A JD over an MBA?  Only if you love the law.

In this story in the University of Michigan Law School‘s Law Quadrangle, we see how a law degree (as opposed to an MBA) was a key move to help the WebMD CEO get to where he is today.  While I am happy to see a fellow Michigan Law grad having such success, readers should be wary of thinking JD over MBA if their goal is to enter the business world.  This grad was working at the megafirm Latham & Watkins and was approached by a client to make the jump to business from law.  But if you are pounding the pavement looking to “enter” the business world, waving a JD may cause potential employers to ask two questions: (1) whether this applicant overqualified, and (2) why this applicant doesn’t have a law job.  Do your legal skills give you a leg up over someone without a JD?  Absolutely.  But you need to like the law if you are going to pursue a JD, rather than thinking that 3 years, some loans, and a piece of paper will make you into a business mogul.  You may find yourself putting that legal theory to use in a real law job before your business break comes.

Read more about “The Downsides of a J.D.”, including overqualification and at least one commenter’s thought that law school thinking is not conducive to business thinking TaxProf Blog here.

States Fight Over GMO Labeling Laws

Q: How is safety of genetically modified organisms/foods (“GMOs”) affecting food labeling laws?

A: This is National Public Health Week, and one public health issue infecting the news is GMOs.

The question of whether genetically engineered foods are safe isn’t that simple. Genetic engineering is merely a method of production; it does not, in itself, make food more or less safe.

Genetic improvement of plants has occurred for thousands of years. A science of crossbreeding and hybridization of plants has existed for well over a century, giving us a variety of foods rarely questioned as to safety.

But crossbreeding can create bad results as well, and only scientific improvements over many years change a trial-and-error process into precise engineering.

Genetic engineering makes food production more efficient, and using modern engineering in a laboratory, rather than crossbreeding in the field, does not make food unfit for human consumption. For that reason, engineered and non-engineered foods are subject to the same safety and labeling requirements. But because engineering new crops with differing proteins or nutrient (or “anti-nutrient”) levels could have adverse impacts if left unchecked, federal agencies like the Food and Drug Administration, Department of Agriculture and Environmental Protection Agency work together to regulate these crops and pesticides used on them. The FDA can impose penalties and remove foods from market that pose public health risks or that contain unapproved food additives.

For these reasons, an FDA official recently told Congress that “we are confident that [genetically engineered] foods in the U.S. marketplace today are as safe as their conventional counterparts.” But despite that position, at the state level we have seen efforts to require labeling of products containing GMOs, including a bill in Vermont set to go into effect in July.

It is critical to our interstate commerce system to have consistency in labeling rules across the country, and some believe that requiring GMO labels fuels a war against scientific efforts that make food more abundant and less expensive without inherently affecting safety. Thus, there are now efforts in Congress to preempt state-level labeling efforts and instead make GMO labeling voluntary, while at the same time requiring the FDA to conduct safety reviews for new plant varieties before market.

Published as part of my law firm’s biweekly column in The Ledger here.

Animal Protection Staying in Spotlight

Q: It appears animal cruelty is on the rise. What laws are in place to protect these animals?

A: For years, compassion for animals and anger toward abuse have been triggered by circus elephant acts, killer whales in confinement and greyhound races. But, partly because the law allows these exhibitions, only recently have we heard of changes, such as Ringling Brothers voluntarily retiring its elephants.

The Florida Legislature continues to expand protections for animals, including this month by taking a look at bills to protect greyhounds and horses involved in racing, with some lobbying groups trying to make greyhound racing unprofitable.

An extensive set of animal cruelty laws exist, primarily protecting livestock, dogs, and cats from the more horrifying stories we have heard recently, like animals being tied to railroad tracks or hung to death. A “zombie cat” allegedly buried alive was taken into possession by an animal welfare organization.

While individuals could be accused of theft for taking another’s pet away regardless of suspected abuse, Florida allows certain organizations (in addition to law enforcement) to have an agent appointed for that purpose. When an animal is seized, a court hearing follows to determine whether the animal will be returned.

With limited exceptions, animal cruelty includes allowing any “unnecessary or unjustifiable pain or suffering.” Tormenting, starving, and mutilating all fall within this term and are at least a first-degree misdemeanor (up to $5,000 fine/one-year imprisonment) and as much as a third-degree felony (up to $10,000 fine/five years’ imprisonment) for repeated, intentional acts, acts that result in death, or being any part of dog fighting (breeding, training, owning, promoting, betting, attending, or otherwise ). Additional specific offenses prohibited by law include keeping a dog confined without exercise, abandoning in a public place, lassoing of horses for entertainment or sport, engaging in simulated bullfight exhibitions, allowing others to be exposed to a known contagious animal, and artificially coloring an animal under 12 weeks of age.

Contact animal control or other local law enforcement if you suspect animal cruelty is occurring in your neck of the woods.

Published as part of my law firm’s biweekly column in The Ledger here.

Liability for Dogs Fills a Chapter

Q: What is my liability if my dog bites someone?

A: While each year only one or two Floridians die from dog bites, some 500 state residents could go to the hospital with injuries. In what is hopefully not a signal that the Legislature thinks dogs are inherently dangerous nuisances, a whole chapter of Florida Statutes has been created covering damage by dogs.

Some of the provisions are more unusual than others, such as that it is lawful to kill a dog roaming over the country if that dog is known to have killed sheep. (Please think twice before assuming a loose dog in your neighborhood fits this definition.)

The most talked-about provision is the “dog bite statute,” which generally pegs the pet owner with responsibility for his dog biting anyone who is not trespassing. One exception or reduction to the owner’s liability may exist if the bitten person negligently provoked the dog in a way that the person should have known would lead to a bite.

Also, where the owner posts a conspicuous sign at his home reading “Bad Dog,” he might be able to limit or eliminate his liability for bites (except where those bites are of children younger than 6 or where the owner has acted negligently, which could include failure to supervise children). Of course, the owner should not expect to get such protection if he tells his party guests to ignore the yard sign’s warning.

Despite a common misconception otherwise, Florida does not have a “one free bite” rule allowing owners insulation from liability when their dogs have not shown prior dangerous tendencies. However, dogs deemed “dangerous” or under investigation by animal control authorities are subject to heightened standards (that might differ from county to county) and strict criminal penalties for owners of such dogs who do in fact bite.

One final point: Reduce your worries by verifying that your homeowners insurance covers your dog’s bites.

Published as part of my law firm’s biweekly column in The Ledger here.

Neighbor’s Tree Raises Liability Questions

Q: Who is liable for damage to my property from my neighbor’s tree? Can I compel the neighbor to trim or remove the tree?

A: Your neighbor’s tree could cause damage to your property in many ways, including by falling, limbs dropping or intruding, roots growing, or infestations spreading. One of the first things you should do when suffering or causing this sort of damage is to review your homeowner’s insurance policy to see whether you have coverage in the event you are stuck with the bill.

In a situation where the tree is healthy and no one has a reason to think it will cause damage from falling limbs or otherwise, the damage that subsequently occurs by way of a hurricane, for example, will often be considered an “act of God” and therefore no one’s responsibility. The damaged neighbor is out of luck. Where the tree is known to the owner to be dead, diseased, deteriorating or otherwise fragile, and limbs cross the property line, the damage from falling limbs in a light breeze might be the responsibility of the tree owner, who could be deemed negligent for failing to remedy a known danger. An insurer might make that same argument if, say, your own tree’s limbs damage your house.

Splitting hairs for the various circumstances in between might be difficult, but the presumption is that a landowner is not liable to neighbors for the nuisance of the trees and other vegetation on his land. Absent this presumption, every tree would be a potential and quite unpredictable liability for the owner.

Because the landowner is presumptively not liable, it is very difficult to compel that landowner to trim or remove the tree. In theory, a court order is possible in the event the tree imposes a substantial and imminent danger. The neighbor is free, however, to cut back overhanging tree limbs or remove encroaching tree roots.

Published as part of my law firm’s biweekly column in The Ledger here.

How Judicial Selection Works

Q: Polk County has recently seen judges appointed by the governor and elected by the people. What is the process for judicial appointments, elections and resignations?

A: The short but problematic answer is that trial court judges are elected by the people unless a vacancy arises (by resignation, by a judge being elevated to another court, or otherwise).

This answer is problematic because courts continue to grapple with how and when judicial resignations create a gubernatorial power of appointment.

For example, in March Jacksonville’s Judge Donald R. Moran Jr. tendered a letter of resignation to the governor, effective one business day prior to the end of the judge’s term in January.

Days later, the Secretary of State received the first candidate submission.

Once the governor accepted the resignation, however, the Division of Elections advised the candidate that the position would be filled by appointment rather than election, because the judge was resigning.

The timing of the letter and effective date were important.

If the date the resignation letter is accepted by the governor predates the election process (i.e. candidate submissions), regardless of whether the effective date is later, the position is filled by the governor; otherwise, the election process continues.

According to a 1970s Florida Supreme Court decision, however, if the judge resigns effective as of the end of his term, creating no actual vacancy, Florida favors elections.

An appeals court last month held that, even though the effective date of Moran’s resignation created only a single business day of vacancy, there was no clear right to an election.

The court’s Judge Philip J. Padovano, in dissent, expressed concern that such a ruling creates the potential for abuse; specifically, a judge could give the governor appointment power by resigning effective just hours before the end of his term or could strip the governor of that power by refusing to formally announce resignation until after the election process begins.

Above, I refer to how trial court judges get on the bench.

Florida has also has an intermediary “court of appeals” and a “supreme court.”

Judges on those benches are appointed by the governor after a nominating commission provides the governor with suggested candidates.

Appeals and Supreme Court judges, like other judges in Florida, typically serve six-year terms and must go through a retention election process at the end of each term.

Published as part of my law firm’s biweekly column in The Ledger here.

Lactating Workers Deserve Space

Q: My employee returned from maternity leave and must express milk regularly. What are my obligations when she requests a break and private space?

A: As an initial matter, the Florida Civil Rights Act considers pregnancy discrimination as sex discrimination. You cannot treat employees adversely because of pregnancy or the fact they have children. A state public health statute recognizes breastfeeding as an “important and basic act of nature which must be encouraged,” and therefore mothers can breastfeed wherever they are otherwise permitted to be, regardless of whether breasts are covered.

Last month, the United States Equal Employment Opportunity Commission issued guidelines stating, among other things, that lactation is a pregnancy-related medical condition and that breastfeeding employees must have the same freedom to address lactation needs as co-workers would have to address “limiting medical conditions.” Accommodations need to be made. But to what extent?

The Patient Protection and Affordable Care Act included an amendment requiring employers to provide both reasonable break time and a ­”shielded” location to express milk during the child’s first year. The employer does not need dedicated space, but the employer must make a suitable, private space other than a bathroom available upon request. The extra break time need not be compensated, provided that the employee is completely relieved of duty.

The protections of the amendment extend only to employers covered by the federal Fair Labor Standards Act — and whether your business meets that requirement could be the subject of a much longer article — but employers with fewer than 50 employees may be able to avoid the break time requirement if they can demonstrate that compliance would impose an undue hardship when looking at the difficulty or expense of compliance in comparison to the size, financial resources, nature, or structure of the business.

Earlier this year, the American Civil Liberties Union brought its first case under the Affordable Care Act’s breastfeeding provision: A mother was forced to choose between lactation in a bathroom or a dirty locker room alongside dead bugs.

It remains to be seen how courts will respond to increasing breastfeeding discrimination litigation, but it appears enforcement will primarily be by the EEOC as individual employees have difficulty bringing lawsuits for damages under the FLSA absent lost wages.

Published as part of my law firm’s biweekly column in The Ledger here.


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