Monday, June 30, 2008

US Supreme Court Loves Exxon

Thanks to investigative reporter Greg Palast for reminding us, amidst all the fuss over the US Supreme Court's recent big cases in the news - the gun rights case, and the Guantanamo detainees' habeas corpus case, among others - that the US Supreme Court just gave a huge gift, worth about $2 billion, to Exxon this past week: Greg Palast: Court Rewards Exxon for Valdez Oil Spill.

Yes, we knew it wasn't just our President, Vice President, and the other oilmen and women of the White House who were taking part in the big orgy with Big Oil. The Congress has long been in on the lovefest as well, although it has a much more discreet relationship with Big Oil - a relationship which tends to be especially discreet, if not outright deceptive, in election years. But now it seems a majority on the US Supreme Court, and not just oilman Dick Cheney's hunting partner on the Court, have joined in publicly kissing Exxon's ass (and boy does that ass stink!)

Well, at least there's one thing all three branches of our government seem to agree on.

Sunday, June 29, 2008

Getting Tough On Child Rape

Soon after the Massachusetts House passed a bill earlier this month that would be tougher on the crime of child rape, the US Supreme Court set a limit on just how tough any state can be, when on Wednesday it held capital punishment for child rape to be unconstitutional. For further background on the case, see my previous post: Supreme Court to Consider Whether Death Penalty Can Be Imposed for Child Rape.


WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.


For information about Massachusetts criminal law, see the criminal law page of my law firm website.

Saturday, June 28, 2008

Emily Rooney Discusses Alimony Reform

More on Massachusetts alimony reform. Boston's WGBH TV Show, "Greater Boston" with Emily Rooney, on Thursday evening, discussed recent efforts to reform alimony law in Massachusetts, including the recent push by the Second Wives Club. See WGBH's Recent Shows: "The Second Wives Club pushes for alimony reform". Appearing on the show to argue for reform was Elizabeth Benedict, whose recent Boston Globe op-ed article was discussed by me in my recent post on this topic. Also appearing on the panel were attorneys Timothy A. Taylor, the lawyer from Lincoln, Massachusetts, who drafted the alimony reform bill, and Gerald Nissenbaum, who essentially defended the status quo.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Tuesday, June 24, 2008

Massachusetts Lawyers Weekly Blog

Massachusetts Lawyers Weekly has started its own blog recently.

The new blog, The Docket, promises to cover "breaking stories and noteworthy information from the Massachusetts Lawyers Weekly newsroom. If it impacts Massachusetts lawyers, we’ll be blogging about it here."

As the blog is published by our state's legal newspaper, it will likely prove to be a useful resource, and so I have put it on my blogroll, and have also added its feed to the news feeds which appear on the right column of my blog. Hat tip to Real Estate Space.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, June 20, 2008

Academics Discuss California Same-Sex Marriage Case

I have compiled a list of articles by academics on the California same-sex marriage case; most of them appear at Findlaw's Writ. I have listed them here in chronological order, which may be useful if you are going to read them all, as many reference the previous articles. If you don't have time to read them all, I would suggest reading at least the last three - the two Grossman and McClain articles as they provide the best general overview and analysis, and Andrew Koppelman's piece, which helps to fit the case into a broader, national and historical perspective. (I wish I had time to write my own article on the subject right now, particularly to compare and contrast the California decision with the Massachusetts decision, as there are many more interesting points to be made. Maybe later.)

The California Same-Sex Marriage Ruling: What it Says, What it Means, and Why It's Right (Michael Dorf, May 19, 2008, Findlaw)

The California Supreme Court's Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend? (Vikram Amar, May 22, 2008, Findlaw)

The California Supreme Court's Decision Equalizing Marriage for Gay and Straight Couples: Did the Court Overstep? (Edward Lazarus, May 23, 2008, Findlaw)

The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples: Why Domestic Partnerships Are Not Enough (Part One in a Two-Part Series of Columns) (Joanna Grossman and Linda McClain, May 27, 2008, Findlaw)

The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples: How Conservative Reasons Led to a Progressive Result (Part Two in a Two-Part Series of Columns)(Joanna Grossman and Linda McClain, May 28, 2008, Findlaw)

State of Chaos? (Andrew Koppelman, June 6, 2008, Balkinization Blog)

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, June 18, 2008

The Iraq War, Oil Industry War Profiteering, and High Gas Prices

Greg Palast, in his article of several weeks ago, discussed the 500-pound elephant that is still in the room: Driving the Surge in Gas Prices? The Bush-McCain surge in Iraq. Even the Democrats, who have called for a "windfall profits tax" (what Greg Palast says should be called a "war profiteering tax"), seem to talk mostly about the increased demand for oil (mainly in China) as the dominant factor in the recent increase in world oil prices, and the resulting increase in gas prices at the pump.

But a huge factor over the past five years has been on the supply side as well, and the decrease in the supply in Iraq in particular. It was not until the end of 2007 that oil production in Iraq had finally returned to its early 2003, pre-war level. During the past five years, production from Iraq has been way, way down, and world prices have gone up, up, up. Had supply from Iraq been higher, prices would not have risen as fast.

Remember, the Bush neocon Wolfowitz told us that after we invaded Iraq, we would be able to pump enough oil in Iraq essentially to pay for the war and for reconstruction? Well, of course that didn't happen. That was just one of the many big lies of the Bush administration. Instead, we have been paying in many sad, painful ways for this war, and future generations in this country will pay most of the financial costs of this terrible war.

Meanwhile, Big Oil (which, together with the neocons, brought us into this war) has made out like bandits, as relative supply and demand have continued to bring oil prices up and up and up. Then of course there are the other big corporations, such as Blackwater, Halliburton/KBR, CACI and Titan, that are making a more direct killing onsite in Iraq; for dirty details on this direct war profiteering, see Robert Greenwald's documentary Iraq for Sale: The War Profiteers.

It is apparent from the right side of the chart above, from the site created by economist Steve Stoft, that there has been a dramatic increase in gas prices from 2003 to date, precisely the long years of the most recent Iraq War. Yes, China has been booming during that period, and worldwide demand for oil has increased. But supply from Iraq, which is home to the world's second largest proven oil reserves and is still controlled in fact by the United States, has been way down because of the war we started there and which we are still conducting there.

I wonder if the Democrats refuse to make this obvious connection - to talk about the elephant in the room - for fear of how it will sell politically. I do want Obama to be elected. I support him, and I assume he has great advice as to what he should say and shouldn't say. But his silence on this issue makes me wonder if our whole nation is still unable to accept the depressing realities of Big Oil, the war, and windfall profits, or "war profiteering." More likely there is a more depressing reason for the silence: the Democratic Party still lacks the courage to challenge the war industry and Big Oil. One thing is for sure, however: the Republican Party, and McCain, have completely sold out to Big Oil, and the war establishment, just like the Bush Family has done long ago. We have no choice but to go with a Democratic President if we want to have any hope of ever ending the madness.

In 2002, after Bush Junior took power, the top ten oil companies took in a nice $31 billion in profits. But then, a miracle fell from the sky. Or, more precisely, the 101st Airborne landed. Bush declared, “Bring’m on!” and, as the dogs of war chewed up the world’s second largest source of oil, crude doubled in two years to an astonishing $40 a barrel and those same oil companies saw their profits triple to $87 billion.

In response, Senators Obama and Clinton propose something wrongly called a “windfall” profits tax on oil. But oil industry profits didn’t blow in on a breeze. It is war, not wind, that fills their coffers. The beastly leap in prices is nothing but war profiteering, hiking prices to take cruel advantage of oil fields shut by bullets and blood.

I wish to hell the Democrats would call their plan what it is: A war profiteering tax. War is profitable business – if you’re an oil man. But somehow, the public pays the price, at the pump and at the funerals, and the oil companies reap the benefits.

Indeed, the recent engorgement in oil prices and profits goes right back to the Bush-McCain “surge.” The Iraq government attack on a Basra militia was really nothing more than Baghdad’s leaping into a gang war over control of Iraq’s Southern oil fields and oil-loading docks. Moqtada al-Sadr’s gangsters and the government-sponsored greedsters of SCIRI (the Supreme Council For Islamic Revolution In Iraq) are battling over an estimated $5 billion a year in oil shipment kickbacks, theft and protection fees.

The Wall Street Journal reported that the surge-backed civil warring has cut Iraq’s exports by up to a million barrels a day. And that translates to slashing OPEC excess crude capacity by nearly half.

Result: ka-BOOM in oil prices and ka-ZOOM in oil profits. For 2007, Exxon recorded the highest annual profit, $40.6 billion, of any enterprise since the building of the pyramids. And that was BEFORE the war surge and price surge to over $100 a barrel.

It’s been a good war for Exxon and friends. Since George Bush began to beat the war-drum for an invasion of Iraq, the value of Exxon’s reserves has risen – are you ready for this? – by $2 trillion.


Tuesday, June 17, 2008

New Hampshire Family Law Blog

I just found a relatively new family law blog, which is off to a great start, in neighboring New Hampshire - the New Hampshire Family Law Blog, which is written by Kysa Crusco, who practices law in Manchester, New Hampshire. I'm happy to welcome her blog to my blogroll and to the greater family law blog family. I should add that although Kysa Crusco is practicing law just over the border in New Hampshire, her bio states she was educated (high school, college and law school) in the great state of Massachusetts.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Monday, June 16, 2008

Father's Day Gift From the MCAD

Just in time for Father's Day, and much to the apparent dismay of employers, the Massachusetts Commission Against Discrimination recently gave a surprise gift to working fathers in this state. It seems the Massachusetts Commission Against Discrimination is now really getting serious about the issue of discrimination against men, and has abruptly decreed that the Massachusetts Maternity Leave Act applies to men. See Massachusetts Maternity Leave Act Applies to Men - Boston Employment Lawyer Blog and Massachusetts Lawyers Weekly - Men now eligible for maternity benefits.

From these reports, it appears that men may only be getting this equitable treatment now because someone figured out that continuing to discriminate against men in general would require discriminating against gay men as couples. As MCAD commissioner Martin Ebel put it:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

Now, I have to wonder, if "maternity leave" can so easily be transformed into "parental leave," what exactly will be next? Will we have a federal Violence Against Men and Women Act(VAMWA), to replace the Violence Against Women Act(VAWA), in long-overdue recognition of the fact that domestic violence goes in every direction, male on female, female on male, male on male, and female on female? At last, will there be equal rights for male victims of domestic violence? I'm not holding my breath. But maybe equality is contagious.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Sunday, June 15, 2008

Divorcing, But Still Living Together, in a Bad Housing Market

There's a great article in today's Boston Globe Sunday Magazine, by Lisa Prevost, about the effect of the declining housing market, and the credit squeeze, on divorcing couples, many of whom are now forced to stay together longer than they may have wanted or intended: Two Exes, One Roof - The Boston Globe ("Two Exes, One Roof - What happens when a divorcing couple meet a slow housing market? Usually, it's not pretty.") As you can see from the excerpt below, I am one of the attorneys quoted in the article.

"DESPERATE" IS AN APT DESCRIPTION FOR ANY NUMBER of homeowner scenarios these days, as declining home values and tighter credit continue to squeeze sellers. When it comes to divorcing couples, however, the steep drop-off in housing sales is making some bad situations truly awful. Dramas are playing out across the region as couples who no longer want to stay together, but can't afford to live apart, are winding up prisoners in their own homes. Either houserich and cash-poor, or simply overextended on all fronts, these couples are retreating to the far corners of their houses as they await the buyer who will free them.

Family law attorneys, mediators, and real estate professionals say that while this scenario isn't necessarily new, its rising incidence is very much a sign of the times. Divorcing couples who borrowed heavily against their homes when values were soaring several years back are now scratching for enough equity to cover their mortgage, lawyer bills, and a fresh start. The financial strain is forcing more of them to stay put until the house sells, a situation that is almost always very uncomfortable.

"In a number of my cases, couples are sharing houses but using separate bedrooms, and it remains to be seen what impact all of this will have on the children," says David A. Hoffman, an attorney, mediator, and founder of the Boston Law Collaborative.


Barbara Shapiro, a certified divorce financial analyst and vice president of HMS Financial Group in Dedham, agrees that the sliding market is forcing more divorcing couples to remain housemates. The cases she sees typically fall into one of two categories. "You have the couple that's already divorced and had decided they were going to split the house once it's sold. And they can't sell it, or it doesn't make sense to sell it. So they're scrambling to adjust," she says. "And then there are people who are saying, 'We can't get divorced - we can't afford it.'"

The latter sentiment turned up unexpectedly in a divorce case handled last year by Steven Ballard, a lawyer in Worcester and Wellesley. He was representing a woman in particularly bleak circumstances: She had a restraining order against her husband, who had moved back in with his mother. The wife worked but couldn't cover the mortgage payments and expenses on their house without her husband's income. Because they owed more than the house was worth, foreclosure loomed as a possibility. Still, Ballard didn't see taking the husband back as an option. Much to his dismay, his client did. The couple reconciled. "I'd seen financial problems lead to divorce," Ballard says, "but I hadn't seen it save a marriage."


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Saturday, June 14, 2008

Massachusetts Alimony: Time for Reform?

In yesterday's Boston Globe appeared an op-ed article by novelist Elizabeth Benedict, critical of the Massachusetts alimony law and application of that law by courts in this state: Elizabeth Benedict: Boston Globe Op-Ed: The chilling effect of state's divorce laws. I actually know Elizabeth Benedict, and as one of the lawyers she talked to before writing that article, I must say that I welcome her criticism, even though I believe she may be, as I have told her, exaggerating the extent of the problem she sees.

Her problem is mostly with lifetime alimony awards and with what she rightly sees as the inconsistent, unfair application of alimony law. Of course, I have no doubt that the cases she discusses are real, and it only takes one bad experience in family court for any one person to be turned off and disillusioned with the whole process.

The main point that should be taken away from her article, in my opinion, is that the law on alimony is so vague as to permit a huge divergence of results, from one case to another. I would add that these results often depend on factors that should not be important and determinative: they are factors primarily related to the quality and experience of the judge, rather than factors actually relating to the facts of the individual cases.

In my experience as an attorney, I have been able to end lifetime alimony awards, as lawyer for men in each case, in every case where it was justified and where my clients and I tried to do so. However, in those cases, my male clients did not even come to me to try to eliminate the alimony until their children were emancipated and their exwives were working fulltime and earning as much as, or more than, they were. In other words, we had very strong cases to end alimony. And yet, although the cases did not require trial, they were at first hotly litigated cases, and they were hardly the walks in the park that they should have been.

I am happy to see Elizabeth Benedict join other disgruntled second wives and girlfriends in trying to help men to right this wrong in Massachusetts family law, particularly by supporting the enactment of HR 1567, a relatively unambitious, but sensible bill that, as Benedict notes in her piece, has been given an unceremonious legislative death as the bill was quietly committed to further "study."

We have long needed better guidance and clearer laws on alimony - and in the related area of child support as well, I hasten to add - that cover the needs of today's divorcing and separating parents and spouses. The child support guidelines have numerous flaws and do not cover those with combined incomes of $135,000 or more, exactly the group of people, interestingly enough, who are most likely to hire lawyers for their court cases. Such a situation leads intelligent people like Elizabeth Benedict to understandable cynicism about the legal process, and about lawyers themselves. And so Elizabeth Benedict states as follows:

The Massachusetts and Boston Bar Associations have created a task force to study problems stemming from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They may eventually support new guidelines for judges, not new legislation, which would clarify and simplify. They prefer ambiguity and case law, which produce more billable hours.

The crux of the problem is there is no agreement on a formula, or a uniform set of guidelines even, for alimony, and the law of alimony is essentially the same long list of statutory factors that are supposed to be taken into account in determining the division of assets upon divorce (M.G.L. ch.208, section 34). See the Massachusetts divorce statute here.

One former judge, Judge Ginsburg, formerly of the Middlesex Division of the Probate and Family Court, who in fact created his own alimony formula (called "the Ginsburg formula") which he, and some others, have used on an informal basis, especially back when he was still a judge, wrote an article, back in 1997, which is surprisingly still very relevant today: "The Place of Alimony in the Scheme of Things," Edward M. Ginsburg, Massachusetts Family Law Journal, Vol 14, No. 5 (January 1997). Sorry, but I can't find an online link to that article. In that article, then-Judge Ginsburg pointed out that there is precious little in the way of guidance in how to deal with different kinds of cases (short-term, mid-term, long-term marriages) and how to structure awards, both in terms of amount and duration. Well, not much has changed in the past eleven years, in statutory or case law, since Judge Ginsburg wrote his article, to alter this basic reality.

And what little new case law we do have has not remedied this problem. As pointed out by Massachusetts Attorney Peter Gossels in this Massachusetts Lawyers weekly article from February 5, 2007, the law as it still stands permits "predator spouses" to enter into short-term, childless marriages, and extract huge sums of money through alimony. See the Gossels article, both for another extreme example of how the vague alimony law can lead to an unfair result, and for a great discussion about some of the problems and limitations created by the case law on alimony.

However, as a practicing lawyer, I do believe there has been a positive change - despite the continuing existence of some rather unfair case results - in the way most judges are applying the broad, vague law. I believe judges over the past ten years have become far less likely to award alimony in cases where alimony is undeserved, they have been increasingly likely to expect former wives to work, or to go back to work, and they have become increasingly likely to apply the gender-neutral laws in a gender-neutral way. This positive change in the way that law has been applied, in fact, is one advantage, perhaps, of the law being as vague as it is. But all is not as it should be. Not yet. And I do believe there should be better guidance, and it should be statutory.

As long as judges have such wide discretion, with these vague laws in effect and in the absence of clear guidelines for different types of cases, judges will continue to be free to consider all the relevant statutory factors on a case by case basis. The question of whether we want the legislature to improve the law of alimony will then come down to whether we want to trust each individual judge to make the right decision when each one has such extremely wide discretion in making findings.

Although I trust most judges to try to do the right thing most of the time, I do believe they all need clearer laws and better guidance, for the sake of consistency and fairness.

Finally, Elizabeth Benedict's comments, both directly to me, and in this op-ed piece she wrote, give me hope for the future. I am encouraged to see such talented, intelligent, accomplished women recognizing the injustices often faced by men in family court. Benedict joins the ranks of another great writer, formerly a regular columnist at the Boston Globe, Cathy Young, about whom I have spoken favorably several times in this blog before.

Also, in this respect Benedict joins another acquaintance of mine, Iris Tanner, a cabaret singer, who long ago gave me a copy of her CD "Fresh Cut Iris" when I could not attend her appearance many years ago at Jimmy Tingle's Comedy Club, where she sang her original song Don't Get Married in Massachusetts (If You're Male).

It's a hilarious song by a woman who admitted in introducing the song on stage that she had been inspired to write it after having several boyfriends who had gone through divorce in Massachusetts. Even if you don't download the song (and you can do so - from my link above), the following sample of its lyrics should give you a laugh or two:

Matrimony may be great,
But there's a certain state,
Where a wedding's bad for your financial health,
Where if a marriage doesn't work,
The man will always be the jerk,
And lucky ladies gather in the wealth.

Where the judge's sacred duty
Is to give the wife her booty,
And do his best to drain the husband dry.
Though I know it's hard to swallow,
There are guidelines they must follow,
That will zap you if your chromosomes are Y.

If you're male,
Don't get married
In Massachusetts.
You'll only end up broke
And land in jail.

I should point out that, despite its women- and mother-friendly reputation and despite its sometimes-heard nickname "Planet Mommy," Massachusetts is hardly alone with this alimony problem. Other states are considering reforming their alimony laws to reflect the current economic and social realities. For a good discussion of this national trend, also mentioning the recent efforts in Massachusetts, see States Challenge Traditional Alimony, a February 15, 2008 article by Tresa Baldas in the National Law Journal.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, June 13, 2008

Habeas Corpus Survives

A bit of good news for the endangered US Constitution: A majority (five of nine) on the US Supreme Court ruled to uphold the constitutional protection of habeas corpus, even for the unpopular alleged "enemy combatants" at Guantanamo. For this we have to thank Justice Kennedy, who wrote the majority decision, joined of course by all four of the justices who actually deserve to sit on the Court (Souter, Breyer, Ginsburg, and Stevens). Although I cannot forgive Kennedy for Bush v. Gore and his other transgressions, I have to recognize that he at least did the right thing with this most recent decision. See the opinion here, and read more about it at the SCOTUS Blog.