Playing with Fire and an Obama Effigy

People do imbecilic things when alcohol enters the mix.  It is a fact of life.  On one end of the spectrum, drunkenness promotes relatively harmless buffoonery, whether it is singing along to “Sweet Caroline” completely out of tune at the bars on Water Street or repeatedly professing one’s love for his or her friends and family.  Sometimes, the passions of the moment, coupled with inhibitions lowered, push one to act out ill-conceived ideas that the voice of reason would have prevented, such as drunk-dialing.  On the other end of the spectrum, a beer- and liquor-swilling patron’s conduct may cross the line into the unlawful.

As the story develops, the burning of a statue of President Obama in West Allis may be in the company of the latter behavior.   TMJ4 reported that at the Yester Year’s bar, patrons lit a bust of Obama on fire.  The video footage was blurry given the room’s darkness and only focused on the statue placed on the bar, though “hoots and hollers” can be heard in the background.  Though West Allis is investigating whether the burning violated the city’s municipal fire code, the Milwaukee District Attorney’s Office will not charge anyone involved in this incident, and the Secret Service has terminated its own investigation.

This incident may very well not prompt legal action beyond those for possible fire code violations.  One cannot help but wonder, however, if the First Amendment would provide protection for burning an Obama effigy. 

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Law & Order and the Rise of the Pop Cultural Prosecutor

Years before Law & Order ended its incredible twenty-year run on May 24, 2010, the series had staked its claim to being the longest-running primetime series featuring lawyer characters. In addition, the series included an important change in how the heroic pop cultural lawyer is represented. In earlier lawyer shows with especially lengthy runs, such as Perry Mason in the 1950s and ‘60s and Matlock in the 1980s and ‘90s, the lawyer hero was customarily a criminal defense lawyer. Even the fictional firm of McKenzie, Brackman, Cheney & Kuzak in L.A. Law had a department devoted to criminal defense work. In Law & Order, by contrast, the heroic lawyers are always prosecutors.

What explains this very popular shift in imagery? Part of the reason is the general sense that crime has run amuck. Starting in the 1980s, a commitment to crime control replaced the drive for racial and economic justice as the preeminent domestic policy. Any politician on the local, state, or national level who seems “soft on crime” is doomed at the polls. More generally, the Reagan Presidency marked a national turn to the right, and in subsequent decades even the Democrats who have occupied the White House have been moderates. The heroic pop cultural prosecutor is well suited to crack down on crime and to embody conservative values.

Over the years, Law & Order became a genuine cultural phenomenon. The series’ popularity led to spin-offs and to countless reruns of both the original episodes and the spin-offs. In the end, Law & Order in all its forms not only reflected a public sentiment and emergent politics but also powerfully reinforced that sentiment and politics.

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ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs

4United States Supreme Court 112904 For those who care about ERISA participants and beneficiaries being able to find good counsel for their claims, the U.S. Supreme Court decision this morning in Hardt v. Reliance Insurance Co., No. 09-448 (U.S. May 24, 2010) is welcome news.

In a nearly unanimous opinion written by Justice Thomas (Justice Stevens wrote to concur in part), the Court held that:

A fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under §1132(g)(1) [Section 502(g)(1)]. Interpreting the section to require a party to attain that status is contrary to §1132(g)(1)’s plain text. The words “prevailing party” do not appear in the provision. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.) That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions to recover delinquent employer contributions to a multiemployer plan. In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees.§1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” requirement, the Fourth Circuit’s decision adding that term of art to the statute more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U. S. 349, 359.

The case is interesting because it poses a common legal issue in ERISA litigation.  The court, after pointing out problems with a plan administrator’s interpretation of plan terms, remands the case back to the company and the company ends up awarding the initially requested benefits to the employee.

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