On this day in history, August 31, 1965, President Lyndon B. Johnson, the B. stood for Baines don’t you know, signed a law illegalizing the burning of draft cards. The act, known as the Draft Card Mutilation Act of 1965 carried with it steep penalties: Individuals found to have violated the restriction could be subject to a five year prison sentence and $1000 fine.
In the United States v. O'Brien case of 1968, the U.S. Supreme Court upheld the Draft Card Mutilation Act, rejecting a First Amendment challenge. The law was ostensibly aimed at ensuring the efficient operation of the Selective Service System. It is worth noting that, even prior to this act, eligible men were already legally required to carry their draft cards at all times, and the act merely further criminalized the act of knowingly destroying or mutilating these cards. David Paul O’Brien, who was against the Vietnam War, burned his draft card publicly to protest what he saw as an infringement on his First Amendment rights. He was arrested and convicted.
O'Brien appealed his case, arguing that the law violated his right to symbolic speech under the First Amendment. The case eventually reached the Supreme Court, where a 7-1 decision upheld both the law and O’Brien’s conviction. The Court, led by Chief Justice Earl Warren, stated that the law served an important governmental interest—namely, protecting the nation—and only incidentally affected freedom of speech.
The Court also established a four-part test for evaluating cases involving symbolic speech. This test requires the government to demonstrate its authority to enact such a measure, establish an important governmental interest, prove that the measure's purpose is unrelated to speech, and show that it has imposed the least restrictions necessary to achieve its objective. This test continues to be applied in cases involving symbolic speech.
As for draft card burning, Richard Nixon ran for president in 1968 on a platform based partly on putting an end to the draft, in order to undercut protesters making use of the symbolic act. As president, Nixon ended the draft in 1973, rendering the symbolic act of draft-card burning moot.
The Illinois Appellate Court has ruled that the insurers of Chicago's Trump International Hotel & Tower have no legal obligation to pay insurance claims in connection with the hotel's alleged improper use of Chicago River water for its cooling system.
The court found that the hotel's actions did not constitute an "occurrence" under the terms of the insurance policies, which all contained a pollution exclusion. The court also found that the hotel did not suffer any "property damage" as a result of its actions.
The ruling is a setback for the hotel, which is facing a lawsuit from the Illinois Environmental Protection Agency (EPA) alleging that it violated state environmental laws by pulling nearly 20 million gallons of water without a permit from the Chicago River each day to cool its ventilation system.
The EPA's lawsuit is still pending, and it is unclear whether the hotel will be able to avoid paying any fines or penalties. However, the appellate court's ruling makes it more likely that the hotel will be on the hook for its own legal fees.
The ruling also raises questions about the extent to which insurance companies are willing to cover pollution-related claims. The pollution exclusion is a common clause in insurance policies, and it can be difficult for policyholders to argue that their actions do not constitute a "pollution event."
The appellate court's ruling is a reminder that businesses need to carefully review their insurance policies to ensure that they are adequately covered for potential environmental liabilities.
A federal judge in Florida has ordered lawyers in the 3M earplug lawsuit to disclose all funding agreements made with any claimant before or after the settlement. The order comes after the company agreed to pay $6 billion to resolve hundreds of thousands of claims that its earplugs caused hearing damage to military veterans.
The judge, M. Casey Rodgers, expressed concern about the role of outside investors in the settlement. She said she wants to ensure that the claimants are not being "exploited by predatory lending practices, such as interest rates well above market rates, which can interfere with their ability to objectively evaluate the fairness of their settlement options."
The funding declarations, which will be filed under seal, will include lender names, loan amounts, and interest rates, among other information. Lawyers will be required to produce financing agreements and be prepared to discuss them with the court.
The order is a victory for consumer advocates who have been critical of the litigation finance industry. They argue that these firms often charge exorbitant interest rates and fees, and that they can put pressure on lawyers to settle cases quickly, even if it is not in the best interests of the clients.
The 3M order is the latest in a series of rulings that have cracked down on the litigation finance industry. In 2018, a federal judge in Ohio made a similar move in massive opioid litigation, requiring in camera disclosure of litigation finance agreements.
The disclosure requirements are likely to have a chilling effect on the litigation finance industry. However, they are also a necessary step to protect consumers from predatory lending practices.
The order is also a sign that the courts are taking a closer look at the role of outside investors in mass tort litigation. This is a welcome development, as it is important to ensure that these cases are resolved fairly and in the best interests of all parties involved.
A new law school pipeline program called LexPostBacc is helping to diversify the legal profession by providing aspiring lawyers who were rejected from law school with the opportunity to gain admission and a scholarship. The program is funded and administered by the nonprofit AccessLex Institute and is unique in that it guarantees a spot in the class for participants who complete the year-long program. The participating schools include Michigan State University College of Law; Florida International University College of Law; and Pepperdine University Caruso School of Law.
The program is designed to help students who are "admission adjacent" but not quite qualified for law school by providing them with additional academic preparation, financial assistance, and mentorship. Participants must either be from an underrepresented racial group, be the first in their families to have graduated from college, or have received a need-based federal Pell Grant as an undergraduate. They must also have scored in the bottom 25 percent of national LSAT takers.
The first cohort of LexPostBacc participants had a completion rate of 69%, and all but three of them opted to start law school this fall. The program is timely given the U.S. Supreme Court's recent decision banning race-conscious admissions at colleges and universities. Many in legal education are worried that this decision will make it more difficult to bring in more minority law students and diversify the legal profession.
LexPostBacc aims to address this challenge by broadening the pool of students enrolling in law school. The program is still in its early stages, but it has the potential to make a significant impact on the diversity of the legal profession.
Here is a more detailed look at how the program works:
Participants spend 10 to 11 months in online classes, taking courses in legal writing, research, and analysis. They also receive mentorship from current law students and lawyers.
If they complete the program, participants are guaranteed admission to their referring law school as well as a 20% scholarship. AccessLex also provides each participant with a $3,000 stipend and a free bar review program.
The LexPostBacc program is a promising new initiative that has the potential to make a real difference in the diversity of the legal profession. It is a model that other law schools and organizations should consider replicating.
A U.S. District Judge, Beryl Howell, has ruled that Rudy Giuliani, former lawyer to Donald Trump, is liable for defaming two Georgia election workers, Wandrea "Shaye" Moss and her mother Ruby Freeman. The judge issued this order as a sanction against Giuliani for failing to produce electronic records in the defamation case brought by Moss and Freeman. Giuliani had argued that he faced obstacles in turning over records, including having his phone seized by federal agents in 2021. However, Judge Howell rejected Giuliani's claims, stating that his actions have only served to "subvert the normal process of discovery in a straightforward defamation case."
Ted Goodman, a political adviser to Giuliani, criticized the ruling as a "weaponization of the justice system." Giuliani is also facing criminal charges in Georgia for allegedly aiding efforts to overturn Trump's election loss in the state by making false claims about Moss and Freeman. The judge's ruling means that Giuliani will have to pay damages for spreading false claims that the two election workers processed and counted illegal ballots, which led to them receiving death threats and harassment.
Moss and Freeman stated that the ruling confirms that "there was never any truth to any of the accusations about us." Giuliani had previously admitted that his statements were false and damaged the reputations of Moss and Freeman but left open the possibility of challenging the claims on appeal. He will now face a civil trial in federal court in Washington to determine the amount he will have to pay in damages. Moss and Freeman had previously settled defamation claims against the far-right news outlet One America News Network.