Selchick's Blawg

FCC Ghostwriter - A. Vanderlaan

2009-08-04T07:22:00.001-07:00

A. The New F.C.C. and the Prospect of a New Direction

1. President Obama and Julius Genachowski

While the Second and Third Circuits properly disposed of their fleeting expletives cases,[1] neither should ever have confronted them in the first instance. The untenable position that the courts were put in resulted from an administration unacceptably throwing around its weight in the realm of independent agencies. The Obama Administration, through its own agency appointments, has the opportunity to relieve the courts of this burden.
The Obama Administration unofficially announced that Julius Genachowski would be the successor to Republican Kevin Martin on January 14, 2009.[2] Genachowski has been a longtime friend of President Obama, a relationship beginning with their service on the Harvard Law Review.[3] President Obama first tapped Genachowski to assist in his “highly successful online strategy” during the 2008 campaign.[4] Later, Genachowski helped to shape “telecommunications and technology policies” during the course of the campaign.[5]
Genachowski has openly endorsed net neutrality on the Internet[6] and “media ownership rules that promote[] a diversity of voices on the airwaves.”[7] Genachowski clerked for former Supreme Court Justices William J. Brennan, Jr. and David H. Souter,[8] two Justices with notably liberal tendencies when it comes to the First Amendment and regulation of speech.[9] President Obama’s choice has already been praised: “The head of the country’s largest broadcasting trade group [David Rehr, president and CEO of the National Association of Broadcasters] is cautiously optimistic the Obama administration will ease some of the pressure and uncertainty that have hovered over TV and radio in recent years concerning appropriate content.”[10] Rehr speculated that Genachowski is more concerned with the digital transition and emerging technology than looking over broadcasters’ shoulders to police content.[11] However, “Rehr stresses he isn’t advocating an anything-goes policy. He just thinks the marketplace and broadcasters usually can sort out appropriate content themselves,” when referring to Genachowski.[12]
The new administration appears to be much more concerned with technology and access to newer communications than the former administration, along with taking a harder look at the dominance of certain stakeholders like Verizon and AT&T in the technology industry.[13] However, President Obama’s choice to head the F.C.C. shows that he is aware of the fear in which many broadcaster’s are operating because of the heightened fines available if the F.C.C. finds indecency under the more lax standard now in use. Genachowski clerked for two Supreme Court Justices who likely influenced his views about indecency and First Amendment freedoms. There is speculation that an F.C.C. headed by Genachowski will return to the standards enunciated by the F.C.C. prior to 2003:

Broadcasters are keenly interested in whether Mr. Genachowski will take a more moderate approach to enforcement of indecency standards. Thousands of complaints backed up at the F.C.C. over the past few years after the agency’s tougher enforcement policies––and multimillion dollar fines––were challenged in court by broadcasters.
Mr. Obama’s plan advocated using technology to help “protect our children while preserving the First Amendment.” Hollywood and broadcasters interpreted those statements as code that an Obama F.C.C. would revert to its pre-Bush-administration days of restrained enforcement and smaller fines.[14] President Obama, as a constitutional scholar, [15] likely recognized that the indecency fight raging in the courts was a creature of the Bush Administration’s molding of indecency policy with little regard for First Amendment freedoms.
By nominating an individual well versed in both constitutional law and emerging technology issues, President Obama can leave the F.C.C. to its own devices without having to pressure the agency in the fashion the Bush Administration did. Genachowski will primarily be concerned with issues like net neutrality and the digital transition, but he will still have ample opportunity to reverse the indecency regime promulgated by Martin’s F.C.C. Furthermore, Genachowski can end the constitutional issue by simply reverting back to pre-2003 indecency standards, a measure which can be accomplished in an industry guidance memorandum issued by the Commission.[16] Also, by focusing on more pressing issues involving technology and overall industry regulation, Genachowski can easily slide any indecency decisions through, likely only to be noticed by the Parent’s Television Council––the organization that primarily floods the F.C.C. with indecency complaints, skewing the pool of complaints received by the agency.[17]
Though this seems to be exactly the same tactic that the Bush Administration used to push its agenda, it is much different. In this case, President Obama has chosen Genachowski not only because of his close ideological ties, but also because of his expansive knowledge in the emerging technology and broadcast regulation fields.[18] Further, any action by Genachowski regarding fleeting expletives and indecency will simply be a return to the indecency standards already endorsed by the Supreme Court in Pacifica and followed for many years. The mentality is therefore focused on returning to constitutionally accepted standards, rather than changing an industry to reflect the ideological and political sentiments of one party.

2. Chairman Genachowski and the New Commission

Genachowski, a Democrat, was officially and unanimously confirmed by the Senate as the new Chairman of the F.C.C. on June 25, 2009, more than five months after the announcement of his nomination by the Obama Administration.[19] The Senate also unanimously confirmed the re-appointment of Republican Robert M. McDowell to the F.C.C. on the same day.[20] During the five months between Chairman Genachowski’s nomination and confirmation, Michael J. Copps, a Democrat, served as acting Chairman of the F.C.C. and he will continue to serve until the expiration of his term on June 30, 2010.[21] The final two seats of the Commission were filled on July 24, 2009 when the Senate unanimously confirmed Migon L. Clyburn, a Democrat, and Meredith Attwell Baker, a Republican.[22]
According to statutory mandate, President Obama can only nominate and the Senate can only confirm three Democrats to sit on the Commission at one time.[23] President Obama has filled the Commission with competent individuals, all of whom have extensive resumes dealing with the F.C.C. and the telecommunications industry.[24] However competent the new Commission may be, it is obvious that many challenges await Chairman Genachowski and his associates.
John D. Rockefeller, IV, Chairman of the Senate Committee on Commerce, Science and Transportation, aptly demonstrated that the road ahead of the new Commission would not be easy during the opening remarks at Chairman Genachowski’s nominations hearing: “[L]et me be very clear about the challenge before you. Fix this agency, or we will fix it for you. Prove to us that the FCC is not battered beyond repair.”[25] Senator Rockefeller specifically referenced “affordable and robust broadband,” “entrepreneurship,” and “educational resources” in his opening remarks.[26] Moreover, Senator Rockefeller specifically asked Chairman Genachowski to “[s]how us that parents can have confidence to view programming in their homes without their children being exposed to violent and indecent programming.”[27]
There is no question that the indecency standard is still sitting on the tongues of many congressmen. It is also obvious that Genachowski’s Commission has as many challenges facing it on the technology side of its docket as on the enforcement and regulatory side––namely the switch from analog to digital and expanding broadband.[28] However, the question of indecency has not necessarily taken a back seat, though it may now be a sideshow on another matter—the possible reformation of the Children’s Television Act.
Senator Rockefeller may be planning on introducing legislation to bring the Children’s Television Act into the Digital Age, indicated by his opening of hearings on the subject on July 22, 2009.[29] While stating that the intent of the hearings was not to specifically discuss indecency, Senator Rockefeller stated, “[I]t will come as no surprise to anyone in this room that I continue to have grave concerns about violence and indecency in the media. I continue to believe that programming with gratuitous sex and excessive violence harms our children and demeans our culture.”[30] It is quite clear that the topic of indecency is one of Senator Rockefeller’s concerns and there is a high likelihood that this could lead to the first opportunity Chairman Genachowski and the full Commission will have to take a new look at the current indecency regime left to it by the former Commission and in the wake of the Supreme Court’s most recent decision.
Chairman Genachowski spoke at the hearing on July 22, appearing to avoid the indecency question as much as possible, focusing instead on the Act’s original purpose of “promoting educational and informational programming for children and placing limits on commercial advertising to which children are exposed while watching TV.”[31] However, Chairman Genachowski intimated at his views on indecency without saying as much:

Government has a vital role to play in helping parents and protecting children, while honoring an abiding by the First Amendment. The private sector has real responsibilities in this area – and, potentially, opportunities. I’m hopeful that the evolving media landscape will produce innovation and new business models to increase the amount of educational programming and content available to all children, and enhance the ability of parents to pick and choose.[32]

It is very insightful that Chairman Genachowski specifically mentioned the First Amendment in his first public appearance on Capital Hill as the official head of the F.C.C.[33] Again, President Obama was highly cognizant of the fact that Chairman Genachowski is versed in constitutional law and First Amendment issues. This demonstration of Chairman Genachowski’s awareness of the issues currently surrounding indecency and the protection of free speech is at least some evidence that he understands that the current policies adopted by the previous Commission are likely violated the First Amendment protections of the Constitution.
Possibly more telling is Chairman Genachowski’s statement on the importance of protecting children: “[Children] are our most cherished, valuable resource. Video content for our nation’s children should treat them as such and not as ‘Little Consumers.’ Guarding against inappropriate marketing to children is vas vital today as it was twenty years ago when Congress limited commercial advertising to kids through the Act.”[34] Noticeably absent from this statement is any mention of the effects of general programming that may be held “indecent” under the current F.C.C. stance and policy on expletives. It is likely that Chairman Genachowski is carefully watching his words with regard to indecency in anticipation of the seemingly inevitable battle over the constitutionality of the current F.C.C. policy on indecency. However, as discussed in the next section, the Supreme Court has left open the door for the current F.C.C. to bring the broadcast indecency policy back within the bounds of the First Amendment.

B. The Supreme Court’s Ruling and How the New F.C.C. Can Use It

1. The Supreme Court’s Version of “Arbitrary and Capricious”

On April 28, 2009, the Supreme Court overturned the Second Circuit’s ruling that the F.C.C. had acted in an arbitrary and capricious manner when it reversed its decades-old policy regarding isolated and fleeting content that was deemed to be indecent.[35] Justice Scalia delivered the plurality opinion of the Court,[36] holding that the F.C.C. had, in fact, given enough of a reasoned decision when changing the fleeting expletives policy as to avoid being demarcated as “arbitrary and capricious” under the APA.[37]
Justice Scalia began by walking through 18 U.S.C. § 1864 and the Pacifica decision, followed by the Commission’s treatment of fleeting expletives up through the change in policy after Bono’s utterance of “fuck” at the Golden Globes in 2001.[38] He then discussed the Golden Globes Order and the Remand Order, highlighting language offered by the previous F.C.C. Commission:

Both broadcasts, it noted, involved entirely gratuitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English language.” It found Ms. Richie's use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to “‘watch the bad language.’” And it found Cher's statement patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.[39]

Justice Scalia’s focus on this language would set the tone of the opinion and also set the stage for finding that the Commission could reasonably conclude that this type of language should be regulated on broadcast television.
Justice Scalia found that the Second Circuit had improperly used circuit precedent that “requir[ed] a more substantial explanation for agency action that changes prior policy.”[40] The holding of the court followed:

We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.[41]

He further stated the APA makes no distinction between agency action in the first instance and later action by the agency reversing a policy.[42] The Court also acknowledged that an agency must recognize that it is changing policy, and stated that the F.C.C. had done so.[43] However, an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and the agency believes it to be better . . . .”[44] Justice Scalia also stated that the agency’s change of course adequately shows that it believes that the change of policy is better.[45]
By this point in the opinion, it was clear that Justice Scalia, along with the other four members who joined the opinion, believed that the arbitrary and capricious standard of the APA was indeed a low threshold for an independent agency to overcome. In doing so, the Court distinctly emphasized that this low threshold was only for the APA standard and had no relation to any constitutional standards required by the First Amendment. Justice Scalia first rejected the assertion by the broadcasters that the arbitrary and capricious standard was somehow linked to the constitutional question of whether the policy violated the First Amendment.[46]
Further, Justice Scalia writes:

In the same section authorizing courts to set aside “arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside agency action that is “unlawful,” 5 U.S.C. § 706(2)(A), which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action. If the Commission's action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act's “arbitrary [or] capricious” standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.[47]

This again shows the Court’s awareness that they are deciding purely on administrative law grounds and not on any related constitutional question. The Court, beginning with these comments, explicitly leaves open the door to a constitutional challenge of the F.C.C.’s current indecency policy with regard to fleeting expletives.
Justice Scalia specifically acknowledges that the current F.C.C. policy “may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution.”[48] He continues, “Whether that is so, and if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case.”[49] He then, however, tempers his remarks by stating, “Meanwhile, any chilled references to excretory and sexual material ‘surely lie at the periphery of First Amendment concern.’”[50]
Justice Scalia, writing this time for the plurality of four (Scalia, Roberts, Alito, and Thomas), dedicates nearly five pages of the opinion to dispelling the dissent’s opinions.[51] In particular, Justice Scalia takes issue with Justice Breyer and Justice Stevens contention that the Commission correctly addressed the constitutional issues surrounding fleeting expletives.[52] The plurality reasons that the F.C.C. did give credence as to why its policy was did not violate the First Amendment, at least facially, by reading Pacifica to “[draw] no constitutional line; to the contrary, it expressly declined to express any view on the constitutionality of prohibiting isolated indecency.[53]
Interestingly, Justice Scalia also addresses Justice Breyer’s argument “[t]hat law grants those in charge of independent administrative agencies broad authority to determine relevant policy. But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.”[54] Justice Scalia retorts that “[t]he independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction.”[55] However, it is very apparent that the F.C.C. is not at all insulated from the political objectives of the executive as the Bush Administration and a Republican Congress pushed the F.C.C. to this position (more on this in later posts).
Justice Thomas’ concurrence focuses directly on the constitutional question, “not[ing] the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”[56] He writes:

This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court re-lied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were under-stood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
. . . Second, even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions.[57]

Justice Thomas invites re-evaluation of both Pacifica and Red Lion decisions and intimates that he does not believe the current policy is within the constraints laid forth by the First Amendment.[58]

2. Where the Opinion Leaves Off and What the F.C.C. Can Do

All three of the fleeting expletives cases (the Second Circuit, Third Circuit, and the Supreme Court) avoided the constitutional question in their holdings. This is unsurprising considering the intricacies––and pitfalls––surrounding indecency, profanity, and expletives in the First Amendment arena. And of course there is the axiom of judicial interpretation that ambiguous language in a statute should be construed to avoid a constitutional abnormality.[59]
However, it can readily be gleaned from the Second Circuit and the Supreme Court opinions that the current F.C.C. policy with regard to fleeting expletives on broadcast television is likely at odds with the First Amendment. Judge Pooler readily acknowledged that the F.C.C.’s current policy would likely not “pass constitutional muster.”[60] Justice Thomas criticized the continuing validity of both Pacifica and Red Lion.[61] The dissenting Justices, even while arguing that the case should be remanded in accordance with the canon of constitutional avoidance, repeatedly referred to the F.C.C. policy as “constitutionally suspect.”[62] Even the infallible Justice Scalia invited the constitutional question.[63]
There are two foreseeable courses of action that could be taken. One can be taken by the broadcasters. In this case, the broadcasters must now directly challenge the constitutionality of the F.C.C.’s policy, likely arguing that the policy unconstitutionally chills protected speech. After all, speech that is indecent retains constitutional protection.[64] The broadcasters have a strong argument that the current policy unduly restricts and chills constitutionally protected language because many broadcasters will not air certain shows unless with the safe harbor period from 10 p.m. to 6 a.m., even those which obviously contain artistic value, such as Saving Private Ryan.[65]
Moreover, as Justice Thomas points out, many of the concerns that were evident at the time of the Pacifica decision are no longer relevant.[66] Spectrum scarcity is no longer an issue because the switch from analog to digital alleviates this concern.[67] Besides that, the technological advances that are available today support less interference from the F.C.C. rather than more, as Justice Scalia contends.[68]
Parents today have both more and less control over the content that enters their home. No longer is broadcast media “uniquely pervasive” as it was in the time of Pacifica. Children today are bombarded by images via broadcast television, cable television, satellite television and radio, iPods, the Internet, and even their cell phones. Technology has introduced a plethora of modes to receive and send information. The F.C.C. currently regulates these different mediums in different ways,[69] which has led to considerable confusion about what standard applies to the various mediums available. Currently, broadcast media is the only medium that receives a lesser standard of First Amendment scrutiny.[70] At least one commentator has argued that “[b]ecause technological developments have blurred the distinction between broadcast and non-broadcast electronic media, differing treatment of these forms of communication is no longer legally defensible.”[71] Justice Thomas agrees.[72]
Parents, not the F.C.C., are in a better position to regulate what sorts of programming and on what medium such programming enters their home. Parents can monitor what shows children watch on television more than ever now by restricting certain programming from even entering the home using their remote control. Applying the heightened standard of scrutiny that the Court applies to other mediums, parent choice would be the least restrictive alternative that is available.[73] Further,

Allowing viewers to make their own decisions about what they do or do not watch achieves the same effect as the fines, for the content that is broadcast is determined ultimately by the viewers and the commercial advertisers that seek their attention. When the viewers become bored, horrified, or repulsed, they turn the channel. When enough do so, the broadcaster gets the hint and alters the content in an effort to keep both the viewers and the advertisers. Accordingly, it is the marketplace, not the government, that controls the content and the individual, not the government, who chooses what to watch.[74]

These are strong arguments and this path will almost inevitably be taken by some broadcaster in the near future, especially since the question remains ripe since the F.C.C. has not changed course with regard to the policy and has the backing of the Supreme Court in stating that it is, in fact, enforceable. However, a more interesting, and possibly more controversial step could quickly resolve the issue and immediately make the question moot.
The second course of action is much simpler, though it would likely create a flurry of activity from the Parent’s Television Council.[75] In this scenario, the new F.C.C. takes the initiative and, through another series of orders, moves the indecency policy back to its pre-2001 stance, which is more constitutionally sound. I say this with some hesitancy in light of Justice Thomas’ most recent concurrence because he questions the entire validity of the Pacifica decision. However, this policy at least retains the original standpoint of the Commission that isolated, fleeting expletives are not actionable unless they reach some higher threshold of indecency. This comports much more with the spirit of Pacifica in that indecent language retains whatever First Amendment protection it must receive and the Commission is still free to take action when the circumstances and context warrant action against a violator.
Moreover, Justice Scalia’s plurality opinion invites this type of policy change by the Commission. Now that the Commission is fully aware that it need not comport with any “heightened” standard when it reverses course, it can proceed with changing the rule as long as it “believes” the change to be better and “that there are good reasons for it . . . .”[76] If nothing else a “good” reason would be to not unduly chill protected speech because the Commission believes that old rule better reflected the constitutional bounds outlined in Pacifica. Further, there are other good arguments that the old policy was unduly influenced by one politically powerful group, the PTC, which “gamed” the system by flooding the F.C.C. with form letters, regardless of whether parents truly found the programming offensive, or even watched the show![77] Further, the F.C.C. could insulate itself further if it followed normal notice-and-comment rulemaking procedures under 5 U.S.C § 553 (2009).[78]
The Commission should also point out the fact there is currently no study that actually shows that indecency or profanity “harm” children in any appreciable manner.[79] Justice Scalia argues that “[o]ne cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency.”[80] He then states, “It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. It is something else to insist upon obtaining the unobtainable.”[81] His argument also cuts the other way. There is no empirical data that can be obtained that it does not harm children and even if, as Justice Scalia asserts, “Congress has made the determination that indecent material is harmful to children,”[82] there is no reason that the F.C.C. cannot revert to a prior standard that it is equally unsupported by empirical evidence. The door is open for the new F.C.C. commissioners to use Justice Scalia’s plurality opinion to its fullest extent and change back to the standard that, presumably, comports to the constitutional standards set forth in Pacifica. In doing so, the Commission can undo the previous Administration’s warrantless depth charge into unconstitutional policy making at the behest of Congress and the executive.
Just to top it off, the F.C.C. could revert to this policy and still “show its teeth” by taking action more consistently against violators and reforming the way in which complaints are filed by consumers. Simple changes could avoid much more complicated (and expensive) litigation in the courts, and could resolve the issue while piggy-backing on the theme of consumer empowerment that Chairman Genachowski seems to be pushing.[83]

Shameless Plug

2009-06-29T22:12:00.000-07:00

www.auctionbytouch.com

"Well, Anything You Tell Your Doctor Is Confidential . . ." Not true in MA - well, unless you say it while laying on the couch . . .

2009-06-04T20:34:00.000-07:00

Studying for the bar gave me this interesting piece of information:

In Massachusetts, there is no codified, adopted, or set rules for evidence. Instead, all the rules come from case law (common law); more interestingly, they can oscillate from being very protective to horribly un-protective of important privileges and confidentialities, which in my opinion, the average joe "outta" know before he goes chatting with his doctor, about, well anything.

In most states, anything you say to your doctor that is intended to be confidential and that is for the purpose of diagnosis or medical treatment cannot be revealed in court without your permission, unless you put the matter into controversy (i.e. the cause of my headaches is your drug).

In a horrible realization during my Barbri course, I came to learn that MA common law only provides for communications made for the purpose of psychotherapy, meaning, that there is no patient-doctor privilege in MA. Your doctor is a sitting duck for direct examination in any matter of litigation in which his testimony would be relevant.

NOTE TO SELF: If you want to gripe about your life, your spouse, your employer, or the cause of your medical condition, make sure you do it to your therapist only. Is there any private way to remedy this situation? Maybe get your doctor to sign a confidentiality agreement stating that if he is required to testify in court regarding your treatment, as a witness for the opposing party, he should be required to take certain action or pay out? Doubtful any of this would work - if it isn't privileged, then the law wants that information, and it will get it, regardless of the existence of a private agreement of confidentiality.

Would love to hear suggestions on this.

A Break

2009-06-01T17:56:00.000-07:00

Studying for the bar for the next two months. See you all on August 1st.

Enjoy all of my previous posts!

And . . . We're Back

2009-05-12T19:00:00.001-07:00

After finishing final exams, Selchick's Blawg is back in action.

Should you have a preference on the next post, please do tell. My ideas are:

analysis of what happens to kids (and sometimes adults/college kids) who sell their prescribed drugs such as adderall, ritalin, concerta, or xanax for cheap to their friends, despite being from Short Hills, NJ, and not in need of the money. Federal prison time, controlled substances. College coeds. Has all the right makings for a good post;
More legal: Start up city - I've been deferred till Jan 1 and am doing a host of start ups - hear a vetting of my concepts and the legal issues surrounding them;
Copyright Law and the Constitution (You'd be surprised);
Your failing mutual fund and stock market account - What is the deal with your shares? Do you have voting rights? What class are your shares? What do your by-laws say? Can you vote on mergers? Do you vote on major issues like mergers, executive compensation, or fundamental transactions? Want to be able to read that annual report?

Let me know ur preferences.

Finally! A New Must See

2009-04-22T21:28:00.000-07:00

New documentary about being a lawyer - work checking out, and sponsored by The Bitter Lawyer.
http://wwww.alawyerwalksintoabar.com/trailer.html

Also, I realize this isn't a film blog, but go see the Boy in the Striped Pajamas - it is an excellent film.

Shepard Fairey Part Two

2009-04-02T19:37:00.000-07:00

A while back I posted on Shepard Fairey's use of a photo copyrighted by the Associated Press in the design of the "Obama Hope" posters which is now displayed in the Smithsonian.

Fairey's lawyer, Julie Ahrens, came to BC law to discuss the "Bounds of Fair Use," a defense to copyright infringement. To hear her comments in full, see these three videos I took while attending: (Part 1, Part 2, Part 3). While she did raise some interesting questions about the legitimacy of his use, I still think there are many triable (and arguable) issues here. The law provides for the defense of fair use for works that are made for the purpose of news, commentary, criticism, parody, and education. Fair use is an equitable defense, and is a malleable one that can be tailored to fit any desired result. Any finding of fair use is statutorily required to be based upon four factors:

The purpose and character of the use;
The nature of the work;
The amount and substantiality of the use;
The effect on the market.

Fairey's lawyer argued the following: Fairey's use wasn't "commercial" in nature, he re-invested all profits he made from the sale of a little over 300,000 posters back into making more posters for the Obama campaign, his work is "transformative" in character meaning that it adds something new to the original work in a substantial and meaninful manner, he didn't "copy" the photo he "used it as a reference", and there was no impact on the market for the photograph (in fact they increased the value of the photography significantly).

Some of these points are good ones, but Ahrens does avoid many tough questions in her argument. But I'll let you decide for yourself.

Java Jive Judicial Activism: The Things We Think, But Do Not Do

2009-03-30T11:43:00.000-07:00

Sure, as law students, lawyers, and judges, we've all dreamed about using our position to rain some vigilante justice onto the most vile and guiltiest individuals of society, or maybe we'd like to bring the seriousness down a notch. Judges dream of simply shooting repeat offenders in court, law students joke about citing to case law with absurd names (See Schmuck v. United States, 489 U.S. 705), and lawyers fantasize about strangling uncooperative witnesses ("Objection! Strangling the witness!", "I'll allow it.")

That said, we think these things, but obviously, we don't act on every little wishful thought that tracks across our brain. One judge actually did, and over a much less noble issue. And no, I'm not talking about that terrible Michael Douglas film about vigilante judges.

According to the Second Circuit's decision in Zarcone v. Perry, 572 F.2d 52 (1978), a traffic judge asked his deputy sheriff/bailiff to grab him a cup of coffee from the break room. After returning to the judge with what I imagine to be one of those puny styrofoam cups full of coffee that tasted something like toilet water mixed with McDonald's grade coffee circa 1994 (See Destroyed callous taste buds v. Scary red headed clown serving acid reflux tonic), the judge called the coffee "putrid," and demanded that the deputy sheriff bring the coffee vendor to the court in handcuffs. Ask, and you shall receive said the traffic court gods, and soon enough, the deputies produced a handcuffed coffee delivery man. The judge provided his motor oil cup of coffee as evidence, and proceeded to verbally punish the delivery man, threatening him, taking down his license plate number and address, and threatening to put him in jail for the night. Eventually, they let him go. But as the judge stewed over the whole incident, he became infuriated again, and instructed the deputies to go out, and get the delivery man again. They did. Repeat previous scene. They let him go.

The man sued, alleging that the episode caused him severe emotional harm resulting in a divorce from his wife, the loss of his job, and several hospital visit for insomnia, headaches, and depression. Punishing the judge, and allowing for the imposition of civil damages irrespective of the general common law principle of judicial immunity, the Second Circuit analogized the judge's courtroom to the star chamber.

Admittedly, I am a true coffee addict. I love good grinds, and java from a french press. Extra shot of espresso works for me. Coffee make Brian happy. In fact, sometimes when I go to Dunkin Donuts, I would like to echo the actions of Justice Perry.

I think the next time I get a traffic ticket in upstate New York, I'm going to happily pay the fine, but make sure to grab myself a cup of the Justice Java's (not a bad career change for justice perry after this suit?) brew - so good, after just one cup, you'll feel like you were just released from prison.

People Will Always Fight, Won't They?

2009-03-25T20:15:00.000-07:00

Not gonna lie, I've been worried lately. Worried about the state of the economy, and more importantly, about the state of the legal profession. But just as I was reading a law.com article about decreased profits for Proskauer partners, layoffs at Dewey, and New York's Governor cutting 9,000 jobs, I saw this cartoon.

Enjoy.

[Credit to my buddy Alby for bringing this to my attention.]

Who Has the Final Word: Texas and "Manifest Disregard" for the Law . . . No Pun Intended

2009-03-17T07:35:00.001-07:00

Another battle was fought in the Circuit split over the Federal Arbitration Act: The 5th Circuit (Texas! Yeee hawww) just released a decision in Citigroup Global Markets v. Bacon - what started off as a family feud between spouses over 300k in joint savings fraudulently withdrawn from the bank ended as a monumental case for arbitrators rendering decisions under the Federal Arbitration Act. So, associates conducting contractual due dilligence take note - that plain vanilla arbitration clause may be a larger liability than you think, especially if your superiors pick the wrong neutral.

As an aside, before we go falling over ourselves analyzing this Texan shoot-from-the-hip decision, lest we not forget the very colorful but now disgraced former District Judge Sameul B. Kent who used to toss litigants around the courtroom with his tongue lashings . . .

To conduct a quick survey of the Federal Arbitration Act - it provides for the enforceability of arbitral awards by the courts, regardless of state law conflicts (i.e. pre-emption), in order to insure national uniformity, the enforcement of contracts, predictibility for national companies engaging in international business transactions, and essentially, to provide parties with an efficient, reliable method for resolving disputes without resorting to expensive, time costly litigation that jams up federal and state court dockets.

The effect of the FAA is this: an arbitration award can only be overturned for a few reasons, which are specified in the FAA, irrespective of what the parties provided for in their agreement (See Hall Street Associates v. Mattel). The Supreme Court held in Hall Street that the parties may not expand a court's options for review of an arbitral award by contract - here are the default/mandatory provisions.

if the award was procured by corruption, fraud or undue means;
if there was evident partiality or corruption by the arbitrators;
if the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced or;
if the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.

Under Hall Street, these are the "exclusive" reasons for vacating an award. But, common law has developed a fifth reason, "manifest disregard for the law" which permits a court to vacate an arbitral award when an arbitrator willfully ignores a clearly applicable principle of law. (McDaniel v. Bear Stearns Co. 2002). While the 5th Circuit kills this judicially imposed runaway arbitrator safeguard, the 2nd and the 9th Circuit still allow parties to ask the court to overturn an arbitral award based upon manifest disregard of the law as an extension of the fourth subsection listed above.

Why are the courts jousting over this? What are they really fighting over? How does this play out in drafting, negotiations, and for the national "market" for arbitration? Will parties really be dissuaded from arbitration because of this re-enforced finality as some lawyers suggest? Or is this just another positive step towards providing for a more effective and efficient solution for our already over-litigious society? It is a tough and complex question.

In my opinion, the limitation on party autonomy imposed by the Hall Street decision abandons the primary purpose and principle of the Act (see the dissent in Hall Street). If the idea is to put the intent of the parties into operation regardless of state court hostility to arbitration agreements, then why don't we allow the parties to get their arbitration the way they want it? However, I am fearful that too much drafting customization on behalf of the parties will make arbitrators lame ducks (i.e. everything will become like 'mediation' in the sense that any litigator worth her salt will be able to mount a costly appeal); we can't underscore the importance of finality in arbitration - it is likely one of the most critical aspects of arbitration and mediation.

It seems to me that you have to take the analysis down a level, and ask yourself who it hurts or helps long run. In the world of contractual bargaining, it is likely that the people drafting the arbitration clauses (and hoping to rely on them for the purpose of minimizing dispute cost and maximizing confidentiality) are large companies, banks and retailers, while the people accepting them are likely "Joe the Plummer" types who don't even consider arbitration clauses when they are buying their new Samsung 52' inch plasma. Under this analysis, maintaining the manifest disregard ground is critical - it prevents industry chosen and anointed arbitrators from trampling individual claims quickly and quietly. These individuals don't have the time nor the legal interest to bargain for a broader arbitration clause. Yet, in more specialized arbitration markets, the parties are often highly sophisticated and develop extremely complex and robust arbitration clauses. Seems to me that they don't need any remedial lessons in the finality of arbitral awards.

So, my solution? Leave manifest disregard where it is as a presumptive road for relief for the masses (unless specific assent to such a clause is garnered by the customer with adequate notice provided) - but allow sophisticated parties in specialized markets to customize their agreements as they see fit, whether that be to limit or expand the grounds for vacating an award.

Regardless of how I opine over this issue, my guess is that given the Circuit Court split, and the importance of arbitration in our country (particularly at a time when financial related litigation subject to arbitration agreements are rocketing sky high), the Supreme Court will pay this issue a visit again, soon.

The fascinating issue will be whether Congress jumps in to re-write the language of the Act to permit a straightforward textual analysis, ending the debate for once and for all. Then again, if Congress was actually effective like that, then we'd have a lot less litigation, and J. Scalia might be out of the job with his "you don't like it? Change it" attitude.

Disclosure: "You stand where you sit." I'll always be deferential to the wisdom, intelligence, sagacity, good looks, affable nature, kind disposition, and great parenting skills of our brilliant neutrals. Other than that, I'm completely objective in my analysis. Also, this post was prompted by Law.com's article on the case. It provided a lot of the basics.

No Good Deed Goes Unpunished: How Tort Law Makes Nice Guys Finish Last

2009-03-05T08:38:00.000-08:00

I have a sad but true personal anecdote to share this week. It reads like a fact pattern from torts class, and even has a hint of Seinfeld's "Good Samaritan" episode, but it is real - this stuff happens and we all need to know where the law stands on acts of unsolicited assistance.

A friend of mine who lives in Florida, was driving home from work. A harbor master and a certified EMT, he came across two cars pulled together at a bridge. Assuming there was an accident, he thought he'd take a look and see if he could help. Walking onto the scene, he realized that it was no accident at all - it was a teenage girl threatening to commit suicide, holding herself over the edge with her mother holding on for dear life to one of her arms. My friend automatically ran to the girl, and grabbed her other flailing and free arm. The girl pushed and fought, kicked and screamed, and ultimately, managed to free herself from the gripes of both adults, flying off the bridge and plunging down many feet. My friend was told the girl was dead. Distraught, his mind full of images of the screaming teen, he struggled to deal with his insufficient role for days. He worried whether he could be sued for trying to help. To the surprise of most people, the answer is yes.

Actions like this are governed by tort law, or negligence to be specific. Here is the basic 1L outline: you have no duty to assist a stranger in trouble unless you are contracted to do so (lifeguard, police officer) or you have a special relationship with the individual (it is your mother, brother, wife, or child). Otherwise, you can walk by your buddy, passed out in a puddle of Pabst Blue Ribbon beers, and happily watch him drown (in law school, you make lots of really good friend like this, who could feasibly suffer this end on a weekly basis).

Sounds like my friend is off the hook right? Nope. There is yet another rule which says that if you volunteer to help, you have to help/act the way an average, ordinary, reasonable person would act. A "reasonable person" is not the sharpest knife on the block, but she does have to meet some minimum standards. For instance, if you happen upon a car accident and the victim is sitting in the front seat writhing in pain saying, "Don't touch me, I can't feel my legs", but you scream, "I'll save you!!!", drag the person out of the car and into the highway where even more dramatically, the individual is struck by an oncoming mactruck. What exactly would you say you "do" around here Mr. Hero???

So, my friend is subject to a possible lawsuit and jury trial over whether he acted "reasonably." Good news is, the plaintiff still has other hurdles - the elements of a negligence claim (Duty, causation, proximate cause, and damages). The only component here that can be argued over is the "proximate cause" element. Proximate cause requires that, "but for . . ." the actions of the defendant, the damage wouldn't of occurred. Here, the girl was clearly intent on killing herself, with or without his assistance, even if he didn't act "reasonably."

Yet, whether the plaintiff had a good case or not, doesn't the whole thing seem . . . unfair? My friend was better off letting the girl jump then trying to stop her? Now he may have to defend against a lawsuit, which will cost him some bucks even if he wins hands down. Some States have responded to this by enacting "Good Samaritan" laws that prevent liability for assisting in emergencies. That said, they don't cover much - most of the time, they only cover Doctors (M.D.'s) helping in disasters that are declared by the federal or state government to be a "disaster", and they only limit liability if the person helps in a reasonable manner.

This story does have some silver lining - days after the incident, my friend received a call. The teen lived. In fact, because of the way he held her arm, she landed on her legs instead of her head. He may have saved her life. Lets just dwell on that for a second. He may have saved her life. His act was a breath of fresh air in a society that spends its time filming new and more heart wrenching episodes of Intervention, depicting the whole of America getting off watching their friend drown laying face down in that puddle of PBR's.

Buyer's Remorse Becomes Buyer's Recourse

2009-02-24T07:09:00.001-08:00

The NYSBA recently published a brief article on the New York State Court of Appeals discussing the case Moran v. Erk, 11 N.Y. 3d 452 (2008). The case deals with a residential real estate transaction in which the buyer exercised her right to cancel the contract based upon the "Attorney Approval" contingency.

Under most attorney approval clauses, the buyer's attorney may void the contract within ten days of signing, for any reason. In the instant case, the buyer did just that - the sellers eventually sold their home for somewhere around 100k less than the original sales price. The seller sued on the basis of good faith, arguing that the buyer can't simply cancel the contract.

The Court held that the buyer's exercise of the attorney approval clause was perfectly valid - good faith did not restrict the buyer's invocation of the clause in any way, shape, or form. This is a big win for buyer's, particularly buyers who find themselves in unfavorable market conditions or who find that the inspection yields a dollar amount of repairs that falls just short of invoking the inspection contingency.

A few observations:

Such clauses were originally intended to reduce the role of real estate brokers in the semi-practice of law. This holding furthers that purpose, leaving the power (and responsibility) in the hands of the attorney. Excellent, especially considering that they let people like me get a real estate license at age 18. See me renting Section 8 rental properties in Albany, NY for a division of Wiechert Realtors. Yup, it happened.
There seems to be no limitations on how the clause can be invoked - no objective criteria has to be stated for disapproving of the contract.
This is just another bargaining chip - in real estate, it is all about negotiation. Maybe this holding will force AA clauses out of the picture for a price. Everything has its price.
Arguably, any seller's lawyer or broker, who is worth his/her salt will require that there be objective criteria for the contract cancellation.

So is this a good or a bad thing? Great for lawyers and buyers. Bad for sellers.

Alabamma Slamma: Its Not Just a Mixed Drink, Its A Jail Full of Marathon Dancers

2009-02-20T09:54:00.000-08:00

Time for another round of hilarious laws, we could all use the comic relief. Alabama . . . there are just so many options, I feel like a kid playing a game of Whack-a-Mole towards the end of the game when the moles just keep popping up in rapid fashion leaving the kid with no choice but to swing full force and freely at every mole in striking distance.

Here are the laws that are too good to pass up:

Before you ship out that dance dance revolution kit to little Timmy in Alabama, make sure you check out Chapter 14 of the Alabama Criminal Code entitled, "Marathon Dancing, walkathons, and similar endurance contests." The law makes it illegal to hold, or participate in any type of dancing, running, or walking marathon that is intended to last for over eight hours, irrespective of whether a fee is charged or a prize is awarded.
Pretending to be a member of the clergy - This crime is a misdemeanor punishable by a $500 fine or up to 1 year in jail, but I wonder if its purpose is still valid - has anyone told these impersonators that being a member of the clergy no longer entitles you to forty acres and an altar boy?
Self-infliction of injury Ever heard of the fail blog? Yeah well anyone who is charged under this statute deserves a splash page spread on their idiocy. The "self-infliction" law makes it a felony to do the following: (1) injure yourself so that you cannot perform a legal duty (okay, this one is legit and was probably enacted to prevent the 4F hippies from getting out of serving in Vietnam), and (2) to injure yourself for the purpose of getting sympathy, to enhance your begging capacity, or to get charitable services. Now, imagine the guy who beats himself up to "excite sympathy" and finds himself being prosecuted for a felony - FAIL.
Bear fighting - I've heard of cock fighting, dog fighting, and I've even been to a bull fight, but bear fighting?!?! Really? Why is this illegal??? Sounds like the coolest thing I've ever heard of. I'm envisioning Bear Gladiators in the colliseum fighting to some well-composed hans Zimmer. We're already melting their ice caps so might as well make them fight to the death.
For all the kids out there -- a law preventing parents from making their kids do any work on Sunday, the lords day. Not a big fan, but I'll take it where I can get it.
And finally, likely in the same vein as the above law, it is illegal to have a bumper sticker which, "depicts obscene language descriptive of sexual or excretory activities." The State has only tried to enforce it once, and it was held to be in violation of the First Amendment. See Baker v. Glover, 776 F. Supp. 1511 (M.D. Ala. 1991) (holding that "How's My Driving? Call 1-800-EAT S---!," is a legitimate parody covered by the Constitution). Question: Which section of the statute does this one fall under . . . sexual or excretory? Not sure I like the answer to either.

What Do You Mean You Own My Family Album?: The Facebook Terms of Use Controversy

2009-02-18T11:23:00.000-08:00

The management of Facebook, for better or for worse, is in charge of a massive social network of over 175 million users, many whom rely upon facebook primarily for communication, business networking, or social interaction (wow, there are people like that, aren't there?).

Recently, I've noticed that every time someone experiences a major life event - buying a house, having a baby, getting married - their facebook profile pic is automatically changed to reflect that. Nothing wrong with it, but it got me thinking - how many people are relying solely on the servers of facebook to host their beloved family albums? Their prom pictures? A video of their child's first step? How many people upload those pictures or videos and then delete them off their hard drive or lose them when their computer dies?

My point being, what happens forty years from now when my life is traceable click by click through my chronologically tagged photos like one of those old school "picture everyday for six years" videos. All of this would seem like a moot point if facebook hadn't recently put out a new Terms of Service policy basically stating "We have rights and ownership to all of the content you put on your facebook page." It was promptly retracted when users protested, but legally, is there anything to stop them from doing this?

No, not really. Don't like the terms? Don't use the website - there are plenty others out there, they will say. The only requirement out there, under contract law, is that the users be given actual notice of any changes to the Terms. Notice is nice, but considering the rapid development of online technology and personal reliance on information repositories like facebook, it seems to me that we will eventually need some guarantees - not only that our data is our data, but also that our data will be safe, unchanged, and accessible. The current Terms relating to User Content are as follows:

"When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content."

Not very reassuring. Even without the more recent version's strict new guidelines, these Terms make it clear that any picture you post can be used in every way possible. But for the more facebook savvy, what about an embarrasing picture posted of you that you've "de-tagged." Could that end up on a billboard somewhere advertising facebook? Seems to me, the answer is yes.

Considering the ubiquity of this service, I think it is time for Congress to discuss some minimum requirements for online sites like facebook stating that they must maintain your information for a certain period of time, limit their use in a certain way, and insure that you'll be able to effectively revoke any rights you've forked over by signing up for the service. As technology evolves, who knows, maybe there will be a day when your facebook profiles includes your medical records - then we get to do the ever fun HIPAA analysis.

In this world of uber connectivity, for most teens and college kids, the only thing scarier than Somalian pirates taking over oil takers is the thought of venture capitalists taking over 175 million facebook profiles hostage for a user fee.

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Copyright Notice Brian B. Selchick 2009

A Look At Cases You Don't Hear About Often

2009-02-16T09:49:00.000-08:00

This week, I urge you to go to the FBI's "Gotcha" archive - a website that admittedly glorifies the work of the FBI, and only presents one side of the story, but what it does do is give you a better idea of the criminal pulse of America. I've always been curious about what the FBI really "does." Well here is proof -- corrupt judges, corporate fraud, pretending that you were awarded the Purple Heart, this archive has it all.

Check it out here.

"Hope", Hmmm, Where Have I Heard That Before . . .

2009-02-06T09:16:00.000-08:00

Every time I think about copyright, I feel like I'm in the film Sleeper, and am living 250 years in the future, dealing with case law about software codes, programs, linked images, and weird artistic works being copyrighted as bike racks (you've all seen these bike racks around.)

But there are still lots of basic copyright fights going on out there. The now greater than life painting of President Obama featuring the words "Hope" below his portrait is getting a lot of play these days -- both at the Institute of Contemporary Art here in Boston (for a week starting this past Friday) and in Federal Court.

I spent my Saturday at Mr. Fairey's exhibition, unimpressed by his personal slogan, "Question everything," which sounds more like a joke of a facebook ad or subtitle to a generation of inter-web tech and marketing savvy hipsters who are more than keen to taglines. In the modern context (and considering that the man is 38 years old), this line is as outdated and useless as one of those internet banner ads that attempts to engage you in an old game of duck hunt, telling you that you'll be the proud winner of a million bucks if you can just hit this extremely slow moving duck. Something tells me that if it was true, Warren Buffet would of already killed every internet duck with a price on its head.

The Associated Press claims that Shepard Fairey, the well-known street artist who touts liberal thought in his art, copied his painting from a photograph taken by a photographer employed with the AP. Looking at the photos side-by-side, the AP's claim is undeniable. Fairey used it as a template for sure. So what will become of the iconoclastic image we've all come to adore as representative of a new revolutionary era in politics?

I spent one day at the Institute of Contemporary Art viewing Fairey's exhibition entitled, "Supply and Demand (which he may have stolen from Amos Lee?), and before we continue to catapult him into the spotlight, I want to point out what a scheming infringing criminal he [allegedly] is.

Quick Legal Analysis

Article 1, Section 8 of the U.S. Constitution says, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." We are concerned with authors and their writings. We won't be discussing originality, because we aren't concerned with whether Shepard's work is copyrightable - and we know that the AP's work was original, so after accepting that it is a protected work, we focus instead on defenses to infringement.

Is Fairey's Use of the Photograph Infringing?
Most of you have probably heard of "fair use." It is a defense to copyright infringement, and I guess, arguably a good social defense to lots of inappropriate yet fun, "infringing" things. But more realistically, it allows educators, critics, and academics to re-use or incorporate certain copyrighted works for the purpose of education, news reporting, not-for-profit activities, or research. There are four factors to consider when determining if a case falls under the "fair use" doctrine, but in short, the courts consider how much of the copyrighted work you've appropriated, whether your commenting on it, how the artists use of the copyrighted work effects the quality and value of the work, in addition to the market for it as well.

Under the doctrine of fair use are things like parodies, New York Times book reviews, and the reproduction of famous paintings to teach 6th graders about the Battle of Bull Run. The fixed ideas expressed by the original artist are protected, and if you want to qualify for "fair use", you have to add something to the mix - gives us a fresh perspective, transform the way the work is viewed or use, or take a unique and orginal viewpoint on the work that is worthy for society to see.

Does Fairey's interpretation, ie. painting the picture half blue, half red and adding the words "Hope" strike you as a parody? A critic? News reporting? This is a very very very brief analysis of this issue - but in my opinion, his work is little more than a "slavish copy." I don't see any transformative use, and can't see it qualifing as a derivative work - they are just too similar.

The End Up

Fairey will pay. The AP is just looking for a pay out and some credit. He will have to acknowledge its source and pay a high licensing fee to continue showing and claiming the work as his own.

The practical lesson most street artists see? Its guerilla warfare, and until they call you on it, you may get famous and rich before they pull the plug.

The Legal Lesson

So why am I giving Fairey such a hard time? I like the Obama poster, and I'm a fan of creativity and art - but here is the problem, I like the law MORE. Copyright laws were enacted to stop the exact type of crap that Fairey is trying to pull here. The facts are simple: a talented AP photographer took this picture, Fairey put it on his computer, messed it around a bit with not much more talent than any 8th grader with a Mac could do, and re-printed it -- becoming famous and catapulting himself to the front of a political revolution with a plagarised emblem of Hope. If we let him do this, then we're saying - copy what you can, get as famous as you can, and in the end, we'll let it slide when you toss some anti-government slogan at us like, "Question Everything." Right, well I wonder what the photographer at AP's slogan is, "Copyright needs a bailout package?"

A Picture Is Worth A Thousand [Felonies]?

2009-02-05T07:06:00.000-08:00

I won seven gold medals. Stick that in your pipe and smoke it.

There is already tons of controversy surrounding a picture of the star athlete smoking "something" out of a bong. One of South Carolina's "Toughest" (an unearned title that I think is highly debatable) cops is threatening to arrest Phelps and charge his with a crime.

Considering the vast amount of electronic devices we have these days, it would come as no surprise to me (although apparently the country is surprised Phelps smokes pot) that there are a lot of pictures floating around out there of actual or seemingly criminal activity: kids drinking underage, theft, drug use, and vandalism.

I find the whole thing a little peculiar when our past and new president have both admitted to using cocaine. There are dozens of pictures of rock stars doing the same drug, and smoking pot. Rap songs discuss murders, drug deals, and gun trafficking. So what makes Mr. Phelps so special? I'm not sure how that D.A.R.E. (comically run by Sheriff Lott, who is a D.A.R.E. board member, so TOUGH) program would go - "If Michael had only pulled himself out of his pot-induced laziness he could of done something with his life . . . . maybe he could of been in The Olympics! Oh, wait . . ."

So what could they actually charge him with?

If anything, maybe, misdemeanor possession (under one ounce) of marijuana. But there are MAJOR evidence issues here, should Phelps choose a trial and not simply strike a plea bargain. How does the prosecutor prove:

that the paraphernalia was being used to smoke marijuana, not tobacco .
that Phelps owned, or possessed any marijuana at any time.
that Phelps actually smoked marijuana (goes along with the above) and didn't just pose for the camera.

The Sheriff mentions they have a "partial" confession, which I don't know the substance of, but it still seems like a real long shot. Plus, something tells me that a jury of his peers consisting of the patriotic citizens of South Carolina, won't be ready and apt to convict our most recent American ambassador of U.S. Awesomeness of drug possession.

To further investigate this story, Selchick.blogspot.com went to crack, ace criminal law clerk and 3L student Sam Breslin. In Mr. Breslin's expert opinion, "Mr. Phelps is clearly and undeniably guilty . . . of having the munchies. We'll likely see him proceed to sentencing at Coldstone Cremery, 7/11, or if the judge is in a bad mood, The Country Buffet."

The country to Sheriff Lott - before your re-election, please read Everybody Poops.

Introducing the "Simpkins" Awards: Life, Is A Long Race

2009-01-30T08:39:00.000-08:00

You may be holding your acceptance letter to an Ivy League school, an employment offer for an AM 100 law firm, or your schedule for your first day at Columbia Law School. Some might say, "your ticket is punched, kid." But the truth is, that life is a long race, and there are about a million ways to screw it up if you don't stay vigiliant.

If your not already familiar with it, check out this recent story from the Boston Herald discussing the Republicans (former) rising star, Charles Simpkins, a Harvard Law Student who was fired from the District Attorney's office in Boston after drunkenly demanding that a local police officer drive him home because he "works for the DA." This brilliant spat of humbleness got him fired and a front row spot in the paper. In his honor, I've developed the Simpkins Award -- given to the law student who falls most ungracefully from the seat of success due to idiocy, arrogance, or greed. Enjoy.

#1 Apparently in the same "Harvard Law School" fashion as Simpkins, our good friend Ben here took it upon himself to expose his penal system in public during a St. Patty's day parade. He too, announced his Harvard-ness and said "see you in court." Right, because there will be a lot of constitutional issues and problems with Miranda and the exclusionary rule on this one buddy. A+.
# 2 After losing his fiance to a drunk driver, this young law student took his hate for DWI's to Congress, advocating for harsher penalties. Unfortunately, he then took his cause to the streets, and blew a .23 at 4am in the morning. This gets an S, for sad.
# 3 He just had a little marijuana, for you know, personal use. How much? Oh, oh, umm, he got caught with 13 pounds your Honor.
#4 A Penn law student fires 15 shots into the door of his neighbors. He believed they were spying on him because they're "Indian." E for, well, excessive. 15 shots? Really? F for marksmenship.
# 5 Federal District Court Intern and Ex-Beauty Queen arrested for kidnapping her ex-boyfriend, and then robbing and assaulting him with the help of three other dudes. Kudos for her gangster sytle bikini pictures. B for burglary, but A for advocacy -- she convinced three uninvolved guys to commit the crimes with her . . . if we could only get those kind of skills in Congress.
#6 Jesse, a fun-loving 3L from Indiana engaged in some gun battles.

Shareholder or Stakeholder?: A Lesson From Tycoon Henry Ford

2009-01-29T09:41:00.000-08:00

Go to any corporate website and click around. You're bound to find a section dedicated to "social/corporate responsibility." Take a look at what the company includes in that category. Here is our CEO building a new park. Starbucks is stopping AIDS in Africa, and "would you like to donate $1.00 to St. Jude's Hospital with your purchase sir?" is a frequent question asked at Whole Foods. But amidst all of this excellent corporate philanthrophy, I think we have lost the true meaning of social entreprenuership; the honest belief that your product and business can make the world a better place, and morever, make the economy stronger.

Dumbing down the issue, corporations are created under state law, and given certain privileges such as limited liability and perpetual existence. Some argue that the purpose of this state-enabled vehicle is to promote the greater good; others believe the sole mission of a corporation should be to maximize profits for shareholders. After all we've been through (and are getting into) economically, I thought it would serve us well to consider some of the questions presented and lessons learned from reading a law school favorite, Dodge v. Ford Motor Co. (1919).

First, its full of killer business atititudes from a time most of us can only imagine or see in black and white on the movie screen. It explains how Dodge and Ford got their start in the auto business, how Ford conceptualized the role of his (and I emphasize his) motor company's role in the American economy both socially and politically, and finally, its gives us a good shot of Gordon Gekko's "greed is good" policy.

Filed in Michigan, this case involves Ford's refusal to relinquish dividends to shareholders after having a very profitable year garnering the company over $60 million in profits. He dished out $2 million, and decided to keep the rest for re-investment into the company. He planned to increase the quality of the cars being made, while at the same time dropping their price. He also intended on building an additional manufacturing plant which would employ thousands of people.

The Dodge brothers, roughly 20% owners of the corporation at the time, had just gotten into the car business in direct competition with Ford, and wanted their payout so they could privately finance their own auto war. As minority shareholders, they sued to compel distribution of the dividends. Now, this case is complicated, and in the end, Ford had to pay the dividend but got to build his new factory - not a bad compromise struck by the courts. However, lets look at Ford's defense in court:

"My ambition is to employ still more men, to spread the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes. To do this we are putting the greatest share of our profits back in the business."

I'm not a big fan of Ford, mostly because of his sympathy for Germany pre-World War II, and because he "inspired" Hitler with his philosophies.

But I will accede that in an age of out of control executive compensation, wham bam thank you ma'am internet booms, and misuse of health care and pension dollars, his fight to offer a cheaper product in lieu of a massive dividend in order to enable more Americans to travel to and from work more easily while employing tens of thousands, is more than admirable, its utilitarian!

Arguably, it was more a strategic move against the Dodges than anything else, but there is some silver lining here.

So whats "corporate responsibility?" Lowering the cost of the product (wal-mart?), employing more people, providing good health benefits to employees, paying higher taxes, or donating to international humanitarian causes?

Is a mortgage broker or lender doing its job if it sponsors a local highway clean up while simultaneously taking advantage of sub-prime loan applicants, chasing after debt-ridden law students (grrr), and inducing people to sign contracts that secretly balloon their mortgage payment to 9.5%?

If your interested in social entrepreuneurship I highly recommend reading about the concept of Disaster Capitalism, somewhat radically advocated by Naomi Klein, but again, an idea to be consider.

Attorney Wanted: Airborne Qualified, Sniper Experience, Force Recon or Ninja Skills a Plus

2009-01-14T12:39:00.000-08:00

With the recession taking a bite out of law firms, and subsequently, law firm associate positions, 3L's are looking elsewhere for jobs: local government, in-house positions, and even straight to solo practice opportunities. But one posting caught my eye - an associate attorney spot with Blackwater USA, our nation's premier mercenary provider.

What a dream job: sitting at "Headquarters", surrounded by veteran assassins, Navy Seals, former Delta Force members, and ex-CIA spooks for hire. Blackwater's founder, Erik Prince, a graduate of the U.S. Naval Academy and former Navy Seal, is at the forefront of some of the nation's most interesting legal battles over the Law of War, the Geneva Convention, and the role of mercenaries in our global war. Sounds like a good place for a quick footed short guy who loves to talk trash from behind a barb wired fence manned by guys armed to the teeth and trained to kill, but what would such a job entail?

At first glance, the job calls for someone with experience in employment and contract law, knowledge of regulatory and compliance issues, business sense, 4 to 5 years experience -- all pretty standard, plain vanilla in-house legal work. Interestingly, precedent tells us that such a job is anything but that.

In truth, being an attorney for Blackwater USA would provide a plethora of experiences: writing letters to Congress in response to orders requiring Erik Prince to divulge sensitive information about the role of Blackwater in our war of terror in Afghanistan and Iraq; wrongful death liability lawsuits; and learning about tactical litigation strategies and arbitration. More interestingly, there are contract disputes between Blackwater and the Department of State's Diplomatic Security Service in addition to nifty drafting tricks to be learned that help distance Blackwater from liability for unauthorized acts of violence and technical mishaps resulting in the death of civilians or Blackwater employees.

All this brings me to my point -- in a tough economy, irrespective of the position you take, its all about getting your hands dirty, diving into your work, cutting your teeth on difficult tasks and problems, resolving conflicts amicably, protecting your client, and developing strategies you can use in negotiations and litigation throughout your career. Perhaps the recession is just the incentive we need to stop day dreaming of a job that has more than the plain vanilla description, and start appreciating how exciting the work we are doing already is.

Weee Ohhh Weee Ohhh Weee, Like A Cop Car

2009-01-10T19:54:00.000-08:00

[Shout out to my NY friend who requested some more Empire State law]
You're blasting that favorite new tune off your iPod, blowing a few yellow lights, and out of nowhere there are red flashing lights behind you. You panic, heart racing as you pull over to the side of the road trying to figure out what you did wrong. For most of us, it is normally a mundane offense: not wearing our seat belt, driving 45 in a 30 (thanks to those wonderful city to village speed traps), a broken head light, or an expired regisration sticker. However, New York has it fair share of excitement on the road.

So, in honor of our good friends Charles Barkley's recent DWI, here are some awesome factoids and stories about New York's Vehicle and Traffic Law:

The "Rules of the Road", literally, are in Title 5 of the V&T law. It covers the operation of authomobiles, motorcycles, bicycles, walking (i.e. pedestrian rights), play toys (this supercharged powerwheels looks like the most fun I've ever seen in my entire life, ever although this tricked out ghetto one is also sweet), and yes, horses -- we don't discriminate in NY, all modes of transportation are represented.

The Top Ten:

How about a Back to the Future ride on a skateboard clinging onto the back of a car? Specifically outlawed, even if you're on a high class scooter like a rascal.
You know how in action films there always seems to be a railroad crossing involved in car chases?? Interestingly, in New York there are harsh laws for crossing over train tracks while a train is approaching without stopping or without obeying the famed gates that fall across the road. In fact, if you do it more than once it becomes a class E FELONY. Ironically, Vin Diesel could of gotten more prison time for plowing over those tracks in The Fast and the Furious than he could of for grand theft auto! (okay, not really, but its closer than you think.)
Street racing is illegal . . . apparently . . . . . ooops.
Leaving your car unattended [a 1L lawyering favorite, sorry guys] -- ever run into the gas station for a cup of joe, warm up your car on a cold morning, or zip in to your kid's school while the car is running? This is against the law! It was outlawed to prevent unattended runaway cars, theft, and of course, to prevent kids from getting in the front seat and going for a ride.
Get behind that firetruck and go!!!! No no no, this age old way of getting out of traffic fast is actually illegal. The only way to avoid a ticket is to make sure you stay at least 200 ft behind the emergency vehicle. Interestingly, there is no similar law regarding ambulances or police cars, and maybe for good reason.
Jump in the back of the truck buckie! I remember doing this one in college -- we had to get a mattress from one end of campus to the other, and the only way it would stay in the back of the truck was if we sat on it. Surprisingly, this is legal, even without seat belts, so long as you don't travel a distance of more than five miles and no more than 1/3 of the passengers in the entire vehicle are unbelted in the back of the truck.
Want a ride on my pegs? Nope, thats against the law bud, and knowing is half the battle! Bicycles may only be ridden by the number of people it was designed to hold.
Babies under the age of 1, can never ride bicycles or be bicycle passengers.
In case it didn't go without saying . . . . none of the following are allowed on the highway: animal-drawn vehicles, herded animals, a pushcart, or bicycles.
And finally . . . the one I get asked all the time . . . YES you can get a DUI/DWI if you are riding a bike, skating, driving a lawn mover, or even gliding around on inline skates -- V&T laws apply to all of these!

The Billable Hour Becomes the Killable Hour

2009-01-10T10:09:00.000-08:00

There is an old joke that goes something like this -- an 80 year old lawyer dies and goes to heaven (no no, thats not the end of the joke and the punchline). When he arrives at the pearly gates, St. Peter says to him, "Lets see, it says here that you are 120 years old, is that correct?" The lawyer, taken aback responds, "Of course not, I'm only 80." St. Peter says, "Not according to your billable hours!"

The point being --no one likes bills. Moreover, no one likes paying bills, but even more importantly, no one likes being cheated. In the legal industry we call overcharging clients "bilking" because when you do it, you're milking the client for "billables."

Originally the end all, be all, method of billing, the billable hour is under fire nowadays mainly because of bilking, but also because of its disasterous affect of associate moral and lifestyle.

Interested as to how the billable hour works? Click here for an excellent break-down of how this turns out weekly for the average law firm associate. Keep in mind that most firms have minimum billable hour requirements of at least 1,600 hours capping at around 2,200, averaging 1,800. To complete the standard 1,800, you need to "work" roughly 2,500 hours over the course of 47 weeks.

Like any good argument, they're are two sides to the story, and pros and cons come with both.

In the eyes of the revolution, billables hours are contrary to the interests of the client, they fail to reflect the amount of work an associate or firm put into a matter, fail to recognize legal expertise and associte insightfulness, and finally, put simply, they're a P.I.A. (Most firms bill in minute-by-minute increments, for example, six minutes equals 1/10 of a billable hour.)

To the billable loyalists, the billable hour is the best way to: increase and insure professional accountability, measure associate and partner performance, keep track of how firm resources are being used, and maintain an enforceable guideline.

Certainly, they are different models out there, and different ways of thinking about billing, compensation, and the balance between work and home life. Some firms refuse to use the billable hour, such as Slaughter and May, an international law firm that does work in Brussels, Paris, London, and Hong Kong. One U.S. labor-law firm which pays its first year associates $130,000 elimated billable hours. Other firms have resorted to the "lifestyle" concept, meaning that the firms pay less money, but requires less from associates, deliberately, purposefully, and with special regard for the family life of employees.

I've been asked to keep these "shorter." Let me know your thoughts on billables!!

I Remember My First Time: Law School Exams and Grades

2009-01-09T09:20:00.000-08:00

[Credit to BC Law student, and author, Kaiko Shimura]

I remember my first time.

Palms sweaty and constantly tucking my hair behind my ears, biting my lower lip. A nervous wreck inside but trying to play it off like this kind of thing happened all the time.

Still, you have to cut me some slack; it was my first time.

I admit, I mostly had no idea what I was doing. You know some people just have a natural affinity for these things? They just seem to know exactly what to do and how to get the job done right. Me, not so much. I sort of struggled. I was more than slightly confused. But in the end, it happened. Sure, I may not have been doing it for all the right reasons (i.e. because everyone else was doing it, and come on, we’re all curious), but when the opportunity presented itself, how was I to just let it pass by?

It wasn’t as freakish or painful or disappointing as some people made it out to be. I guess I’m fortunate to say that extreme sensations or feelings weren’t involved. It was over, I survived; I sighed in relief, got some coffee, and life moved on.

And besides, it’s bound to happen again and again so I might as well get used to it. Checking grades, that is. And remember, there’s always next semester.

Bitter Lawyer Webisodes

2009-01-07T18:02:00.000-08:00

The webisodes from this ingenius website deserve tons of praise. Enjoy.

http://www.bitterlawyer.com/

Ooosifer, I'm Home, Take Me Drunk

2009-01-05T19:55:00.000-08:00

The good ole drunk tank -- we all know someone who has been in it. There is a party, maybe a tailgate, and by 4:00pm, when the cops bum rush the scene, you and your friends are left panting for breath as someone asks, "Where's Brian???". The last to arrive and the drunkest screams, "HEEEE DIDN'T MAKE ITTT!". Later, the individual is picked up at the police station with an absurd morning hairdo, a headache, and a monetary fine that could of bought him at least 30+ more Pabst Blue Ribbon beers.

I'm stealing this bit from an excellent comedian, but there are actually some interesting legal issues at play here. Section 8 of the Public Health Law of Chapter 111B in Massachusetts provides, among other things, for the detainment of hammered citizens by the police for a period of 12 hours or until the person is sober, whichever is shorter (they really can only hold you for exactly 12 hours, no more, See Ringuette v. City of Fall River, 146 F3d 1 (1998).) Under the law, the officer has the option of bringing you home, to the drunk tank, or to a treatment facility such as a hospital. They can use force, give you a breathalyzer test, or subject you to field sobriety testing. The good news is, they can't and won't charge you with a crime. And remember to ask for your one phone call (this law entitles you to one, at your own expense, so if you don't have your cellie, you'd better scare up a quarter).

I find this law interesting because the purpose and result of it often come up in casual conversation when I see or hear about teenagers being arrested for the misuse of alcohol --"back in my day, they'd take all the booze and call everyone's parents, no need to arrest anyone." This law allows the police to do just that -- it gives them the discretion to play the roll of the good buddy -- take drunk kids and adults alike back home, and toss them in bed. Why have we stopped using these types of paternalistic/samanitarian laws? I completely understand why we don't allow it for DWI's anymore, but what about other alcohol or drug related offenses? Is the purpose of juvenile justice really served by booking a 16 year old kid for stealing a bottle of vodka from his parent's liquor cabinet before the prom? Certainly, crimes have to be backed by real sanctions, but isn't that inserting a little overzealous parenting into all of our lives? I'd like to think that most parents are smart enough, or caring enough, to deal with these situations according. But maybe that is wishful thinking?

So, you might ask, what does it take to get sent to the tank? Not much.

For example, in Commonwealth v. Carson (1980), the Massachusetts appellate court found that a college student running away in a zigzag pattern, screaming loudly, and acting belligerently, absolutely needed to go to the drunk tank. Okay, that one is understandable. But in 2000, Commonwealth v. McCaffery taught us that if you walk in the middle of the road at 3am while considerably drunk, you're going to the tank.

Useful MA drunk tank fast facts:

The cops can, and will search you (lawfully) if you appear drunk and give them a reason to do so.
They cannot hold you for more than 12 hours, period.
You're entitled to one phone call, at your own expense.
They can give you a breathalyzer test, solely for the purpose of determining if you need to go to the tank.
If you're under 18, they're calling your parents.
If you're going to run, thats fine, but don't do it in a zigzag pattern or in the middle of the road.

For the more legally minded -- The drunk tank also involves issues of due process, unlawful search and seizure, the duties of police officers, and of course, hilarity . . . once you read the case law that has spurned out of this statute.

Let's ramp up the drunken hypotheticals though -- what if right before they give you a sobriety field test, they decide to give you a good ole pat-down for safety sake and find . . . . a gun? Illegal drugs or paraphenalia? What if the cop throws you to the ground, puts his knee in your chest, and cuffs you? What if they don't allow you that classical "one phone call", or refuse to let you go after 12 hours? Then what?

There are important authorities on these subjects, including the Mass. SJC and the state constitution, but on a local level it comes down to this:

The officer must have "reasonable suspicion" that a person is intoxicated to perform a field sobriety test.
Any contraband found during the course of a pat-down when enforcing the drunk tank rule (the classic Terry pat-down) is admissible at trial and will result in criminal charges.
The law, which specifies that officers may detain and search those who appear intoxicated, does not violate due process of law under the theory of vagueness.
The law specifically allows the officer to use "force as is reasonably necessary." The more you fight, the more force the officer is going to use.

In sum, I actually find this law to be incredibly useful, but as Teddy Roosevelt used to say, "Its usefulness depends upon the character of its user." Here, we simply have to hope that cops wisely use their discretion under this law in the right way.

All I Want For Christmas Is Forbearance

2009-01-05T19:43:00.001-08:00

While most kids wrote Santa asking for new iPods, the newest version of the Sims, a Playstation 3, or a new polo shirt, on behalf of all Americans, my roommates and I asked for forbearance. My friends designed and baked this gingerbread house . . . and I just couldn't resist the urge to frost on the featured roof message below.

My roommates dissuaded me from creating the California wildfire version of this house as well.
Oh, and an update from Santa -- no forbearance this year.

You Must Be This Tall To Ride This Ride (except in Michigan): Height Discrimination

2008-12-25T16:54:00.000-08:00

[Update: MA considered adding height discrimination provisions in 2007]

I can't tell you how many times I've jubilantly waited in the bumper cars line only to be told, by a cardboard, free-standing cartoon Chipmunk happily riding in a bumper car that I'm not tall enough to ride in a bumper car. Half of me wanted to slink back in line and tell my friends it was okay that the ride operator didn't recognize I was 14 years old (okay, I wasn't 14, this happened last week), while the other half wanted to grab that smug little showboat of a woodland creature by the tail and throw him across the bumper car floor into on-coming traffic -- with all those safe TALL drivers, surely no one will hit him! As I threw lowly aimed punches at the Chipmunk and screamed, "You think you're better than me!!! You're gonna die Chipmunk!!", it dawned on me that my cause was greater than the offensive remarks of one surly soon-to-be roadkill wiseass -- it's about the heightism that occurs all over the world.

So with that introduction, I'm revealing that I have a personal axe to grind. Albeit a very small axe (your were thinking it, so lets just get it out there.) I want to talk about height discrimination. Now before I go pulling legs hairs and biting knee caps, I'm hoping to actually speak about the legal issue of discrimination, as it relates to height, even if all you can see is a talking podium. SEE!! It never stops. STILL FUNNY.

Legal Discussion
Is height discrimination addressed in the law? To the vertically challenged, I happily announce . . . yes . . . it. . . is!!! The Elliot Larsen Act of 1976 prohibits discrimination on the basis of height in the State of Michigan. Two municipalities in California prohibit height discrimination as well. Canada, Sweden, and even China have been the home of ground breaking lawsuits regarding height discrimination in employment, and as a result, less employers are setting minimum height requirements that are not directly related to the physical capabilities absolutely necessary to the position.

At the federal level, no protection is afforded to us "little people." A survey of discrimination cases at the U.S. Supreme Court reveals that discriminating based on height is only an issue when (1) a minimum height requirement is used as a proxy for discriminating based on gender or race, and (2) when a discrimination occurs based upon an individual's "disability" such as dwarfism. For instance, in Horace v. Pontiac (1980), the Sixth Circuit held that a height requirement for hiring police officers violated the civil rights act when it had a disparate affect on women applicants and there were more efficient alternatives available to meet the asserted goal of the requirement. Dozens of similar examples can be pulled from federal case law all over the U.S.

You might be asking, come on -- aren't we being over-sensitive?? The data suggests that we aren't -- in fact, like gender discrimination, heightism pervades the workplace, issues of self-confidence, politics, salaries, and the corporate ladder.

A pun in many ways, "size matters" can be used as a plain statement when it comes to studies on intelligence, self-confidence, and employment opportunities. According to a study done by Princeton, taller people are, although only a little, generally smarter than shorter people. Additionally, the vast majority of CEO's are 6' ft, or taller. People will often respond with "well Napoleon was little . . . " Not true, in fact he was 5 foot 8 -- that does not qualify as short in my book. Not only does being tall matter in business, but it is critical if you decide you want to be in politics. America's shortest President was James Madison (my height) . . . that was before television.

In all honesty, I've always seen my shortness as a positive thing -- It taught me how to be proud, but self-effacing -- confident, but humble. It has helped me to take advantage of oral opponents who underestimated me, preserved my "cuteness" in the eyes of all women over 5 foot 8, saves me the trouble of banging my head into the vast majority of cabinets, and even allows me to shop more cheaply at baby gap and boys' J. Crew.

However, there is a more important take away here -- According to the excellent film Philadelphia which deals with HIV and sexual orientation related discrimination, "This is the essence of discrimination: formulating opinions about others not based on their individual merits, but rather on their membership in a group with assumed characteristics." I seem to think they're right -- but all of this begs the question, where does it stop? (a perfectly valid point) But instead, I want to know, why does it stop? We recognize discrimination when it occurs due to gender, nationality, religion, sexuality or disability -- all which we view as "immutable" characteristics! What's more immutable than stature? We accept categorical discrimination all the time based on height, personality, and weight (and sometimes, it can be a necessity -- I'm certainly not entitled to a spot on the Celtics roster). We're happy preventing the "hot-button" types of discrimination but we refuse to follow through on the principle behind it.

Moral of the story? Before I send any radio station that plays the song, "Short People Got No Reason To Live," by Randy Newman a "cease and desist" letter, we need to focus on how bias, preconceptions, and archetypes affect our perceptions in any situation, not just with respect to the saucy versions of it.

My advice is: In life, go merit based.

Technology Is a Reflection of Our Idiocy

2008-12-24T00:16:00.000-08:00

I've been late on posting due to the holidays, but I want to offer a piece of insight before I take a break till the end of the week. Like the law, technology is often a reflection of our social issues, our shortcomings, and our inabilities. We use technology to do things for us, and for others, who are incapable of doing such things for themselves. Sure, sometimes we use it to make things "easier", but that is just code for saying that we need the step-by-step version of those directions for the Ikea bookcase we're putting together (It didn't come out quite the way it was supposed to).

Let's take automated touchtone phone services for instance -- we've all heard these, "For English, please press one, para espanol . . . " I spent twenty minutes on the phone with Bank of America the other day. After completing what I called in to do, the automated service re-listed my options, then at the end asked, "If you would like to hear these options again, press 7. If you would like to end this call, press star."

My question is -- WHO is pressing STAR, and then hanging up?!?! We obviously have this feature because someone stays on the phone for twenty-five minutes saying "I need to speak to a manager until the automated service cuts out." Can you imagine how this would play out socially? "Good to talk to you sweetie, I'm gonna press star now."

"MOM! Brian Called Me a Tattle-tail, Am I One??" (and can I sue?): Libel and Slander in New York

2008-12-18T10:55:00.000-08:00

My younger sister Karen actually once uttered those exact words at age 7. The funny thing is -- her childish reaction isn't much different from what actually happens when a slandered wife comes to court screaming "he called me a [creative expletive] in the middle of the grocery store!" to which the soon-to-be divorced Daddy who also recently became a new resident at the local apartment complex yells back, "Yeah, well truth is an absolute defense!! You [consistent repetition of creative expletive]."

The week after your first semester of law school, at Thanksgiving and Xmas you will inevitably be asked a variety of legal questions - Here is a quick list of them, most of which represent the public's belief in legal myths:

my neighbor cut down my bush so I shot his cat -- was that wrong?
my neighbor built a fence over the property line so I let my kid drive his Power Wheels through it.
I got a ticket when it was raining can I sue based on some constitutional violation?
Can you shoot anyone who trespasses on your property in the face with a shotgun? No? What if I live in Texas?
Bigamy . . . . those laws aren't enforced anymore except in Utah, right?
About that guy I shot in the face in Texas . . .

Mostly, people will tell you about their most recent scuff with another local, and then they'll let you know "What really grinds their gears!"

So, lets get the basics of New York's libel and slander laws out there, then we can all feel free to say the things we think (so long as they're true!). Gov. Paterson is SOOO shortsighted! Too soon? Too soon? Okay, here we go.

Libel and slander are types of defamation. Defamation being a false statement about another person. Libel is when a false statement is "written and seen"; slander is "spoken and heard." Generally, a plaintiff claiming defamation has the burden of proving the four elements of defamation:

the defendant made a false statement;
about the plaintiff;
to at least one other person; and
the statement injured the reputation of the plaintiff.

Okay, now that we have the base rules down, what special rules set the parameters for smack talk?

if your a politician, you'll have to prove that the defendant made the defamatory statement with malice -- meaning, they knew it wasn't true, and went ahead a blabbed anyways.
Truth -- is an absolute defense ("The truth will set you free!"). If you say that John is a car thief, and it turns out that John was in fact convicted of grand theft auto, then his action for defamation won't succeed.
Statements made during litigation (i.e. during the course of the search for the truth) cannot give rise to a cause of action for defamation.

In New York, defamation is governed by the articles of Civil Rights Law. For the most part, it follows the general scheme of state defamation laws, a woman who is slandered for being "unchaste" - lawyers really do have a nice way of putting things, :) - doesn't have to prove special damages, they're presumed. Women always used to tell me it didn't matter if a man was called "unchaste", his friends would only cheer him on, but its different seeing it right there on paper. Also, a defendant is given some evidentiary privileges at trial (i.e. bringing in hearsay) to defend him/herself.

So how do you operate with immunity? You could curse others under your breathe or all by your lonesome; you could make your comments in reference to an amorphous "person" who you never name; you could talk trash about someone who's reputation is already so destroyed that no court would ever award damages (thinking of the sensational frequent traveler to the W hotel who brought us the accidental Gov.); or finally, you could only speak "the truth, my Indian companion ." Gotta love Woody Allen.

A: "We Need a New Chief Judge", B: But why? Judge Kaye Has a Plan!, A: Sure, right, what's the plan, don't die?

2008-12-17T20:38:00.001-08:00

I would be remiss if I didn't discuss Judge Kaye's unfortunate departure from the New York Court of Appeals (NY's highest court, for you out of staters). I have to start off by acknowledging my bias -- as a student at Albany Law, I had the opportunity to meet Judge Kaye several times, and had the pleasure of hearing her speak as well. She has always been a judicial activist, a strong voice from the bench, and an all-around considerate policy implementer.

As we gear up for Christmas, kids will inevitably start to clean out there closets -- like in the nightmares of Woody the Cowboy from Toy Story, they'll be tossing out the old, and making room for the new. But I think this begs the question: Is newer necessarily better? Does the law favoring youth and vivacity over old age and experience (treachery, cough cough) benefit New Yorkers?

Judge Kaye is being forced to retire at 70, pursuant to court rules. Although you'd expect the AARP and John McCain to be all over this, there seems to be a lot of quiet acceptance of it. It seems people have already had it out over this -- New York is not the only state with a mandatory retirement age for judges. In fact, Massachusetts, Missouri, Florida, and Virginia require judges to retire at 70 as well. The general purpose behind the requirement is to insure that the justices are mentally and physically fit enough to faithfully and effectively perform their duties.

Some judges have unsuccessfully challenged the legality of state laws mandating retirement at a certain age. A more recent challenge awaits a determination from the Supreme Court -- but as is often said, the outlook is grim.

When the Supreme Court deals with discrimination, they first look at whether the class being discriminated against is a suspect class that gets special ("strict" or sometimes "intermediate") scrutiny reserved for laws based on things like race and gender. However, discrimination based upon things like age are given "minimal" scrutiny, meaning, that so long as the law bears a rational relationship to a legitimate government interest, the Court will not substitute its judgment for that of a state legislature. A win for states rights, a loss for judges who, save the magical powers of a Viagra or two, are thriving on intellectual stimulation and mental masturbation.

If we force all of our wrinkly adjudicators off the bench, who will be left? CHILD JUDGES, THAT'S WHO. Child judges, you say?? Click here for an idea of just how bad this could get! The movie script Little Rascals (1994) also provides some insight:

[Defendant Alfalfa Enters]
Judge Spanky: How do you plead??
Alfalfa: Like this, [gets on hands and knees] Oh, please, please, please, please, please have mercy!
Judge Spanky: Hmmm, pretty good pleading.

Back to reality -- one argument I've heard raises an interesting point -- the age retirement requirement is limited in its use, and unique to judges. Why? Because for the most part they are appointed, enjoy life tenure, and can only be tossed out if they do something egregious. On the flip side, we don't have similar requirements for other constitutional officers or legislators, so what makes judges inherently senile at 70? Not to mention, we've already raised the minimum age for drinking to 21, senility is presumed at 70, so that leaves only a mere 49 years of mental clarity?

In the meanwhile, some states see old age as a virtue -- Florida! There, two judges running for the same spot on the bench jousted over the issue with the elder of the two replying in open debate, "I was admitted to the New York bar when my opponent was age 4!" The younger opponent, age 43, was chastised as a "spring chicken" who so young that he probably even still voted Democrat!!!

I think we need to consider the fact that by requiring the retirement of judges (Or anyone in any "thinking" profession), we may be losing vital intellectual talent and capital. It seems to me that as most professionals get older, especially if they have a good reputation for doing what is just and what is right, they'll care more about taking the time to make sure we have the right policies in place and that justice is done. If someone has a track record of listening to both sides, and being fair, what does it matter how old they are? Food for thought.

I Gouht In A Fight in a Bah in Bahstun

2008-12-16T20:18:00.000-08:00

Boston (affectionately called Beantown), has a reputation in folklore and in reality for being a rough and tough, sports-loving, beer-drinking, hard up Irish town. So I wondered, do the criminal laws of Boston (i.e. Massachusetts) reflect its colonial ass-whooping rep? The answer most certainly is, yes.

When I first moved to Boston, my father, a city savvy attorney raised in the Bronx, warned me that like any big city, Boston could be dangerous. "You need to be careful" he said, and insisted that at the earliest opportunity I should buy a Red Sox hat and simply try to blend into the chowda head culture with the hope that I would return to him come Christmas unscathed.

I figured he was being a bit over protective -- the sort of Finding Nemo like paternalism you expect from a professional Dad with four kids. But as it turns out, judging by the criminal laws of Boston, it houses some of the most creative criminals I've ever heard of. In fact, I'm tempted to just rant about Commonwealth v. Blood (1986), a case in which a cop, an inside job man, and a crew of gangsters plot to rob a refinery of $3 million worth of gold bars only to be busted after a snitch in their crew was wearing a wire! See, those Oceans 11 writers aren't that original. (Click for full case here.) They were all later acquitted once the court realized that the cops never got a warrant for the wire -- that and the court took the step of determining that "electronic" surveillance like wire tapping violated a person's reasonable expectation of privacy, and so any warrantless wiretapping of the gangsters constituted a "search", triggering state constituional Search & Siezure protections. Whew, back on track.

Let's begin by accepting the assumption for the purposes of this post that the criminal laws must (having been enacted into law by attentive and concerned legislators) in some way reflect the actual issues facing society at the time the laws were written. If so, not only should I be trying to blend in, but I also need to watch out for duels, anarchy, nuclear weapons, malicious murders of cattle and pigeons, mayhem, communists, arrowheads, molotov cocktails, prize fighters, injurers of football goal posts, and even, yes ladies and gentlemen, even defacers of milk cans. (For a list of all MA crimes, click here)

Massachusetts has a law directly addressing in their respective titles, the issues I outlined above. Let's take a look at a few of the most interesting.

The one I find to be the scariest (and the most revealing) is "Mayhem." Mayhem is when someone maliciously attacks you with the intent of maiming, disfiguring, tearing out, or ripping off your tongue, eyes, ears, lips, nose, or your limbs, and is punishable by up to 20 years in prison. Ripping out your tongue, really? This reads more like the Dooms of Alfred from the time of Norman Saxon rule -- the Dooms listed the "price" you had to pay to the family of the victim or to the King (for "botless" crimes) for doing things like fornicating with a nun, cracking the skull of a family's patriarch, or killing another man's livestock. Very cosmopolitan.

The next law, although I doubt it would ever be used or validly enforced, makes it a crime to knowingly be a member of a subversive organization, especially an organization like the Communist Party. I just finished watching Dr. Strangelove: Or How I Learned to Stop Worrying and Love the Bomb, and I have to tell YOU, the Kremlin is everywhere -- I bet there are Patriots fans, by golly maybe even Tom Brady, taking secret orders from Moscow.

Now for a more popular, and more prevalent law -- the punishment of duelers, including the participants and the duelers "second." Dueling, a fairly common practice in the U.S. states until the very late 19th century, famously took the life of the Third U.S. Vice President Aaron Burr. Many states have laws on the books making dueling illegal, although some Southern states still have dusty old laws setting down the procedures for legal duels.

Now for the wacky and the random.

I've heard lots of jokes about Chinese food actually being cat (See this HILARIOUS song "Cats in the Kettle at the Peking."), but apparently MA has a problem with pigeons. Not only are you prohibited from killing them, but you can't frighten them either (see Sean Connery in Indiana Jones using his umbrella to scare up some pigeons to the great chagrin of a Nazi pilot -- how else am I supposed to defend myself?).

Lastly, I guess when MA criminals get really bored, they even resort to defacing milk cans. I'm impressed; very creative. Is this why we don't have those little metal boxes for milk in front of our houses? I miss those . . .

Finally a quick note -- I consider myself to be a small guy. 5 foot four and 140 pounds isn't exactly a fair match for any young scrapper with an interest in hurting me. But doesn't someone always say, "Spare the women and children!" Couldn't I be lobbed into THAT category? The answer is SURE, but it won't make any difference! So instead, *special* rules exist for beating up the helpless, the mentally disabled, and any child under the age of 14. At least those big mean guys will have to spend a few extra nights in jail (do I come within the scope of this law if they just think I'm a child?).

Oh, and watch out for tramps, defined by MA law as, "Whoever, not being under seventeen . . . roves about from place to place begging, or living without labor or visible means of support . . ." (Jeez, I hope that doesn't include law students who hold up signs on Mass Ave that say "Will Review Documents for Food.") I'd go on, but I don't want to be charged with blasphemy.

Moral of the story? You should always listen to your parents.

Forget Counterfeit Gucci -- Nutmeg, Oregano, and Flour, OH MY

2008-12-15T22:16:00.000-08:00

Beginning a new tradition, this post is the first of what will hopefully be many posts on obscure, funny, outrageous, or simply ridiculous criminal laws.

This post is dedicated to a good friend of mine who is living out in Arizona and abiding by they're wacky and sometimes over-zealous laws. That, and he happens to be in the Navy. Once reading the law I've analyzed below, and watching some TBS re-runs -- you get a recipe for the opening scene of A Few Good Men. In the film, a sailor is charged with purchasing $10 worth of oregano which he thought (or hoped) was marijuana. The dialogue goes as follows:

Lieutenant Dave Spradling: Kaffee, I have people to answer to just like you do. I'm going to charge him.
Kaffee: With what? Possession of a condiment?

In today's day and age, I'd probably respond the same way Kaffee did, but not if I was a lawyer in Arizona. The Arizona Criminal Code makes it a felony (of varying degrees) to manufacture, sell, or distribute imitation illegal drugs, controlled substances, over the counter drugs (Tylenol, Allegra), and prescription drugs. Likewise, possession of any of the above is a misdemeanor.

This law strikes me as having several purposes: First and foremost, drug makers and pharmacies wanted to stymie the over the counter and prescription drug black market. Some drugs like adderal and percocet, both highly addictive narcotics, are often sold on the street to those who are not prescribed the medicine. But it seems more likely that the legislators were worried about the sale of legitimate sounding brand name drugs used for more legitimate purposes than pure entertainment. The issue being -- rising (and looming) health care costs have driven many Americans to purchase their much needed (okay, he wanted the Viagra, he didn't need it) drugs such as blood pressure or cholesterol reducer or migraine medicines from unsavory back alley characters.

Second, the law likely also targets illegal drug pushers who are "cutting" their products down in substance content (See e.g., Carlito's Way, Scar Face, Blow, Cocaine Cowboys) such that the penalty for selling or possessing it isn't quite having its intended effect of putting these guys in the slammer, especially in light of the fact that drug dealers are making lucrative amounts of cash on the markup.

Third, we've got to protect consumers! One of the driving forces for trademarks, brand names, and intellectual property law is the need to prevent consumers from being deceived about what they are buying, eating, consuming, or relying upon for good health.

But who brought this to the attention of the law makers? The answer seems to be the pharmaceutical industry -- the legislation is more aimed at the imitation of trademarked and patented drugs, than anything else. Only a few pages long, the section on imitation drugs contains a substantially large paragraph dedicated to outlawing the possession of branding tools that would enable an individual to create a mock version of a drug company's logo.

Surely this isn't a bad thing -- it can only help to prevent deception, drug racketeering, and addictions, but I wonder what it says about our society and has me worried about the unintended consequences for people possessing these harmless yet felonious drugs. Further, I wonder if the law would stand up to a legal challenge? Doesn't it in fact criminalize the possession of perfectly legal substances based upon the users subjective intent? How do we tell if someone planned on putting that flour into a cake or doing lines of it in a bathroom stall?

More to the point though, is our healthcare system so broken that you can get a flu-vaccination faster, and cheaper on the streets than you can waiting in line at a CVS with your insurance card in hand? Isn't Wal-Mart in the business of 24/7 drive-through pharmacies under which there is a sweat shop of pill and dose calculators dishing out meds?

Anyways, to my Navy buddy in Yuma, take the Nutmeg, Oregano, and flour out of your kitchen cabinet because I don't want your first military base transfer to be from AZ to Fort Leavenworth.

Law "Revue": A Quick Survey of Law School Vids

2008-12-15T19:07:00.000-08:00

Youtube is replete with law school related shorts. Unfortunately, the vast majority of them leave you thinking of that scene from Billy Madison in which after giving a more than pathetic and off-base answer, Billy is told, "Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."

But I know you're too busy to wade through these videos. So I've done a survey for you, and plucked out only the best, and highlighted the worst for your comparison.

Almost emblematic of their dedication to academics (and not sweetness), Columbia Law "Revue" has the most and the worst videos. (Emphasis added.)

Thumbs Down:

Not So Bad:

Barbri Girl
Just Bill It (Parody of MJ's just beat it)
My New Bluebook (OK, this one qualifies as absolutely hilarious, although a little vulgar -- a parody of the well-know "My New Haircut video)

Video Picking on Law School Archetypes

Real Men of Law School -- Summer Jobs Guy
Real Men of Law School -- No Action Guy
Real Men of Law School -- Intramurals Guy

A Couple of Randoms

Lexis Nexis v. Westlaw
The Birth of the Socratic Method
I actually have no idea what this one is about, but its all the law school video equivalent of those Japanese shows on ESPN where contestants stand in a gigantic mud puddle while a soccer ball is fired 70 feet in the air only to come down at Mach 3 and hit the contestant in the face who is supposed to catch it. Contestant leaves smiling, of course.
Gunners (Documentary like video. I think they should do one on Nodders, you know this type of student? This is the kid who for whatever reason feels the need to nod excessively as the professor talks, as if you stay, OH I totally get it, that is exactly what that case said!)

Excellent:

Columbia Law Revue's On Campus Interview (hilarious, minus the shot at my good friends over at G law)
Harvard's Number One Interviews with a Prestigious Law Firm
Law School Musical
An all-time favorite, Ali G goes to law school (. . . why have I never seen this before?)

In the end, all of these shorts are wanting -- it makes me long for the accuracy and intelligence of "The Paperchase." Can we get a re-make? Perhaps with Will Ferrell, Dave Chapelle, andTara Reid?The law school experience and the practice of the law seem to be so misunderstood by the general public -- they picture lawyers coming late to the courtroom with a briefcase full of money out of breath from chasing an ambulance. With just one good movie, we could change people's opinions. Anyone have a script?

Bluebooking Can Drive a Man Insane, See Infra

2008-12-15T09:50:00.000-08:00

For anyone who has had the pleasure of fervently searching through a Bluebook for some obscure rule, perhaps about how to cite a source from the International Criminal Court (ring a bell?), I hope it gives you comfort to know that even the kids with 180's on their LSAT's also equate bluebooking to waterboarding. Some of you have seen this before, for others, enjoy.

Harvard Law Students Jailed After Bluebook Burning.

I'm a Lawyer! Not in Real Life, But My Avatar Passed the Bar

2008-12-14T13:22:00.000-08:00

As if maintaining our real lives wasn’t enough, the internet has created a whole new world of stresses. Not only do you have to clean you’re real room and go to your actual job, but you’ve got to manage your WII characters fitness and health, your facebook profile’s security and privacy settings, your Sims computer character’s self-image, new girlfriend, and his nocturnal urinary frequency issue!(is there a virtual Zoloft for this guy?).

For decades, dissatisfied Americans have been escaping the real world by playing games – from spending the weekend at Coney Island, to enjoying a game of Monopoly or Life, we’re obsessed with getting the opportunity to do life over – a real-time “choose your own adventure” book if you will. But a recent technology company's development of the online 3d-community “Second Life” has taken it to the next level – we’ve even got “virtual” lawyers now.

Second Life (http://secondlife.com/), an online community in which individuals can create “avatars”, or personal characters, that live a virtual life with all of the ramifications of real life! This sounds like a perfectly harmless virtual adventure, but the world of cartoon people is more complicated than it seems. In addition to creating an entire virtual personal life, Second Life avatars can purchase land, participate in land auctions, offer products and services like clothes, cars, and iPods, gamble at online casinos, and even enjoy visual pornography. And it’s not just a game; there is a lot of cold hard cash involved. Experts estimate that tens of millions of Linden dollars (Second Life currency) are changing hands on a yearly basis.

Several lawsuits and even criminal cases have arisen out of Second Life and other games like it. One group of merchants is suing Second Life “merchants” who sell fake digital versions of their products for trademark infringement. Mirroring the materialism of the real world, Second Life avatars are keenly interested in buying and toting a new foreign automobile. The products and services being offered are robust – because Second Life’s Terms of Service (“TOS”) essentially act like laws, avatar lawyers are popping up in response to the incorporation of international and merchant-related laws into the TOS. Educational institutions, such as universities and even law schools are being founded in the realm of Second Life, not to mention Embassies, religious institutions, and even sports.

In a Japanese version of Second Life called Maple Story, a woman was arrested for murdering her virtual husband after he coldly divorced her without notice or cause. Holding the woman for allegedly violating laws regarding data manipulation and computer use, the virtual homicide may end with a five year prison term or a fine of $5,000.

People enjoy living vicariously and anonymously through their avatars so much that even politicians are reaching out to the Second Life crowd. According the Wikipedia, former Governor of Virginia Mark Warner gave a politically motivated speech on the virtual system. http://en.wikipedia.org/wiki/Second_Life

From a legal standpoint there are interesting intellectual property issues in play, but more importantly, once more money starts to change hands, how will the industries operating in this international no mans land be regulated? Will we see a return to the principles of Lex Mercatoria? Will contractual terms be agreed to over these 3d systems?

For now, the answer seems unsure, but everyone’s client should be aware that offing their mate in “another world” could result in a couple of months in an actual prison, where you can’t simply double-click your mouse on the X box and safely turn off the consequences of your virtual world.

>Anyways, I better get back to work. My avatar needs to brush up on his knowledge of secured transactions.

Blunt wraps and Cigarette Sales Go Up in Smoke

2008-12-13T20:31:00.001-08:00

On December 11, 2008, the Boston Public Health Commission promulgated a new regulation entitled, "Restricting the Sale of Tobacco Products in the City of Boston." Citing the harmful effects of tobacco use and the mission of health care related and educational institutions, the regulation bans the sale of all tobacco products at any health care or educational facility such as hospitals, pharmacies, drug stores, colleges, or universities. The regulation also bans the sale of thick, dark, cigarette-like rolling papers commonly used for smoking marijuana in the form of "blunts." Many media outlets missed this last fact. In the same day, the Commission also banned cigar and hookah bars. Posts on that to follow tomorrow.

According the Commission, (See the Make-up of the Commission here) the respective missions of health care or educational organizations are inherently antithetical to the use of harmful tobacco products. Moreover, the Commission felt that the banning of "blunt" wraps sales was critical since they are marketed to teens.

I both applaud and frown upon this action in one fellow swoop: From a business perspective, this is a disastrous hit for non-franchise corner drug stores and pharmacies who rely upon the sale of tobacco as a primary source of revenue. At the same time, the basic purpose behind the regulation -- to separate Bostonian centers of health and education from the acceptance of tobacco as a staple killer of our population -- is more than simply laudable. Having seen the effects of smoking first-hand, I am sure that the benefit to the general public wholly outweighs the burden of the business lost considering the number of men and women suffering from lung cancer, stroke, hearts problems, and the like. Smoking causes cost all over the place . . . emotional, physical, and monetary.

That said, I don't know how pragmatic this regulation is -- we've banned "blunts" but de-criminalized marijuana?? We've banned the sale of cigarettes at the corner store so heavily-addicted smokers will have to go to the local newstand? I like the ideology, but the implementation is lacking.

For now, the regulation will take effect March 17th. If you're interested in reading the actual text of the regulation, click here.

No word on whether any groups or store owners will fight the regulation in the courts, however, big chains such as Walgreens have challenged similar bans in San Franciso (See NPR's report here). Retailers have challenged smoking bans on the grounds that they are inherently unfair, discriminatory to certain types of business, and invalid under the First Amendment and the concept of individual rights under Due Process. However, my gut tells me that the low level of scrutiny (rational relationship) applied to infringment of economic rights by the state, along with the "compelling" interest of protecting Americans from the harms of tobacco, will prevent the success of the retailer's lawsuit. Certainly, there are points to be argued, but the retailers aren't likely to come out on top on this one.

In the meanwhile, it looks like teens who are seeking to purchase the heavily marketed blunt wraps will have to go outside the City limits to get their fix.

Please share your thoughts and feelings on this regulation. I intend on writing an additional piece next week on Boston's cigar bar ban (the City gave the bars 10-years to comply with the ban, an obvious throwback to the principles of eminent domain requiring "just" compensation when the goverment "takes" private property for public use.)

Two Great Legally-Related Comedy Shorts

2008-12-12T16:13:00.000-08:00

Sexual Consent by Tate Video, and A Bear in The Woods Production.

I thought this video was hilarious, but then I started googling around, and apparently Sexual Consent forms are becoming more popular than we think. Check out a sample form here. After receiving several questions on this topic, I feel the need to add one little tidbit. The first sentence of the sample sexual consent forms purports to require the individual to warrant that he/she is over the age of 18, under the penalty of perjury. It is highly unlikely that such a provision would protect the individual relying on the agreement from criminal liability should the signing or consenting individual turn out to be under the age of 18. Most states have a level or form of rape commonly referred to as "statutory rape." Most statutory rape laws, among other things, impose strict liability for having sex with a minor. Under the law, your "belief" (whether reasonable or not) that a minor is in fact 18 is NOT a sufficient defense to the crime of statutory rape. In short, strict liability means that no matter what the circumstances, you are criminally liable for any violation of the law that occurs. The Supreme Court has upheld strict liability laws for statutory rape, and it is doubtful that an agreement warranting the age of the minor would be a sufficient defense. Moreover, "under penalty for perjury" is just inapplicable and inaccurate! Penalties for perjury (criminal) can ONLY apply during the course of an investigation or criminal court proceeding. Arguably, the only thing this agreement might protect against with respect to age is the likelihood that civil damages be awarded.

A video by The Onion on the death penalty.

LOL, OMG, & DIIRRRTYYY PICS OF MY EX-BFF JILL

2008-12-10T10:59:00.000-08:00

Parents take note! Maybe that new iPhone will come with more than just a warranty in your child's Christmas stocking: forget coals, how about a trip to state prison?

According to the Boston Globe, texting and in-phone cameras have become the primary medium of exchange for a illegal pornography these days. Teens, both in and out of school, are exchanging naked pictures of themselves, their significant other, or their ex's via text messages. But what often starts out to be a fun game of flirty cat and mouse on AOL instant messaging can become a a serious criminal act -- distributing child pornography, a crime that can come with a hefty minimum mandatory sentence in a federal or state prison. Click here for more details on the criminal aspects of this story.

Picture texting, or "sexting", has caused its fair share of problems for teens, parents and parent corporations alike. In Florida, two unidentified teens were convicted of distributing and possessing child pornography in violation of state law after documenting their sexual escapades and then e-mailing the digital photographs to themselves. See the article here. A 15-year old girl in Ohio suffered a similar fate after sending nude pictures of herself to a group of her friends. More details here.

In the age of technology, its scary to think of the dire criminal consequences our kids or younger siblings could face if they have a lapse in judgment, and make this kind of serious mistake. So what do parents do? Let their kid be the one loser on the block without a camera phone? Talk to them about it? (Which could be more awkward then simply refusing to get them a camera phone or digital camera).

Sexting isn't just a legal issues for teens, adults are just as bad at getting themselves into trouble with those little gadgets. In Fayetteville, Arkansas, a man is suing McDonald's for big-time damages after leaving his cellphone with nude pictures of his wife stored on it at the restaurant only to find that the risque photos had been posted on the internet once he recovered the phone. See the article here.

These articles seem to give us a lesson in parenting, technology, and reality. In the digital world of facebook pages, blog posts, and iPhones, greater access to information often means that children need a lesson in the dangers lurking out there.

The American Lawyer's Lay-Off List

2008-12-08T10:01:00.001-08:00

If you're a 3L and nervous about losing that summer offer, keep Am. Law's list of layoffs page bookmarked for layoff updates.

Fast Times for the Mid-West

2008-12-08T09:30:00.000-08:00

A couple of interesting legal happens are afoot this month with:

Many publications reporting on a lawsuit arising out of the terrible death of Wal-Mart employee during a customer stampede at the opening of the superstore in New York on Black Friday. See the article here. I thought people didn't want to spend money because we are in a recession and everyone's broke? I guess Wal-mart really does have deals you'd kill for. This is a terrible tragedy, and I think it illustrates just some some the issues we are facing in our consumer society. It reads like a bad bad scene of Jingle All the Way that depicts Republican Governor Arnold Schwarzenegger fighting for a toy doll his son desperately wants for Christmas -- has the film become a reality?

According to The American Lawyer, whether Wal-Mart ends up on the big-time financial hook for this wrongful death action will depend upon how New York's Workers Compensation statute is applied. The worker, a 34 year old temporary employee, was staffed through a temp agency. If the court finds that the victim, Jdimytai Damour, was an employee of the corporation than Wal-Mart's damages will likely be limited to a mere $50,000 under the law because Worker's Compensation will act as an exclusive remedy for the victim. However, if the plaintiffs lawyer (Jordan Hecht) can show that as an independent contractor, Damour is not limited by the law, significant damages will likely follow considering that Wal-Mart allegedly failed to take a few easily implemented steps to insure the safety of it's employees.
All of this simply solidifies my belief that shopping online my preferred method of purchasing items.

The Jurist reporting on the First Judicial Court of Montana's ruling that terminally ill patients have the right to commit physician-assisted suicide under the Montana State Constitution. See the case: Baxter v. Montana.