Wednesday, October 31, 2012

Social Norms of Title "Celebrations" Challenge Law and Order

What is it about "celebrating" in a group that causes people to lose all sense of law and order - not all people of course. That's what makes it so fascinating that some destroy property for the sheer experience of doing it while most people would be appalled at the idea.  San Francisco police have been circulating a photo of a post-World Series Championship "reveler" smashing the windshield of a $1M city bus that was later set ablaze, hoping that he will be identified.

When social norms work in conjunction with law, they assist the process of maintaining order. For instance, there is no need for a law that requires everyone to wear their underwear on the inside of their clothes. Since that is the social norm, instances of folks wearing their underwear on the outside of their clothes are pretty rare. However, when the norm of a rogue group runs counter to the law, there is a problem. Just because your conduct may be acceptable to a growing band of miscreants at a particular place and time, doesn't meant that it is acceptable to society at large. You and your buddies may regularly urinate on the lawns of the people who live near campus on your drunken walks back to your student apartment.  That doesn't make it acceptable.

See related post here.

The San Francisco bus smashing reveler

Tuesday, October 30, 2012

Funeral Protest Restrictions Upheld

What ever happened to the Westboro Baptist Church whose right to protest at military funerals was upheld by the Supreme Court?  Apparently they are not finished with their legal battles as towns and states attempt to find the reasonable restrictions that may legally be imposed to protect grieving families from Westboro's particularly vile and intrusive form of protest. The 8th Circuit Court of Appeals has recently upheld a town ordinance in a St. Louis suburb preventing protests within 300 feet of a funeral service, during the service or within an hour before and after.  The Court ruled that the ordinance "survives First Amendment scrutiny because it serves a significant government interest, it is narrowly tailored, and it leaves open ample alternative channels for communication."

Related Posts are here and here.

Monday, October 29, 2012

More Lying Your Way to Success

This post questioned the effect of politicians (law-makers) who lie with impunity under the protection of political free speech as role models for students. Lying, of course, is not limited to the political realm.  But as with politicians, it may be employed intentionally as a strategy for success - even in unlikely areas.

NPR recently interviewed Bloomberg Markets senior writer David Evans about an investigative report in the October issue of Bloomberg chronicling the practice of fundraisers who lie to potential donors about the percentage of the raised funds that are being paid to the charities. And, amazingly, the charities agree to the practice!  According to the report, some charities actually  agree to contracts with the fundraisers that pay no funds at all to the charity.  The charities' rationale is that donors will hopefully become used to donating to their cause and that future donations may increase. In explaining his charity's agreement with the fundraiser's policy of lying to donors, one spokesman pointed out that, "If we came into it and said, 'Geez, I'm not going to make a dime on this,' do you think we'd have anyone who'd give us money?" Can anyone say "scienter?"

Sure, lying in this manner is illegal, but the sanctions are so small in relation to the take that it is profitable fraud.

What does it mean to embrace the entrepreneurial spirit when this is the business that you create?  Should "job creation"include starting a business that takes on-line courses for overworked students, or sells research papers, or takes your SAT's for you? I fear for our brightest students who misunderstand the concept of "risk-taking" to include legal risks in the pursuit of profit.There are far too many examples out there.

InfoCision is mentioned in the Bloomberg report:

InfoCision creates hundreds of new jobs with good pay in Ohio:

Friday, October 26, 2012

Law Music Video: The Bill of Rights Rap

This week's installment in the Law Music Video series is The Bill of Rights Rap by Rhythm, Rhyme and Results. It's pretty straightforward - a musical presentation of the Bill of Rights.

What is the purpose and import of the Bill of Rights?
How does it differ in force and effect from the grant of enumerated powers in the body of the Constitution?
How is business conduct affected/protected?
How does the Bill of Rights protect "Liberty" from "Tyranny?"

Thursday, October 25, 2012

Why Universities Should Not be "Run Like a Business"

Recently, the University of Connecticut (my alma mater and my employer) notified a Connecticut High School that it must cease using a mascot logo that resembles the trademarked logo of the UConn Huskies. In showing such poor exercise of its discretion to enforce a legal right, UConn joins the ranks of the University of Missouri, Penn State and the University of Alabama; institutions that have famously exercised their substantial legal muscle to cause weaker parties to knuckle under the weight of an unnecessary and mean spirited exercise of legal rights.

According to reports, UConn notified the Morgan School, a public high school in Clinton, Conn. with fewer than 600 students, that it must cease using its Morgan Husky logo. The University alleges that continued use of the logo by the Morgan Huskies "could interfere with UConn's ability to effectively market and license the use of the logo."

Seriously? Apparently those husky emblazoned coffee mugs occasionally given out to the Morgan School teacher of the year are depressing the market for "authentically licensed" UConn Husky coffee mugs.

Here is another gem of a quote from a University official: “We’re looking for them to eliminate it from uniforms and so forth … and basically come up with a new logo that doesn’t serve as copyright infringement.”  Er ... or maybe that was trademark infringement.

In defense of the University's position, perhaps there might be some consumer confusion regarding the products of the 2 institutions. The way the UConn Huskies football team has been playing, could they conceivably be mistaken for the 1-4 Class S High School Morgan Huskies football team?

The first lesson in business ethics: Just because you have a legal right doesn't mean you have to exercise it. Exercise discretion. It's a lesson that is too often unheeded. A university, especially a public university, should take a leadership role in its state. That means that there are considerations that are more important than the bottom line. But then, that would be very unbusiness-like.

I hope none of you kids were hoping to dress up as a husky for Halloween. You may be interfering with the all important marketing strategy for State U.  I guess this is the price that you pay for having big time athletics - boneheaded decisions justified on the basis of "business."

Watch out UConn! A Canadian Territory wants its name back!

The registered UConn trademark:

source of image:

The Morgan School football field logo - that will cost $20,000 to replace.

Source of image:

The Morgan Husky trademark on the gym floor actually does not closely resemble this UConn trademark. It does look a little like a registered trademark that the University abandoned several years ago and does not use any longer.

source of image:

The abandoned UConn trademark

source of image:

Who is the next?  The Hope Community Charter School (pre-k to 6)?  Will consumers soon be confusing them with the UConn Huskies?  How's their football team?

source of image:

Watch out Prairie Trade Middle School!:

Source of image:

Watch out Husky Safe-T-Break Valve, Co.

Source of image:

And Husky Corp:

source of image:

Jonathan, the UConn Husky Mascot:

source of image:

A white dog - the next target?

source of image:

The UConn fight song:

Sideways copyright infringement by someone named Allie. Watch out, Allie! The lawyers are coming.

Wednesday, October 24, 2012

Thank Goodness for Express Warranties

Under the UCC, an affirmation of fact that is part of the basis of the bargain constitutes an express warranty that the good will conform to the facts as affirmed. Prospective Dairy Queen customers were probably relieved to be able to rely on the express warranty springing from the affirmation of facts on the sign pictured below.  Perhaps a new slogan might be appropriate for DQ.  Here is my suggestion:

If you eat here and die,
It won't be from e-coli.

source of image:

Tuesday, October 23, 2012

Contract Breach Penalty Unenforceable

Liquidated damage provisions in a contract may be enforceable if actual damages as a result of a breach would be difficult to calculate and if the amount is an attempt to approximate losses rather than acting as a penalty.  Students sometimes have difficulty with this concept.  There is somewhat of a popular cultural belief that one who breaches a contract is punished by the law. But the law is more concerned with compensating the non-breaching party than in punishing the breaching party.  Strategical breach may not be encouraged, but is certainly allowed. Sometimes to get students past the legal folklore I use an extreme example.  Imagine a contract with the following provision:

In the event of breach, the breaching party must fight Klondor in a stone circle death match.

Is it enforceable?


Monday, October 22, 2012

Will The Supreme Court Hear the DOMA case?

The Defense of Marriage Act (DOMA) has, for the second time, been declared unconstitutional by a Federal Court of Appeals.  The recent ruling by the Second Circuit in NY follows a decision from Spring 2012 by the First Circuit Court of Appeals in Boston striking down the provisions of DOMA that prevent persons, legally married under state law, from being recognized as married for Federal purposes.  Cert petitions are presently pending in the Supreme Court.  Recently, Justice Ginsburg opined that DOMA would be before the court for consideration this term.

What are the practical implications of DOMA? Why is this relevant? Here is an example:

First Circuit Ruling:

Friday, October 19, 2012

Law Music Video: Ain't No Reason

This week's installment in the law Music Video series is Ain't No Reason by Brett Dennen. After listening, your students may consider:

What is the role of law in society?
Dennen says that "love will set him free."  Can the law do so also?
Are these problems that the law can solve? How can that be accomplished?
Can advocacy make a difference or is this just the way things are?
Are some issues beyond the scope of  law to remedy?

Thursday, October 18, 2012

No Apology in Court

Recently, a civil lawsuit in Connecticut courts against a Catholic Diocese as a result of sexual abuse at the hands of a priest was settled for $1.1M.  The plaintiff was understandably upset at the demeanor of the former Bishop who attended the court proceedings on behalf of the diocese:

“Through this whole process he’s been sitting there laughing and I just couldn’t understand that,” Maynard later said. “He never apologized.”

What should a litigant reasonably expect to get from the courts?  There is a recurring theme in legal movies (i.e. The Rainmaker, A Civil Action, Erin Brockovich, etc) of plaintiffs who sue in court hoping to get something that the system does not provide.  Plaintiffs, victims of tragic loses, are often looking for answers, or an explanation, or validation for their grief, or a chance to confront a wrongdoer, and, sometimes most importantly, an apology. The legal system provides ... money.  Or, more aptly, a chance at money. The reality is that it is rarely in the financial or emotional best interest of most plaintiffs to proceed to trial when a settlement can be obtained. Yet, the unrealistic expectations of plaintiffs often leads to dissatisfaction at the final conclusion of a case.  I find that students often come to a Legal Environment course with a belief that going to trial is the best way to obtain "justice." Yet they are disappointed to learn that all a successful plaintiff gets is money.

This lawyer explains the damage claims that a plaintiff can make. The list does not include an apology - or justice.

Wednesday, October 17, 2012

Chevron Plays Dirty Trying to Squirm Out of Pollution Judgment

An Ecuadorian court has ordered Chevron to pay $19 Billion for years of intentional toxic dumping by its Texaco affiliate. According to reports, Texaco conducted its operations without regard for even the most minimal pollution controls, dumping toxins directly into the water supply. The resulting pollution covered an area the size of Rhode Island and caused cancers, stillbirths, birth defects and disease to uncountable humans living in the area.  See the video here. But this is only a part of the story.

The lawsuit began in the US in 1993.  For a decade, Chevron fought the US courts claiming that the suit belonged in Ecuador.  After Chevron agreed to submit to jurisdiction in Ecuador and to be bound by any judgment there, the US court relented.  The trial that resulted in the judgment took 8 years. Now, Chevron refuses to pay claiming that the process was tainted by corruption. In the meantime, Chevron has removed most of its assets from Ecuador causing plaintiffs to chase Chevron's assets in other nations. But this is still only part of the story.

Chevron has been using legal process to subpoena the content of the private e-mail accounts and IP addresses of bloggers, activists and reporters who have reported negatively on Chevron's conduct.  The report here at Counterspin (advance the audio to the 18:00 mark of the show) is a shocking tale of corporate arrogance and abuse of the legal system to harass and terrorize those who dare speak their minds. This intentional manipulation of the legal system is in form and intent more despicable than a SLAPP suit in that the target is not even named as a party, but rather receives notice only from his or her internet provider. Then under short deadlines, must scramble to take defensive legal action.

On the merits of the case, each side has its own story to tell ( see videos below).  But on the intentional abuse of process and assault on the privacy of private persons, Chevron has no legal or moral defense.

For those at Chevron who have the job of monitoring blog posts, my e-mail is  I hope that everyone who reads this takes a moment to tweet about it or write it in their own blogs or in comments on others - so that Chevron can wear itself out chasing everyone's e-mail addresses.

Chevron's story on the underlying claim:

The other story:

Tuesday, October 16, 2012

Half as Much: Musical Analogy of Interpreting a Statute

In prior posts (see list below) I have suggested the process of musical interpretation is an apt analogy for the process of legal interpretation.  A musical composition is created and contains principles of melody, rhythm, tempo, and lyrics.  These principles represent the law of the song much the way the words and intent expressed by a legislature are the law of the statute.  But if the legislature is the composer, it can never be the performer.  That role is left to the courts to interpret the law of the statute - much as musical performers interpret the law of the musical composition in their own performances.

Below are several interpretations of the song Half as Much. The song was written by Curley Williams in 1951 and became a huge hit for country star Hank Williams, Sr. in 1952.  That same year it was recorded by Rosemary Clooney with an entirely different interpretation that was a hit with an entirely different audience. When judges consider public policy effects of their interpretations, one could say they are interpreting the law to appeal to different audiences. The versions recorded by Ray Charles and Sharon Redd are more different still. In law, fidelity to precedent is desirable, but strict adherence in all circumstances is not. Roscoe Pound's famously stated principle that the law must be stable but must not stand still is achieved through the talented interpretations of judicial performers.

Other posts incorporating music analogies:  
Judicial Interpretation Illustrated
This Land is Your Land: Judicial Interpretation Illustrated #2,
My Favorite Things: Judicial Interpretation Illustrated #3
Statutory Interpretation Illustrated,
Over the Rainbow.

Monday, October 15, 2012

Google it or Lose it?

Advancements in technology and changing societal norms and practices are factors that heavily impact the evolution of the law.  Certainly, no technological/societal advancement has had a greater impact on the law than the development of the internet and its ability to bring information into the living rooms of the general public. I have speculated with my class about how the internet may serve to bring a halt to one developing area of law.

At Common law, "Caveat Emptor" (Buyer Beware) ruled the area of real estate sales. Sellers had no obligation to disclose latent defects to a prospective buyer.  Certainly, a Seller was not allowed to make a false statement about the condition of the property or to lie in response to a  direct question, but the thorny area was how to deal with the failure to offer negative information about the property.  Under the doctrine of caveat emptor the seller's silence (failure to disclose defects) could not be the basis for a misrepresentation claim.  And, in some cases, even where the Seller has made statements about conditions ("Nope - no termite damage in this house") courts have been unwilling to assist a Buyer who relies on the representation without engaging in his/her own inspection.  However, the "modern trend" in the law has been to see more and more obligation placed on the Seller to come forward with known information that might impact on the demand for the property. We have all seen cases in texts such as:

Reed v. King: Seller failed to disclose that the house had been the scene of a murder a decade prior.

Stambovsky v. Ackley: Seller failed to disclose that the house had a reputation for being haunted - a reputation that the seller helped to create.

Hess v. Chase Manhattan Bank: Seller, a bank that had taken the property by foreclosure, failed to disclose a known, ongoing EPA investigation of the property for groundwater contamination.

But in each if these cases, the sales took place prior to the heightened prevalence of the internet (Approx 1981, 1989, and 1999 respectively).  If the seller's silence was material, then the buyer must also be able to prove reasonable reliance.  In the pre-Google search days, the murder, the haunted reputation or the investigation would not be readily discoverable by an out of town buyer. But today, a simple internet search on the property address would likely have turned up this information. Is a court now justifies in turning the responsibility back upon the Buyer to make reasonable internet inquiry on the object of a real estate purchase?  Courts place the burden on buyers to do reasonable home and pest inspections or suffer the consequences of not having done so. Will courts see information searches, no longer onerous, as the new norm in protecting against failure to disclose?

Oddly, with all the "before you buy a home..." advice sites on the internet, I couldn't find a single one that suggested doing an internet search on the address before buying.  Yet, when I recently looked at a condo for a potential purchase, the first thing I did after viewing the property was a google search.

Selling a haunted house:

Pest infestation:

Google searches:

Friday, October 12, 2012

Law Music Video: One More Year

This week's installment in the law Music Video series is One More Year by Kasey Chamber. Yesterday's post referred to the challenges of reducing domestic violence through the law. After listening, your students may consider:

What is the nature and causes of domestic violence?
Should the law be more aggressive in attacking domestic violence?
How would that be accomplished?
How can the law secure the safety of proven victims of domestic violence?

Thursday, October 11, 2012

New Conn. Law Targets Domestic Violence

Domestic violence is a particularly vicious social problem. Law and law enforcement has had little effect on reducing incidents. Deterrence is ineffective when people are motivated by severe emotion and irrationality.

Wednesday, October 10, 2012

More Medical Marijuana Despite Federal Prohibition

As of October 1, 2012, Connecticut has become the latest state to thumb its nose at the federal government and pass a medical marijuana statute. That makes 18 states plus Washington, D.C. that have adopted statutes allowing possession and use of marijuana in limited medical circumstances despite the fact that such action is illegal under federal law.  After this November's election, half of all the states may be in conflict with federal law as seven states have medical marijuana ballot questions pending. Students may see that an inevitable clash of government powers looms and look to the Supreme Court for a solution.  The problem is that the court has already ruled in favor of the federal government in Gonzales v. Raich.  So what happens when the states act in contravention to federal law?  Isn't federal law supreme when there is a conflict? The last time the states refused to accept a Supreme Court decision (Brown v. Brd. of Education) there were riots in the streets and the US Army had to be called out.  Certainly, this conflict is not likely to result in that kind of drama. But something has to give at some point.

In November, Colorado (Oregon and Washington, also) faces a ballot measure legalizing the sale and possession of small amounts of marijuana - without medical need. Legal medical marijuana dispensaries there are concerned that passage of the law will bring unwanted federal enforcement. Ultimately this legal dilemma cries out for a political solution.  This is beyond the powers of the courts.

Tuesday, October 9, 2012

Who Makes law?

When searching for interesting talking points about the law-making process, the election season just seems to keep on giving. Recently, Missouri Congressman and senatorial candidate Todd Akin made headlines for famously proclaiming that women who are victims of "legitimate" rape rarely get pregnant. As noted in this post, Akin's ignorance of science is all the more tragic given that he serves on the House of Representatives Committee on Science, Space and Technology. Now, it is reveled that Akin's Science Committee colleague, Representative Paul Broun of Georgia, has also chosen to publicly celebrate his disdain for science with these comments:

“I’ve come to understand that all that stuff I was taught about evolution and embryology and Big Bang theory, all that is lies straight from the pit of hell." 

So, once again, we are reminded that the law is made up by people - people who have agendas and ideologies and interests that may or may not be consistent with fact and rationality.  Representative Broun's position is all the more shocking given that outside of Congress, Broun is a physician. And the final irony is that even though he wears his scientific ignorance proudly, he is assured of re-election since he is running unopposed. His obvious deficiency as a steward of public policy apparently elevates his electoral prospects to the point where he is considered unbeatable.

This is the nature of law-making.

Here is the excerpt of his speech, given in front of a wall exhibiting more than a dozen severed torsos of sentient beings.

Monday, October 8, 2012

The Ring of Fire! What Could Possibly Go Wrong?

Are you kidding me??!! Watch the video in the news report below and then ask your students who has liability?

The Lions Club sponsors a Country Fair in Berlin, Connecticut.  One of the hired "acts" is something (a company? a voluntary association?) called Xtreme Team Bullriders (it may or may not be these folks). One of the "shows" is called the Ring of Fire. Contestants pay $20 each to get into a ring marked out in chalk while a live bull is released into the arena.  The last one standing in the ring wins $100.  What could possibly go wrong? Let's just say it involves use of a Life Star helicopter and an ambulance.

Read the news report and see the video, here.

Note the comments of the Lion's Club public safety representative at the end of the report. Does the Lion's Club have any responsibility?  The report notes that the contestants signed waivers. Fortunately for the injured parties, the State of Connecticut courts have ruled that liability waivers that purport to insulate a party for its own negligence violate public policy and are unenforceable.

Here is a video of the same "game" played elsewhere:

Johnny Cash with a saner "Ring of Fire."

Saturday, October 6, 2012

Law Music Video: One More Year

This week's installment in the law Music Video series is One More Year from Kasey Chambers and Shane Nicholson.  This deep reflection of domestic violence issues can open a discussion of the role of law in society.

What are the causes of domestic violence?
What are the solutions?
How effective/ineffective is law in this area?
What role does enforcement play in the effectiveness of law?
Sometimes, "there oughta be a law."  Sometimes, law's limitations to address societies problems are exposed.  In what areas is the law more effective? Less effective?

Friday, October 5, 2012

Lobbying Benignly Described

One issue that has always concerned about our legal environment texts is that we have largely ignored the role of legislatures in the legal system.  We devote an entire chapter to courts and alternate dispute resolution systems, but legislatures typically get a paragraph or two. If you are looking for material to create a unit on legislative law-making, below are a couple of videos benignly describing the lobbying function.  Other related posts may be found here, here, and here.

Thursday, October 4, 2012

Justification: Defense of Others

How do we parse out the use of  reasonable force?  Is this reaction justified or is it just retaliation? How has the prevalence of security cameras altered the nature of evidence?

This video gives your class an opportunity to consider both.  Note: YouTube has marked this video as "age restricted" due to violent content.

Wednesday, October 3, 2012

Understanding The Misunderstanding

The violence and rhetorical tumult in the Middle East following the posting on YouTube of the video entitled "The Innocence of Muslims" affords a number of teaching opportunities. One that comes quickly to mind is the lack of universality in law and in basic legal philosophy. Teaching rudimentary U.S. constitutional principles to undergraduate students reminds one that even intelligent college students may not easily attain a full grasp on the concepts of free speech.  However, even if just through popular culture and everyday exposure, students do seem to understand that American Free Speech concepts protect expression even when the expression is hurtful to others.  As long as the speech is not certain to incite imminent violence at the time and place where it is made, even disgusting and distasteful speech is protected. 

However, this is not a universal concept. NPR broadcast an interview with Harvard International Law professor Noah Feldman in which he explains that government officials and educated persons, even in countries that embrace Free Speech principles harbor the misconception that the US Government may censor harmful or hateful expression. As a result, when the US took no action to remove or censor the offending video, the implication was that the US government was complicit or in support of the views expressed therein. The audio report is available here and provides an excellent source for assignment or class discussion in a Legal Environment class.  Here are some selected quotes from Professor Feldman:

"I had conversations with highly educated Tunisians — people high in the government — who were genuinely astonished to discover that, under U.S. law, we couldn't ban speech like that precisely because any incitement that might occur is distant in time, distant in place and not at all certain to occur. ...

"And it's actually a problem when people elsewhere actually think, including reasonable people, that the United States government must be complicit in something like the anti-Muslim film because we haven't prohibited it."

"In the U.S., we value the liberty of the speaker much more highly than either the dignity of the person who feels insulted or the state's interest in trying to avoid violent protest. ...

Professor Feldman also notes that American legal communities have discussed, whether the technological advances that have made global reach of communication more easily attainable should affect the American concept of time, space and imminence for incitement purposes.

This interview is a worthwhile resource on a current and complex topic in the law.

Justice Breyer ponders whether the internet changes the size of the "crowded theatre":

Tuesday, October 2, 2012

Law Student Resources

If you are working with law students or you are engaged in pre-law advising, you might be interested in this website. has compiled a list of links to sites that may be of interest to law students seeking academic support or career exploration.

And now, a bonus musical interlude:

Monday, October 1, 2012

Political Appropriation, a Tort?

A New Jersey couple who posted their engagement picture on a personal blog were later mortified to learn that their special photo had been altered and used in political attack ads. As reported by ABC news, the gay couple's photo showing them holding hands and kissing with the New York skyline in the background was altered by an advocacy group targeting two Republican candidates in Colorado state legislative races.  Apparently, the candidates had not shown sufficient intolerance for prospective civil union legislation. The background of the photo was altered to show scenes that looked more like Colorado and statements attacking the candidates were affixed. Both targeted candidates lost in the primaries.

The couple has filed suit in US District Court for misappropriation.  The photographer has joined the suit for copyright infringement.  The Southern Poverty Law Center is providing counsel for the couple. While their image was most certainly appropriated, was it done for commercial purposes? What is the privacy expectation when you post an image on the internet?  Is there a political free expression defense?

The engagement photo:

One of the Colorado attack ads:

The other one:

TV news report:

See other posts on Commercial Appropriation involving:
Bette Midler
Vanna White, here and here
Tom Waits
Kim Kardashian
Lindsey Lohan