Monday, December 10, 2012

Bad Lawyer Ads, #6

It's final exam week in the land of the UConn Huskies. LSCB will be on hiatus for semestser break and will return at the start of the Spring semester in late January. Happy holidays to all.

Here is installment #6 in the "Bad Lawyer Ads" series. Click here to access earlier posts.

I especially like the one lawyer eating what are likely "Tums" on the way back to the office after lunch.

Friday, December 7, 2012

Law Music Video - He Fades Away

This week's installment in the law music video series is He Fades Away by Kate Fagan or Alistair Hulett.
He Fades Away was written by the late Scottish singer/songwriter Alistair Hulett. It is written from the perspective of a miner's wife as she watches him slowly die from this horrible disease. The futility of the legal system's role is evident.

What is the role of law in society?
Law  is reactive, not proactive.  Can "justice" ever be achieved? 
In John Grisham's "The Rainmaker," young attorney Rudy Baylor shares his disgust over the inability of the legal system to save his client who is slowly dying of cancer. Why  can't the system act earlier, faster, more efficiently to stop wrongdoing before it becomes fatal?
If law is not the answer, what is?

Thursday, December 6, 2012

Jury Jams Reward Reneging Rapper

If you offer a reward for a missing item, definitely expect to shell out the cash...

As quoted in the New York Post, the plaintiff complimented the American jury system, almost as if he was surprised that a jury of regular citizens could follow the law. In Germany, "juries" are composed of judges.
“I’m very happy . . . that the American judicial system, which is so totally different from ours, functioned so well with a jury that are not professionals and are laymen,” he said in German through one his lawyers, Steven Thal.

Wednesday, December 5, 2012

It's About Freedom...

Waterbury Hospital in Connecticut has suspended 100 workers for two weeks in preparation for their dismissal for failure to be vaccinated against the flu. Workers who are refusing to be vaccinated are not raising a religious objection (implicating Title VII protections) and they are not claiming a likelihood of harm (potentially implicating a public policy exception to employment-at-will).  Instead, they claim "Freedom" and the "Founding Fathers." Unfortunately, one of the most durable of America's freedoms is that of an employer to dismiss employees at will.  The law has changed little since 1884:

All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.
                - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).

This is not a case of the government saying "flu shot or jail." Employees are not facing vaccination under penalty of government sanction. They have a choice: get the vaccine and work at the hospital or don't get the vaccine and work elsewhere. The Union is claiming a violation of Federal labor Law.  Given the strong preference in American law for that uniquely American concept of employment-at-will, I give the nod to the hospital.

Tuesday, December 4, 2012

Tragic Shoplifting Case

Shopkeepers have a qualified privilege against a false imprisonment claim.  As long as a shopkeeper has a reasonable belief that a customer is shoplifting and uses reasonable means of restraint for a reasonable time, the shopkeeper may avoid liability.  This is the law's attempt to balance the  individual interest in personal freedom and the shopkeeper's legitimate right to avoid merchandise walking out of his store.

During Black Friday weekend, a couple of WalMart employees and a security guard confronted a customer in the parking lot after concluding that the customer was stealing two DVD players. The customer ended up dead. Certainly, there are more facts to this story yet to be disclosed.  But this is the kind of tragic incident that the shopkeeper's privilege is designed to prevent.  "Reasonableness" in all areas of conduct is the required standard.

When a Walgreen Pharmacy assistant manager believed that a teenager had stolen a pack of condoms, she called the East Hartford, Conn. police department.  The responding officer conducted a strip search of the 18-year-old male suspect in the men's room.  Reasonable conduct?  Not likely.

WalMart spokesperson says that no amount of merchandise is worth someone's life:

Monday, December 3, 2012

Trademark Fail: "Best **** in America"

The latest company to lose an attempt to trademark a platitude is Dunkin' Donuts.  Dunkin had attempted to trademark the phrase "Best Coffee in America."  The US Patent and Trademark Office rightly denied the request since the mark was not sufficiently distinctive. While many coffee drinkers, especially here in the Northeast US would certainly agree with Dunkin's claim (especially when compared to the bitter swill dispensed at the more popular coffee bistro named after astronomical male deer) this is simplye not teh kind of distinctive product identifier that trademark law embraces.  A previous loser in the  "Best in America" trademark attempts game was the Samuel Adams Brewery in Boston.  Once again, no argument from this reader about the veracity of Sam Adam's claim to the "Best Beer in America," but opinions may differ and Sam can't own the phrase to the exclusion of competitors.

See related post about express warranties, here.

While Dunkin' cannot trademark the phrase, they can certainly use it to hawk their coffee.  In this ad, they stake an equally non-empirical claim to "America's favorite cup o' joe."