August 26, 2019

Archives for January 29, 2015

The Future of Law (Part Three): The Globalization of the Law

rhodesIn his book Between Two Ages: The 21st Century and the Crisis of Meaning, futurist Van Wishard introduces globalization this way:

Sir Fred Holye was an eminent British mathematician and astronomer. He made a remark in the 1940’s that was prophetic: “Once a photograph of Earth, taken from the outside, is available, a new idea as powerful as any in history will be let loose.” That photograph was taken in 1969 from the moon, and it provided a visual symbol of globalization for humanity. Globalization [is] the long-term effort to integrate the global dimensions of life into each nation’s economics, politics and culture. In my judgment, this is the most ambitious collective experiment in history.

Thus far, most of the globalization action has been along cultural and economic lines, while the law has remained mostly aloof. That will end: the law will become increasingly globalized.

Globalization is a megatrend, which one source defines as follows:

Mega trends are global, sustained and macro economic forces of development that impact business, economy, society, cultures and personal lives thereby defining our future world and its increasing pace of change.

Megatrends cut a wide swath; lesser trends derive from them and follow in their wake. Legal trends deriving from the megatrend of globalization will realign law beyond the federal and state distinctions we’re used to, adding new regional and supranational lines as in the European Union. Along the way, globalization will substantially reshape several practice areas, beginning with commercial, intellectual property, immigration, environment, natural resources, banking, and tax. In general, international law will step out of its esoteric shadows into mainstream prominence.

The implications of legal globalization are tough to get your head around. It’s useful to keep a few things in mind:

A trend is not a destination; it’s a vector, the direction and magnitude of which are rarely known at the time. Trends take us to surprising places, known only after the fact.

In the arena of law, globalization will require choice. Pop culture and technology readily cross political and geographic borders; the law will need to be deliberate about how it does so.

The law is culturally resistant to change, therefore its participation in globalization will likely be driven by national or international activating incidents or disruptive technologies that make embracing it no longer optional.

Van Wishard sees a big upside to globalization:

If it succeeds, humanity may enter an epoch of opportunity and prosperity for a greater proportion of the earth’s inhabitants than ever before.

A global civilization will be a human civilization in a far higher sense than any that has ever been before, as it will have overcome the constricting social, ethnic and national limitations of the past.

But there’s a corresponding downside:

If [globalization] fails, it could retard progress in some nations for generations.

The birth pangs of such a new consciousness will bring infinite suffering as familiar attitudes and institutions fall away.

There is no doubt that the globalization of law will see its share of both “opportunity and prosperity,” “birth pangs” and “infinite suffering.” We’re in for it, one way or another.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

SB 15-016: Clarifying Changes to Civil Unions When Same-Sex Marriage Becomes Legal

On January 7, 2015, Sen. Pat Steadman introduced SB 15-016 — Concerning Marriages by Individuals who are Parties to a Civil Union, and, in Connection Therewith, Prohibiting Marriages in Circumstances in which One of the Parties is Already in a Civil Union with Another Individual, Addressing the Legal Effect of Parties to a Civil Union Marrying Each Other, Clarifying the Dissolution Process when Parties to a Civil Union Marry, and Amending the Bigamy Statute to Include Parties to a Civil Union. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act”. Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act”. If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.

The bill was assigned to the Senate State, Veterans, & Military Affairs Committee, where it was postponed indefinitely on January 21, 2015.

SB 15-049: Vesting Title to Real Estate in An Entity Upon Formation

On January 8, 2015, Sen. Beth Martinez-Humenik and Rep. Jon Keyser introduced SB 15-049 — Concerning the Vesting of Title to Real Estate in a Grantee that is an Entity that has not yet Been Formed Once the Entity has Been Formed. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law specifies that when a grantee of a deed is a corporation whose incorporation papers have not yet been filed, title to the real estate vests in the corporation once the papers are filed. The bill expands this law to apply to all entities, specifying that title vests once the entity is formed.

The bill was assigned to the Senate Business, Labor, & Technology Committee.

SB 15-069: Repealing “Job Protection and Civil Rights Enforcement Act of 2013”

On January 14, 2015, Sen. Laura Woods and Rep. Libby Szabo introduced SB 15-069 — Concerning the Repeal of the “Job Protection and Civil Rights Enforcement Act Of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly enacted HB13-1136, the “Job Protection and Civil Rights Enforcement Act of 2013” (act), which established compensatory and punitive damage remedies, as well as front pay, for a person who proves that an employer engaged in a discriminatory or unfair employment practice under state law. These remedies were created in addition to equitable relief, such as back pay, reinstatement, or hiring, that was already available to employment discrimination victims. Additionally, the act: ! Expanded age discrimination claims under state law to persons 70 years of age or older; Authorized the use of moneys in the risk management fund to pay claims for compensatory damages against the state or its officials or employees; and Required the state civil rights commission to create a volunteer working group to assist in education and outreach efforts and provide the commission with information to post on its web site regarding educational resources available to employers to help them understand and comply with antidiscrimination laws. With the exception of the expansion of age-based discrimination claims to individuals who are 70 years of age or older, the bill repeals all components of the act and restores the equitable relief remedies that were available to employment discrimination victims making claims under state law prior to the passage of the act.

The bill was assigned to the Senate Business, Labor, & Technology Committee.

Tenth Circuit: Contract Conflict of Laws Rules Govern Claims for Benefits Under Insurance Policies

The Tenth Circuit Court of Appeals issued its opinion in Kipling v. State Farm Mutual Automobile Insurance Co. on Monday, December 29, 2014.

Kathryn Kipling and her husband, Christopher, were Colorado residents involved in a motor vehicle accident in Colorado in July 2009 in which Christoper was killed and Kathryn was severely injured. At the time of the accident, the Kiplings were in a 2005 Chevrolet Suburban owned by Quicksilver for Christopher’s business and personal use. The other driver was solely at fault for the accident, but was underinsured, so Kathryn Kipling filed an underinsured motorist claim against State Farm, Quicksilver’s insurer. State Farm tendered policy limits on the Suburban and on one other vehicle insured to Quicksilver in Colorado. Kipling sought additional compensation from UIM benefits for four vehicles owned by Quicksilver and insured in Minnesota, but State Farm denied coverage.

Kipling filed a diversity action in the U.S. District Court for the District of Colorado, seeking payment of the UIM benefits. State Farm moved for summary judgment, arguing that Minnesota law applied and prohibited stacking of coverage. The district court denied summary judgment and agreed with Kipling that Colorado law applied. After a jury trial to determine damages, the district court entered judgment on the verdict. State Farm filed an F.R.C.P. 59(e) motion to alter or amend the verdict, arguing that even under Colorado law it would not have to pay UIM benefits because Colorado law did not prohibit the policy from tying UIM coverage to occupancy of the insured vehicle. The district court denied the motion as an improper attempt to advance a new argument. State Farm appealed, raising two arguments: (1) the same argument raised in its F.R.C.P. 59(e) motion regarding tying UIM coverage to vehicle occupancy, and (2) the district court erred in applying tort conflicts-of-laws principles in resolving which state’s substantive law governed the claim.

The Tenth Circuit rejected State Farm’s first argument because it was not timely raised in the district court. The Tenth Circuit found no abuse of discretion in the district court’s denial of State Farm’s motion as untimely. And, after reviewing the record below, the Tenth Circuit agreed with the district court that the argument had not been made previously. The district court’s judgment on this point was affirmed. As to the conflict of laws argument, the Tenth Circuit examined the Restatement provisions concerning tort conflict of laws and contract conflict of laws. The district court applied tort conflict of laws principles, but the Tenth Circuit found that an insurance policy is more akin to a contract, and the correct analysis would have been under contract conflict of laws. The Tenth Circuit remanded to the district court to determine whether Colorado or Minnesota law applied under a conflict of laws analysis for contracts.

Tenth Circuit: Unpublished Opinions, 1/28/2015

On Wednesday, January 28, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Juarez-Gonzalez v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.