring her rights.  There is also the possibility that she is not the biological mother; if so the Jackson lawyers likely have signed surrogacy agreements in their files.  Even greater obstacles exist for the unnamed surrogate mother.  Nonetheless, the financial and life style that goes with managing the inherited wealth of these wealthy minors may be irresistible.

 

Case 4:  State of California v. Doctor ...  [for the murder of Michael Joseph Jackson]
Was Jackson's death a case of [dramatic pause] murder?! Without a cause of death and tox reports still in the lab, the facts are murky, but what is (and, frankly, has long been) clear is that Michael Jackson has been ill-served by shadier elements of the medical community, one of whom might have killed him. Currently, California authorities are looking into the activities of five doctors. If Jackson died while a doctor or medical technician was administering anesthesia for the medically unsound purpose of treating a sleep disorder, that person's actions may be considered to be murder under California law.  There is a very interesting ALR Annotation relating to this topic. (Yes, that is probably a sentence that could only be uttered by a law librarian).  The annotation, Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589, focuses mainly cases involving the provision of illegal drugs from a dealer, but I think the case for homicide is even greater if, as appears possible here, the drug is provided by a physician who administers the drug.  Most of the cases involve the felony-murder doctrine, because the drugs like heroin are per se illegal, an issue that may or may not be involved in the Jackson death (depending whether the doctor properly prescribed them).  However, a resort to the felony-murder doctrine is not necessary if the doctor is at the scene and shows the requisite malicious itent (which in California can be inferred from evidence of wanton disregard for life).  The annotation shows that many courts have upheld murder convictions for situations at least similar to what has been posited here.

 

Of course, these scenarios may not play out, or other legal issues will be raised.  Nonetheless, I think it will be a long time before legal commentators on CNN, Fox and TruTV stop talking about Michael Jackson and his legal affairs.

 

 

 

Eugene Volokh's article Correcting Students' Usage Errors Without Making Errors of Our Own, 58 J.L.E. 533 (2008) reminds those of us who have been teaching or practicing for some time of something we probably learned early on when commenting on the writing of a student or new lawyer:  there is a difference between an actual usage error and a manner of writing that most lawyers prefer.  For example, as a new professor,  I was surprised to find that many students use "can not" rather than "cannot," when, throughout my life, English teachers had impressed upon me that only the latter was correct.  (In fact, my spell-checker is marking "can not" incorrect now!)  Nowadays I do point out errors to my students, but, more importantly, I talk to them about their audience.  Volokh uses the example of how most attorneys prefer "judgment" to "judgement."  By focusing on what trained legal readers expect, I avoid misrepresenting a spelling or usage as incorrect when it may be permissible.  But I also find that such a focus has the added benefits of making the students feel welcomed into a certain tradition of writing and keeping them more engaged.  So remember, next time you pick up your pen or pencil to edit a student or new lawyer's work, try to comment on the acceptability rather than the correctness of the writing.

I'm somewhat embarassed to jump on the MJ media blitz, but as a librarian I like primary documents:

 

Last Will of Michael Joseph Jackson

The documents of the Michael Jackson Family Trust referenced in the will are not (yet) public, but the beneficiaries are reported to be Jackson's three children and his mother.

In a per curiam decision*, the Minnesota Supreme Court found that Coleman attorneys "did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process." Moreover, the Coleman "did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection."  The court also found that no statutory requirements were violated in the process and that the trial court had not abused its discretion in its exclusion of evidence and its use of election day figures in one precinct in which ballots were later lost.

Thus the court found that "Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota."

Link to decision:  http://www.mncourts.gov/opinions/sc/current/OPA090697-6030.pdf

 

UPDATE: Coleman has conceded.

_____

*That is an unanimous, unsigned 5-0 opinion.  Of the seven judge panel, two judges had previously recused themeselves.

 

 

Today is the the last day of the 2009-09 Supreme Court term and a decision is expected in the New Haven firefighters case (Ricci v. DeStephano), a case appealed from Judge Sotomayor's Second Circuit and one that may figure in her nomination hearings. (Two other cases are still unresolved).

It is also the last day for Justice David Souter, who is retiring to his quiet home in New Hampshire.  Expect to seea more comprohensive and analyticl surveys of his time on the court in coming months.

SCOTUS Blog <http://www.scotusblog.com/wp/> will be live blogging the session, starting at 10:00 a.m.

On Tuesday morning, members of the Information Technology Division gathered at 7 AM for one last meeting. Having fallen on the heels of the dance party, motions were passed by weary-eyed board members without much discussion. After breakfast, I attended “Mashups: Future of Changing Content”, led by Nicole Engard, a self-proclaimed open-source evangelist and editor of Library Mashups: Exploring New Ways to Deliver Library Data. Next, I met my SLA mentor at the Physics, Astronomy, and Mathematics Division’s hospitality suite where I was introduced to several of her PAM colleagues and offered a bag of treats and souvenirs. We then returned to the convention center to attend the SLA Closing General Session Membership Meeting. Judy Woodruff moderated a panel discussion about the outlook for information and information professionals. Astrophysicist Neil deGrasse Tyson, author Robyn Meredith, and IBM executive John R. Patrick shared their insights for the future. Beignets were served at the 2010 SLA Kickoff and Closing Reception. As I exited the conference, I engaged in a conversation with a friendly crossing guard about the value of library clouds to him in his pursuit of an online degree and the perception of my profession and the confusion our organization’s name invokes. I then dropped by the gift shop of The Historical Society of Washington, DC. The woman who assisted me asked if I was with the library conference and mentioned that the society is housed in a Carnegie library building, which led to a discussion about Louisville, its museums, and its rich African American history. Later that evening, I joined members of the Kentucky Chapter, aka “Kentucky Mafia”, for dinner at Bobby Van’s Grill. Despite the negative connotation, our nickname is a testament to our chapter’s popularity whose members and guests traveled from far flung destinations such as Christchurch, New Zealand and St. Martin in the Caribbean. The night ended with the Legal Division’s Open House and a round of drinks with friends at the Rocket Bar. Additional photos are available on my Flickr account.

Despite the late night, I awoke rather refreshed and eager to embark on yet another busy day. For the morning’s first session, I dropped in briefly on “Globalization: Emerging Opportunities for the Library Profession” then moved on to “Reaching Next-Gen Users with Unified Discovery Services”. The latter provided a demonstration of a product employed by Dartmouth’s library to aggregate its entire collection within one integrated search box. While it was interesting, it didn’t fit my needs so I logged into Twitter and searched #sla2009. I noticed several people were commenting on “The Role of Social Networking Sites in Research”, so I packed my bags and headed to the other wing. By the time I arrived, it was apparent that others had followed the tweets because there was standing room only and very little of that. Meg Smith, a researcher for The Washington Post’s Metro section, provided numerous examples of how she has mined social networking sites like MySpace, Facebook, Twitter, Craigslist, Wikipedia and about a dozen others to cull information for her newspaper’s reports and also to assist local law enforcement. She observed that because of the growing popularity of the aforementioned sites and their ability to limit searches by geographic region that local networks, like Louisville Mojo were waning. She also declared this the “Golden Age of Twitter” because users’ tweets still remain publicly accessible. Next, I attended the Information Technology Division Business Meeting and Awards Ceremony. Unlike Saturday’s meeting, this was open to the entire group. We viewed two video entries for the centennial contest and heard an excerpt from the Student Award winner Stephanie Buck’s paper, “Emerging Technologies: Libraries in the Cloud”. It was announced to much applause that SLA has chosen Drupal for its content management system, which will be available to all chapters and divisions. This is the same CMS that the law school employs. Following the meeting, I joined a packed house for “Onion Editor Calls for an End to Reading”. Scott Dikkers, editor and founder, provided much needed comic relief. His entire presentation was a parody replete with videos, newspaper archives, and statistics demonstrating why the Onion is America's finest news source. During the Q/A session, someone asked, “of all the vegetables, why did you choose an onion?” Scott replied that it’s a metaphor for peeling the layers of a juicy news story. Another asked if he was threatened by John Stewart to which he replied, “While they make fun of real news, we make up the news. We have a niche”. Evidently it takes one week from conception to publication for each feature, as opposed to 18 hours for The Daily Show. That evening, I joined Ruth Kneale and Dick Kaser, editor of Computers in Libraries at the Technical Support Roundtable. We discussed cloud computing, Vista, open-source solutions and browser issues. We were later joined by Kathleen Robertson, another astronomy colleague from Hawaii. Shortly after, I reported to duty at The Embassy Ball, an annual dance party hosted by the IT and Leadership and Management Divisions.

We had another interesting and productive day at the Warns Institute today.

The day began with Jeff Calabrese's somewhat depressing but engagingly presented overview of the state of national  and Kentucky of unemployment insurance.   He noted that the Kentucky fund is bankrupt  and concluded with thoughts about what types of measure the state can take to repay federal loans and refinance the fund: cutting benefits, raising unemployment taxes on employers, and implementing a tax on employees.

Next, James Fogle discussed Kentucky workers compensation.  He discussed an interesting case where a teacher was injured while volunteering as the sponsor of the Beta Club.  The Supreme Court upheld the unemployment board's decision that she was entitled to benefits.

Next, Professor Ann McGinley gave a talk that was one of the highlights of the day.  She updated us on the ADA amendments.  Her recommendations to employers include the following:  err on the side of granting accommodations; provide more training and education to insure retaliation and harassment do not rise as a result of perceived special treatment; do not refuse an accommodation, including working at home, if others have received the accommodation; and be aware that more leave than granted under the FMLA may be required as an accommodation.

The other highlight of the day was John Higgins's NLRB update.  He updated us on the cases waiting to be decided by the full board including two types not previously discussed in the Board's recent public interview.  In one, the Board will decide whether an undocumented worker who did not submit false papers and was hired by an employer who knew the worker was undocumented is entitled to back pay.  The others are bannering cases where the issue is whether bannering a neutral to pressure the neutral to cease doing business with another company violates the secondary boycott provisions.  He also updated us on a significant issue now pending before the General Counsel: whether to issue a complaint on a charge alleging that a pre-dispute agreement to arbitrate cases and to waive class arbitration violates employees' Section 7 rights.    

Next Professor Marty Malin spoke on his upcoming article, the Paradox of Public Sector Labor Law.  His practical advice for public sector employers and unions in Kentucky was two-fold.  First, forget the law and try to work out systems that foster employee participation in decision making, and, second, draft and implement legislation that creates a different model, than the NLRA model, for public sector representation.

Bonnie Glantz Fatel and Paul A. Friedman gave a fabulous presentation on bankruptcy for labor and employment lawyers.  They explained complex concepts in a way we could all understand.  And as one bankruptcy judge told Paul at some point, in bankruptcy ERISA means the Every Ridiculous Plan Since Adam.

Carolyn Wheeler shared the EEOC's perspective and her insightful thoughts about the interplay of litigation, court decisions, and legislation.  She cautioned that despite the recent changes to the ADA, pleading rules may still prove perilous for some.  She queried why the courts readily accept a claim that an employer discriminated against an employee because of the race of those with whom the employee associated (Barrett v. Whirlpool, 6th Cir.)  but they do not use an equivalent associational justification to accept a claim of retaliation based on association (Thompson v. North American Stainless, 6th Cir.).   She stated her belief that as a practical matter Gross v. FBL Fin. Servs., Inc.  probably doesn't considerably harm employees because they prefer not to have to bring a mixed motive claim anyhow. 

The day concluded with Hans Schmidt's useful reminder about the Model Rules of Professional Responsibility that bear on multiple representation issues.  He pointed out that each jurisdiction has its own rules.  Be sure to double check Kentucky's new rules, effective July 15, because some that he discussed, including 4.3 on unrepresented persons, do differ from the Model Rules.

 

 

The day began with David Leightty's review of Kentucky employment law.  When I was teaching labor law, we were wondering about the rules governing the racetracks in Kentucky since the NLRA declines jurisdiction over tracks.  I learned from the talk that Kentucky has an equivalent protection to Section 7 that applies to the tracks.  Mr. Leightty also discussed an interesting case dealing with a provision, KRS 336.700(2), that prohibits waiver of  "a right or benefit as a condition of employment."  McGown v. Gray Ky. TV, Inc., 2008 Ky. App. LEXIS 342 (Ky. App. 2008) (motion for discretionary review pending).

Next Professor Ken Dau-Schmidt gave the Supreme Court review.  Notable in light of his extensive experience with law and economics, he stated he could find no underlying empirical rationale that explains all the cases this term!  He discussed an interesting (at least to those who will be teaching trusts and estates and employment next year) ERISA case, Kennedy v. Plan Adm'r, 129 S. Ct. 865 (Jan. 26, 2009).  In this case, the court found that a plan administrator acted properly by paying out benefits to a designated beneficiary, even when a divorce decree purported to divest that beneficiary of the benefits.

The session on the Obama legislative agenda focused on the EFCA.  Ross Eisenbrey gave a detailed statistical presentation documenting the recent growth in income inequality, stating that it is "a rise in inequality more dramatic than anything since the gilded age."  Bill Luyre addressed the pros of the act, and Bob Covington made a valiant attempt to raise the cons of the act.  (Yes, I support passage of employee the act.) 

Professor Cynthia Estlund's keynote lecture was a highlight of the day, definitely living up to my  expectations.  We are all looking forward to reading her forthcoming book on Regoverning the Workplace in an Era of Self-Regulation.  Her theme: "No self-regulation without representation."

Next Victoria Lipnic provided a helpful and detailed review of the new FMLA regulations.  She also provided a heads up as to legislation that may be in the works to extend the applicability of the leave's availability to anyone with a deployed family member, not just someone in the guard or reserve, and to clarify that the caregiving provision for veterans would apply for five years after the individual suffered the injury.

Another highlight of the day was Professor Mark Rothstein's talk on GINA.  He posed the question whether GINA was a "foot in the door" or the "one bite in the apple" that means passage of more comprehensive and effective legislation will not be forthcoming soon.  He also noted the need for new technology that would permit health care providers to easily separate out categories of medical information appropriate for disclosure.

The day concluded with Professor Robert Hillman's talk on lawyers leaving firms.  He noted that when a law partnership breaks up, it is often more acrimonious than a typical divorce because there is more money and more ego on the line. 

 

 

 

 

 

Monday morning began with a 7 AM SLA Legal Division Business Meeting generously sponsored by BNA. I learned that BNA employs 150 reporters to cover the Supreme Court and was informed of its "economic stimulus package", which includes additional tools for SLA members. Contance Ard, formerly of Greenebaum Doll & McDonald, announced a great slate of programs for the 2010 conference. While there, I also networked with other law librarians from Toronto, NYC, Philadelphia, St. Louis, and Indiana and was asked to a be a contributor to the legal division's wiki. Following the breakfast meeting, I attended both a session by Jay Liebowitz, a faculty member at Johns Hopkins, about the use of mapping tools to analyze the relationships within an organization and the latter portion of the Radical Reference session where I learned about a volunteer army of social activists who lend their research skills to providing answers to those who question authority. The next item on the busy agenda was a networking luncheon where I joined a table of LIS students and hipsters with tatoos and pink hair from around the country. I chatted with a fellow genXer and art librarian about Mac Tools and our local roller derby chapters. After that, I toured the vendor expo where I tested my global business knowledge at The Economist's booth, gathered maps at NOAA and schwag from other vendors to share with my colleagues in the law library. The highlight was a book signing with my friend, Ruth Kneale, a systems librarian who just published You Don't Look Like a Librarian. Later that afternoon, I delivered a projector to the "Librarian 1.0 to 2.0: The Future of Managing Content" session. Upon arrival, I noticed that the presenter's Macbook had a USB connection rather than a serial port connection and offered several alternate options for connectivity, to which her co-presenter declared me "brilliant". I reflected on his comment later that evening and delighted in the fact that amid fellow librarians and information professionals, my gender is not perceived as a handicap as it sometimes is among the male-dominated field of information technology. I observed that the conference attendance was distributed equally among the genders and comprised of roughly 50% baby boomers, 25% genX/genY, and 25% from the silent generation. It is this diversity that continues to inspire and attract me to the profession. The night concluded with a fabulous seafood dinner at Johnny's Half Shell followed by the IT Division's Sci-Fi Night, where I met two local science fiction authors and picked up a couple of copies from Jack Campbell's "Lost Fleet" series.