January 5, 2017

Marital and Separate Property

Written by Alex Roshuk
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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.

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March 17, 2016

Wikipedia Dispute Resolution

Written by Alex Roshuk
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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 EnglishWikipedia 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 atWikipedia 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 atWikipedia 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 Wikimediaat 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.

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February 18, 2016

Google Scholar Free Legal Research

Written by Alex Roshuk
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Google Scholar has made freely available a searchable database of US legal cases. in a blog post on the Official Google Blog the details of this great new development have been found.  According to Google, “We think this addition toGoogle Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all.” Case citations will often being clickable (as inWestlaw or Lexis) and a “cases cited” function, similar to the manual “shepardizing” of cases many of us learnt in law school will find cases in the newGoogle database that cite the case your are searching. The database also includes links to various legal journals, though when I tried to click through to results, often only the first page of the journal was available, some kind of paid scholar research account was necessary to retrieve the full article. The coverage will initially include eighty years (80) of federal case law, including Supreme Court decisions from the founding of the Republic, and fifty (50) years of state case law. You can access Google Scholar case law here (will open in a new window).

Will this bring down the cost of Lexis and Westlaw? Probably not as they still monopolize digital access to many of the legal treatises that provides specialized legal knowledge to practitioners in various specialty areas.

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