On August 15, 2010 Governor Paterson announced that he had signed several bills significantly reforming New York State’s Domestic Relations Law. The first bill, A.9753A/S.3890 creates a “non-consensual” “no-fault” grounds for divorce. New York has long had “no fault” by consent, where both spouses agree by contract to get divorced and must wait a year after the contract is executed to apply for a divorce under D.R.L. sec. 170(6) commonly called a conversion divorce. This new law adds a subsection to D.R.L. Sec. 170(7) which states, (in part) that the Supreme Court can grant a divorce when: “The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” The law goes into effect 60 days after the date the governor signed it (October 12, 2010) and only applies to those actions for divorce started on that day or later. The new law also states that no divorce will be granted under the new grounds “unless and until” the economic issues of equitable distribution of marital property, payment or waiver of spousal support, child support, counsel, expert fees and expenses and custody and visitation of children has been resolved between the parties or determined by the Court and incorporated into the judgment of divorce.
The other laws signed by the Governor amend the divorce law to strengthen a party’s ability to seek an award interim spousal support and attorney fees at the beginning of an action, rather than the end. One law (A.10984/S.8390 and A11576/S.8391) creates a presumption that that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that presumptively governs such awards, a scheme similar to the Child Support Standards Act. This change should result in a speedy resolution of the maintenance issue once litigation has begun and prevent a less well-off party in to divorce proceedings from falling into poverty during litigation because they lack the resources to obtain a temporary maintenance order. For situations where one spouse makes $500,000 or less (subject to annual COLA adjustments) the formula is basically the lower of two amounts, (A) thirty percent of the payor minus twenty percent of the potential payee spouse or (B) forty percent of the sum of both spouses income minus the payee spouse’s income. If A-B is zero or less, interim maintenance shall be zero. The court may deviate from this formula and, as in the Child Support Standards Act, the “self support reserve” is the lower level cutoff factor for the payor’s resultant net income after maintenance is deducted.
The final law (A7569-A/S4532-A) creates a presumption that the spouse with less money in a divorce case is entitled to payment of attorneys’ fees at the beginning of litigation. Under current law, a party that cannot afford to secure representation in a divorce proceeding is often forced to make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to not fight for their rights due to lack of means or legal support as many lawyers are not willing to wait to receive their legal fees after years of litigation.
Tags: Divorce · Family law
February 11th, 2010 · 2 Comments
The United States Embassy in Port au Prince, Haiti is warning that there is a new advance fee fraud scheme targeting Haitians and Haitian Americans. Haitians, and Americans who are sponsoring their Haitian relatives, are being asked to pay fees up front in exchange for a guarantee that they can bring up to five of their relatives to the United States under a special program. Sometimes these scammers operate by telephone, email or by having criminals hand out flyers in neighborhoods where Haitian Americans live requesting that money be wired to Western Union account or similar service in exchange for an “authorization code” that they can use to fly to Haiti and sponsor five of their relatives to come to the United States.
As it states on the Department of State website: “Anyone who receives a phone, letter or email request asking for such an advance payment should consider the request to be fraudulent. Do NOT transfer any monies to an unknown person! Several Haitians and Haitian-Americans have already lost thousands of dollars because of these dishonest acts. If you have been contacted about one of these advance payments or know of someone who has, please contact the Consulate at 222-0200, x8684 or via email to PAPrso@state.gov or PAPfraud@state.gov.”
No U.S. Consular Official or U.S.C.I.S. Official will ever legitimately ask you for money outside of their official function except fees that are to be paid to an official cashier. All fees are collected either by check or money order through the mail to a U.S.C.I.S. Service Center or by cash at a Local Office. Cash is only collected at a Cashier’s Office within a U.S.C.I.S. or State Department government facility (some take credit cards such as the Cashier at 26 Federal Plaza) or by cash at a U.S. Embassy Consular Section Cashier that is clearly marked. One should never give cash to anyone in or outside a U.S. Embassy or Consulate who says they are a US government employee or consular staff.
Generally these types of scams are called “advance fee scams” where you are promised to receive something you need or want (money is usually the reward, though I have been involved in cases where the desired object is a visa or even citizenship in some country). You are asked to pay some money “up front” to cover costs, legal fees, etc. but what usually happens is that after you pay the fees you discover that the addresses, phone numbers or other information given to you are incorrect and that anything you are given, such as visas or bank checks are fraudulent and worthless. If you wire the money through one of these services, generally speaking the service cannot get your money back. This is also true if you wire money to a bank account, unless you can hire a lawyer in a jurisdiction where the account is located and your lawyer can convince a judge to freeze the account (something I have done in the past) before it is withdrawn or transferred out of that bank, you money will be lost forever. This is a common scam over the internet these days. Please be careful before giving or sending money to anyone whose credentials you have not verified independently.
If you want information on the United States immigration benefits that are available to Haitians please read our other blog posts covering this subject regarding TPS for Haitians in the United States on January 12, 2010 and other temporary immigration benefits that are being granted at this time to Haitians due to the terrible calamity that has befallen the Republic of Haiti.
Tags: Consumer law · Fraud and "con" schemes · Identity Theft · Immigration Law · Internet Fraud · Ruminations · visa fraud
Putting my last name into Google a few days ago, I found an article recently published in volume 59(1) of the Emery Law Journal regarding the role of dispute resolution in the collaborative online production of the English Wikipedia project. As the article mentions in detail (pgs. 166-170), I had a role in the policy discussion that lead to establishing mediation and arbitration procedures on the English language Wikipedia. The article examines how game theory can be used to analyze dispute resolution mechanisms and how a statistical analysis shows that the Wikipedia dispute resolution system has a normative effect not on the content of the English language Wikipedia project, but by “weeding out” problematic users, on the behavior of Wikipedians. This is an interesting analysis, however the problem that I see with the dispute resolution process is not that it weeds out problematic users, but that it does not function to teach these users how to be good volunteers. While I originally suggested in the fall of 2003 that Wikipedia have a structured dispute resolution process, instead of making this process simple and straightforward, ADR at Wikipedia has become a complex system that has all kinds of hard to understand rules.
Perhaps it is the management of this dispute resolution process (or lack thereof) is what has caused or contributed to a lot of Wikipedia users leaving the project and the ripple effect this system has on the general behavior of editors and administrators whose behavior is mediated by this process. As a recent article in the Wall Street Journal has shown there are many individual editors who are leaving Wikipedia. Felipe Ortega, a researcher working at the Universidad Rey Juan Carlos in Madrid, feels “Wikipedia is becoming a more hostile environment … Many people are getting burnt out when they have to debate about the contents of certain articles again and again.”
Another study by a group of researchers known as The Augmented Social Cognition Research Group at the Xerox founded PARC (Palo Alto Research Center, which is known for inventing laser printing, the ethernet and the graphical user interface – GUI) suggest that the slowdown in volunteers at Wikipedia may be due to “wiki-lawyering barriers” which have generally been linked to the development of the dispute resolution process. Today in order to be a successful volunteer editor at Wikipedia one must master numerous principles. There are even books available to assist the newbie in this quest.
When I suggested mediation and arbitration as being a way to resolve disputes between volunteers my background was the extensive research I had done while a law student and graduate history student at McGill University in Montreal into the legal history of alternative dispute resolution dating back to Roman times under the guidance of law Professor John E.C. Brierley and historian Brian Young. When the King of France has established the colony of New France, lawyers were not allowed to practice in this colony and the Intendant, the colonial governor, was given the traditional “high” jurisdiction that had been granted to many overlords or seigneurs in ancien régime feudal property law but the only advocates for those brought before this police power were not given the benefit of Parisian trained avocats, as the King had forbade any law practice in this colony. Most minor disputes in New France were “negotiated” between parties by the local Catholic priest or the notaire who registered contracts, land transfers and dealt with wills and inheritances but had no right of representation before any court, provincial or metropolitan. New France, and later Lower Canada, had originally developed a means of extrajudicial dispute resolution. My experiences as a solo practitioner in Brooklyn had also emphasized to me the importance of negotiation and compromise as a means of resolving differences. In the last five years my work as an court appointed Arbitrator in the Small Claims Part of New York City Civil Court has shown me that a minimum of procedure is often the best way at getting to the legal issues expediously with fairness and a sense of natural justice.
After seeing the discussion develop at Wikipedia in the fall of 2003 I saw that there were a lot of people who misunderstood the idea of arbitration, They wanted to make it something formal, like a Wikipedia court system, the ArbCom, as it was called became a place where someone could obtain status in the Wikipedia community, originally by being appointed by Mr. James “Jimbo” Wales, one of the founders of Wikipedia, and later by election. When I suggested this kind of system my intention was to get people to talk, mostly through mediation by a neutral third party, to come to a mutual understanding that editors were all contributing knowledge, not fighting against each other to be “right” or “wrong”. Even though I was given the opportunity to participate in the formal dispute resolution system I opted to remain apart from it and instead to start a voluntary association within Wikipedia called the Association of Members Advocates.
The original idea of this Association was to get volunteers who understood the complexities of the system to help individuals who had disputes and to help them understand the dispute resolution system and assist them to get through these disputes so that they could remain valuable contributors. Our belief was that all volunteers should be encouraged to learn how to contribute and not be driven away from Wikipedia by legalities. As a Wikipedia group were were the first group to have a democratic election amongst our members that actually occurred on the Wikipedia talk pages. The organization existed for several years and I tried to help it continue, and I felt it did assist users in understanding dispute resolution at Wikipedia but finally a group of administrators “deleted” the organization, i.e. refused to allow Wikipedians to use the talk pages to help people understand the dispute resolution process!!! There were people who criticized it and wrongly stated, in my opinion, that the organization was bureaucratic, unhelpful and prone to wikilawyering. I couldn’t disagree more, we had very little structure, many of the people who used our services stated they were significantly helped in understanding dispute resolution better and most of our volunteers were not involved in arbitration, but mostly mediation, as most disputes were solved on that level. I think the reason it was closed was because it was a threat to those who wanted the dispute resolution system to be complex and difficult to navigate so that newbies would lose and long time contributors could use it to buttress their position within the community. Today there are dozens of “associations” that have copied the basic structure that I first established for having a group within Wikimedia and they debate all kinds of issues such as “inclusionism” and “exclusionism” but do little to change the difficulties that have developed in editing Wikipedia or provide support for people who wish to contribute by find the rules to daunting and complex to the point of absurdity.
After starting the Association of Members Advocates and trying to develop a group of volunteers I left the organization to allow others to run it, and partly because the volunteers could not find anyone else to run the organization it shut down — there was no one left to defend it. I also left Wikipedia and Wikimedia at the end of 2006 after a decision was made to change the organization from a membership to an elite organization run by people mostly appointed by those who started it and continued to control it. I personally became frustrated by the cult-like jargon of Wikipedians, the trite slogans that would be repeated by people who disagreed with someone and refused to discuss real issues, the lack of basic common sense on many levels that I repeatedly experienced, and the obvious wish to use the money that I and other Wikipedians helped raise to fuel staff who were not interested in working with volunteers since they were “professionals” being paid to “run” the Wikimedia Foundation. How ironic that the one thing of value that Wikipedia has, volunteers, are being driven away by institutional forces. I seen this before Wikipedia in other successful organizations, it is easy for people with money to loose sight of their origins.
Like most of the volunteers, I never made a penny from Wikipedia, was never paid for all the legal work I did either in the various projects relating to copyright and open source licensing issues, or to help the Foundation (in areas such as trademark, tax-exempt organizations law and charities registrations) nor even reimbursed for my out of pocket expenses and I am proud of that fact; I was not corrupted by money or success. I just wanted to help what I thought was a community volunteer group. When I was volunteering I never thought it would become a bureaucracy with dozens of employees who essentially get paid thanks to the many anonymous volunteers who contribute to Wikipedia projects.
Tags: Alternate Dispute Resolution · Internet and Web 3.0 · Internet law and blogs · Not-for-profit law · Ruminations
The City University of New York (CUNY) is offering a series of free workshops to assist Haitians applying for TPS, the last upcoming workshop is on Saturday, February 20, 2010. The free workshop will be held at: York College, Academic Core Atrium and Lobby, 94-20 Guy R. Brewer Blvd., Queens, NY 11433. If you would like to attend either event, please RSVP Nadine Huggins at email@example.com or (212) 568-7208.
For more information on what documents you will need to bring and directions please visit the CUNY website.
February 2nd, 2010 · 2 Comments
Is it possible to sue for internet addiction, online gaming addiction, computer or Blackberry addiction? Who is responsible for someone who has psychological or even physical symptoms from overuse of their computer, portable device or gaming console?
Some might think these questions silly — “Of course the person responsible for using the computer is the cause of the ‘addiction’, you can’t blame the computer company, the software manufacturers or the computer gaming programmers.” However, there was a time when the cigarette manufacturers were considered to be immune from any kind of liability for manufacturing and selling cigarettes and we now know how that turned out. If you have the time, you might want to read the DC District Court decision regarding the history of tobacco use in the United States, it is only 1682 pages, not including Appendixes. Are these new digital technologies the new tobacco? Perhaps, but a few years ago they suggested that “fat lawsuits” were going to be the new area of public health litigation, but most of these cases have gone nowhere with some states even granting food manufacturers and restaurant owners immunity from suit. Perhaps the most famous of these cases was the McDonald’s lawsuit filed in federal District Court in the Southern District of New York The theory upon which this case was based was a New York State consumer law, General Business Law section 349(a), ” (a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” Most of the provisions of this section of the General Business Law provide that the New York state Attorney General is empowered to bring proceedings, but the final subsection (h) of § 349 provides for a private right of action with treble damages if the manufacturer or seller knowingly violated §349 with a discretionary award of attorney fees:
In addition to the right of action granted to the attorney general pursuant to this section, any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing plaintiff.
This section can and has been used in situations where something has been sold and in the process of it being sold or used, something that is known to the manufacturer or seller that is not disclosed to the purchaser or user that has an adverse effect on the purchaser or user, thus in the case of this McDonald’s obesity suit, the purchasers (parents) and users (children) of McDonald’s food, the effect that McDonald’s food was to cause the children abnormal weight gain. This lawsuit settled, no doubt because of the expense and difficulty of proving that the plaintiffs were not aware of the effects of fast food and the costs of discovery, which, in such a case, as in the tobacco cases, can be extremely difficult, time consuming and costly.
Cigarettes were first introduced around the time of World War I, and it took almost 100 years before cigarette companies admitted liability for the health problem they caused. It may take that long to find liability for addictive computer programs, but will it ever be possible to sue for conduct on an information channel. You have never heard of telephone addiction, nor of typewriter addiction, or short wave radio addiction, yet it seems plausible to “blame” someone for addictive behavior over the internet or due to misuse of digital gaming technology. Why is that? Are we not able to take responsibility for our actions? Is it because these new type of technology alter our perception of the world? Perhaps. Have these new types of technology changed us? There is a lot of new research asking questions on the effect of these new technologies such as immersive reality (such as Second Life, A Tale in the Desert or World of Warcraft [WoW]).
Doesn’t all technology change the user? In the iron age, tools and weapons changed the ability of humans to hunt and protect themselves. Saws, hammer and nails made woodworking possible. The printing press made book publishing possible. All these technologies changed the human race, so why should yet another technology, developed by humans, be blamed for the evolution of human behavior which appears to be in a constant state of flux anyway.
Perhaps I am playing the devil’s advocate here, but while it is true that these digital technologies are extremely powerful and can be misused, they also give us new possibilities of access to knowledge, transmission of information, broadcasting of specialized timely knowledge (such as we hope to present on this blog from time to time) which can break down boarders and bring people from across the world to a better appreciation and understanding of the many cultures and view points that exist.
If you find this discussion interesting, you may want to watch a new PBS Frontline documentary, Digital Nation. If you missed it on PBS you can watch Digital Nation online. It shows us how we are all immersed in technology and new developments in education and the military applying these digital technologies. The show was written by Frontline correspondent Douglas Rushkoff and producer Rachel Dretzin. You can also listen to an interesting interview of them discussing the documentary and their research making it that was broadcast on WNYC on February 2, 2010 on the Phillip Lopate Show.