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The 'Black Swan' Intern Ruling Could Change Unpaid Internships Forever

Rebecca Greenfield writing for The Atlantic Wire:

The case of the unpaid American intern just got upended — again, and maybe for good: Just a month after one judge dismissed the class-action suit filed by free New York City media interns at Hearst Magazines, another has now granted the Hollywood coffee-fetchers who worked on Black Swan a precedent-setting win, ruling that the two production interns “worked as paid employees” and that Fox Searchlight should have to pay them as such. It’s a pivotal decision, says the attorney for the two young men who worked on the Oscar-winning film: “This is the first time a judge has held that interns as we know them today are employees entitled to wages and protections,” the lawyer, Juno Turner, told The Atlantic Wire in a phone interview Wednesday.

Indeed, it’s the first time a major U.S. court has ruled that zero dollars for legitimate work does not a legal unpaid internship make.

Greenfield goes on to explain and quote the judge’s ruling, which you should check out. The judge set precedent by applying a six point standard codified by the Department of Labor. So this ruling doesn’t ban unpaid internships entirely, but just ones that don’t meet the six criteria. That could still be a huge chunk of them, though.

Jordan Weissman, also of The Atlantic, has a little more on the ruling, including that a federal court judge in 2011 ruled the same Department of Labor test as too rigid.

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Iowa court: Bosses can fire 'irresistible' workers

From the I Just Fucking Hate Everything Department comes this piece of legal news by Ryan J. Foley for the Associated Press:

A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa Supreme Court ruled Friday.

The court ruled 7-0 that bosses can fire employees they see as an “irresistible attraction,” even if the employees have not engaged in flirtatious behavior or otherwise done anything wrong. 

My favorite part of the article, by which I mean the part of the article that finally opened my eyes to the true horror of this empty universe and made me futilely scream into the maw of oblivion, was this one:

[Melissa] Nelson filed a lawsuit alleging gender discrimination, arguing she would not have been terminated if she was male. She did not allege sexual harassment because Knight’s conduct may not have risen to that level and didn’t particularly offend her, [her attorney Paige] Fiedler said.

This is not at all bad out of context, but the important part is how it relates to two previous sentences:

… in the final months of her employment, [boss James Knight] complained that her tight clothing was distracting, once telling her that if his pants were bulging that was a sign her clothes were too revealing, according to the opinion.

He also once allegedly remarked about her infrequent sex life by saying, “that’s like having a Lamborghini in the garage and never driving it.”

The chain of events set in motion by the Big Bang 13.75 billion years ago has lead to a point where this is not considered sexual harassment.

My soul weeps.

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Poker Found a Game of Skill Not Covered by U.S. Gambling Act

Mark Hamblett for the New York Law Journal:

Poker is a game of skill that is not covered under the federal Illegal Gambling Business Act, Eastern District Judge Jack Weinstein ruled yesterday. … Part of the judge’s reasoning was that poker games, in this case Texas Hold’em, are not purely games of chance.

"Bluffing, raising and folding require honed skills to maximize the value of the cards dealt by Lady Luck," Weinstein said in United States v. Dicristina, 11-CR-414.

Judge Weinstein’s ruling hinges on his finding that poker is “predominated” by skill rather than chance, what with bluffing and all that.

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Avila v. Citrus Community College Dist., 131 P. 3d 383 - Cal: Supreme Court 2006

I’ve started reading The Unwritten Rules of Baseball by Paul Dickson, which is pretty neato so far.

In it, he mentions a legal case from 2006 about being hit by pitches. Some background from the opinion by Justice Kathryn M. Werdegar:

During an intercollegiate baseball game at a community college, one of the home team’s batters is hit by a pitch. In the next half-inning, the home team’s pitcher allegedly retaliates with an inside pitch and hits a visiting batter in the head. The visiting batter is injured, he sues, and the courts must umpire the dispute.

The court ruled that, even though the rules of baseball state that a pitcher can’t intentionally hit a batter, it’s commonly accepted as an “inherent risk of the sport” and so can’t be sued over in this way.

Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” Pitchers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run. (See, e.g., Kahn, The Head Game (2000) pp. 205-239.) Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport. …

It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); National Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec.2005) rule 5, § 16(d), p. 62.) But “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” (Knight, supra, 3 Cal.4th at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

So there is legal precedent in the United States that, if you get hit by a pitch, you have to suck it up.

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She definitely knows what those words mean

How Appealing brings us this fantastic quote from 5th Circuit Judge Jennifer Walker Elrod:

An employee either is or is not at-will. There is no such thing as somewhat at-will, or as the majority puts it “sufficiently non-at-will.” In fact, the majority’s conclusion brings to mind Miracle Max’s diagnosis that Westley was “mostly dead.” See Princess Bride (20th Century Fox released Sep. 25, 1987)

Sadly, this is only a dissenting opinion, but still. Amazing.

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Obama administration says Constitution protects cell phone recordings

Timothy B. Lee, Ars Technica:

The Obama administration has told a federal judge that Baltimore police officers violated the First, Fourth, and Fourteenth Amendments by seizing a man’s cell phone and deleting its contents. The deletions were allegedly in retaliation for the man’s use of the phone to record the officers’ arrest of his friend. According to the Maryland ACLU, this is the first time the Obama Justice Department has weighed in on whether the Constitution protects citizens’ right to record the actions of police with their cell phones.

This is a huge deal. Not just in Baltimore but all over the country police have been seizing cameras and phones of people recording misconduct or even just regular arrests. Here’s one such example from Miami. Extremely encouraging to see the Obama administration1 weighing in on the side of common sense and sanity.


  1. And other judges too, as linked in the Ars piece. 

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Hawaii passes transgender employment protections

The Hawaii Senate approved a bill, previously passed by the House, to ban discrimination based on gender identity and expression in the workplace.

Discrimination against transgender individuals is already illegal in Hawaii for housing, public accommodations and employment, but the ban on employment discrimination has only been established by rulings of the Civil Rights Commission and has not been written into the state statute.

Earlier this year, the state passed a civil unions bill which will start on January 1, 2012. And now this. The governor, Neil Abercrombie, has only been in office four months!

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Hungry for Justice: Judges Less Likely to Grant Parole on Empty Stomach?

A study was published yesterday in the Proceedings of the National Academy of Science on a judge’s leniency in relation to the time since his last meal. Katie Moisse of ABC News reported on the findings:

A judge’s willingness to grant a prisoner parole wanes with time after a lunch or snack break, according to an observational study.

Researchers from Columbia University in New York City and Ben Gurion University of the Negev in Beer Sheva, Israel, analyzed more than 1,000 parole decisions made during 50 days by eight experienced judges in Israel. The proportion of favorable rulings fell from about 65 percent to nearly zero during each session separated by the two food breaks, leaping back to 65 percent immediately after the breaks.

It’s potentially troubling if this trend is accurate, since it kind of undermines the whole legal system and all. This isn’t really the kind of thing you can do a controlled experiment for, though, so the researchers acknowledge that their approach is a bit flawed:

But because the study by Levav and colleagues was observational, meaning not all variables could be controlled, the researchers can’t directly link hunger to trends in judgment.

"When you don’t run an experiment, it’s hard to make a causal association," Levav said. "Ideally, we’d have an experiment where one judge takes a break and eats, and another doesn’t eat."

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Quora: Why are lawyers so expensive even with the excess supply of lawyers?

Long, exhaustive Quora answer by Antone Johnson about why lawyers seem to fail to obey the laws of supply and demand. Really great stuff; even includes some charts. A tiny sampler:

At large law firms, salaries and billing rates are the same across departments. As a matter of morale, prestige and camaraderie, this makes sense. As a matter of economics, it’s nuts. Again, thinking of efficient markets, when demand for something (e.g., securitization of sub-prime mortgages) dries up, the price charged for that work should drop. When demand for something soars (e.g., corporate bankruptcy), rates for that work should rise. Nope. For the most part, a 4th-year associate in every practice area bills out at the 4th-year associate rate, and so forth. Again, why does this matter? Go back to the points about sticky billing rates and sticky salaries. Both are likely to go only one direction — up — as long as any major area of the firm is doing well and can afford to raise rates along with demand. This works out pretty well for the firm, because different practice areas are cyclical or counter-cyclical and that helps stabilize their finances, but it’s not so great for the clients.