Make Your Next CLE a Vacation

Make your CLEs a Holiday

Getting ready for the evening’s dinner and discussion in the courtyard in Loudon, France.

By Charles E. Guerrier1

I have an unusual obsession: I enjoy continuing legal education courses. I look forward to attending them. I relish presenting at them. And I obsess over planning them. But not just ordinary CLE programs. No. I prefer structuring unique programs that not only contribute to the understanding of the law, but also expose me to how knowledge of the law can enhance even the smallest details of daily life.2 Let me give you an example that, I hope, will inspire you to think about structuring your own CLE program.3

In 2016, fellow Birmingham Bar Association member Alicia Haynes held the winning bid for a week in the restored Maison Cornay4 in Loudon, France. Because the house could accommodate 16, Alicia wanted to maximize this opportunity, for herself and others. She decided to work with an organization of employment lawyers with which she is affiliated5 and combine a vacation to France with a CLE program. My job was to figure out what that program would be.

The travel agenda I was working with entailed a flight to Paris, a train to Tours, a car to Loudon, one week in the Loire River valley, a return trip to Paris for three days and a flight back to Alabama.

Loudon is located in the Nouvelle-Aquitaine region of France. Aside from being in the heart of the châteaux region of the Loire Valley, Loudon is where, in the 17th

1Charles Guerrier is a graduate of Western Reserve University and Case Western Reserve School of Law, both in Cleveland, Ohio. His interests, other than the practice of employment law, include art, art history, international rights and law, and literature. Since retiring from the U.S. Equal Employment Opportunity Commission in 2012, he has been Of Counsel to the Birmingham firm of Haynes & Haynes, P.C., where he is required to sit and think all day. 2I trace my condition to Professor Peter Junger, who taught Water Law at Case Western Reserve University. Part of the class involved a half-day canoe trip on the Cuyahoga River, where we learned about water pollution (the Cuyahoga River notoriously caught fire in 1969, the year I started law school), riparian rights, and the common law right of portage. During the trip we discussed various topics such as whether or not we had the right to stop along the banks of a navigable river and build a fire from estovers.

3While getting a CLE program approved by the Alabama Bar is not difficult, there are certain requirements which must be met. See How a Sponsor May Apply for Course Credit, at https://www.alabar.org/membership/ mcle/sponsor-information/. Individuals who work in the MCLE section of the Alabama State Bar can be particularly helpful in guiding you through the certification process. 4The Maison Cornay dates to the Middle Ages. It was the home of the missionary Jean-Charles Cornay, who was martyred in Vietnam in the early 19th Century. Father Cornay was later beatified by the Catholic church.

5Ms. Haynes worked with NELA-AL, the Alabama affiliate of the National Employment Lawyers Association (NELA), an association of attorneys who represent employees in disputes with their employers.

HELPING LAW FIRMS PREPARE FOR

WHAT’S NEXT

Over the past decade, the legal sector has experienced change at lightning speed. With the current global pandemic and its economic impact, the legal sector has experienced sudden, forced change on a scale we have never seen before. Staying on top of the many factors that will impact overall operations and ahead of this rapid rate of change is challenging for law firms of all shapes and sizes.

At Cushman & Wakefield/EGS, we understand the key drivers that impact real estate decision making. Our extensive experience working with local and national law firms has uniquely positioned us to create real estate solutions to prepare your firm for WHAT’S NEXT.

To find out how the power of real estate can be unleashed on your behalf, contact us today.

EGSINC.COM | 205.939.4440

Diana S. Knight, CPA, CVA Jeff W. Maze, CPA, MA Mary Lou Rutherford, CPA, CBA, MBA

Legal Sector Advisory Group | ADVISING FOR EXCELLENCE

Income tax planning and compliance Estate tax planning and compliance Audit, compilation and review services Business valuations • Employee benefit plan audits Tax compliance–non-profit organizations Trustee and elder care services

Count on us

Two Chase Corporate Drive, Suite 40 | Birmingham, Alabama 35244 ph: 205.271.8506 | fx: 1.866.229.1120 | www.sovereigncpa.com

century, a convent of Ursuline nuns claimed to be visited and possessed by demons.6 A local priest, Father Urbain Grandier, was accused of summoning the evil spirits. The trial that followed is one of the most notorious witchcraft trials in Europe. Grandier was convicted of sorcery and burned at the stake.7 Historians now believe8 that the case was less the result of demonic possession and more likely the result of an anonymous libelous satire of Cardinal Richelieu, attributed to Grandier.

Loudon was also the home of Théophraste Renaudot, publisher of the first French newspaper, La Gazette (1631)9 . Important to both events — the trial and the newspaper — was the development that enhanced the ability to distribute information inexpensively and broadly: the Gutenberg Press.

While that information is interesting, it is hardly the stuff of a proper CLE program. But a kernel of a theme was developing in my mind. I just needed a few more pieces of information before it would sprout.

The first piece came from the then-current U.S. president who was making accusations about being subjected to a “witch hunt” and was calling to overturn New York Times v. Sullivan.10

The next two pieces also came from current events. First, the president was attempting to revitalize the debate over the Johnson Amendment11, which prohibits all 501(c)(3) nonprofit organizations (including churches) from endorsing or opposing political candidates. Also, as a result of two movies, “The Monuments Men” (2014)12 and “Woman In Gold” (2015)13, interest in stolen and repatriated art was in the news.

All of these pieces made me think about our Constitution and the freedom of expression.14 Where does the right to “express oneself” come from? What does it mean to “express oneself”? What governmental limitations on expression concerned the founders? What concerns us today? How aggressive should governments be in protecting and securing “freedom of expression”?

Thus was born “Freedom of Expression: From ‘La Gazette de France’ to the Johnson Amendment,” a four-part, four-hour CLE program. Each part involved a one-hour

Walking the streets of Loudon in search of Theophraste Renaudot and Father Urbain Grandier.

6Sluhovsky, Moshe (2002), “The Devil in the Convent.” The American Historical Review 107(5):1379-411.

7The Devils of Loudon is a 1952 non-fiction historical narrative by Aldous Huxley which examines the unexplained events that led to Father Grandier’s execution. The story was adopted into a stage play and then a film, The Devils, starring Vanessa Redgrave and Oliver Reed.

8Rapley, Robert (1998). A Case of Witchcraft: The Trial of Urbain Grandier, Montreal:McGill-Queen’s University Press; Calmet, Augustin. Treatise on the Apparitions of Spirits and on Vampires or Revenants of Hungary, Moravia, et al., The Complete Volumes I & II (2016).

9The Prix Théophaste-Renaudot is a French literary prize awarded annually to the author of an outstanding original novel published that year.

10376 U.S. 254 (1964). New York Times v. Sullivan establishes the actual malice standard that must be met in order for public officials to prevail in a libel suit arising out of press reports.

1126 U.S.C. §501(c)(3)

12The Monuments Men is loosely based on The Monuments Men: Allied Heroes, Nazi Thieves and the Greatest Treasure Hunt in History, by Robert M. Edsel and Bret Witter. It follows a group of men from the Monuments, Fine Arts and Archives program, created by the British in 1942, who were given the task of finding and securing art and other culturally important items before they could be destroyed.

13Woman in Gold describes Maria Altmann’s successful effort to reclaim Gustav Klimt’s painting of her aunt, Portrait of Adele Bloch-Bauer I, which was stolen from her relatives by the Nazis in Vienna prior to World War II. The movie was inspired by a 2007 documentary, Stealing Klimt. The legal issues surrounding Ms. Altmann’s efforts are discussed in Republic of Austria v. Altmann, 541 U.S. 677 (2004), in which the Supreme Court held that the Foreign Sovereign Immunities Act applies retroactively, including to acts which arose prior to the enactment of the Act in 1978.

14“Freedom of expression” is the phrase that is commonly used to refer, collectively, to the rights protected by the First Amendment. Fundamental to an understanding of those “freedoms” is an appreciation of the evil inherent in a licensing system. “The power of the licensor against which John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing’ is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.” Thornhill v. State of Alabama, 310 U.S. 88, 97 (1940). Milton’s famous “speech” to Parliament was actually a pamphlet published under the title “Areopagitica.”

presentation (with written materials) coming either before or after an excursion.15 Part one, “From ‘Areopagitica’ to Seditious Libel,” covered the history of expression and governmental attempts to regulate it, from Socrates through seditious libel to the publication of “fake news.” This session followed our visit to the building where Renaudot first published his newspaper.

After visiting the church where Grandier was convicted and executed, we returned to the Maison to learn about “Of Witches and Witch Hunts.” Did you know that there was a sharp distinction between witches and those possessed by demons? Possession, unlike witchcraft, was an involuntary condition and was not considered sinful or criminal. Demoniacs, unlike witches, were not held legally or morally responsible for their actions. They could, therefore, violate cultural norms with impunity.16

Also, witch hunts, from Salem to McCarthyism, share some common traits: The accused is adjudged guilty before any evidence is established; incriminating evidence is acceptable as final; it is assumed that the allegations are only the tip of the iceberg; and suspension of basic rights of citizens are justified by appeals to national security, protection of society, and the fight against evil.17 Finally, guilt by association and fear of the unknown are powerful movers.18 The discussion following this presentation lasted late into the evening and required more than the usual bottle of wine. We all learned that, as lawyers, we have an obligation to speak out against witch hunts and not to contribute to them.

The struggle between Henry II and Thomas á Becket is well known19 and, of course, did not end well for Becket. After visiting the Abbaye de Fontevraud and seeing the effigies of Henry II and Eleanor of Aquitaine, our discussion focused on the church-state relationship. Should a church enjoy preferential treatment under the tax code? If so, should that church (or any 501(c)(3) organization that enjoys that preferential treatment) be required to choose between keeping the favorable tax treatment or endorsing political candidates, i.e. should the Johnson Amendment be repealed?20 Should clergy, who violate their vows in ways that also violate secular laws, be tried in ecclesiastical or secular courts? How do we advise clients who have claims against churches? How does the Religious Freedom Restoration Act21 affect our clients’ rights or duties? Again, a lively discussion followed.

The group then said “Adieu” to Loudon and traveled to Paris. Visiting the art museums was high on our list of stops during our stay in Paris, and these visits inevitably raised interesting questions: How did this art get here? Why doesn’t it ever come to the United States? Who “owns” it?

It is not possible to visit any of the museums in Paris without confronting expropriated art of one type or another. One of our CLE programs entitled, “Appropriation, Expropriation, and Repatriation of Stolen Art,” focused on the legal issues surrounding the display and ownership of “stolen” art. The number of works of art looted by the Third Reich, for example, is astounding. Over 516,000 individual art pieces were looted from Poland alone. Fourteen Russian museums and libraries lost over 1,148,000 items of art, most famously, perhaps, being the Amber Room.22

Ownership of early European works was

In Paris, having dinner on the Seine and discussing the process for returning appropriated art.

15While each presentation elicited a lively discussion, that discussion was not part of the CLE. Rather, it was an opportunity for the participants, as well as non-lawyers who listened to the presentation, to consider and discuss (over a glass of wine, some cheese and pastries) what they had seen or would see that day and the legal context surrounding it.

16Brian P. Levack, Possession, Witchcraft, and the Law in Jacobean England, 52 Wash. & Lee L. Rev. 1613, 1614-15 (1995). 17Robert Rapley, Witch Hunts: From Salem to Guantanamo Bay (London McGill-Queen’s University Press 2007), 30-31.

18David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. Civ. Rights-Civ. Liberties L. Rev. 1 (Winter 2003).

19Henry II appointed Becket as Archbishop of Canterbury, believing that his old friend would help Henry reassert his rights over the church in England. That did not happen. One of the main sources of conflict between Henry II and Becket concerned the treatment of clergy who committed secular crimes: Henry argued for his right, as king, to enforce justice over those clerics, while Becket argued only church courts could try those cases. This dispute led to the Constitutions of Clarendon, which attempted to deal with “criminous clerks” (clergy who were accused of secular crimes) by subjecting clergy who were tried in ecclesiastical courts to a second trial in the secular courts. 20The Johnson Amendment has been in the tax code since 1954. Named after then-Senator Lyndon B. Johnson, the amendment was uncontroversial when enacted. It has been the subject of numerous unsuccessful repeal attempts. The amendment survives primarily because removal would make political contributions tax-deductible and exempt from other campaign-financing laws.

2142 U.S.C. §§ 2000bb through 2000bb-4.

“Our discussions about what we had seen that day and the legal context surrounding it were enhanced with a ” glass of wine, some cheese and pastries.

typically vested in the state, the monarchy, or the church. But, with the advent of the private art market in the 18th century, more and more art was gathered in private collections. Identifying expropriated art and returning it to the rightful “owners” can truly be a monumental task for museums. Museums that learn that their collections include unclaimed objects that may have been unlawfully appropriated without subsequent restitution are expected to acknowledge that fact in the object’s history, on labels and in publications.23

Consequently, our visits to the Louvre, the Centre Pompidou, and the Musée d’Orsay were enhanced knowing about the challenges facing museums who may possess looted art. The labels took on new meaning. And our appreciation of the art, itself, was enhanced by the knowledge of the art’s provenance and the mere fact that it had survived. The label accompanying a piece of art could provide some indication as to why that item could not travel to other countries without facing possible attachment or liens by heirs of the rightful owners.24

We ended our trip to France with four hours of CLE credit and an enhanced awareness about the scope of the “freedom of expression” guaranteed by our First Amendment. One of the great side-benefits of our plan was that the non-lawyers who traveled with us got a deeper appreciation of the law and how the law affects everything we do on a daily basis.

Of course, not everyone can take a trip to France. But, there are other things you can do to make your CLE a vacation. Here are some ideas; I am certain you can think of many others:

Above: A French tapestry depicting the fable of the Fox and the Stork, which the U.S. Supreme Court referenced in Griggs v. Duke Power.

► Plan a group outing to one of the minor league baseball parks in Alabama. Arrive early and have someone prepare a presentation on one of these legal topics: ○ The legal challenges facing the desegregation of baseball in 1947 and the lingering legacy of segregation in athletics; ○ The anti-trust exemption enjoyed by Major League Baseball; ○ Estate planning for professionals whose careers are “front loaded”; ○ Sports-injuries and worker’s compensation; ○ The tax issues facing athletes who work in various states; ○ Application of the Fair Labor Standards Act to college and minor league athletes.

► Plan a Section barbecue and set aside one hour to learn about: ○ Food labeling and inspection rules and regulations; ○ Issues related to animal cruelty; ○ Liability for distribution of tainted foods; ○ Municipal legislation banning soft-drinks. ► Plan a trip to the U.S. Space & Rocket Center and use one hour to learn about: ○ The relationship between admiralty law and space law; ○ Laws and treaties governing ownership of planets, moons, and stars; ○ The weaponization of space and efforts to denuclearize the planet; ○ The Warsaw Convention and the liability of air carriers.

And, if you still can’t think of a topic, check out Georgia L. Stevens, “Laws That Impact Our Lives” (1990). Historical Materials from University of Nebraska-Lincoln Extension, 368.

So, next time you are facing that dreaded CLE deadline, be creative. Find a sponsoring organization and an attorney who is knowledgeable (or willing to become knowledgeable) about a topic and put together your own vacation CLE.

I promise, you will love it.

Charles E. Guerrier, Of Counsel to the Birmingham firm of Haynes & Haynes, P.C.

22The Amber Room is a particularly fascinating case of “expropriation.” The room was begun in Germany in 1701 and was installed in the Berlin City Palace. After Peter the Great of Russia admired it, Frederick William I presented the room to Peter as a gift, who moved it to St. Petersburg (Leningrad). During World War II, German soldiers disassembled the room and shipped it to Konigsberg. The room has not been seen since the end of the war and most likely was destroyed in the Battle of Konigsberg. Regardless, did the Germans expropriate Russian art or merely re-appropriate what was originally German art?

23See, American Alliance of Museums, Ethics, Standards, and Professional Practices, “Unlawful Appropriation of Objects During the Nazi Era.” https://www.aam-us.org/programs/ ethics-standards-and-professional-practices/unlawful-appropriation-of-objects-during-the-nazi-era/ (as last visited on April 16, 2019). The Museum of Fine Arts Boston has one example of these “Ownership Resolutions.” https:// www.mfa.org/collections/provenance/ ownership-resolutions (as last visited on April 16, 2019). For an interesting discussion of the legal and ethical obligations facing museums, see, The Conflicting Obligations of Museums Possessing Nazi-Looted Art, 50 Bost. Coll. L. Rev. 473 (2010).

24Article 151(2) of the European Community Treaty encourages Member States to engage in non-commercial cultural exchanges, including art loans to museums. Nevertheless, art that travels outside the EU may well be subject to attachment. Further, the law draws a distinction between general works of art and “national cultural property.” See Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archeological Heritage, 22 Case W. Res. J. Int’l. L. 165 (1990).