1 Texto 2 Bench and Bar of Minnesota April, 2012 *8 MSBA IN ACTION Copyright 2012 by Minnesota State Bar Association

n Judicial District Pro Bono Awards Nominations for the 2012 Judicial District Pro Bono Awards are now being received. The awards recognize the dedicated service and outstanding achievements of a pro bono attorney in each district. The 2nd and 4th judicial districts sponsor separate District Pro Bono Awards. Contact the Ramsey County Bar Association (2nd District) or the Hennepin County Bar Association (4th District) for details. The awards are determined by either a judge or a committee in each judicial district. Nomination forms and supporting materials must be submitted electronically no later than 4:30 p.m. on May 3, 2012. The nomination form can be found online at http://www2.mnbar.org/pic-Justice.asp Contact Steve Marchese, (612)278-6308, smarchese@mnbar.org, with any questions. Mind Mapping at Practicelaw To survive and flourish in tough economic times, lawyers must find ways to practice more efficiently. The first step in handling any client or practice matter is to gather pertinent resources and get a sense of the forest through the trees. To this end, practicelaw has added At-A-Glance mind maps (part of the Jump Start series) to its arsenal of forms, checklists, links, and articles. The maps are designed to get an attorney up to speed quickly by collecting resources and showing their interrelationship. Mind maps focus on three general types of material: overviews of areas of law or issues, hot topics, and technology for lawyers. Recent topics covered by mind maps include: [ ] Basic Estate Planning [ ] Documents Involved in the Purchase or Sale of Residential Real Estate [ ] Managing Law Student Loans [ ] Finding a Legal Job in Minnesota Mind maps are valued for their ability to convey more information, show relationships more easily, and communicate faster than text alone. An attorney at the ABA Technology Conference April 2011 showed how he uses mind-mapping software as a practice management tool and a litigation aid. Harvard, UCLA, and William & Mary are a few of the law schools that have purchased mind-mapping software to use with their students. As law schools employ more visual teaching methods, more students graduate and bring to the legal profession a knowledge and appreciation of the utility of visuals to communicate.

2 At the Capitol Much of MSBA's legislative work is unseen, fixing bills behind the scenes so that they are workable and cohesive with existing law. MSBA provides drafting advice and technical feedback to ensure that laws that pass are laws that work. Other aspects of the Bar's efforts are more noticeable. Early in April Gov. Dayton signed HF382, a bill that contains provisions drafted by the MSBA's Business, Probate, and Real Property sections and covers receiverships, assignments for the benefit of creditors, and disclaimed property interests. Rep. Joe Hoppe (R-Chaska) and lawyer-legislator Sen. Dave Thompson (R-Lakeville) were lead authors on this legislation. MSBA's Probate Section has been working with the Department of Revenue to try to clarify Minn. Stat. 291.03 in light of numerous technical problems in the new farm and small business estate tax exclusions that were added during the 2011 special session. Some of the Section's suggested language was amended onto technical tax bills that were heard early in April in the House and Senate tax committees. The Bar will be unlikely to make all of the necessary fixes, as some of them will have a negative revenue impact for the state. The Family Law Section opposes the presumption of joint physical custody that would be created by HF322 and SF1402. Several different versions of the proposal have been floated, with the parenting time presumption set at 35 percent, 40 percent, or 45.1 percent, depending on the bill. One version would also create a new tier in the child support guidelines so that parents with 30.1 to 45 percent parenting time would receive an expense adjustment of 35 percent (the current adjustment is 12 percent). As of the deadline for bills to clear the Senate Finance Committee and House Ways & Means Committee, neither committee had heard the bill, which would have a significant cost impact on the court system due to projections of increased litigation. Bills that didn't meet the deadline are technically dead, although the rules can always be waived or the bill language could be used as a floor amendment. The House passed an omnibus health and human services bill that includes a $10 flat fee for medical records requested by Social Security disability appellants. The Social Security Disability Section negotiated this language as a compromise; under the original proposal providers would have had no limitations on per page copying charges.

Texto 3 Supreme Court, Nassau County, New York. Priscilla Coker, Plaintiff, v. David Townes, Defendant.

3 No. 200917/09. Feb. 8, 2012. Background: Husband filed petition for divorce. Wife sought reargument of award of attorneys fees, legal fees, and summary judgment of irretrievable breakdown of the marriage. West Headnotes Wife was entitled to obtain a judgment of divorce as a matter of law, where she stated under oath that marriage was irretrievably broken for at least six months and parties had not been living together for more than two years. Staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right. Marriage is not a contract within the meaning of the provision of the Federal Constitution which prohibits the impairment by the States of the obligation of contracts; this being so, rights growing out of the marriage relationship may be modified or abolished by the Legislature without violating the provisions of the Federal or State Constitution which forbid the taking of life, liberty or property without due process of law. Procedural Background The parties were married on June 12, 1981 and have three (3) children, who are all emancipated. On October 5, 2007, the parties entered into post-nuptial agreements concerning the issues of maintenance, support and equitable distribution. Marriage is the state's recognition and approval of a man and a woman's voluntary choice to live with each other, to remain committed to one another and to form a household based upon their own feelings about one another. It has often been said that marriage is a partnership. There can be no such thing as an indissoluble partnership. Indeed, it has been held that the decision that a marriage is irretrievably broken need not be based on any objectifiable fact. It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation. In other words, a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. As stated in our statute, a no-fault divorce may be granted provided that one party has so stated under oath that the, marriage is irretrievably broken. In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership. The conclusion, that it is sufficient that a party subjectively decide that their marriage is over, finds support in the reasoning of other courts. Suggestions that the party wishing to stay married has a constitutional right that is being infringed upon in violation of due process is unavailing. Staying married, against the wishes of the other adult who states

4 under oath that the marriage is irretrievably broken, is not a vested right. Marital rights have always been treated as inchoate or contingent and may be taken away by legislation before they vest (Gleason v. Gleason, supra ). AS AND FOR A CAUSE OF ACTION FOR A JUDGMENT OF DIVORCE (Constructive Abandonment) Continuing for a period of more than one (1) year immediately prior to the commencement of this action, defendant has continuously refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations. Defendant does not suffer from any disability which would prevent her from engaging in such sexual relations with plaintiff. The refusal to engage in sexual relations was without good cause or justification and occurred at the marital residence located at 140 East 83rd Street, New York, New York 10028, and other locations. Such conduct on the part of defendant constitutes an abandonment of the plaintiff by the defendant for a period of one or more years. Wherefore, plaintiff demands judgment as follows: For absolute divorce dissolving the bonds of matrimony between the plaintiff and defendant by reason of defendant's constructive abandonment of plaintiff. Based upon the Husband's sworn admission that his Wife has refused to have sexual relations with him for at least one (1) year despite his repeated request for same, it is difficult for this Court to imagine a better example of a irretrievable breakdown of the marriage relationship where one spouse continually refuses to have sexual relations with the other spouse for a period of at least one year. Here, the Husband is bound by his own sworn admission contained in his Verified Complaint, thereby eliminating any triable issues of fact for this Court to determine. Accordingly, it is hereby ORDERED, that Wife, Priscilla Coker's motion for an order awarding her summary judgment against the Husband, David Townes, pursuant to Domestic Relations Law 170 is GRANTED, and it is further ORDERED, that the Wife, Priscilla Coker's motion for an order awarding her summary judgment establishing that the parties' post-nuptial agreements dated October 5, 2007 are valid, enforceable and dispositive as to equitable distribution is GRANTED, and it is further ORDERED, that the Husband, David Townes, shall pay Wife, Priscilla Coker, an award of reasonable counsel fees in the amount of $27,810.58 payable by Husband, David Townes directly to Wife's counsel Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP regarding the representation of Wife within thirty (30) day of this Decision and Order and it is further ordered that if payment of the aforementioned legal fees are not paid as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees, shall enter judgment in favor of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP as against Husband, David Townes upon presentation of this Order together with an affirmation of non-compliance, and it is further

5 All matters not decided herein are denied. This constitutes the decision and order of this Court. Settle Judgment. Texto 4 Harvard Law Review

March, 2009

Recent Case

EMPLOYMENT LAW--TITLE VII--SEVENTH CIRCUIT ALLOWS EMPLOYEE TERMINATED FOR UNDERGOING IN VITRO FERTILIZATION TO BRING SEX DISCRIMINATION CLAIM.-HALL V. NALCO CO., 534 F.3D 644 (7TH CIR. 2008).

Copyright (c) 2009 Harvard Law Review Association

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to proscribe discrimination on the basis of pregnancy, a formative step in the political recognition of reproductive capacity as a sex-specific condition in need of legal protection. Passed specifically in response to a 1976 Supreme Court decision declaring that pregnancy-related classifications did not discriminate on the basis of sex, the Pregnancy Discrimination Act (PDA) revolutionized the landscape of employment protections available to pregnant women and women who may become pregnant. But dramatic advances in assisted reproductive technologies have complicated the nature of Title VII pregnancy discrimination claims. Recently, in Hall v. Nalco Co., the Seventh Circuit held that a woman who was allegedly terminated by her employer for undergoing in vitro fertilization (IVF) stated a viable claim under Title VII. In reaching this conclusion, the court in effect adopted a disparate impact theory, correctly reasoning that the employer's conduct disproportionately affected women; however, the court failed to make clear

6 that it was basing its holding not on the gender-specific nature of certain procedures like IVF, but rather on the greater burden women face in undergoing treatment.

In early 2003, Cheryl Hall, a sales secretary in Nalco's Chicago-area office, informed her supervisor Marv Baldwin that she wished to take a leave of absence from work to undergo IVF. After Baldwin approved the request, Hall took approximately twenty days off to undergo treatment. When she returned to work at the end of April 2003, Hall notified Baldwin that the initial procedure had been unsuccessful and that she planned to repeat the infertility treatment. In July 2003, Hall filed another application for a leave of absence. These requests did not go unnoticed. Baldwin discussed Hall's employment status with Jacqueline Bonin, Nalco's employee-relations manager. According to Bonin's notes from this conversation, Hall had "missed a lot of work due to health," and her job performance was characterized by "absenteeism--infertility treatments."

Some months earlier, Nalco had begun reorganization efforts in an attempt to reduce operating costs.The resulting deliberations led to a decision in mid-June to consolidate Hall and Baldwin's office with another Chicago-area office. At the end of July, Baldwin notified Hall that only Shana Dwyer, the secretary serving in the other office, would be retained after the consolidation. Baldwin told Hall that her termination "was in [her] best interest due to [her] health condition." Dwyer "was a female employee who since 1988 had been incapable of becoming pregnant.

After her termination, Hall filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), which declined to pursue further action but provided a Notice of Right to Sue. Hall then filed an action against Nalco alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. In her complaint, she alleged that she was fired on account of being a "member of a protected class, female with a pregnancy related condition, infertility."

7 The district court disagreed. In an opinion granting summary judgment for Nalco, Judge Coar ruled that because infertility is a "medical condition that afflicts men and women with equal frequency[,] . . . including infertility within the PDA's protection as a 'related medical condition' would result in the anomaly of defining a class that simultaneously includes equal numbers of both sexes and yet is somehow vulnerable to sex discrimination." In his analysis, Judge Coar gave "due weight" to Krauel v. Iowa Methodist Medical Center and Saks v. Franklin Covey Co., both of which held, in the context of health benefits coverage, that infertility was a genderneutral condition and that denying female employees access to treatments like IVF did not implicate Title VII. Moreover, neither the legislative history of the PDA nor the EEOC guidelines suggested that infertility should fall within the scope of the PDA.

The Seventh Circuit reversed and remanded. Writing for a unanimous panel, Judge Sykes conceded that infertility was a gender-neutral condition. However, Judge Sykes held that the district court improperly relied on this classification as grounds for dismissal of Hall's claim. The court reasoned that, although infertility afflicts both sexes equally, the employer conduct under dispute nevertheless was not gender neutral because only women take time off to undergo IVF. Consequently, Nalco's alleged policy of terminating employees for undergoing IVF treatments was sexually discriminatory because only females would ever be fired on such grounds.

On its face, a ruling that recognizes that infertile women attempting to become pregnant have cognizable claims under Title VII seems to square with Title VII's broader goal of preventing discrimination against women who are fertile and could become pregnant.

The court stated that the reason Hall had a viable Title VII claim was because the treatment Hall underwent, IVF, was exclusively for women, and therefore a termination based on such treatment could never be gender neutral. As the court stated, "Employees terminated for taking time off to undergo IVF--just like those terminated for taking time off to give birth or receive other pregnancy-related care--will always be women." In staking out this claim, the court implied not just that only women underwent particular kinds of procedures (just as other infertility

8 treatments target the disorder specifically in men), but also that only women required significant periods of time off to do so.

By and large, the Hall ruling recognizes the gender-specific burdens women face in their attempts to treat infertility and affirms the principle that women cannot be summarily terminated simply because they need assistance to become pregnant. A contrary holding would have deprived women of their right to start a family without suffering adverse consequences to their careersa move that contravenes the spirit of the Pregnancy Discrimination Act.

122 Harv. L. Rev. 1533

Texto 5 Yale Law Journal April, 2012 Article *1286 RIGHTS AND VOTES Daryl J. Levinson [FNa1] B. Constitutional Protection for Slavery The constitutional law and politics of slavery, from the Founding through the Civil War, offers a vivid illustration of how constitutional structure was supposed to protect rights--in this case, the rights of slave owners. While it was generally accepted at the Founding that some sort of constitutional protection for slavery was a necessary condition for Southern states to join the Union, there was little inclination at the Philadelphia Convention to write explicit, substantive protections for slaveholders into the constitutional text. [FN30] In part, this was because some of the Framers were squeamish about that peculiar institution. Madison, for one, thought it would be "wrong to admit in the Constitution the idea that there could be property in men." [FN31] But it was also because Southern Federalists had internalized Madison's more general approach to constitutional design. They were convinced that "parchment guarantees for human bondage would not restrain a Northern majority committed to abolishing slavery." [FN32] Thus, the Constitution contains no explicit, rights-like prohibition on national interference with slavery in the Southern states. [FN33] > *1298 The slaveholding South preferred to stake its fortunes on the structural design of the federal government. Proportional representation in the lower house of Congress and the Electoral College,

9 bolstered by the Three-Fifths Clause, held out the hope of eventual Southern control of the House of Representatives and the presidency. Even without majority control, Southern representatives would have sufficient power to block any national movement to do away with slavery. Or so slaveholders were assured at the Founding. [FN34] As it turned out, however, the Founding bargain over slavery reflected a major miscalculation about the demographic future of the Republic. Northerners and Southerners alike had expected faster population growth in the South than the North, but in fact the opposite turned out to be true: the relative population and political power of the North increased dramatically through the early decades of the nineteenth century. By the late 1850s, the Northern white population was more than double the Southern white population, and Northern representatives had come to dominate the House. [FN35] Although a Southerner occupied the presidency for all but twenty-three of the seventy years of the antebellum Republic, the longer-term prospects of Northern dominance loomed there too. [FN36] The best remaining hope of protecting slavery through the national political process was the Senate, and particularly the sectional balance rule that came to govern its regional composition. Instituted as an unwritten understanding accompanying the Missouri Compromise, the balance rule dictated that the North and South would have equal representation in the Senate and therefore would hold a mutual veto over any attempt to turn the nation against or in favor of slavery. This norm became a quasi-constitutional substitute for the original constitutional bargain over slavery. [FN37] For the several decades that it was in effect, a relatively stable equilibrium was maintained, as new states entered the Union in pairs and the security of sectional balance was preserved. Only in the 1850s, when economically and politically viable opportunities for the expansion of slavery ran out and it became impossible to *1299 rebalance the Senate after the admission of California as a free state, did this political settlement unravel. [FN38] Left politically vulnerable to Northern dominance over the national government, white Southerners sought additional constitutional protections for slavery. One possibility was some form of a constitutional right to own slaves. In common with the Federalist Framers, however, antebellum white Southerners doubted that a national majority united against slavery would be long detained by constitutional rights. [FN39] Echoing Madison, James Randolph declared, "I have no faith in parchment." [FN40] In place of ineffective rights, political thought in the antebellum period focused on presumptively more effective structural defenses against abolitionist majorities. Chief among these were the "concurrent voice" or "concurrent majority" arrangements advocated by John C. Calhoun: [T]he adoption of some restriction or limitation which shall so effectually prevent any one interest or combination of interests from obtaining the exclusive control of the government . . . can be accomplished only in one way, . . . by dividing and distributing the powers of government [to] give to each division or interest, through its appropriate organ, either a concurrent voice in making and executing laws or a veto on their execution. [FN41] Calhoun and his fellow Southern politicians advocated a number of institutional instantiations of these principles, on the model of sectional balance in the Senate. These included Calhoun's

10 own proposal for a constitutional amendment creating a dual executive (comprising a Northern and a Southern President, each with veto power over national legislation), [FN42] as *1300 well as similar suggestions for balancing the Supreme Court between Justices from slaveholding and non-slaveholding states. [FN43] The Madisonian premise of these proposals, and of Southern political thought more generally during the antebellum period, was that institutional arrangements allocating political decision making power would be more reliable guarantors of rights than explicit prohibitions on particular political outcomes. Politicians and constitutional theorists like Calhoun clearly understood that bolstering the representation and political power of white Southerners was a means of securing the rights of slave owners.