Saturday, March 31, 2012

Friday, March 30, 2012

Civil Battery Follows Soccer Foul

Participants in an athletic contest on the pitch, or the "field" as we Americans say should expect to endure a certain amount of physical contact. Even physical contact rising to the level of a "foul" under the rules of the game should be anticipated by the participants.  Consequently, physical contact that might otherwise be considered a civil battery in a different context will not give rise to such a claim, here; the potential plaintiff likely having impliedly consented to any foreseeable physical contact.

In the video below and a report and video that may be viewed here at Yahoo sports, a different scenario presents.  Following a seemingly innocuous tripping foul in a South Carolina high school girls' soccer game, the victim of the foul rises up and viciously physically attacks the opposing player.  The news report indicates that criminal charges have been filed. Ostensibly, a civil battery claim will also lie. It can hardly be implied that by engaging in a soccer match one may be deemed to have consented to a beating.

See also the issues and videos presented in this post.

Video of civil battery in HS girls' soccer game:

Thursday, March 29, 2012

What is the Federal Register?

The Federal Register is a vital cog in the administrative rulemaking process.  But, what is it?

Wednesday, March 28, 2012

DNA Testing Reality vs. TV

The news services are once again reporting on the tragic and frustrating backlog on DNA testing of rape kits.  The issue was featured in this blog in an earlier post. Students and the general citizenry see nearly instantaneous DNA results in TV portrayals of crime investigation cases. The reality is that these rape kits go untested due to budgetary constraints and bureaucratic prioritizing that tends to trivialize rape cases. It's nice to be able to consider "justice" in a vacuum, but a proper college level education in the law should transcend legal principles and include exposure to the legal system's practical challenges.

See the trailer below for a documentary on the subject:

Tuesday, March 27, 2012

Distinguishing Employees from Independent Contractors

This can often be a thorny issue, but it is important to be able to make the determination.  It can affect ownership of work product, responsibility for compliance with employment regulations and vicarious liability for civil or criminal wrongs.

Prior posts may also be helpful: Employee or Independent Contractor; Shot Girls: Employees or Independent Contractors?

Monday, March 26, 2012

Tom Waits Growls at Advertisers, Again and Again

In 1988, singer/songwriter Tom Waits sued the Frito Lay Company for using a sound alike singer imitating Waits' unique vocal style to hawk Salsa Rio Corn Chips on a radio ad. Waits suit sought to preserve his unique style.  According to the NY Times:

"It's part of an artist's odyssey," [Waits] said, "discovering your own voice and struggling to find the combination of qualities that makes you unique. It's kind of like your face, your identity. Now I've got these unscrupulous doppelgängers out there - my evil twin who is undermining every move I make."

Waits was awarded $2.6 M by a jury for commercial appropriation (reduced on appeal to $2.5M)
Listen to the radio ad HERE. Below is the song and style copied by the ad:

Always protective, Waits sued again in a Spanish court over the Audi commercial below, copying both his vocal style and his music.  Waits was awarded $43,000 for copyright infringement and $36,000 for violation of his "moral rights" as an artist.

Audi ad:

Waits' "You're Innocent When You Dream":

Apparently, advertisers had not been paying attention.  Waits sued in a Scandinavian court over the following Opel ad copying his unique style, earning a settlement which he contributed to charity. Click on image below to see ad:

To listen to an informative summary report from NPR's All Things Considered, CLICK HERE.
A post with videos on the Midler v. Ford case mentioned in the NPR report may be found HERE. Also see similar posts on Vanna White, Lyndsey Lohan and Kim Kardashian.

Saturday, March 24, 2012

Friday, March 23, 2012

Waiting For a Response

I had a teaching mentor who suggested that a teacher should always have a cup of coffee or water or something else to drink in class.  The purpose was to have something to do after posing a question that no student seemed particulary interested in answering.  As the awkward silence drags on, the teacher cooly sipping his drink gives no indication of a willingness to bail the class out by giving the answer. Someone will usually step up.  During those moments, I can't help but have the final jeopardy theme from the TV show running through my head.  I always wondered if it would be useful in class.  Now that I am using clickers again, I may try it to denote the clicker response time.

Thursday, March 22, 2012

Featured Case Update: Stambovsky v. Ackley

In a post last September, this blog featured the contracts case of Stambovsky v. Ackley - the Nyack, NY Haunted House case.  The Court's decision that the Seller was required to disclose to her Buyer the belief that the house was haunted, was premised primarily on an article that the Seller wrote for Reader's Digest magazine entitled, Our Haunted House on the Hudson. Now, thanks to the Halloween Addict Blog, that 1977 Readers Digest article is available for viewing.  Thank you, Halloween Addict, for sharing this important classroom resource.

Further update: An important part of the court's rationale included:

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as a title song to the movie "Ghostbusters" asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. . . . In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.

The fact that a house's reputation for being haunted may not have been easily discoverable upon inspection was likely true in 1991.  But is it still true today? A potential buyer need not employ Ghostbusters but may exercise a simple Google search to discover the Seller's boasts of living in a haunted hosts. Is a "Google search" a reasonable requirement to impose by law on the Buyer, rather than imposing a duty to disclose on the Seller?

Photo credit: Halloween Addict Blog

Wednesday, March 21, 2012

Employment-At-Will: Fired For Wearing Orange?

Here in Connecticut during March Madness I can understand someone being fired for wearing the school colors of a fierce basketball rival from Central New York ... but in Florida? Isn't orange the color of the Gators? A law firm in Florida fired 14 support workers supposedly because management saw their orange wearing as a sign of some sort of solidarity statement. I suppose this wouldn't be the first group of lawyers suffering from paranoia.  Was this a day-before-St.-Patrick's-Day pro-Protestant/anti-Catholic statement on Irish heritage? Maybe the lawyers are all Florida State fans?  It doesn't matter either way from a legal standpoint. They are employees at will and, therefore, may be legally dismissed for cause, for no cause or even for a reason for which people shouldn't get fired (unless dismissal is prohibited by a statute or specific public policy).

See: Fired For Choice of Necktie

They wear orange on Fridays at OSU! I hope no one works for a law firm.

Tuesday, March 20, 2012

Does the Government Have a Sense of Humor?

An ad from British retailer Sofa King similar to the one below has been banned by the United Kingdom Advertising Standards Agency:

Where is the Ministry for the Protection of Cleverness when you need it?

Click HERE or on image below for Saturday Night Live skit:

Monday, March 19, 2012

What Employers Can Learn About You From Facebook

In a prior post, I have discussed how inappropriate pictures posted on Facebook could support an employee's dismissal. However, a positive Facebook profile may help you get hired in the first place. A study published in the Journal of Applied Social Psychology indicates that reveiwing the social media profiles of a prospective employee may allow employers to closely approximate the results of standard personality testing. The study also indicates that information from social networking sites may be a better predictor of job success than IQ tests.   A similar study by University of Maryland Assistant Professor Jennifer Golbeck revealed similar results. According to Professor Golbeck:

There’s a lot of research out there that’s of interest to employers and businesses, about what a person’s personality says about their potential for job success and their ability to work in a team, and a lot of companies make people take personality tests. If we can get pretty accurate results just by looking at someone’s social media profile, then you have the potential to apply all those results about what personality implies about a person, without actually having to have them take a test. So there’s some good sides to that, and some potentially creepy sides. I’m not a legal expert, and I don’t know the details of that, but employers are certainly looking at all the social media that’s available about their potential employees, and people really need to keep that in mind.

Of course, the results of the review may not always be beneficial to the applicant. But this study gives us another example of the way that technology and social media stretches traditional notions of privacy.

Click here or on the image below to see a report discussing the value of personality tests in hiring:

Monday, March 12, 2012

Bad Lawyer Ads #4

This is Spring Break week at UConn, so today's post will be the only one this week. A blog managed by has compiled a collection of the 10 Weirdest and Worst Ads for Lawyers. It is a veritable race to the bottom.  Take a look and see if you agree.

Prior relevant posts:  Bad Lawyer Ads #1; Bad Lawyer Ads #2; Bad Lawyer Ads #3.

Saturday, March 10, 2012

Law Music Video: I Shot the Sheriff

This week's installment in the "Law Music Videos" series is I Shot the Sheriff  by Bob Marley - a R&R classic. Law music videos played before your class starts will positively contribute to learning.

Friday, March 9, 2012

Featured Case: Baer v. Chase: "Taking Care" of Things

In Baer v. Chase, the Court of Appeals for the 3rd Circuit upheld a district court’s finding for the defendant on a motion for summary judgment.  Baer, a former New Jersey prosecutor shared some of his ideas about a TV show based on the activities of New Jersey organized crime families with Chase, a TV producer/director.  Unbeknownst to Baer, Chase had already been actively researching and writing a TV series that would become The Sopranos. Chase consulted with Baer on an occasion or two and used Baer’s contacts to arrange meetings with New Jersey detectives who shared stories about investigation of mob crime activities.  Baer alleged that Chase had promised that if the show became successful, Chase would “take care of him.” The court found that the contract’s description of Chase’s performance was not sufficiently certain and definite.  The Court allowed the quasi contract claim for quantum meruit to proceed to a trial which resulted in a defendant's verdict.
Given the way things get “taken care of” in the underworld, Baer may have gotten away easy.
Did you take care of that thing?

Taking care of two things:

Having your lawyer take care of things:

Thursday, March 8, 2012

"American President" Movie Speech Echoes Supreme Court

The American Rhetoric Website on Movie Speeches offers an opportunity to view President Andrew Shepherd's (Michael Douglas) address to the press from the movie The American President. Shepherd, running for re-election has been attacked by his opponent on "character issues." The widower president had begun dating an environmental lobbyist, Syndney Ellen Wade (Annette Bening), when an old photo of her surfaced. The image captured a college -aged Wade burning an American flag during a protest.

Shephard's impassioned words echo Justice Brennan's decision in Texas v. Johnson (flag burning case):

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

I find this clip useful to describe the concept and legal principles surrounding political speech to set the stage for a comparative analysis of commercial speech.

To view the speech from The American President, click here or on the image below:
President Andrew Shepherd Picture

Wednesday, March 7, 2012

Rich People Are More Inclined to Act Unethically

A scientific study being published in the Proceedings of the National Academy of Science correlates wealth with unethical conduct.  According to an ABC news report:

"We found that it is much more prevalent for people in the higher ranks of society to see greed and self-interest … as  good pursuits," said Paul Piff, lead author of the study.

An article in a scientific publication describes some of the methodology:

In their first two experiments, they monitored traffic at a four-way intersection in San Francisco, noting the makes and models of automobiles — a reliable indicator of socioeconomic status, or SES — and whether their drivers cut off other vehicles or pedestrians. Rude behavior rose with status, and high-SES drivers were roughly twice as inconsiderate as low-SES drivers

I'm not sure if that means the wealthier folks were more unethical or more pissed-off.  How do we know that if wasn't chauffers, corporate employees or carjackers that were driving those cars?  In any event, it is food for thought.

Tuesday, March 6, 2012

The Final Element of a Negligence Claim: Damage or Injury

It is axiomatic that if there is no injury or damage, no cause of action for negligence has been proven.  Unlike an intentional tort claim, where nominal damages may be awarded symbolically condemning the wrongdoing, a negligence claim lies only where actual harm has been suffered.

Monday, March 5, 2012

Deceptive Advertising

Embedded below is the iconic "Morning in America" ad from President Reagan's 1984 reelection campaign.  The ad, often held up as an exemplar of positive campaign advertising, proclaims that America is "prouder, stronger, better," than it was prior to Reagan's election.  In the business realm, those terms would be referred to as "puffery."  But the ad also makes a number of factual statements; inflation is below a certain rate, so many couples will marry, so many people will buy homes, etc. Were these facts accurate? From the standpoint of the law, it doesn't matter.  As political speech, truth and falsity may be neither determined nor regulated by the government. What is "true" or not in the political realm will be sorted out in Justice Holmes' "marketplace of ideas." Or, by reference to

In business, however, commercial speech enjoys no such latitude. False and/or deceptive advertising may be regulated, censored, banned, and may lead to penalties. Embedded below is an Activia ad that subjected Dannon to this complaint by the FTC resulting ultimately in a $21 million settlement. Writing that check probably helped relieve that "bloated feeling" in Dannon's bank account.

Saturday, March 3, 2012

Law Music Video: Sue Me Sue You Blues

This week's installment in the "Law Music Videos" series is Sue Me Sue You Blues by George Harrison. George was a little bitter over the Beatles breakup.  Law music videos played before your class starts will positively contribute to learning.

Friday, March 2, 2012

Thursday, March 1, 2012

Battery in the Classroom!

For years I have explained the concepts of intent, civil battery, assault and transferred intent by posing a hypothetical scenario in which I heave a blackboard eraser at a student who is not paying attention.