South Texas Law Professor

This Week's "People With Too Much Time On Their Hands"

2009-03-30T00:10:00.003-05:00

Here is this week's example of people with too much time on their hands/not enough to do: 100,000 Britons downloading "certificates of de-baptism" as a way of renouncing their unfashionable Christian heritage. The standard reason seems to be that the water ritual was performed when the person was an infant, and is therefore not meaningful. I understand that part - as a teenager, I arranged to get re-baptized partly to make a point that it was my own choice. But I don't get why something that is "meaningless" isn't...well, not necessary to undo by downloading an unofficial, do-it-yourself, sacrilegious certificate from a website. The article, however, makes it sound like thousands of people are taking their own atheism very seriously - even devoutly. If two wrongs don't make a right, do two meaningless acts make a meaningful one? Was there nothing to watch on TV instead?

The New Law Prof Rankings

2009-03-28T21:53:00.003-05:00

This innovative new empircal article, Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, by a group of professors at the University of Michigan, offers a new way to rank the "influence" of law professors on American society (or at least on our legal system), based on their institutional affiliation. Particularly interesting is the comparison to US News rankings.

My favorite part is this amazing graph of the law professor universe:

My alma mater is pretty easyy to find (center), and my current institution (South Texas) is in the upper left-hand quadrant - seemingly closer to the center of the intellectual-impact universe than Baylor, Texas Wesleyan, or Loyola NOLA. some of our regional competitors. This is great news for us!

Law Prof’s Article on His Jury Experience Leads to Overturned Verdict

2009-03-26T22:59:00.005-05:00

This article from the ABA Law Journal describes how an academic article by a law professor about his own experience as a jury foreman led to a reversal of a verdict in New Jersey (ordering a new trial due to juror misconduct). Finally, we have an example of published legal scholarship having a concrete effect on a real-world case. :-) From the article:

A New Jersey appeals court ruled today that the defendant deserved a new trial, in part because the professor’s explanation of legal concepts to his fellow jurors had a tendency to influence the verdict . . . The influence issue came to light after Seton Hall law professor Robert Martin wrote a December 2006 article for the New Jersey Law Journal reflecting on his experiences as foreman of the jury. Martin wrote that he was surprised that none of the lawyers used peremptory challenges to exclude him, even though he was a law professor, practicing lawyer and New Jersey state senator. . . In the article, published in December 2006, Martin wrote that other jurors were relying on him to deal with abstract legal concepts.

This appears to have been flagged first by the Legal Profession Blog

Got tenure, can start blogging again

2009-03-25T01:18:00.003-05:00

I am very thankful that I received tenure (officially) on March 24, 2009 at South Texas College of Law. Now I can start blogging again!

Check back soon.

Massachusetts v. EPA

2007-04-07T21:00:00.000-05:00

On Monday, the Supreme Court issued a much-awaited decision in Massachusetts v. EPA (05-1120), holding that the EPA does, in fact, have statutory authority to regulate greenhouse (the EPA has been denying that it could regulate carbon dioxide, even if it wanted to – which it doesn’t). The Court also ordered the EPA either to promulgate meaningful regulations, or offer some sophisticated scientific basis for not doing so.

I must agree with Gary Feinerman, the Solicitor General for Illinois, that Mass v. EPA foreshadows a “more active role for States in attempting to drive the regulatory agenda at the national level." More specifically, it enhances the role of a state Attorney General to include intense involvement in national policy and federal administrative agencies. These cases came from the AG offices, not by public referendum in each petitioning state.

Disclosure: I worked on this case during its nascent stage, very briefly, during my stint at the Connecticut Attorney General’s Office, so I have both a bias in favor of the majority’s holding, and a (limited) insider’s view on what goes on in the AG offices when these types of cases are hatching. I agree with the Court’s decision because I think it marks a new era where federal administrative agencies will have more accountability to the citizenry. In a sense, the indirect consequences of Mass v. EPA - in making regulatory law more democratic - may supersede the immediate consequences for greenhouse gas regulations.

Mass v. EPA highlights the growing political importance – and hence higher stakes – of the state AG position. In forty-three states, the AG is an elected official. The elections will be more controversial; the office will have a higher profile; and the position may attract a different kind of candidate, more political and policy-oriented.

As a result, Mass v. EPA also heralds a new era with both more collaboration and more competition between the state AG’s. The semi-national stature of the position can pit one AG against another in vying for more of the national limelight – competition to see which one can bring more federal cases, which one can be the “lead state” on these multistate-consortium cases, etc.

Finally, as the role of the state AG rises in importance, the stature of citizen activist groups diminishes. Admittedly, citizen groups collaborated with the AG’s in this present case. Yet as the AG becomes “the People’s lawyer” instead of general counsel for the state’s executive branch, the people will turn to the AG instead of groups like the Sierra Club to litigate for tangible changes in regulatory policy. The Supreme Court’s emphasis on the “special role” for states (on the issue of standing) will intensify this effect. For future cases, it would clearly be more strategic for concerned citizens to have their AG sue than to go through an activist group (like the NRDC or Sierra Club), because the Court has already announced a rule that the AG is more likely to have standing. In this sense, one could say that this is anti-SCRAP, not the new SCRAP. It shifts standing away from citizen groups, and tilts the standing scale toward the AG’s office instead.

How We Learn the Law

2007-04-05T17:12:00.000-05:00

When I was a 1L, I remember wondering why we needed to plod through endless, outdated cases in order to learn the law. At the time, it seemed to me that it would have been more efficient for us to use a commercial outline - or at least a Hornbook- to master a subject like Contracts or Criminal Law...

My pesky inquiries about this usually elicited one of two answers. First, the most common answer was that the professor thought all the commercial outlines were riddled with errors, completely worthless, and contradictory to what the professor believed about the subject. I found this answer troubling. Did the professors really know what was contained in every commercial study aid? They always cited one or two anecdotes where oblivious-and-scared students challenged prof's knowledge of her area of specialty with Steven Emmanuel's definitive holding on the issue. It was appropriate to be dismissive in such a case. Even so, what about the study aids written by professors at other law schools? Higher-ranked law schools? Also, wouldn't there be a huge market, in that case, for my professor to author the only correct version? Wouldn't somebody, somewhere, foil the great Conspiracy of Erroneous Study Aids simply by publishing the truth at some point? Was the truth about law supposed to be a secret?

This brought me to the more troubling question. If ten hornbooks, treatises, and study aids, all authored by professors at respectable law schools, took a different position than my singular professor, it would take a leap of faith to believe my professor was right - the only one in the world who knew the right answer - and all other professors were wrong. My 1L mind would cloud with doubt. It reminded me of fundamentalist meetings I had attended, where speakers were convinced that the King James Version of the Bible was infinitely superior to all other translations - none of which the speaker had ever read, of course, and some of which the speaker did not know existed. How could they be so sure?

Third, given that some of the study aids I used (as a student) were really BarBri materials - the very materials that 30,000 students use every year to prepare for the bar exam - why was there no outcry from the professors about the serious errors of law pervading the universal bar prep course? Why didn't it bother anyone that the last word graduates heard on Contracts - before entering the legal profession - was something completely unreliable, mostly incorrect, or irrelevant to the "real" subject matter? This seemed bizarre. Or, if the BarBri outlines and audio recordings were good enough for every new lawyer in the country to recap what they had learned in law school, how could they be so anathema for me three years earlier in the pipeline?

The other answer I received was much better, but not entirely satisfactory: students learn best (in any area of study) if there is a strong element of self-led discovery. We read cases to "discover" the law for ourselves. This made more sense than the idea that study aids were part of a Great Conspiracy to deceive; I recognized that I often remembered things longer if I figured them out myself somehow. Even so, there was so much to learn - it was hard to imagine that it wasn't - at least - a tradeoff between self-discovery and learning more quickly (and thus more law) from others who already made all these discoveries. Why not stand on the shoulders of giants?

My confusion about the value of cases deepened when all the 2Ls and 3Ls admonished us newbies about the absolute necessity of “outlining” at the end of the semester. I couldn’t imagine that my “outline” after three months of law school would be much better than Joshua Dressler’s outline, on sale for $40 in the campus bookstore. Again, the refrain was something about discovering it for myself, which seemed terribly inefficient, even it kept things lodged in my brain longer.

Worse, the more radical (or mischievous) 3Ls would tell me that reading cases was a waste of time, useless for obtaining a good grade on the exam. I needed to know “the black letter law,” the kind that would magically emanate from my personal “outline.” This led me back to the Great Conspiracy question: why did every professor compel us to read cases all the time? How could these 3L’s understand “learning the law” better than virtually all professors everywhere?

Eventually, I understood. Reading the cases is the only way, at least for most subjects, for the average student to appreciate the richness and subtleties of the individual legal rules. Preparing outlines for the exam is no substitute.

Outlining is valuable for "tying it all together," seeing the logical coherence of a body of law, and (perhaps most valuable for students) surveying what parts of the course the outliner has mastered and what parts are still unclear. At the same time, if outlining is the exclusive approach to exam preparation, there is a danger that the student will have a superficial grasp of how the rules operate in different factual scenarios, as each rule appears to be merely a bullet point on an outline. This "black letter law" approach is wrong; it is simply inconsistent with the real world, where judges apply the rules differently in different cases, jurisdictions disagree about the parameters or exceptions to the rules, and procedural or technical differences can cause the "same" rule to yield different outcomes. Every word of a legal rule (for example, the "irresistible impulse" defense in Criminal Law) contains ambiguity, particularly at the margins. There is, therefore, always some uncertainty about how the rule will apply to a particular fact pattern (especially examination fact patterns!). When the legal rule appears as a single-sentence (or phrase) bullet-point on a student's "outline," this inherent uncertainty and ambiguity is masked; it looks like a simple rule that the student can memorize and regurgitate on the exam. It is an illusion that inheres in legal outlines.

Students who rely too much on their outlines, as opposed to reading cases and participating actively in class discussions, often go into the exam with a simpleminded, "black-letter" concept of the law. Not only do they have a misconceived notion of legal rules, but many have a false sense of security. Some apparently think they mastered the course because they mastered their outline, which ultimately is little different than the Table of Contents that was in the preface to their casebook all along. Worse still, some scrape by and enter the legal profession with the same shallow, superficial ideas about the rules, which is a disservice - a handicap - to their clients. (On the other hand, as a practitioner I was sometimes thankful there were lawyers like this – when they were opposing counsel).

Reading and discussing the cases - even hearing students suggest mistaken or erroneous ideas in class, being corrected by the professor - provides the balance to the "black letter" syndrome. The cases illustrate how confusing and uncertain the rules really are; how reasonable minds can differ about how to apply the rules to various facts; and how courts struggle to resolve the seemingly endless ambiguities in the statutory words themselves. This rigorous mental exercise is difficult for most people (so difficult that it makes memorizing and reciting the rules seem blissfully easy by comparison). We acquire it through much practice.

"Outlining" cannot provide such practice. Reading and pondering cases (and maybe professors' hypotheticals) is the only way to practice and hone this skill. I recognize that law school would be less stressful, and less difficult, if the professors tested only on outline-type knowledge and "black letter law." It would also produce lousy, simpleton lawyers. A child can read a rule and memorize it; clients need someone who can "handle" the legal rules, anticipate the arguments and counterarguments for both sides of a question, and work out a theory of the case. Outlining is valuable for most students, as I said at the outset, but it does not give the students the complete picture.

Reverse Bifurcation Article

2007-03-14T14:56:00.000-05:00

I previously blogged about my interest in Reverse Bifurfaction (in civil trials) and solicited comments and suggestions. The article is now in print from the University of Cincinnati Law Review. The original draft version is still available for free download on the Social Science Research Network site, at http://ssrn.com/abstract=895003.

Against Dictionaries: The Exceptional Case

2006-05-29T23:59:00.000-05:00

State v. Werdell, 2006 WL 1429161 (Ore. May 25, 2006) (case about a lawyer who is charged with hindering prosecution; defendant attorney challenges the state appeals court’s use of the dictionary definition of the words “discovery” and “apprehension” instead of the actual words in the statute. The Oregon Supreme Court agreed this time; statutory definitions trump the dictionary.

Deadbeat Dads and the Dictionaries that Punish Them

2006-05-29T00:03:00.000-05:00

K.T.P. v. Atchison, 2006 WL 1410142 (Ind. App. May 24, 2006) (case about whether a father owed money for expenses, reasonable and necessary, of the mother’s pregnancy and childbirth.)

Indiana Code § 31-14-17-1 states the following: "The court shall order the father to pay at least fifty percent (50%) of the reasonable and necessary expenses of the mother's pregnancy and childbirth, including the cost of: (1) prenatal care; (2) delivery; (3) hospitalization; and (4) postnatal care." As K.T.P.'s disputed medical expenses arose four weeks following his reportedly "normal" birth, the State's position requires that we include them as "postnatal care" under Indiana Code § 31-14-17-1. As stated earlier, "postnatal" is defined as "occurring or being after birth; specif: of or relating to an infant immediately after birth." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, supra. Under the plain language of the statute, "postnatal care," which refers to the care of an infant immediately following birth, would not apply to the subsequent care of a child who is re-hospitalized thirty-four days following a normal delivery.

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- FN7. "Parturition" is defined as "the action or process of giving birth to offspring." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 904 (11th ed.2004).
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- FN9. "Postpartum" is defined as "occurring in or being the period following parturition." "Postnatal" is defined as "occurring or being after birth; specif: of or relating to an infant immediately after birth." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 970 (11th ed.2004).

The Dictionary Knows How Much Privacy You Should Expect

2006-05-28T23:51:00.000-05:00

The case is State v. Nelson, 2006 WL 1420832 (Wis. App. May 25, 2006). The age-old constitutional question is whether a defendant has a "reasonable expectation of privacy" that was violated by overzealous law enforcement officers. (This is kind of funny, since they try to make it look like they’re relying on the common law by citing to a case to fall back a dictionary)...

The phrase "reasonable expectation of privacy" is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words "expectation of privacy" have a common meaning that can be ascertained with reference to a standard dictionary. See State v. Sample, 215 Wis.2d 487, 499-500, 573 N.W.2d 187 (1998) (we may consult a standard dictionary to determine the common meaning of words). The applicable common meaning of "privacy" is: "1.a. the quality or condition of being secluded from the presence or view of others." American Heritage College Dictionary 1089 (3d ed.1993). The applicable common meaning of "expectation" is "7: assumption." Webster's Third International Dictionary, Unabridged 799 (1993). Thus, according to common usage "expectation of privacy" means an assumption that one is secluded from the presence or view of others...
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In County of Jefferson v. Renz, 222 Wis.2d 424, 435-36, 588 N.W.2d 267 (Ct.App.1998), rev'd on appeal on other grounds at 231 Wis.2d 293, 603 N.W.2d 541 (1999), we consulted a dictionary to determine the meaning of "excessive" in the prohibition against "excessive noise" in Wis. Stat. § 347.39(1) (1995-96). We determined "excessive" meant "unreasonable," and we concluded that the concept of reasonableness in the context of the statute was sufficiently definite to avoid vagueness. Renz, 222 Wis.2d at 435-36.

Apple Computers and the Court Definition of "Post"

2006-05-28T23:42:00.000-05:00

This is a fun case in the study of courts relying on dictionaries (rather than legal precedent) to decide cases.
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O'Grady v. Superior Court, 2006 WL 1452685 (Cal. App. 6 Dist. May 26, 2006), is about an online magazine that posted material about Apple computers, software, etc. The case comes out of Apple’s claim that a publisher wrote about a secret, planned product that hadn’t been released yet. The holding turned in part on the definition of "post," as in "post it online."
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In the world of digital communications, to "post" is "[t]o send (a message or data) to a mailing list, newsgroup, or other online forum on which it will be displayed; to display or make available online." (a footnote cites to the Oxford English Dictionary, www.dictionary.oed.com, as authority)
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The court goes on to use the Oxford English Dictionary (online version, no less) to settle the definition of "magazine," "e-zine," and "periodical."

More Dictionary Cases: "Replace" and "Straight"

2006-05-28T23:19:00.000-05:00

As part of an ongoing academic project studying the almost daily reliance on commonplace dictionaries as the basis for a holding in lower court rulings, here are two more recent examples:

State v. Warholic, 2006 WL 1389109 (Conn., May 30, 2006) (Main issue in the case centered around the prosecutor’s diction in his questioning of a child witness, and in his closing and opening statements; prosecutor used suggestive language - like the word "straight" - to bolster a child witness’ credibility). Quotation (from Footnote 22):

The Random House Dictionary of the English Language (2d Ed.1987) defines "straight" to include "free from using narcotics." In addition, the Oxford Dictionary of Modern Slang (1992) defines "straight" as "[n]ot using or under the influence of drugs."

Monette-Shaw v. San Francisco Bd. of Supervisors, 2006 WL 1446492 (Cal. App. 1 Dist. May 26, 2006) (platintiff wanted city to use settlement revenues to "fix or replace" a hospital that had been damaged by an earthquake in 1989). I thought this was interesting because the court rejects the lawyer's use of dictionary definitions (apparently in his brief) but includes the citation to show that the result would not have changed. One question that has come up in this research project is whether citations to dictionaries in a brief (which, presumably, involves pitching one's case as a matter of defining the statutory terms) is advantageous as a general rule.

Quote (from footnote 14):

Because the broad scope of the Project is clear from the text of the proposition and ordinance, it is not necessary or appropriate to resort to dictionary definitions of "replace." Were we to do so as invited by petitioner, however, the result would be the same. "Replace" is defined in the American Heritage Dictionary (4th ed.2000) page 1479, column 2, to mean "1. To put back into a former position or place. 2. To take or fill the place of. 3. To be or provide a substitute for. 4. To pay back or return; refund." This definition certainly includes building a new, but different, health care facility in the place of the old Laguna Honda. That new facility will take the place of and provide a substitute for the old facility even if it is not a bed-for-bed replica.

High Court Doesn't Have Enough To Do...

2006-05-28T20:57:00.000-05:00

In contrast to the United States Supreme Court, justices on the highest court of appeals in New Zealand are apparently frustrated by the dearth of cases for them to review. Click on the title above or here for the article.

At-Will Employee Can Still Sue for Wrongful Discharge

2006-04-29T09:35:00.000-05:00

The Nebraska Supreme Court just ruled that at-will employees can sue for wrongful discharge in cases where the employee was fired in retaliation for reporting nursing home abuse to state regulators. The ruling was based on a "public policy exception" to the usual rule of at-will employment - and it makes sense. There is little economic justification for allowing employers to fire whistleblowers, and we don't want to encourage employees from tattling on their employers. Insider information can greatly lower the costs of regulatory (or criminal) enforcement, especially in areas where the "victims" are less able to file complaints themselves (like nursing home residents).

Some Interesting Court Cases...

2006-04-28T01:51:00.000-05:00

I was planning to note and comment on every new case that bases its decision on a DICTIONARY instead of jurisprudence or common sense, but alas, I discovered that there were 15 or 20 every day (state and federal) and I couldn't keep up.

Here is an interesting new one from the MA Supreme Court, using old dictionaries:
Com. v. Spearin, _ N.E.2d_, 2006 WL 1085175 (Mass., April 27, 2006) (foonote 6):

It cannot be said that an Eighteenth Century "house built for publick uses"
connotes anything other than a building open to the community or public at
large. Further, nowhere in § 3 is any mention of a place of incarceration or
house of correction, facilities understood at the time to be distinct
institutions. See, e.g., G. Jacob, New Law Dictionary (1762) (defining "house of
correction" as "chiefly for the punishing of idle and disorderly Persons;
Parents of Bastard Children, Beggars, Servants running away; Trespassers,
Rogues, Vagabonds").

Here is a fun one where the court uses a dictionary to determine the meaning of "meaning" (Wittgenstein would be proud!)
Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley &
displayTruncatedTitle, - So.2d -, 2006 WL 1083552 at *2 (Fl.App., April 26. 2006)

The Thing About Birds Learning Grammar...

2006-04-28T01:41:00.000-05:00

Is ridiculous, I think- but for a much more thoughtful and expert discussion of this item from the news, work through the Language Log's explanation. The fact that animals can be trained (Pavlov-style) to notice variations in the patterns of noises has nothing to do with the ability to use grammatical rules to generate completely new sentences or express original thoughts. When they teach a monkey to order at Starbuck's (say, a customized mocha with a dash of hazelnut syrup and some extra room on top for stirring in more Splenda), then I'll buy it that we've crossed the human-animal barrier. The fact that birds can tell the difference between "S.O.S." and "S.S.S." in sparrow-like Morse Code - still without knowing what either signal means, or that either has meaning in the first place - basically tells me that birds can hear. Did they get a grant to prove that?

What I'm Reading, & Why I am Not Blogging

2006-04-26T00:50:00.000-05:00

I've been working through several books recently. I just finished Cass Sunstein's latest book, Radicals in Robes, about the dangers of (conservative) judicial activists. Sunstein (a very prolific professor at the University of Chicago) advocates a "minimalist" jurisprudence when it comes to the Constitution - he wants judges to take baby steps, so to speak, and not do anything too drastic. (This is a long post, so click on "read full post" to get the rest.)

I'm working on a book review to submit to an academic journal about it. I have some little quibbles with him (for example, he insists on naming his jurisprudential opponents "fundamentalists," even though the religious people who actually use that term to describe themselves would not consider any of the current Supreme Court Justices to be real Christians, especially the Catholic ones). My main objection, however, is that he wants the right thing for the wrong reason. Sunstein's incrementalist philosophy is based on something that is either intellectual humility or mild agnosticism (is there a difference?); given that we can never be sure we're completely right or perfectly informed, we should avoid making drastic decisions that burn our bridges behind us. His whole paradigm seems reminiscent of 1960's-style "situational ethics," taking everything on a case-by-case basis instead of making absolute legal rules.

The better argument for incrementalism, I think, is classical, free-market economics. Stability in our society - whether in the political realm or the legal system - encourages investment and productivity. The real genius of our Constitution, ironically, is that it created the perfectly inefficient government. I know, I know, there's the stuff about rights and freedom, too, but frankly, the Framers picked a handful of rights/freedoms from a rather long menu of possibilities, giving us just enough to keep the courts busy for a few hundred years. I am not sure it would have mattered which handful of rights they would have picked off the menu - just a handful seems to be enough to keep the government tied up.

More to the point of keeping the government tied up, however, is the byzantine system of checks and balances, or separation of powers, created by having three branches of government (for the federal government, and eventually for all the states), one of which is further divided into half (the legislature), and all of which have to contend with 50 smaller version of themselves. It is very difficult to get anything done, or make any major changes, now matter how hard one tries (despite the Republicans capturing all three branches of the federal government, for example, they still can't do anything about hurricanes or killer oil prices, much less impose a totalitarian state). We can make changes, and we do, but it takes a great deal of effort to make very modest changes. It's really brilliant, from an economic point of view. It ensures that we can make progress, over time, without being able to mess up too much (or do too much irreparable harm) overnight. If I had a lot of money in 1790, I might have invested in a country like that. Stable returns, moderate risk. I might have been motivated to work hard so I'd have something to save, too.

I know everyone complains about how inefficient the government can be, but that is a wonderful thing if you have a government that is prone to mistakes. I want bad drivers to have slow cars. So, I think Cass Sunstein is right, that the Supreme Court should not do anything like trying to catapult the entire nation back to 1934 (which some activist judges want), because I think the whole point of the Constitution was to create as inefficient a government as possible, while still allowing for some progress, flexibility, and change.

Just for fun, I am also reading Richard Epstein's apparent retort to Sunstein's book (Epstein also teaches at the University of Chicago, but apparently at another end of the campus). Epstein sort of wants to turn back the clock to 1934, before the Progressives messed up our country - hence the title of his entertaining book, How the Progressives Rewrote the Constitution. I confess I like his writing style better than Sunstein's - something about Sunstein's books always seems fluffy to me - and Epstein makes up for his audacity with his clarity of thought and force of expression. An enjoyable read, but so far I think he overlooks the problems of externalities with things like pollution and even discrimination. The older I get, the less autonomous I feel - everything I do seems to effect others in ways I couldn't imagine. Oops. Thank good ness for regulations.

In my car I am reading another book (on audio CD) - Noam Chomsky's latest, Failed States. It is completely fanatical, an imbalanced, raving jeremiad against the evils of our government (at least in foreign policy) - back to about 1816, if I understood him right (basically, we've never had a just government in America, as far as he is concerned, and for some reason that doesn't make him feel like it's hopeless, like it does me). I am a huge fan of Chomsky's linguistics stuff, and I sort of appreciate radicalism for its own sake, which is the only reason I could make it past the first CD (I think I have ten to go!). Next time, I will buy the ABRIDGED version (if he digresses into that Nicaragua thing one more time, I might move further to the right just to spite him...)

Anyway, it is growing on my, to the chagrin of my oldest son, who cannot believe I will listen to someone who hates Israel so much (well, I just skip to the next track...). I am starting to think that Chomsky's hangup is that he is a Kantian moralist - he keeps talking about the "rule of universality" as the most basic, fundamental notion of ethics and morality, which sounds something like Kant's "categorical moral imperative." (It sure sounds different than Sunstein's "one case at a time" mantra). Chomsky just cannot understand how anyone could - honestly - be a utilitarian in foreign policy (like Kissinger, whom he quotes repeatedly, and who basically says we should do whatever protects American interests). I am starting to like his appeal for consistency and morality, but I find myself searching for examples of any country in the world that is not basically self-serving and self-centered in its dealings with other nations. There must be an example, but I can't think of any. Maybe Canada? I do like it that he spends as much time criticizing Clinton as he does Bush. The biggest flaw in Chomsky's book is that it is too one-sided; if America was anywhere near as bad as he portrays it, he would not be able to write and sell books like this (and certainly not every year or two!). It is a tribute to our country that we let people publish things about how awful our country is.

Next on my shelf is Ronald Dworkin's new book Justice in Robes. I cheated and read half of the introduction. He seems to be criticizing basically everybody else whose books I read.

Interesting Law Review Article on Speech & Location

2006-04-20T11:35:00.000-05:00

Timothy Zick has an interesting article in one of the most recent issues of the Texas Law Review entitled Speech and Spatial Acts (84 Tex. L. Rev. 581, Feb. 2006) (you will need a Westlaw password to access it). Zizk is an Associate Professor at St. John's University School of Law.

Courts Know Spanish Grammar, Too?

2006-04-19T00:18:00.000-05:00

In the ongoing debate about whether judges are qualified to be expert grammarians as well, here is an interesting new case where the court basis part of its ruling on rules of Spanish grammar:

Borinquen Biscuit Corp. v. M.V. Trading Corp., _F3d._, 2006 WL 852365 at *5 (1st Cir., April 4, 2006)

Spanish grammatical rules caution against attributing a purely adjectival meaning to the term "RICA" when viewed in the context of Borinquen's logo: "Galletas RICA Sunland." A particular Spanish-language grammatical rule--the rule of concordance--requires strict relationships of gender and number between adjectives and nouns. See Gerald Erichsen, Spanish for Beginners: Noun-Adjective Agreement (2006),
http://spanish.about.com/cs/forbeginners/a/adjective_agree.htm.
Hence, Borinquen's mark would need to use the plural ("RICAS") if it were intended to serve as a grammatically correct descriptor of the noun "Galletas." We think it follows that the average Spanish-speaking consumer would be unlikely to view the non-concordant mark as a mere descriptor for the underlying product.

Looking It Up - Latest Rulings Based on Dictionaries

2006-04-18T23:13:00.000-05:00

Much to the chagrin of many linguists and legal academicians, courts continue to base rulings on what they find in the dictionary. (Given that appellate courts are supposed to "interpret" the law, some have argued that this practice makes Webster's a sort of super-supreme court). Here are some appellate cases from the last few days, for those interested in monitoring this sort of thing.... (you will need a Westlaw password to access the linked opinions)

U.S. v. McNeal, 2006 WL 929357 at *2 (3rd Cir., April 11, 2006) (using "Webster's New World Dictionary" to define "confinement" for purposes of juvenile detention in an institution, which in turn affected the defendant's sentencing as an adult as a repeat-offender when he pled guilty to a firearms conspiracy).

U.S. v. Alli, _ F.3d _, 2006 WL 893620 at *6 (1st Cir. April 7, 2006) ("One dictionary defines “traffic” as “the activity of exchanging commodities by bartering or buying and selling.”Webster's Third New International Dictionary, Unabridged (1986).") (interesting stolen credit cards case)

U.S. v. Williams, _ F.3d _, 2006 WL 871200 (11th Cir. April 6, 2006) (this is an interesting case because the Court actually cites an online dictionary, and charges the defendant with a word that I cannot find in the statute itself, strangely) (“Pandering” is defined as the catering to or exploitation of the weaknesses of others, especially “to provide gratification for others' desires.” See Merriam Webster Online Dictionary , http://www.m-w.com (last visited March 23, 2006). As a legal concept, pandering is most commonly associated with prostitution. In that context, pandering provisions are statutes penalizing various acts by intermediaries who engage in the commercial exploitation of prostitution and are aimed at those who, as agents, promote prostitution rather than against the prostitutes themselves. The term pandering, in some instances, is applied by Congress and the courts to the promotion of obscenity).

Harrell v. U.S., _ F.3d _, 2006 WL 895488, (10th Cir., April 6, 2006) (The parties, particularly plaintiff, use the word “allided” to describe Mr. Harrell's accident in this case. According to Webster's Third International Dictionary, an “allision” is “the action of dashing against or striking upon” or “the running of one ship upon another ship that is stationary.”) (I learned a new word!) (this was a tubing accident case)

Wilson v. Draper & Goldberg, P.L.L.C., _F.3d_, 2006 WL 861429 at *6, (4th Cir. April 5, 2006)
(defining both "incidental" and "central" - “Incidental” means “occurring merely by chance or without intention or calculation” or “being likely to ensue as a chance or minor consequence.” Merriam-Webster Collegiate Dictionary 586 (10th ed.2000). And “central” is defined as “of cardinal importance: essential, principal.”)

Minges Creek, L.L.C. v. Royal Ins. Co. of America, __ F.3d __, 2006 WL 870498 at *4 (6th Cir., April 6, 2006) (Insurance coverage case)

"Premises" is defined by Merriam Webster's Collegiate Dictionary 920 (10th ed.1997), as “a tract of land with the buildings thereon.” If the term premises is more appropriately classified as a “term of art,” however, reference to a specialized dictionary is appropriate. Black's Law Dictionary 1180-81 (6th ed.1997), is such a specialized dictionary, and it defines premises as follows: Land with its appurtenances and structures thereon. Premises is an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is to be determined by its context and is dependent upon circumstances in which used, and may mean a room, shop, building, or any definite area. Black's Law dictionary thus recognizes that the term premises has an elastic and context-specific definition.

Multitasking Brains in Communication

2006-04-18T23:04:00.000-05:00

Brain Communicates in Analog and Digital Modes Simultaneously
From the article: "Contrary to popular belief, brain cells use a mix of analog and digital coding at the same time to communicate efficiently, according to a study by Yale School of Medicine researchers published this week in Nature."

I found this via the cool Lingformant blog...

Years Later, We're Still Defining the "Vehicle" in the Park...

2006-04-18T22:57:00.000-05:00

This is also from Language Log, about a recent decision by the Ohio Court of Appeals on whether a cow should be considered a motor vehicle for purposes of auto liability insurance. (Drivers hit a cow, damaged their car, and claimed the cow was an uninsured motorist so they could collect on their policy).

What If They Studied Lawyers' Brains?

2006-04-18T22:53:00.000-05:00

Here is an entertaining post from Language Log on a new study correlating gray matter (or maybe red matter, or blue matter, depending on how one reads the study) and language acquisition skills. It's not all the fault of your high school Spanish teacher.

Blogging Again!

2006-04-18T22:49:00.000-05:00

I have taken a long hiatus from blogging, because it became too time-consuming (or I became too obsessive about it). I am going to try it again, with more of a focus on law & language issues...Tune in regularly.

A Site I've Been Watching...

2005-08-15T11:51:00.000-05:00

It seems like part of the unofficial tradition of Blogs is to tell people about other sites we read, so here is one that I have read with interest this summer: the "Revava" website.

I am NOT a member of their organization or movement - it doesn't really affect me at all, although I sympathize with their current plight and their religious ideals. Mostly it is interesting because a handful of radicals have managed to use their blog (in conjunction with other activities, of course) to make significant waves, as evidenced by the fact that the local government raided their office and confiscated lots of their materials. It is also interesting because it offers some news (or at least a perspective on the news) that you can't get from the mainstream media. It is therefore different than reading, say, Al-Jazeera for this purpose, because Al-Jazeera is a simple mix of propaganda and mainstream-media-wannabe-ism (in other words, almost-well-done yet obscenely slanted news reporting). Revava is not trying to be the next CNN at all; instead, their site gives a glimpse into the inner workings of an effective political action movement - a textured blend of personality cult & self-promotion (by the leaders), pure patriotism, puerile self-pity, genuine sacrifice (they all seem to be in jail frequently), bloody-shirt-waving, clever publicity stunts, astute networking and recruiting, very selective discussion topics, and consistently good writing (a law professor's favorite part). I also find some of their sidebar links interesting - they only have a few, all similarly radical, unlike most blogs that have tedious lists, sometimes even hundreds of links.

Particularly clever is the Revava Board Game (also click here for the jpeg of the game board itelf), which apparently has been so inflammatory that the police confiscated every copy of it they could find in the Revava offices. The game board itself is a little lesson in how to run a radical activist group effectively (that is, to grow it from a handful of founders to thousands of zealots in a few months). It poses interesting questions for armchair public-choice theory (the kind of public-choice theorizing I mostly do), and makes one wonder why more grassroots organizations don't do fun things like this. Clever law students here could create versions for their own favorite causes, no?

Of course, Revava has a cause that many people have considered worth dying for, and there aren't many causes around like that. And most of the people entangled in causes worth dying for lose their sense of humor, which the Revava guys haven't. That is part of the reason I keep going back to their site. The other reason, I suppose, is suspense: the whole thing could have a very tragic ending at any time, and Revava would suddenly disappear (for example, the ringleaders were arrested again last night, this time by the army, and there is no news yet about their whereabouts). I click on their link in my "favorites" menu late at night partly to see if they're still there...

How Media Reporting Distorts the Public's View of the Legal System

2005-08-15T11:33:00.000-05:00

Click on the post title to link to an interesting article in today's Los Angeles Times. I think this is a significant issue, something economists talk about frequently - that perceptions get distorted when people get impressive news about an otherwise rare or random event.

Legal Malpractice Requires Showing of "Actual Innocence" by Criminal Defendants

2005-07-29T12:17:00.000-05:00

From Lawyers Weekly USA:

To succeed in a legal malpractice case against his attorney, a criminal defendant must prove that he was "actually innocent" of the underlying charges against him, the Washington Supreme Court has ruled. A psychiatrist and his wife were indicted on 18 criminal counts, including conspiracy to defraud the United States, bank and tax fraud and filing false statements. On the advice of counsel, they agreed to plead guilty to two of the counts.
Case: Ang v. Martin, Washington Supreme Court No. 74698-2. June 23, 2005.

Analyzing The Pronunciation of "A" and "The"

2005-07-26T11:18:00.000-05:00

Two interesting posts about the most commonplace of linguistic phenomenon...click on the post title to link over to Language Log.

9th Circuit: Discrimination Can Extend To NAMES...

2005-07-26T11:05:00.000-05:00

The 9th Cir. rules that it is unlawful discrimination for an employer to insist on calling a worker by an Anglicized nickname (in this case, "Manny") instead of his actual Arabic name. Click here for an article and here for the court's opinion...

I'm not sure if I agree with this. It would be one thing if the nickname was somehow pejorative (like to Texas law students referring to their professor from Connecticut as "Yankee" or "Liberal"), but some foreign names are just hard to pronounce. I spent a lot of the summer around people whose native dialect (Portuguese) prevents them from pronouncing "r" in certain words, and I would tease them by asking them to say, "Drury" (my full name) or "squirrel" - endless hours of entertainment, at least for me.

On the other hand, I suppose in today's world an adult should be able to request to be addressed however they want.

389,000 Catholic Parishioners in Oregon Are Defendants in Massive Lawsuit

2005-07-26T11:02:00.000-05:00

This is an interesting twist...

FROM THE ARTICLE (click on the post title for the link)-

PORTLAND, Ore. - A federal bankruptcy judge on Friday joined together an estimated 389,000 Roman Catholic parishioners in western Oregon as defendants in a massive lawsuit alleging sexual abuse by priests.

The action by U.S. Bankruptcy Judge Elizabeth Perris is unusual because typically plaintiffs, not defendants, organize as a class in civil cases. But in this instance, lawyers for members of 124 parishes will argue that parishioners - not the archdiocese - own $600 million in church assets and property. If their argument succeeds, it would make the assets off-limits to plaintiffs.
More than 240 abuse claims are pending against the Archdiocese of Portland, seeking at least $400 million in damages. More than 100 cases have been settled, while others are headed to mediation.

The archdiocese has said it has only about $19 million to its name.

BLOGGING AGAIN

2005-07-25T19:27:00.000-05:00

I am back from my summer vacation and can start blogging again! More to come...

Here's a couple pictures of me with my youngest son, Jonathan, enjoying the summer...more pictures of the fam are parked on my family's photo blog...

I was traveling in May and my electric razor broke on the trip, and I decided to wait until I got home to shave.

Ouch!

2005-04-19T01:02:00.000-05:00

Another reason to put off that surgery...

Smallish Settlement for Taser Victim

2005-04-12T12:36:00.000-05:00

From the article:

A federal lawsuit filed by the family of a man who died after Hollywood police shot him with a Taser has been settled for $6,000. The settlement in U.S. District Court in Fort Lauderdale is a signal that the family of Vincent Del' Ostia has conceded defeat in its wrongful death and civil rights lawsuit. The money will allow the family to get out of the case without winning or losing anything, according to the Del' Ostia's lawyer, Dennis Bailey. . . For [the] police, Friday's agreement validated their solid support for Tasers, stun guns that have sparked controversy across the country.

More than 100 people in the United States and Canada have died shortly after getting zapped by Tasers, but few of the fatalities have been attributed to the stun guns. In the majority of cases, medical examiners have blamed drugs.

Getting Used to Spam

2005-04-11T15:28:00.000-05:00

The new study (click on the post title for the Washington Post article) says Americans find spam less bothersome than a year ago. I wonder if there are other factors involved besides self-resignation. Most email providers now filter junk email - not perfectly, of course, but pesky ones about mortgages and another person in Nigeria wanting to give me $10 MILLION usually don't land in my Inbox (except at my work email account, which flags spam but doesn't screen it). Also, one would HOPE that more people are able to recognize immediately the same old come-ons and don't bother opening them.

Fitting, In a Way....

2005-04-11T15:08:00.000-05:00

Now-Infamous Boston Cardinal Law conducts memorial mass for JP2 at the Vatican....

Pot in the Home Constitutes Child Abuse, Court Says

2005-04-11T14:59:00.000-05:00

Hopefully the link works without subscription (I have a subscription so it is hard for me to tell).

In this case, the New Mexico Supreme Court ruled that a drug dealer could be convicted of child abuse for keeping marijuana at home where his children lived.

I can't disagree with that.

The BLACK BOX in Your Car

2005-04-08T11:32:00.000-05:00

Click here for the court's opinion. From the article (linked to in the title of the post):

The little "black box" in [a litigant's] car is a reliable source of evidence that he was driving at more than three times the speed limit when he slammed into another vehicle and killed two teenage girls in Pembroke Pines, an appeals court ruled on Wednesday. In what appears to be the nation's first such appellate ruling in a criminal case, the 4th District Court of Appeal agreed with the trial judge who allowed Broward prosecutors to use evidence gathered from the car's "black box" in Matos' 2003 trial.

Again: Big Jury Awards Are Not the Cause of High Medical Costs

2005-04-08T11:28:00.000-05:00

Another article on the new Texas study demonstrating that occasional large jury awards have minimal effect on the malpractice-insurance rates of phsyicians (which is the main argument being touted for misguided tort reform). Click on the post title to follow the link to the article.

Good.

2005-04-08T11:22:00.000-05:00

Adult hosts are now liable in TN if teens drink at their parties.
From the article:

In an opinion with wide implications for parents of teenagers who host parties, the Tennessee Supreme Court this week ruled that adults have a clear duty to ensure the safety of minor guests if they know that kids are drinking — even if the adults do not provide the alcohol.

The longer I teach criminal law, the more it seems that people don't kill people, alcohol kills people. Everyone involved in the production and serving of alcohol reaps the benefits while externalizing the costs of their activities onto others - the victims. Immunizing them would constitute a government subsidy of their private pursuits.

Get the court's opinion here.

The Common Law Applies to Recording Industry Rights?

2005-04-08T11:16:00.000-05:00

From the article:

New York's highest court ruled Tuesday that common law protects a record company's copyright on recordings made prior to 1972 — a decision that could have industrywide ramifications for everything from Bach to the Beatles. That lawsuit involved Franklin, Tenn.-based Naxos of America Inc., which restored and marketed 1930s classical records made in England by another company, The Gramaphone Co. Limited, after the 50-year British copyright had expired. Hollywood, Calif.-based Capitol Records Inc., which currently holds the rights to those recordings, sued.

They won on appeal. "Naxos, which bills itself as 'the world's leading classical music label,' said it would appeal." Click here for the text of the Court's opinion.

Law Hockey

2005-03-21T10:51:00.000-06:00

It's too far away for South Texas students to attend in large numbers, sorry.

From the original:
Relief is on the way for fans starved for hockey this year. On Sunday, April 10, Michigan law students and lawyers will hit the ice in East Lansing for a very good cause: to support civil legal services for low-income people in Michigan. The annual Skate for Justice tournament will be held at the Clarence L. Munn Ice Arena on the campus of Michigan State University beginning at noon. Skate for Justice is an annual charity ice hockey tournament among students at Michigan law schools, including the University of Michigan, Ave Maria, University of Detroit Mercy, Wayne State University, and Michigan State University College of Law. This special fundraising event will support the Access to Justice (ATJ) Development Campaign, one of several justice initiatives at the State Bar of Michigan.

Evangelical Environmentalists?

2005-03-21T10:37:00.000-06:00

Or, maybe just environmentalist evangelicals? Anyway, you may have already seen a few news stories about this, but if not, click on the post title. And click here for an essay by one of the proponents (dodging the troubling paradox of eschatology and "stewardship" in theology).

Jordanian Parliament Annuls Greek Orthodox Land Transfers in Jerusalem

2005-03-21T10:32:00.000-06:00

Not clear what the chain of enforcement will be for this one....

Death Of Venice

2005-03-21T10:26:00.000-06:00

Global warming and other pesky problems lead to abandoned buildings in the befabled city....

CT Appellate Court Rules on Case I Handled...

2005-03-20T00:22:00.000-06:00

I spent months, it seemed, on this case in its early stages (endless pre-trial motions with a frustrating pro se on the other side) when I worked at Legal Aid in Hartford. I am happy to see how it turned out, and happy to see the law & econ twist to it (concerns about incentives, etc.). Great job, Attorney Pels. Reading the case made me miss Legal Aid a lot. And the Court did the right thing on both issues...

The landlord in the case, Mr. Ancona, is a colorful local character in Hartford - interested law students can have fun searching for his name (and his relatives) in Connecticut cases on Westlaw...

Interesting Article About Afghanistan

2005-03-19T10:13:00.000-06:00

I found this really informative, definitely a few steps beyond the mainstream media's "the-CIA-created-the-Taliban" or "Pakistan-created-the-Taliban." Particularly interesting was the meddling in the 1970's and 80's by China.

Larry Lessig Makes More Room for the Rest of Us...

2005-03-18T10:02:00.000-06:00

Famous Person Lawrence Lessig announced on his blog that he will never publish in a law review again because he objects to the boilerplate copyright-transfer contracts that the journals ask authors to sign. It looks that the Minn. Law Rev. editors have already resolved this issue there in the comments by offering a modified contract. For a minute, I had (selfishly) gotten my hopes up that the rest of us would have better odds of getting published in the top journals if Lessig decided to publish all his work elsewhere. :-)

I love reading his books and articles, though. It's just that a Lessig-shaped hole in the law journal world might be filled by four or five up-and-coming writers (which he should take as a compliment, of course). We will read his new work wherever he publishes it.

4th Cir. Reinstates Cell Phone Radiation Suits

2005-03-17T10:09:00.000-06:00

Yesterday the 4th Circuit reinstated five lawsuits that allege cell phone companies failed to protect consumers from unsafe levels of radiation. Click on the title to read the AP article and here to read the opinion.

Interesting Report on Entry-Level Law Prof Hiring

2005-03-15T10:22:00.000-06:00

Larry Solum is collecting info (apparently he hasn't received any from South Texas) about this year's faculty hiring. The most interesting detail to me is that 29 of 59 candidates (nearly half, no?) had other advanced degrees, apparently confirming my running hypothesis that law schools are in a gradual shift toward hiring JD/Ph.D's, or at least JD/__'s. The more interesting (but also more speculative) answer is whether this will eventually force higher salaries for professors in other areas of academia, given that Ph.D.'s could substantially increase their earning power by adding a JD to their CV.

Veterinary Malpractice and Loss of Companionship

2005-03-15T10:14:00.000-06:00

Click on the title to follow the link to an interesting article about lawsuits against vets - sometimes animal operations go terribly wrong....

Be Careful What You Wish For: Attorney Accidentally Sues Himself

2005-03-14T11:02:00.000-06:00

Thanks to the Legal Reader for this one....

Case Against Alcohol Companies For Drunk Driving Accident Dismissed

2005-03-12T13:40:00.000-06:00

One cutting-edge area of tort law is the spate of lawsuits against alcohol companies for their role in contributing to drunk driving accidents. Unfortunately, one of the pioneering cases (a class action!) was just dismissed by a California trial judge, apparently because the plaintiffs did not allege enough facts about specific advertisements or that the drunk driver had viewed them. The plaintiffs plan to appeal, though. If they're reading this, I'd love to help!

A great introductory article to this area is "Lawsuit Claims Alcohol Companies Marketed to Underage Drinkers," in Lawyers Weekly USA (Jan. 19, 2004). The case just dismissed was not covered well by the media, although there is a good article in the Milwaukee Journal Sentinal (click here). Click on "read full post" for my ranting and raving on this issue...

From the article:

[The suit asked the court] to stop alleged underage marketing practices. It also sought damages equivalent to the money it says Miller and Anheuser-Busch received by selling alcohol to underage consumers. That could be $4 billion to $5 billion, according to the Goodwins' attorney, Steve Berman, who vowed to appeal Lichtman's ruling. Both Milwaukee-based Miller and St. Louis-based Anheuser-Busch said the lawsuit was without merit. Both companies said their ad campaigns and sales practices target people who are 21 and older.

Yeah, right! Most of the beer ads I see appear to be targeted at junior high boys. In an interesting twist, Miller Brewing Company is now suing its four insurers for their refusal to cover litigation costs over this issue, especially The Hartford (where one of my close friends works!). Click here for that story.

I think alcohol companies are simply externalizing the social costs of their products; and it is one of the costliest products in our society. As a Legal Aid lawyer, my previously-held biblical scruples against alcohol consumption blossomed into an impassioned resentment of the stuff and those who peddle it, as it seemed to be one of the main things generating poverty in the lives of my clients. Then I started teaching Criminal Law, and had to conclude that "intoxication was no defense" to crimes at common law mostly because it would have exonerated the defendant in almost every case.

The billions of dollars in profits taken in by alcohol companies should be offset by some of the billions of dollars in social costs that their products generate; in the absence of that, the rest of us are essentially forced to subsidize them by internalizing those costs ourselves (even those of us who don't drink). I understand that I won't win many people over to my Prohibitionist platform anytime soon, but I do think the alcohol companies should have to make an honest buck like everybody else - and right now, they're not. They're taking money out of my pocket without asking me - via higher premiums for auto insurance, health insurance, and taxes for our criminal justice system and welfare system. The alcohol companies could, however, purchase insurance for such liability, which would help them internalize the realistic costs of their product. (Their current insurers are saying they haven't paid for such coverage yet). This is why I think these cases are fantastic. And the companies would cover their increased premium either by docking the dividends to their shareholders - the ones currently transferring wealth to themselves from the rest of us without our consent - or from the consumers of their products, who would have to pay higher prices. Higher prices lowers consumption (except with a rare economic scenario called "Giffen goods") - so it should lower the amount high school kids consume. Higher alcohol prices should, in theory, price out the most irresponsible consumers from the market first.

Harvard Study: 1/2 of Bankruptcies Are Due to Medical Bills

2005-03-12T11:05:00.000-06:00

From the Lawyers Weekly USA article:
Researchers from Harvard's law and medical schools said the findings underscore the inadequacy of many private insurance plans that offer worst-case catastrophic coverage, but little financial security for less severe illnesses, according to The Associated Press.
"Unless you're Bill Gates, you're just one serious illness away from bankruptcy," said Dr. David Himmelstein, the study's lead author and an associate professor of medicine. "Most of the medically bankrupt were average Americans who happened to get sick."

I know my fellow conservatives like to emphasize "personal responsibility" as the antidote to bankruptcy (the impetus behind sweeping new federal legislation, right?) but it seems that "responsibility" would only apply in the other half of the cases, no? It's easier to see the social value of punitive damages against firms that contribute to serious illnesses through the manufacture of asbestos, environmental toxins, etc.

Child Can Sue for Asbestos Exposure from Dust On Father’s Clothes

2005-03-12T11:02:00.000-06:00

The Washington Court of Appeals ruled (reversing a summary judgment) that a child exposed to asbestos dust on his father’s clothes can sue - in strict liability under state law. An interesting case.

OPEN QUESTION: Air Couriers

2005-03-12T00:51:00.000-06:00

This is an open solicitation to any readers who are familiar with the business of air couriers. I've been running across references to this online, have heard urban legends about it, and have found several books on Amazon - none of which can be ordered from Barnes & Noble, strangely. I'd love to hear from anyone who has worked as an air courier, used the service, or was familiar with someone who did, or from airline industry people who can tell me how common the practice is or how it is regulated. Thanks! I'm trying to separate myth from reality.

'

Catch Burglars By Leaving Out Snacks...

2005-03-11T11:02:00.000-06:00

From the article:

Police say thieves often cannot resist tucking into a snack after breaking into a home, and traces of saliva on the food remains can yield a telltale signature of the criminal's DNA.
A handful of hungry crooks have been caught and jailed this way over the past decade, a phenomenon that has prompted curious scientists to wonder which foods may yield the best saliva sample.

The article cautioned that CHOCOLATE does NOT work well for this, because they eat it all and leave no good saliva samples behind. :-)

Tough Israeli Flower Naturally Grows Microscopic Stars of David?

2005-03-10T22:33:00.000-06:00

From the article:
It grows wild in Israel, thriving in the harsh dry conditions that would kill many other plants. And what do the cells of this hardy survivor - a native Israeli Persian buttercup - look like under a microscope? A Star of David. "It really is symbolic," says Dr. Rina Kamenetsky, a researcher at Israel's Volcani Institute, who made the surprising discovery while trying to understand the survival mechanisms of this resilient bulb, known in Hebrew as nurit, and in Latin as Ranunculus asiaticus.

She and her Canadian colleagues discovered that the storage roots of this particular Persian buttercup have a special mechanism for resisting drought and heat that is found in no other plant to date - a finding they published recently in the journal New Phytologist. But Kamenetsky also found an additional surprise: under a microscope the cells of the root assume the form of interlocking Stars of David. ". . . It turns out that the cell walls of the storage roots of this particular plant serve as a shield. In winter, when the first rain comes, the cell walls block the sudden influx of water which could cause the cells to burst. At the same time, they protect the cells from dehydration by absorbing water. The cell walls that serve as a year-round shield also happen to look like a shield - the shield of David. "We have never before seen a structure like this in the cell walls of plants," she says. "This is a very rare structure - maybe even unique."

Teen Convicted of Illegal Internet Piracy - But Under State Law

2005-03-10T18:04:00.000-06:00

From the article:

An Arizona university student is believed to be the first person in the country to be convicted of a crime under state laws for illegally downloading music and movies from the Internet, prosecutors and activists say. University of Arizona student Parvin Dhaliwal pleaded guilty to possession of counterfeit marks, or unauthorized copies of intellectual property.
Under an agreement with prosecutors, Dhaliwal was sentenced last month to a three-month deferred jail sentence, three years of probation, 200 hours of community service and a $5,400 fine. The judge in the case also ordered him to take a copyright class at the University of Arizona, which he attends, and to avoid file-sharing computer programs.

The interesting thing about the case, from a standpoint of legal doctrine, is the enforcement of copyright is strictly FEDERAL, under the Constitution. Up to now, states have not been involved much at all in these cases.

More: Federal investigators referred the case to the Maricopa County Attorney's Office for prosecution because Dhaliwal was a minor when he committed the crime, said Krystal Garza, a spokeswoman for the office. "His age was a big factor," she said. "If it went into federal court, it's a minimum of three months in jail up front."

Supreme Court Reject "Secrecy" in Tax Courts

2005-03-10T18:00:00.000-06:00

On Monday, the Supreme Court rejected a practice adopted in some federal tax court proceedings that shielded certain documents from creditors....interesting case.

Dog Accidentally Subpoenaed As Witness in Murder Trial

2005-03-10T17:23:00.000-06:00

From the Article:

The defendant had written his dog a letter from his cell, and that is how the shih tzu's name got on the witness list. Prosecutors realized the mistake on Tuesday after the defendant's brother brought in Murphy to answer the subpoena and a deputy would not let them into the courthouse because no dogs were allowed.

Thanks to Jay Clendenin for help finding this!

Reverse Bifurcation at Work in the Fen-Phen Cases

2005-03-04T23:51:00.000-06:00

Click on the post title to read an interesting article about reverse bifurcation, which is also the subject of my current writing project (thanks to research assistant Jay Clendenin for helping me find this). Reverse bifurcation is where the damages phase of the trial occurs first (for non-lawyers, this means how much money the plaintiff gets to win), and then the question of liability is determined second (for non-lawyer readers, this is the question of whether the defendant has to pay anything in the first place). This innovative procedure has been in use for over twenty years, originating in the Philadelphia complex litigation courts during the asbestos cases of the early 1980's. The most common justification for it is that the reversed order fosters quick settlements and saves time and court costs. Once the parties know how much money the case is really worth, they almost always settle (often for the amount the jury suggested, interestingly). If you read the article closely, it appears to say that 350 Fen-Phen cases went to trial in Philadelphia last year (most or all using reserve bifurcation), and only two of the 350 went past the first phase to reach the liability question. One interesting feature of reverse bifurcation is that originally defendants seemed resistant to it - they were afraid that putting evidence about damages to the jury first would be too prejudicial to their case - but now they have come to favor it, and it is plaintiff's lawyers who seem the most critical (because they like to mix the evidence about liability and the plaintiff's injuries together to make the jury really upset). "Read more" has more for this one....

There have been no academic articles devoted to the subject to date (I am working on one now), just practitioner pieces. I advocate a more widespread use for the procedure, not only because of fostering settlement, but because I think the settlements themselves will more accurately reflect the true value of the case. In most lawsuits, it seems, the primary area of uncertainty or unpredictability is the amount of damages (and perhaps the causation question, which reverse bifurcation often includes at the damages phase), if for no other reason than it can span such a large continuum. The liability question is a simple yes-or-no matter, making it easier for the parities to assign reasonable guesses at the odds. Eliminating the main area of uncertainty for the parties is the most efficient way to foster settlement. Also, the traditional order of the trial puts the defendant in the position of having to deny their wrongdoing insistently in hopes of avoiding damages completely. Once the jury has decided liability exists, these denials become annoying, possibly resulting in disproportionately higher damage awards as a punishment. Aware of this, the case takes on even more value for the defendant, who is tempted to deny liability in the first round even more stridently, creating a vicious cycle. In response to this increased front-end investment by the defense, the plaintiff has an increased incentive to "cheat" a little by mixing in prejudicial evidence about the victim's injuries during the liability question. In other words, the traditional order provides incentives for both parties to invest disproportionate resources in the beginning of the trial, manipulating the jury, and making the stakes higher and higher (and settlement agreements more and more difficult). Reverse bifurcation solves this problem.

More on the Cocaine Vaccine...

2005-03-03T17:18:00.000-06:00

For those interested in more background about this, click on the post title for the link to a new article in the scientific journal Psychiatry Today...

Latte Lingo

2005-02-28T23:36:00.000-06:00

This post from Language Log was really funny.

The Economist on American Street Gangs...

2005-02-28T17:31:00.000-06:00

The statistics and analysis in this article are interesting, as is the explanation for the supposed connection between street gangs and Al-Qaeda...

The British Royals Dropping French...

2005-02-28T00:45:00.000-06:00

I know Queen Elizabeth II is considered pretty conservative, but it sure took a long time (like, over 939 years) for the Royals to drop French as the official language of menus in the palace. Language Legend has a more interesting discussion of it than the Telegraph article linked to in the post title.

U.S. pushes Arabic: Study of language now tops Hebrew

2005-02-28T00:23:00.000-06:00

This seems to me to be a great set-up for a "law of unintended consequences" story 30 years down the road (something Huxley-like, such as, "...Arab culture and Islam was able to permeate American society and political thought during the 30's and 40's in part because the government encouraged widespread acquisition of the language a generation earlier, apparently with the thought that half the American workforce could be employed in espionage and security analysis during the brief period when militant Arab states were viewed as the primary threat to American security..."). On the other hand, I WISH my kids were getting more foreign language instruction in school instead of some of the fluffy computer classes, etc. And I can't complain about people learning Arabic, because I ended up in Amman, Jordan doing an Arabic immersion course after college (through a series of changed plans, and I've forgotten almost all of it, I think). I just thought the scope of the government push for this is strange...wouldn't Hindi and Mandarin be more useful for expansion of global markets? Just how strategic can this be?

You Heard It Here First: Giving the Cocaine Vaccine to Toddlers

2005-02-25T15:24:00.000-06:00

I have an article forthcoming in the Journal of Law & Urban Policy about the new cocaine vaccine, in which I suggest that there will be widespread calls for immunizing the general public, not just addicts in rehab programs (the oringinally intended use of the vaccine). But here is an article from The Age about parents groups already calling for universal vaccination (BTW, the current state of the technology is a temporary inoculation that must be repeated every few months - it is not yet know if the body eventually develops a permanent immunity):

A group of Queensland Nationals want the Federal Government to investigate
giving an anti-junkie vaccination to children under 12 months old. The vaccination, under development in the UK, would render children immune to becoming smokers or drug users and become part of the national measles, mumps and rubella vaccination program. Tis weekend's Queensland Nationals central council meeting will debate calling for the investigation. Drugs are a scourge," said Nationals member Ken Wilson. "I feel strongly about this and I'm inviting the Federal Government to investigate it and if it proves worthwhile, then do a vaccination program." Britain's Independent reported the jab would block out the euphoria associated with cocaine and heroin, and was due to be marketed within two years in Britain where the Department of Trade and Industry has set up a project to find scientific ways to break drug addictions. Bitish biotech firm Xenova has conducted trials of an anti-cocaine vaccine that showed that 58 per cent of patients remained cocaine-free after three months.

More Church Liability: $17M for Van Accident

2005-02-23T11:09:00.000-06:00

The Milwaukee Archdiocese of the Roman Catholic Church is liable for a $17 million verdict over a car accident caused by a church volunteer. The decision is noteworthy from a legal standpoint because the volunteer was actually driving on behalf of a parachurch organization (Legion of Mary) that had a chapter in the parish. (The Archdiocese is also facing unrelated charges of cover-ups for child molestation by the clergy).

The church member had been a volunteer driver for the Legion of Mary (mostly helping transport the elderly to services) for about 40 years before this accident. From the article: "That day, she was delivering a statue of the Virgin Mary to a parishioner when she ran a red light and crashed into the car of semiretired barber Hjalmer Heikkinen. The man's car slid across the pavement and into a utility pole, and he has been paralyzed ever since, dependent on his family's care. His right leg later had to be amputated above the knee because of an infection, and his barbershop - where he had been trimming hair - closed."

How the jury derived the amount of the verdict: "The jury awarded Heikkinen $10 million for his pain, suffering and disability since the accident, another $5 million for future agonies and $500,000 more to compensate his wife of 61 years for her losses because of the wreck. He was awarded $558,366 for his medical bills so far, according to a total set by Circuit Judge Michael D. Guolee, and the jury awarded Heikkinen $750,000 more for future medical expenses."

For readers who find the $17 million verdict excessive, please note that the victim offered to settle for $3 million last Septemeber, but the church refused. I find the liability for an affiliated parachurch group's activities more significant than the size of the verdict. As a spokesperson for the Archdiocese said, the volunteer "was not performing duties for Christ King Parish nor for the archdiocese when this terrible accident happened."

10th Circuit: New Supreme Court Sentencing Ruling Inapplicable to Restitution Orders

2005-02-23T11:06:00.000-06:00

The court said that jury findings may be necessary for incarceration sentences, but not for ordering a criminal to make restitution to the victim. Click on the post title to get the text of the decision.

3rd Circuit Upholds Punitive Damages 75x the Compensatory Remedy

2005-02-23T10:50:00.000-06:00

Relax, it wasn't billions of dollars. The court upheld a $150,000 punitive award against an insurance company for unreasonably delaying payment on a property damage claim that was diminutive by comparison.

Judge Issues Landmark Church Abuse Ruling

2005-02-23T09:59:00.000-06:00

A judge in Boston has held that a church (in this case, a Jehovah's Witnesses group) has a fiduciary duty to protect its members from being molested by the clergy. This appears to be a new step in the development of church liability law; whereas many of the cases against the Roman Catholic Church in recent years centered on allegations that the hierarchy knowingly allowed the abuse to continue, this rule would create almost strict liability for churches. From the article: "A Superior Court judge has ruled that a Jehovah's Witness church in Boston can be sued for breaking its trust and legal duty to a girl who claims she was sexually abused by one of the church's ministerial servants." This ruling appears to be the first time a court (at least in that state) has ruled that church officials have a "fiduciary duty" to their members.

"Fiduciary duty" is a legal term of art: in practice, it means that certain people in positions of trust have a legal duty to put another's interests ahead of their own interests (not unlike the typical theological definition offered for "agape" love mandated in the New Testament). Trustees, certain business associates, lawyers and doctors are among the most common categories of people held to this standard. Smith's ruling also is expected to open another legal channel for attorneys to bring civil suits against churches for clergy abuse cases, according to Lisa Bruno, news editor for Massachusetts Lawyers Weekly. Given the overlap between the definition of a "fiduciary duty" and the New Testament commandment for the church, there should not be much tension here.

It was easy to see this coming, I think; there has been a growing frustration about the fact that there seems to be insufficient legal incentives for religious groups to prevent serious clergy abuse. People tend to be more trusting of relgious groups and clergy, leaving themselves vulnerable to exploitation where there are niadequate institutional safeguards or screening of those in leadership positions. Such trust and concomitant vulnerability seems to be the underlying essence of a legal fiduciary. In addition, institutions are often the best insurers against these types of risks: they can purchase liability insurance organizationally (obtaining economies of scale), and they have private or internal information about potential loci of abuse (information not readily available to outsiders). The information asymmetry puts the religious organization in the best position to identify potential hazards and prevent the harms before they occur. I understand that the ruling is unfavorable to churches in the immediate sense, but in the long run, denying that there is a fiduciary duty to members - that members can "trust" the church in a special way - undermines the credibility of any religious or spiritual institution.

Class Action Settlement Amounts Rise in Securities Cases

2005-02-17T09:59:00.000-06:00

Business Insurance reports about a new study that appears to show hefty investor losses in securities class action lawsuits drove settlements to unprecedented levels in 2004. Click on the post title to read the article.

Supreme Court's Recent Guildelines Decision Not Retroactive

2005-02-17T09:51:00.000-06:00

Click on the link to read the full text of the decision by the 2nd Circuit in Green v. U.S. (.pdf file). Quote: “...a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive.”

Airlines in Europe Must Pay Customers for Delays and Bumps

2005-02-17T09:35:00.000-06:00

"New EU laws promising compensation of between £170 and £416 to stranded and delayed airline passengers come into force today." I can't tell you how many times I've fantasized about having a regime like that here, when I've paid $400 for what I thought was the privilege of arriving at my destination at a certain place and time, but the airline acts as though I paid for the privilege of having them as my travel companions, no matter when I leave or arrive. I use the airlines a lot and harbor a lot of resentment against them (another reason to feel passionate about the DVT cases pending in federal courts around the country). The link in the title above is for the Reuters-UK story; click here for a "Q&A" by the Guardian.

My favorite quote: "This is going to become a lawyer's field day and is why in our view the law is very bad," said Andrew Clarke, director air transport policy for the European Regions Airline Association. Unless, Mr. Clarke, I am a lawyer.

Combining Covenant Marriage and Mass Weddings

2005-02-16T00:31:00.000-06:00

Click on the title to read the New York Times article about the Covenant Marriage movement in Arkansas. I did my law review "comment" on Covenant Marriage when it first emerged in Louisiana in the late 1990's, but never published it, unfortunately (for non-lawyers, a law review "comment" is a 60-70 page paper students typically write as part of the requirement for membership on the editorial board of their law school's official academic journal - in my case, the Connecticut Law Review). I've also mentioned it before on this blog (click here). Covenant Marriage is basically a voluntary but legally-binding waiver of one's right to a no-fault divorce. Of course, everyone is free to waive your right to a no-fault divorce by simply choosing to stay married; this is a legal mechanism that allows people to bind themselves so they cannot change their minds later (or risk that spouses changing their minds). Thanks to student Darcy Douglas for sending me the NYT article. For another law prof blogging about this issue, click here.

This NYT article notes a bizarre but predictable turn the movement has taken, a hybridization between the mass-weddings Sun Myung Moon conducted in the 1980's and the individualized legal waiver of one's right to a no-fault divorce. Apparently thousands of people (mostly associated with one or two megachurches) did a collective ceremony to invoke the Covenant Marriage against themselves all at once (the proper preposition from a legal standpoint). Click on READ MORE for my true feelings about this....

My opinion: I have (admittedly unfashionable) Puritanical views about marriage and divorce, of course, and I share the concerns of some leading economists that no-fault divorce has impoverished as many people as it has liberated (and my students know that I am skeptical about any so-called "divorce rate" that is used to either justify or criticize the current legal regime). That being said, I am doubtful about the Covenant Marriage movement. First, there is the old question of why we need legal mechanisms that function like Ulysses' ropes, which he used to bind himself to his ship's mast before he sailed near the Sirens. Wouldn't it make enough of a "statement" if these couples simply nurtured healthy marriage relationships at home and stayed married by choice? Why the need to invoke legal sanctions against oneself, merely to prevent ourselves from changing our minds later? I understand the practice of exacting binding promises from other parties - like in a prenuptial agreement - but this seems mostly directed at oneself. (if the goal is to keep the other person from ever leaving you, you have alternative measures: create an onerous pre-nup, or be more picky in choosing a mate, etc.).

Second, I know there is a tendency for evangelical Christians to hale anything that appears to bolster biblical models for marriage and sexuality, but this particular mechanism seems to encroach a bit on the prohibitions against self-invoked sanctions in Matt. 5:33-37. Why does a real Christian need to attach his or her vow or promise to something secular, like legal sanctions? Why not just keep your word? I can have my Puritanical views and keep my word at the same time. I do not need a legal mechanism to validate my faith or the integrity of my promises. My faith can only be validated by its inherent veracity. I confess I have doubts about any "faith" that needs some kind of affirmation from secular bystanders, or the government, in order to be strengthened or legitimized.

At this point I anticipate the objection that the value of a Covenant Marriage is not to bind oneself with imprecatory vows, but rather to bind one's spouse to stay in the marriage in case the person wants out later. Presumably this would occur mostly in cases of apostasy - it seems unlikely that an "unbeliever" would assent to self-restriction in the first place, and unlikely that a person who is still a faithful adherent would seek to breach it. The problem being addressed, then, is the Christian spouse who later backslides spiritually and consequently quits the marriage. Again, however, using a legal device to prevent such actions runs aground on the Bible itself. Although the Bible forbids believers from initiating divorces against each other, it also commands believers to let an unbelieving spouse out of the marriage, graciously, if they want out. (See 1 Cor. 7:15). The person abandoning the marriage may be in the wrong, but they're supposed to be free to go. In this sense, it would seem unbiblical - disobedient to Scripture - to try to use the Covenant Marriage vows as leverage to keep an embittered person in the marriage, even if that person was "wrong" for wanting out in the first place.

Third, I have big doubts about whether this Covenant would hold up legally if it was challenged in court. I studied the Louisiana Covenant Marriage statute carefully and found no provisions for fraud or duress, just required disclosures about previous sexual history and communicable diseases. These disclosures were indeed mandatory, but there was no remedy where someone lied. It was unclear whether pre-marriage deception would be grounds for dissolution of a Covenant Marriage (it was not on the list of enumerated justifications for dissolution). There is also the question of coercion or duress. Disgruntled former church members often claim that their previous church coerced them into all sorts of things (usually various forms of self-denial and unworldiness, but sometimes unpleasant marriages to church members). It is easy to imagine a person who wants "out" of a covenant marriage, who has also lost faith in their church or denomination (for whatever reason), and now claims that they were coerced into this thing by their church leaders - that it was a requirement for membership, or a requirement for having a wedding inside the church, or the only way to avoid severe spiritual stigma, or whatever. And I can imagine many judges sympathizing with this assertion; I would sympathize, and I'm a believer. It is easier still to imagine later claims of coercion, and sympathy for such claims, when the plaintiff gave her rushed assent at high-pressure gathering of 5,000 people, a mass-vowing ceremony. The big crowds certainly garner more media attention for the cause (I confess I wish the New York Times would cover events at my little church!), but the sensational environment may undermine the legal sustainability of the vows themselves.

Christian intellectuals, thinkers, and leaders may undermine the credibility of the Cause when they cheer anything that even "looks like" it leans in a traditional direction. There should be more to Christianity than turning back the clock to 1950, even if the culture has taken some bad turns (even horrible turns) in the meantime. A more searching analysis is warranted.

Rabbit Held Hostage on Website

2005-02-16T00:01:00.000-06:00

I you haven't seen this yet, and you're trying to lower your level of optimism about human nature, you could visit www.savetoby.com. The caretaker of what appears to be an abandoned or escaped domesticated rabbit is threatening to EAT his captive (or pet, if you will) if he does not receive $50,000 in donations by a certain date. That's pretty unbelievable, but here is the best part: he claims to have received over $14,000 in donations already, if I read it correctly (the site accepts major credit cards). Thanks to Ashley, a student in my Law & Economics class, for forwarding me the link. The "give-me-money-or-I-eat-the-hostage" thing seems wrong somehow, but not necessarily illegal.

I described the pet as either abandoned or escaped because it's coloration seems much lighter than the many wild rabbits I have seen. It looks like a pet store rabbit to me. But I do not claim to be an expert. Click on READ MORE for additional discussion...

I am sure that animal rights advocates will find this deeply disturbing (as I said, it is not one of the shining moments for our species), but I am not sure this violates the typical animal cruelty laws - especially since rabbit dishes can be ordered at many fine restaurants in every metropolitan area. It mostly seems like cruelty to rabbit lovers - actually, outright exploitation. I was in junior high when Saturday Night Live aired Eddie Murphy's gag about "Larry the Lobster" (I'm not sure if my 1L students were even born yet), where the show ran a mock telethon to save a lobster from being cooked on national television (supposedly this was an unplanned stunt that Murphy pulled "live" without warning, interrupting a plan to cook the creature). But there was no ransom being demanded back then. The ransom thing is troubling. I don't care if Toby's owner eats him (I've eaten rabbit before with no regrets, although I prefer eating animals that are larger than me, for personal reasons - plus the owner risks getting certain parasites), but anyone donating money with the sincere desire to save Toby is surely encouraging follow up stunts; this would be the easiest $14,000 ever made. Could a wave of animal-kidnapping legislation be far behind?

I had a friend once whose family went through hard financial times when he was a kid and his Dad killed and cooked their pet bunny and made them eat it. Pretty traumatic for a little kid - and his Dad got angry that some of the kids refused to eat it at all and were wasting a good dinner, the only meat they could afford. I also went through a phase several years ago where I kept a little vegetable garden, and being an obsessive reader, I read every book my local library had about organic gardening. One of the most memorable ones was a book explaining how to be completely self-sufficient, food wise, with less than one acre for a back yard. (that is, how to grow ALL of your family's food on a small suburban lot so you never have to buy anything - it was an elaborate plan for crop maximization, space maximization, seasonal plantings, etc.) Anyway, the last chapter discussed the problem of MEAT, which takes a lot of land - unless you are willing to eat rabbits. The book advocated having at two females and one male, which it said would produce enough offspring to provide a family of four with some meat all throughout the year so they never had to buy any of that, either. I wanted to try it, but I could never get my wife to agree to the idea, unfortunately. :-) She thought it might traumatize the children. This was before we met the guy whose Dad made him eat his pet rabbit.

I've ordered rabbit two or three times in restaurants. I enjoyed it the first time or two, but the last time was particularly unpleasant (the sauce was just too rich or something, I just felt sick afterward) and I never wanted to eat it again. It was also during a luncheon with some unpleasant lawyers from an unpleasant law firm in Connecticut, so it is not a memory I "savor" on that note, either. My wife won't eat it because they are rodents and she believes rodents are full of parasites.

Lawyers Split on Impact of Conviction for Terrorist's Attorney

2005-02-15T09:36:00.000-06:00

Attorney Lynne Stewart's conviction on terrorism charges has lawyers divided over what it means for their profession. It certainly gives professors a more exciting case to discuss in Legal Profession/Professional Responsibility classes than we've had before.

McDonald's To Pay $8.5 Million in Trans-Fat Lawsuit

2005-02-15T09:21:00.000-06:00

I haven't seen this getting much coverage in most of the major news outlets yet, but here is an excerpt from the AP (click ont he post title for full story):

McDonald's Corp. will pay $8.5 million to settle a lawsuit accusing the
fast-food giant of failing to inform consumers of delays in a plan to reduce fat
in the cooking oil used for its popular french fries and other foods.BanTransFats.com, a nonprofit advocacy group, sued McDonald's in California state court in 2003, alleging the company did not effectively disclose to the public that it had not switched to a healthier cooking oil.In September 2002, McDonald's announced it would lower trans fat in its cooking oils and said the switch would be completed in five months.
In February 2003, McDonald's announced a delay. The lawsuit accused the Oak Brook, Ill.-based company of failing to adequately inform consumers of that delay.The agreement announced Wednesday requires McDonald's to pay $7 million to the American Heart Association to use the proceeds to educate the public about trans fats in foods. Heart-clogging trans fat is made when manufacturers add hydrogen to vegetable oil — a process called hydrogenation. Wednesday's settlement also requires McDonald's to spend $1.5 million publicizing that it has not followed through on its 2002 pledge.

McDonald's also seems to have lost a legal battle in the European Court of Human Rights (click here or here or here or here for the full story):

Two British activists convicted of libelling the U.S. fast food chain McDonald's have won a reversal of the decision at the European Court of Human Rights. The Strasbourg-based court ruled on Tuesday that Helen Steel and David Morris did not receive a fair trial and their freedom of expression was violated by the 1997 judgment ordering them to pay 60,000 sterling in damages. The two had issued a pamphlet in 1984 accusing McDonald's of starving the Third World, destroying rainforests and selling unhealthy food. Their trial was the longest in English legal history.

Two activists won their appeal in the "McLibel" case

Judges Still Following Sentencing Guidelines, Survey Says

2005-02-11T14:02:00.000-06:00

Here's the opening lines, which tell most of the story (click on the post title to go to the article):

Most federal judges are imposing prison terms within sentencing guidelines even
though the Supreme Court says they do not need to, according to an analysis
presented Thursday to Congress. At the same congressional hearing,
however, a high-ranking Justice Department official described anecdotal evidence
that judges are imposing disparate sentences for similar crimes since last
month's high court ruling - precisely what the nearly 20-year-old guidelines
were intended to prevent. The two views on how judges are responding to
the decision reflect differences in Congress and the legal community about
whether to write new sentencing rules and, if so, how quickly. Just 9 percent of the 733 sentences handed down in the three weeks after the Supreme Court decision and reviewed by the U.S. Sentencing Commission did not comply with the guidelines, said U.S. District Judge Ricardo Hinojosa of Texas, the commission chairman.

Law & Linguistics in Important Patent Case

2005-02-11T01:54:00.000-06:00

"Hundreds of people flocked to the U.S. Court of Appeals for the Federal Circuit on Tuesday to listen to arguments in a case that could affect how patents are interpreted. The Federal Circuit addressed in an en banc hearing whether courts should rely primarily on dictionaries to define the terms that describe the scope of an invention, or look to the description in the patent itself. Phillips v. AWH, 363 F.3d 1207, is one of the most pivotal patent issues to come before the Federal Circuit, generating more than 50 amicus curiae briefs." -Law.com

ALL of the linguists I have read on the subject (which is quite a few - law & linguistics is one of my main areas of interest) think it is ridiculous, if not dangerous, for judges to rely on dictionaries in making decisions. It is not what dictionaries were intended for, and it shows a gross misunderstanding of the way language works.

Frozen Chickens Used in Crime

2005-02-10T22:42:00.000-06:00

Australian police admitted Thursday they were
mystified by a spate of apparent attacks on homes
using frozen chickens as missiles.
(AFP/EPA/File/Guido Roesli)

Now "The Onion" Makes Fun of PowerPoint

2005-02-10T16:14:00.000-06:00

Click on the title to read the article. Funny but morbid.

10th Circuit Reverses Tobacco Punitive Award of $15 Million

2005-02-10T15:48:00.000-06:00

The 10th Circuit threw out a $15 million punitive damages award in a tobacco case, but upheld the Kansas man's right to sue the tobacco companies - over a disease that cost him his legs. Click here for an AP article, and click here to read the actual Court opinion.

Senate Battles over Tort Reform Continue...

2005-02-10T15:44:00.000-06:00

On Wednesday the Republican majority in the Senate fought back attempts to change legislation (click on post title for the article) that would send most class action lawsuits to federal court. This appears to be a victory for the tort-reform folks.

Cocaine Vaccine's Effectiveness Depends on Dosage

2005-02-10T14:48:00.000-06:00

I have an article about the new cocain vaccine forthcoming in the Rutgers Journal of Law and Urban Policy, and I follow the news stories about it avidly (I've also had the opportunity to meet and correspond with Thomas Kosten at Yale, the lead researcher on the vaccine's development). The cocain vaccine involves a series of inoculation shots that render the body immune to cocaine - ingesting it produces no effects (the user gets no "high" from it, and also cannot overdose), and the body flushes it out of the system. Developed as a treatment tool, it poses interesting policy questions as a possible condition of parole (because so many felons have a drug history), a condition of welfare payments (to ensure the recipients do not spend their welfare checks on crack or cocaine), or other things (admission into private colleges, employment as an air traffic controller, participation in profession sports, etc.). I'd be happy to forward a draft to those who are interested, and would love to correspond with others researching in the same area.

Lawyer Liable For Failure To Research Unsettled Area Of Law

2005-02-03T13:26:00.000-06:00

A new ruling from the Minnesota Court of Appeals holds that attorneys may be held liable for failing to protect a client's interests with respect to an unsettled area of law. Click on the title above to read the court's opinion.

Taster's Choice and the Jury's Choice

2005-02-02T09:18:00.000-06:00

You probably already saw this, but just in case, click on the link to see the story about the large jury award given to the guy whose face has been on Taster's Choice labels ever since he was young and handsome-ish. You know, my older sister was teaching a class to a group of corporate trainees one time, and teased one of the guys for looking like the Gerber Baby (the baby on the Gerber labels) - and the guy got really upset and asked her who told her about this, because he WAS, in fact, the Gerber baby. Here's a collection of news photos from the Taster's Choice stories...

Former model Russell Christoff holds a Taster's Choice package at a news conference in San Francisco on Tuesday, Feb. 1, 2005. A jury has awarded $15.6 million to Christoff, whose image was used for years without his permission on Taster's Choice coffee labels. Christoff, a former model from Northern California, posed for a two-hour Nestle photo shoot in 1986 but figured it was a bust until he stumbled across his likeness on a coffee jar while shopping at a drug store in 2002.
(AP Photo/Jeff Chiu)
If it's worth THAT much....
Maybe I can find a lawyer who will help me pursue a claim for this unauthorized use of my likeness in advertisements a few years ago....

The Best Part of Being a Law Professor...

2005-02-02T01:00:00.000-06:00

I posted earlier about my least-favorite part of being a professor (grading exams -not because of the tedium, but because it's discouraging). But this week I had one of my favorite parts of the job: a student (3L) dropped off a copy of the academic journal that just published her article, plus a thoughtful thank-you note. I had the opportunity to help her with it (and the publication or "shopping" process) a little bit last spring. It's really rewarding to see students succeed. As a practitioner, she will have the credential of being "published" for the rest of her career. I feel deeply indebted to professors who helped me when I was in law school (with advice, or encouragement, or with my publications); I realized at some point that I couldn't repay them, but I could pass it on. And that's one of the best parts of the job, I think.

Farnsworth Dies...

2005-02-01T23:30:00.000-06:00

One of the most famous law professors in the country, Allan Farnsworth of Columbia University, passed away Monday at age 76. He was truly an intellectual giant. Click on the title for the obituary from the New York Lawyer. Click here for the Jurist obituary, which has more links. You can visit his Columbia faculty page here for more of his career accomplishments.

Farnsworth

Inspiration

2005-01-31T16:14:00.000-06:00

This was one of my favorite pictures so far about the Iraqi elections...I wonder if people here will color their fingertips as a show of celebration...or if Iraqis will do this as part of their annual voting ritual. It's definitely cooler than "I voted!" stickers.

(the photo points to Dakotapundit)

(And click here for my earlier post about the Iraqi elections) Random memory association: I went to a high school where it was actually fashionable ("cool") to show up in school with ashes on your forehead on a certain day at the beginning of Lent - a lot of symbolic value (history, faith, community, and the fact that a few students has gotten up early to go to church before school). I'm no longer part of an ash-distributing church (for unrelated reasons, of course!), but the ashes were definitely "cooler" (had more powerful and multilayered symbolic value) than little red-white-and-blue stickers... these stained fingertips remind me of the ashes a little bit (in the good sense). They just tell a whole story, really capturing a significant moment in history.

Interesting New Article about São Paulo

2005-01-31T15:46:00.000-06:00

Click on the post title for the link to the Jan 27 Economist. Many of my readers are friends who share my voluntary connection to Brazil, and might find this interesting.... it also has some interesting history about the growth of the city in this century, and how various public policies ahve affected the conditions there. I pulled an excerpt from the article I thought would be interesting for my federalist law students....

"Brazil's federal system does not provide for metropolitan
government. For example, while the municipality manages the city's bus network,
the state runs its trains, the metro and inter-city buses. The system links the
city to satellite municipalities, but moving between these is a nightmare. This
cuts people off from potential jobs. Likewise in health: federal funding goes
straight to municipalities in accordance with their populations, but services
are not co-ordinated."

Rapeseed and Global Warming?

2005-01-31T15:12:00.000-06:00

A farmer spraying his rapeseed field in Germany with pesticides. Growers of
rapeseed, one of the primary sources of cooking oil, have discovered their crop
has a new calling at petrol stations. Heated to a high temperature, it becomes a
biological form of diesel that emits only a fraction of the carbon dioxide.
(AFP/DPA/File/Peter Foerster)

Now, Execs Pay for Firms' Wrongdoing

2005-01-31T15:03:00.000-06:00

This is an interesting article about corporate executives being personally liable for wrongdoing by their corporations. It's an interesting development in our law; corporate liability was a necessary development to shield or protect investors, who before that were discouraged from investing in useful business activities because owners were held personally liable for its liabilities (mostly torts and contracts, back then). But the protection of owners from liability beyond their actual investment seems to create higher agency costs with wayward managers. When I was at the Attorney General's Office (in CT, before this position), one of the cutting-edge areas of environmental enforcement was "responsible officer/manager" liability. The corporations themselves often operate through a series of "shell" or holding companies, and the managers (often entrenched because of their holdings of corporate shares) had little incentive to avoid dumping and other environmental wrongdoing - but this trend addresses that.

College Expels Student Over Viewpoint in Paper

2005-01-31T14:54:00.000-06:00

This is a shame. I had a friend in college who had something similar happen to him; decent student, good grades, but they tried to keep him from graduating during his last year because a few powerful professors there disagreed with something he said in a philosophy paper.

I cannot find any news articles where LeMoyne College responds to the accusation - if anyone does, please post it in the comments.

A Seldom-Discussed Problem with Legalized Prostitution

2005-01-31T14:40:00.000-06:00

Click on the title to read the article (about unemployment benefits in Germany being denied to woman because there were jobs available at the local brothel). I worked as a Legal Aid lawyer for three years and spent most of my time doing Social Security Disability cases. There were many hearings where the Social Security Administration was denying benefits to someone with no job skills and some physical maladies because "they could work as a dial marker or a potato chip counter." (No kidding - these are real entries in the Dictionary of Occupation Titles, and favorites for disability examiners, who seem to think there are thousands of such positions open in every city).

I've heard and read many arguments for and against legalized prostitution (personally, apart from moral concerns, I think prostitution in general exploits female illegal immigrants), but I hadn't considered the possibility that it would mean adding the "world's oldest profession" to the Dictionary of Occupational Titles, which would mean Social Security Disability claimants would have the burden of proving they were physically unable to perform this job. Ugh.

Readers who share my intense Puritanical dislike of prostitution can click here to get rankled by the Economist's coverage of a new prostitution resort planned in Nevada with a museum and gift shop. From the story: "George Flint, head of the Nevada Brothel Association, insists that a trip to the Mustang Ranch could be 'just as important as driving to Mount Rushmore'.” I guess I haven't done that yet, either.

Kerry & His Supporters Lose Second Election in Three Months...

2005-01-30T17:33:00.000-06:00

I'm neither a Bush-Worshipper nor a Bush-Hater, but folks, 76% voter turnout is not a sham election. I don't care what the people at Daily Kos and Talk Left may say. Kerry has already been on the news insisting that we "don't overhype" this. I hope people here will paint their fingertips blue tomorrow as a show of support and celebration for the people who had their first real election in a generation (and one of the first Arab elections where women could vote anywhere).

I don't mind Democrats holding the administration accountable for any real acts of wrongdoing, but they undermine their credibility when they call a good thing "bad" just because it looks good for Bush. This was a better turnout than most industrialized democracies usuall have in their elections - and the Iraqis voted in spite of death threats from insurgents.

It's really petty for critics to naysay the election because of the intense security offered by U.S. troops for the event. If we hadn't done this, and there was a bloodbath or a low turnout, the same people would have lambasted the administration for forcing an election and not making the country secure. Kerry opined that Iraq is less safe today than it was while Saddam was in power. He's being contradictory - first, the election is not truly legitimate for him because we made the country so secure, and then he criticizes the Administration for not making it secure enough. I don't get it. The Bush-bashers seem genuinely disappointed that the vote went well, that no bloodbath occurred, and that the turnout was really tremendous. Sorry to let you down, guys.

I know voter turnout was low in some Sunni neighborhoods - either because the people were more afraid of insurgents there, or because they resent the idea of democracy. It's sort of like the MTV audience in America - don't vote, don't matter. Every democracy has pockets or groups that choose to marginalize themselves by not participating or voting.

I Love You Like Beans...

2005-01-27T13:07:00.000-06:00

Japan's toy maker Takara employee Nozomi Saeki displays
bean plants with messages such as 'Good luck,' sprouted
from a can. The plants also bloom to read 'I love you.'
(AFP/Yoshikazu Tsuno)