Monday, December 9, 2013

People, Special Corporate People, Are The Luckiest People . . .

My apologies for the tortured reference to the old Barbara Streisand standard from the 1960's.  But, it is the start of final exams week and that makes academics a bit giddy as an antidote to the workload. In any event, this will be the last post until the Spring semester starts.

Two Jon Stewart clips below examine corporate personhood in relation to criminal responsibility. As usual, Stewart questions public policy, law and practice and raises pointed questions through humor.

Click on the images below to see Part 1 and Part 2:

Part 1:

Part 2:

Perhaps the legal standard for "personhood" should be whether or not the "person" can sing.

Barbara Streisand, a person who can sing:

JPMorganChase&Co, a "person" that cannot sing:

Human persons singing in protest of the practices of corporate person, JP Morgan (addressing CEO Jamie Dimon):

Thursday, December 5, 2013

Casualties of the Gridiron

There's been  a growing awareness of the long term physical effects of playing football, especially at the highest levels in college and the pros. Long time player Brett Favre has recently disclosed his creeping memory loss and opined that had he a son, Favre would "be leery" of letting him play football.

GC magazine is running a series entitled "Casualties of the Gridiron." The video below features former NFL quarterback Ray Lucas.  Lucas suffered ruptured discs and nerve damage as a player and lives in pain. He delayed necessary back surgery for years because he had no health insurance after he retired. he sunk into despair before finally being able to turn things around with help.

The question that first comes to mind for me is, "Why isn't this covered by workers' compensation?"  These pro athletes may be paid millions, but they are still employees covered by state workers' comp laws as far as I know.  Just last month, California made headlines by passing legislation limiting worker's comp claims by pro athletes.  By implication, before that legislation, there were no limitations.  ESPN has even referred to workers comp as a "threat" to the NFL.This week, five former members of the Kansas City Chiefs sued the team over head injuries suffered over the course of their careers. According to their lawyer, the lawsuit is not barred by worker's comp laws because of an exception for injuries incurred over an extended period of time.

Former player, Deion Sanders, who famously criticized players filing suit over not being warned about the effect of concussions, has filed a comp claim for his football injuries.

So, what gives? Does anyone know why Ray Lucas couldn't get the surgery he needed under worker's comp laws?

Wednesday, December 4, 2013

Giving New Meaning to "Bank Foreclosure"

Bank of America attempted to foreclose on a house on which it had no mortgage. The homeowners countersued and the bank was ordered to pay the homeowner's legal fees. After waiting months for payment, the homeowner's lawyer sent the deputy sheriffs to the local Bank of America branch to execute the judgment.  They arrived with moving vans prepared to haul out the office furniture if necessary. After some initial panic, the bank manager was able to cut a check.  The bank's excuse?  They didn't know that their lawyer had gone out of business!

Yeah, and the dog ate your mortgage note.

Video news report:

Tuesday, December 3, 2013

Monday, December 2, 2013

A Trial's Real Impact

In an earlier post, we compared Hollywood's dramatic portrayals of court cases with the relatively boring and tedious progression of a real trial.  Perhaps, that post overlooks the tremendous emotional impact of cases on the lives of participants.

below is a video compilation of Hollywood portrayals of trials. Pay attention, in particular, to the courtroom reactions as a verdict is announced. Then view the video of a rel verdict announcement. No movie can effectively portray that.

And then there is this tragic scene:

Monday, November 25, 2013

Bad Lawyer Ads

It's the Thanksgiving Week break at UConn - no classes this week.  That means it is time for another installment in the "Bad Lawyer Ads" series. This will be the only post this week.  Happy Thanksgiving!


Friday, November 22, 2013

Wednesday, November 20, 2013

Unsheathing the Sword of Eminent Domain Against Banking Beasts

City officials in Richmond, CA are taking aggressive steps to address the devastating effects of the mortgage crisis.  Home values have declined precipitously since borrowers took out mortgages in the pre-2008 market and most of Richmond's homeowners are under water. The city has seen hundreds of foreclosures each year displacing families and destabilizing neighborhoods. So the city has decided to act by offering to buy these mortgages from the bank at a fair market value - somewhere around 80% of the value of the houses, but well below the loan principal.  If the banks won't sell, the city is prepared to use its eminent domain power to take the bank's mortgage interest in the house, paying "just compensation" in the same amount as the purchase offer. The banks are irate. At least one Federal lawsuit has been dismissed as unripe. But now, the mayor of Irvington, NJ is announcing that his city is formally investigation employing the Richmond plan.

If, in the name of economic development, New London can take unblighted working class homes to give the land to a developer for a glitzy hotel , then it seems like Richmond should be able to take some bank assets in order to keep people in their homes. But unlike the working class,the bankers aren't used to getting their lunch money stolen.  And they have the lawyers to fight the war of attrition.

From Democracy Now!:

Tuesday, November 19, 2013

SLAPPed With a Fine

Thank you to my UConn colleague, Robert Bird, for sending in this news item.

Well, it is not quite a SLAPP suit, but it employs the same principle.  You order a product online and get bad service. You write an online review expressing your opinion of the service.  Then the Seller informs you of a "fine" in the thousands of dollars because your "contract" contained a "non-disparagement" provision.  Don't pay the "fine" and the Seller reports the charge to credit agencies as if it were a debt. Watch the video for the whole story.

You can read the "non-disparagement" provision here:
Thanks to Terence Lau at Univ. of Dayton, for providing the link

Here are only a few of the issues that come to mind for me:
1. You can't be fined for breaching a contract.  There can be a liquidated damages provision, but that is enforceable only if the provision is NOT a fine and IS a fair attempt at estimating damages.
2. If the Seller materially breaches the contract by not performing its obligations, then the Buyer's obligations under the contract are excused.
3. No court would enforce the contract provision as to do so would be government censorship of speech.
4. This is an attempt at SCOBUF (Strategic Censorship of Opinion by Unilateral Fine) (I just made that up.  Do you think it will stick?) It is along the same lines as SLAPP which is outlawed by legislation in many states.
5.  Perhaps the Buyers cannot get a lawyer to take their case, but where are the state regulatory agencies?  Is this not a classic "Unfair and Deceptive Acts and Practices" case?

The company seems to be attempting to name itself as both judge and jury in a defamation claim without bothering to actually file one.  See post on internet defamation.

Monday, November 18, 2013

Pop Quiz

Who is credited with making the insightful observation:

 "The law must be stable, but it must not stand still"? 

A. Roscoe Conkling, influential 19th century US Senator from NY

B. Roscoe Pound, former Dean of Harvard law School

C. Ezra Pound, American expatriate poet

D. Paula Poundstone, comedienne

The answer, of course, at least according to SearchQuotes, is Paula Poundstone. (see screen shot below)

If it's on the internet it must be correct, right?  Here is an example to share with students about double-checking sources.

The real answer, as most readers will know, and as most  internet sites state correctly, is Roscoe Pound.

Friday, November 15, 2013

Statute of Frauds Song

For the next several Fridays LSCB will be re-posting a series of Law Lessongs to be used as a classroom resource on some otherwise difficult or mundane topics.  The Statute of Frauds Song recently passed the milestone of over 20,000 hits on Youtube.  I hope that you can make use of it in your curriculum.

Thursday, November 14, 2013

Wednesday, November 13, 2013

What is Title IX?

Due to recent events on our campus at UConn, this question has been asked with increasing frequency.  "Title IX" refers to Title IX o f the Education Amendments of 1972.  The act states in most relevant part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance...

People seem to be most  familiar with the impact of Title IX on sports. As is exhibited in the video below.
There are a number of good resources available on the web, for example:

Title IX info
US Dept. of Education
US Dept. of Justice

Tuesday, November 12, 2013

A Case of Contractual Capacity

A Marine who served in Afghanistan and was discharged for PTSD and TBI has sued a Harley Davidson Dealership that refused to take back the motorcycle sold to him while he was suffering form the symptoms of his condition.  Did the dealership know or have reason to know that the Marine buyer could not act reasonably under the circumstances?  ABC News reports: :

Smith, who is unemployed, entered the Harley-Davidson dealership on a whim to buy a motorcycle, according to the lawsuit filed on Oct. 30. While there, he told the employees that he had PTSD, while pacing, sweating profusely and acting jittery.
Failing to take back the motorcycle also resulted in a claim for unfair business practices.  Seems like the dealership manager should have taken a BLAW course.
Click on the image below to see a video news report:

Monday, November 11, 2013

WalMart's Unilateral Mistake

For one day last week, WalMart was giving new meaning to "Always Low Prices." Due to a technological glitch, WalMart's website was advertising a video projector for sale for a price of $8.95 that should have been listed for $588.95. A 24" computer monitor that retails elsewhere for about $150 was likewise listed for $8.95.  A Fischer Price Power Wheels battery operated car for kids that retails for about $260 was listed for $29.97.

Luckily for WalMart, an advertisement is not an offer to sell, but merely an invitation to customers to make offers to buy.  That protects the merchant from having to have an unlimited inventory of every item. The merchant is always free to reject the customers entreaty to deal. But in the internet world, customers placed orders online for the advertised prices and their credit cards were charged for the shockingly low prices.

But, once again, WalMart is saved by the law.  WalMart relied on its "terms of use" for its website which states in part: "We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department."

Is this disclaimer unconscionable?  Does it violate relevant state consumer protection statutes about advertised prices? Is WalMart cancelling "orders" or consummated sales (cancelling contracts as opposed to rejecting offers?)

Even without their internet disclaimer, WalMart may still have been protected by the rule of unilateral mistake.  If a non-mistaken party knew, or should have known, that the other party was mistaken about a circumstance affecting the agreed upon exchange, then the contract is voidable and may be rescinded by the mistaken party.  According to news reports,  many customers were upset with WalMart.  

There is so much legal ground to be covered to adjust to an internet world.

Friday, November 8, 2013

Ethics: It's About the Brotherhood of Man.

Law is an expression of public policy decisions.  Sometimes the public policy intentionally permits less than laudable conduct.  The employment-at-will doctrine comes to mind as an example. To encourage employment, the law gives free reign to employers to dismiss employees - even if the grounds for the dismissal seem unfair. See posts: Fired For Racial Tolerance; Fired For Choice of Necktie; Fired For Wearing Orange Shirts.

Ethics, on the other hand, carry no such hidden agenda.  Ethical principles encourage doing the right thing, independent of considerations of expediency, efficiency, profit or other purportedly justifiable circumstance. In short, ethics is about the "Broterhood of Man."  As in:

There is a Brotherhood of Man,
A Benevolent Brotherhood of Man,
A noble tie that binds
All human hearts and minds
Into one Brotherhood of Man. 

Your lifelong membership is free.
Keep agivin' each brother all you can.
Oh aren't you proud to be
In that fraternity,
The great big Brotherhood of Man? 

Oh, that noble feeling,
Feels like bells are pealing,
Down with double-dealing,
Oh Brother! 

You, you got me;
Me, I got you, you! 

From "How to Succeed in Business Without Really Trying":

Daniel Radcliffe:

Robert Morse:

Matthew Broderick - click on image below:

Drew Carey:

Thursday, November 7, 2013

What Duty Does a University Owe its Student Interns?

Are we sending our undergraduate students, especially female students, into a lion's den?

Many business programs either require or encourage students to seek internships as part of their undergraduate education.  These internships are typically unpaid.  As recently confirmed by a US District Court ruling, unpaid interns are not employees and, therefore, are not covered by the laws protecting employees in the workplace. The intern in that case, a Syracuse University student, was placed in an unpaid internship at the offices of a satellite television provider. She claimed to have been sexually harassed by an executive there. While our students are typical placed in professional business settings, these settings are not immune from incidents  of sexual harassment - incidents from which our students have little legal recourse.

It would seem that universities, at the minimum, should be charged with an obligation to advise students of this lack of protection and to monitor their workplaces closely - far more closely I am afraid than has been the norm to date. Perhaps readers can share suggestions in the comments section of this post.


Wednesday, November 6, 2013

Socially Irresponsible Investment Banking

This is a re-post of a video originally posted in 2010. Having used this video in class last week, I am once again reminded of its effectiveness. The LSCB has many more readers now than it did when this was first posted, so hopefully more readers will enjoy this learning resources and find ways to incorporate it into their classes.

This video allows you to consider the relationship between ethical conduct and short or long term profit as well as popular impressions of business.

Tuesday, November 5, 2013

Six Elements of Fraud

This blog has previously featured videos from Professor Robert Emerson at the University of Florida and will continue, from time to time, to post some of Professor Emerson's innovative and engaging  materials.

Monday, November 4, 2013

JP Morgan Settlement: Justice or Shakedown? Depends on Perspective.

Financial pundits last week were commenting on the $13B settlement the government negotiated with JP Morgan over the sale of shaky financial securities leading up to the recession of 2008.  On the Daily Show, Jon Stewart takes these pundits to task.  Whether you agree with Stewart or not, these videos can provide provocative prompts for timely discussion or assignments.

Click the image below to see Stewart take on the financial pundits.

Click the image below to see Stewart continue his criticism - especially addressing the Bear Stearns purchase.

Friday, November 1, 2013

Legally Blonde, The Musical

Harvard Professor Callahan educates his students: exploit your superior resources to take advantage of the weak, scruples are a flaw, and emotions make you weak.  The successful lawyer smells the blood in the water.

"Is it unfair, Oh, wait! I don't care"

"You're nothing until the thrill of the kill becomes your only law."

Is such a public perception of lawyers justified?

Thursday, October 31, 2013

Appropriately Named Accused Criminal II

In "Appropriately Named (Accused) Criminal I", we gave a link to a video detailing the troubles of D'AlCapone AlPacino Morris. Today's post allows you to consider the plight of Alkapone Cruz-Balles - charged with car jacking in Hawaii.

In all fairness, it should be mentioned that there is a rap/hip hop artist who goes by the name Al Kapone (stage name). And it is possible that the person responsible for choosing a name for Mr. Cruz-Balles may know only that cultural reference and not be aware of the exploits of famous gangster Al Capone. Either way, consider the intersections of popular culture and law.

Alkapone Cruz-Balles:

Al Capone famous Chicago gangster:

Wednesday, October 30, 2013

Using "God" to Sell Products or Services

The LSCB previously posted commentary about a Sam Adams Beer Ad that quoted the Declaration of Independence but conspicuously deleted references to "Our Creator." Sam Adams's response: The Beer Institute Advertising and Marketing Code (yes, this exists) states:

Beer advertising and marketing materials should not employ religion or religious themes. 

Indeed, ethical standards are important and this one seems to make sense.  Can you image a beer ad that says, "Drink Schlockmeier Beer. It's God's choice for you?" Such advertising would be patently absurd and would unfairly play on the consumer's faith to sell a product for profit. While such a business practice is undoubtedly legal, wouldn't it most certainly be unethical?

Consider the commercial below.  It suggests that by using this dating service, you will find "God's match for you." Is this ethical practice or not?  Discuss.

Another link to see ads is available here.

Tuesday, October 29, 2013

Ethics Unwrapped and Updated at UT Austin

The 2013 Charles M. Hewitt Master Teacher Award recipient Robert Prentice from the University of Texas shares the followings:

Our EthicsUnwrapped FREE educational ethics video site was recently upgraded and updated with new short videos about behavioral ethics and eight new videos about Mary Gentile's Giving Voice to Values program for helping students act effectively when they know what the right thing to do is.  

The LSCB previously featured and recommended the Ethics Unwrapped site. Once again, you are encouraged to explore this site and incorporate these innovative resources into your curriculum.

Introduction to Giving Voice to Values  from Ethics Unwrapped site:

Monday, October 28, 2013

Guest Blogger - Paula O'Callaghan: Stella Liebeck Scalded First by Coffee, Then by The Media

Paula O'Callaghan from the University of Maryland University College submits the following resource for use in class.

With the 20th anniversary of the verdict in Liebeck v. McDonald's approaching next year, Retro Report finally does the case justice, citing the relevant facts, evidence and discussing the settlement outcome.  What is particularly noteworthy about this twelve minute documentary, provided today on the front page of The New York Times website, is the depth of the research and the interviews with some of the actual participants in the case, such as the attorneys for both parties.  This is a great resource for debunking many of the myths that still surround this case.

Retro Report (Producer).  (2013, October, 21). Scaled by coffee, then news media [Video file].  Retrieved from

Click on the image below to go to the NY Times video site.

Friday, October 25, 2013

More Law School Ditties

Here are more law professors using songs in class. Don't sell this method short.

Thursday, October 24, 2013

Artists' Works Copied by Big Business?

A number of artists are claiming that Cody, Foster and Co., a big wholesaler of ornaments and decorations, are ripping off their work. The report from Yahoo Shine seems to present pretty compelling evidence.  As does a flickr site compiled by an anonymous whistleblower. Read artist Lisa Congdon's blog post, "My Art Was Stolen For Profit and How You Can Help," about her trials and tribulations over this issue.  Read more, here.

I am speculating that the prospect of protracted litigation against a major, well financed corporation is daunting to a small independent artist. This is one of those situations where the law ignores the disparity of access to resources and presumes everyone has equal ability to enforce his or her rights. We should get our legal heads out of the sand and devise a system that can actually protect and encourage creativity. Otherwise, bullies always win.

Source of image below:

Wednesday, October 23, 2013

Contract Assignments: Flipping Houses Like Pancakes

Entrepreneur Antonio "Hitman" Edwards tells our students how assignment of contracts works as a business model. At his blog, he promises, "I’ll show u how to flip these houses like pancakes on a regular basis."

Tuesday, October 22, 2013

Monday, October 21, 2013

More "Seeing is not Believing"

I guess I am like most people in that intellectually I realize that photographs and videos that we see in mass media campaigns or in entertainment media are altered to make the people look "better," or less flawed. Yet, emotionally, I am offended by this. I have previously written about enhanced visual marketing as being deceptive, perhaps unlawfully so. I have written about how the ease with which videos may now be edited calls into question the evidentiary value of any video evidence.  I imagine the same goes for photographic evidence.

This article provides another example of the ease with which images in a video can be altered to show us something other than what really existed.

Aren't there deleterious social effects? Isn't there a need for regulation, here?

Friday, October 18, 2013

Song of Civil Disobedience

Law affects the conduct of the people.  But if the people use their conduct to peacefully disobey the law, then maybe the people affect the shape of the law.

Rosa Parks.  She sat on a bus.

Wednesday, October 16, 2013

Speed Limits, Part Deux; Or Bad Media Coverage, Part Un Mille (One Thousand)

In an earlier post, I discussed Speed Limits as an example of Legal Realist thinking.  If the "written law" says the speed limit is 65, but no one gets a ticket until they drive faster than 75, then a Legal Realist thinker may well be justified in concluding that the law ("law in action") limits speed at 75, not 65. But, I was surprised to see this "speed buffer zone" practice formally acknowledged in public.

The Department of Transportation for the State of Connecticut provided information for an article in the Hartford Courant (DOT Task Force to Drivers: Don't Endanger Our Lives) that was supposed to encourage people to slow down when approaching highway work zones. The speed limits on many Connecticut highways is 55, and in other sections, it is 65.  Connecticut law has long allowed for fines to be doubled for speeding violations in marked work zones. But this statement caught me by surprise:

Effective Oct. 1, Connecticut law will get tougher. Motorists caught speeding through a marked work zone at 75 mph or faster -- or any trucker or other commercial driver who zooms through at 65 or more – will be ticketed. Those who are convicted will be required to attend an in-person retraining class in addition.

What? No tickets until speed 75?  This is the new law to crack down on speeding in work zones?  Thankfully, this is just another instance of bad writing. The law regarding ticketing for exceeding the speed limit has not changed.  It is still an infraction, subject to ticketing, for exceeding the posted speed limit by even one mile per hour (whether that is what happens in practice is another story). The "new" part is the driver re-training requirement.

I was not the only one to pick up on the misinformation.  A letter to the editor printed in the Courant expressed the same surprise.  The Courant printed the letter - but no clarifying explanation.  Once again, the "law in action" may be less about how the law is enforced than about the public perception of how the law is enforced.  That perception, unfortunately, is shaped by media reporting on lawmakers - not on the the law-makers, themselves

Tuesday, October 15, 2013

More Legal Fallout From Anonymous Internet Postings

In 2011, five New Orleans police officers were convicted of civil rights violations in the shootings and deaths of several New Orleans residents in the aftermath of Hurricane Katrina. A few weeks ago, U.S. District Court judge threw out the convictions on the basis of "grotesque prosecutorial misconduct."  Before and during the trial, lawyers in the U.S. Attorney's office that was prosecuting the case posted anonymous online comments to the New Orleans Times Picayune site ( creating a "prejudicial, poisonous atmosphere." Another lawyer in the Dept. of Justice in Washington DC who had helped prepare the case for trial also posted anonymously to comment on the case.

Lawyers, and certainly prosecutors, are aware that such public comment is against all rules of professional conduct.  Yet, somehow, the anonymity that appears to shield the comments from attribution somehow alter conduct - and not for the better.  I have previously commented on how internet anonymity skews the balance between the liberty of expression and the liberty of privacy.  In this case, it corrupted due process.

I am a staunch supporter of the liberty of expression.  However, I can't for the life of me understand how anonymous expression has value that adds to the discourse.  The old radio show, The Shadow, carried the catch phrase, "Who knows what evil lurks in the hearts of men?" Anonymity allows the evil to be outed. If you want to speak badly of others or their opinions, you should have the liberty to do so.  But only if you are willing to face the criticism that comes with the expression of your opinions.

If expression is so important (and it is) why do we allow it to be cheapened by anyone's fleeting tawdry ill considered ramblings? Do we allow bills to be introduced in a legislature with anonymous sponsors? Do judges render opinions anonymously? Do doctors render diagnoses anonymously? Do general direct battles anonymously? Newspapers will not print letters to the editor without first making some reasonable effort to verify the source. That has been the journalistic standard for decades - an improvement over the 19th century practice of printing letters with pseudonyms. But on the most groundbreaking technology, we have gone backwards in the theory of valued civilized discourse.

Now, even lawyers can't keep themselves from botching their own cases by blabbing on the internet.

Monday, October 14, 2013

Legal Realism: The Law Depends on What the Judge Had for Breakfast

Leading Legal realist Judge Jerome Frank is credited with the phrase that "Justice is what the judge ate for breakfast."  I have never tracked down that precise quote from him but perhaps it is drawn from this passage found at p.162 of my well worn copy of Courts on Trial:

Out of my own experience as a trial lawyer, I can testify that a trial judge, because of overeating at lunch, may be somnolent in the afternoon court-session that he fails to hear an important item of testimony and so disregards it when deciding the case. “The hungry judges soon the sentence sign, And wretches hang that juryman may dine,” wrote Pope.  Dickens’ lovers well remember Perker’s advice to Pickwick: “A good, contented, well-breakfasted juryman, is a capital thing to get hold of.  Discontented or hungry jurymen, my dear sir, always find for the plaintiff.”
What happens if the judge had a "dicey looking breakfast burrito this morning and just took an imodium?"  See the video below:

Friday, October 11, 2013

Law School Ditties

More songs in the classroom courtesy of Prof. Erichson at Fordham U School of Law.

Eerie v Tompkins

Pennoyer v. Neff

Wednesday, October 9, 2013

Is Seeing Still Believing?

Technological advances have paved the way for video cameras to be everywhere. The public has become accustomed to seeing video evidence of nearly everything that happens. This week, a camera on the helmet of a motorcycle rider captured tragic events when a motorcyclist appeared to intentionally cut off an SUV on a New York highway.  The frightened SUV driver pulled away in traffic tragically injuring one of the other motorcycle riders.  The SUV was chased into the streets of New York where the driver was pulled from the vehicle and beaten.  Much of it was captured on video. Now, with criminal charges pending, at least one defendant claims that what we see in the video is not actually what happened.

Citizens have been arrested for making cell phone videos of police officers publicly engaged in the course of their duties.  The concern? The videos can be altered or edited to portray something other than what actually happened.

Professors in classrooms have been the victim of edited videotapes portraying their classroom lectures as something that they are not.

The videos below seem to be evidence of amazing feats. Yet, they are only illusions. If these illusions can be created by just about any bright techie, then the value of video evidence must be scrupulously scrutinized in court. Even proof of chain of custody is not going to be enough if anyone in that chain possessed the ability to make alterations.  When it comes to compelling evidence, technology giveth and technology taketh away.

Tumba Ping Pong Show video:

Here is the story de-bunking the authenticity of the above video.

Other amazing edited videos from the Tumba Ping Pong Show:

Tuesday, October 8, 2013

Insurance Fraud

It's a crime.  Don't do it. Don't videotape yourself doing it.

So much for criminal law as a deterrent.

Monday, October 7, 2013

Third Amendment Claim

The Third Amendment to the Constitution is probably the least cited as a basis for a claim against the government.  But for Justice Douglas's inclusion of it among the "penumbras" and "emanations" of the Bill of Rights supporting a right of privacy, I am not sure when it would have otherwise appeared in modern jurisprudence.

Here is the text of the Third Amendment:

But a complaint filed in federal court in Nevada claims a Third Amendment violation.  The plaintiff claims that the Henderson, Nevada police phoned him to say that they needed his house in order to keep surveillance on a neighbor in a domestic dispute matter.  The plaintiff declined.  So, according to the complaint, the police knocked down his door, ordered him to the ground, shot him and his dog with pepper spray and then arrested him for interfering with an officer.

According to Plaintiff's counsel, “And after entering the houses, they drank water, ate food,enjoyed the air conditioning,” he said. “That struck me as quartering.”

One can't help but think that some crucial facts are either missing or not fully reported.  We will have to see what further facts emerge and how the court deals with the notion of police as "soldiers."

Not a lot of news services are reporting on this case. Here is Fox News:

Friday, October 4, 2013

The Gross Income Song

From the University of Oregon Law School.  This is actually a student, encouraged by the professor.

Thursday, October 3, 2013

Which Law Do You Prefer, Obamacare or The Affordable Care Act?

In a recent post, I suggested that the media's portrayal of law is perhaps more important to the fostering or hindering of legal legitimacy than the law itself. I also re-iterated the AACSB requirement that students understand:
Here is an exercise in understanding political, legal  and social contexts.  The staff of the Jimmy Kimmel show interviewed people on the street asking them about their support for "Obamacare" versus "The Affordable Care Act."  Of course, they are the same law. But removing the "Obamacare" label, makes the law more palatable.  Although not a scientific study, this exercise supports the notion that the way the law is presented in society, whether through the media or the political system or both, affects the public's perception of the law. 

Consider the answer to the question: "Do you believe that Obamacare will lead to gun prohibition?"

Click on the image below to see the video from a different source:

Wednesday, October 2, 2013

Consideration in a Nutshell

With all due respect to Professor Smith, when I use the video clip below in class, I partner it with the case of Hamer v. Sidway and talk about the potential confusion that can come from the legal benefit/detriment analysis.  Instead, I favor the "legal value" analysis for consideration.  Consideration being legal value, bargained for and exchanged. Legal value includes:

doing something (or promising to do something) you had no prior legal obligation to do, OR 
refraining from doing something (or promising to refrain from doing something) that you had a legal right to do

Tuesday, October 1, 2013

Monday, September 30, 2013

Selected Poems on the Law of Contracts

The Library at Indiana University Maurer School of Law makes available for us a 1991 NYU Law Review article written by Indiana Law professorDouglass Boshkoff entitled "Selected Poems on the Law of Contracts."   The poems, actually limericks, were discovered as part of a library inventory.The author is anonymous. But even so, short as they are, they help breathe life into otherwise dull casebook analysis.  Click the link above to read them all. Here is an example:

Sherwood v. Walker
We've all heard the story of Rose
Whose failure to bear was a pose.
"For the stew pot, I'm not,"
Said Rose, like a shot.
And the court held the deal couldn't close.

Recently this blog featured material on Wood v. Lucy Lady Duff Gordon. Here is another nugget:

Wood v. Lucy, Lady Duff-Gordon
For dresses, no other was finer
Than Duff-Gordon, the lady's designer.
But Cardozo was short
With her counsel in court,
Thinking D-G was merely a whiner.

If you would like to read the follow-up article "More Poems on the Law of Contracts" published in the Northwestern Law Review, you will have to order a copy from Lexis Nexis.

Friday, September 27, 2013

An Engaged Classroom

This isn't law - but something is going on in this classroom that students are remembering.

Wednesday, September 25, 2013

Law's Mixed Messages

The Department of Homeland Security has been running an ad campaign around the catch phrase "If you see something, say something."  While not "law" in a strict sense, the campaigns promotes an official governmental policy encouraging people to come forward when something suspicious is observed.

Recently a patron of a bank in Glastonbury, Connecticut spotted a man carrying a gun.  He notified bank employees. The gun toter turned out to have a valid carry permit.  So, the police charged the customer who spoke up with breach of peace for upsetting the bank employees.

Apparently, the new policy message is, "If you see something, keep your mouth shut or answer for it in court."

UPDATE 9/26/13: The Hartford Courant reports that the state has declined to prosecute the charges.  This article also gives more details about what happened that justify the actions of the police:
Mr. Gursky apparently wrote a note "man with a gun" and attempted to show it to a teller while saying "gun." He apparently then left the bank taking the note with him even though the teller had not yet seen it.  He did not wait around to make any explanation to any other bank personnel or the police officers who were on the way as a result of the teller's call.

To me, these facts sharpen the analysis on the way law works.  If the law works by sending messages, then the way those messages are presented to the public is an important element of "the legal system." In essence, that makes the media part of the legal system.  If the media chooses to under-report facts in an effort to make a story sound more exciting or interesting to read, then the message that gets sent is different than the one that would have been received if all the facts were reported.  In this case, as first reported (see the video below), the law enforcement action seems ridiculous. Then bloggers, like me, pick up the story, repeat it as it as been reported, and pretty soon the internet is abuzz with a story about how inconsistent and ridiculous the law appears. With more people getting their news on line or from twitter, there is even more incentive for media to make stories shorter and more intriguing to draw readers. If shorter and more intriguing means "incorrect" and "misleading," then that exacerbates a problem of eroding legal legitimacy.

If the law's legitimacy depends on the respect of the people, and that respect can be manipulated by the way the law is reported by the media, then isn't some portion of media studies a legitimate part of legal studies. Perhaps we should be teaching "The Legal and Ethical and Public Environment of Business;" including media studies, interest group politics, legislative law-making and public perception.  The new AACSB standards require that business students have an understanding of the political environment of business as well as the regulatory.  Who is teaching that?

Tuesday, September 24, 2013

No Laughing Matter

The LSCB previously commented on the trials of comic Vince August, a/k/a South Hackensack, New Jersey municipal judge, Vince Sicari. Previously ordered by the State Ethics Board to give up one of the jobs, Vince appealed to the state Supreme Court.  The court ruled unanimously against him.

Yahoo news reports:

"In the course of his routines, Sicari has demeaned certain people based on national origin and religion and has revealed his political leanings," according to the court's opinion. "The court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings."

...and that is no laughing matter.

According to the New York Times, Sicari has resigned the judgeship, leaving behind his $13,000 annual income.

"Now appearing, Vince August."
"Thank you, ladies and gentlemen.  I'll be here all week."

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Oyay! Oyay! Oyay! Now presiding, the Honorable Judge Vincent Sicari:

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Monday, September 23, 2013

The Role of Social Media in Law Enforcement

Former new England Patriot NFL player, Brian Holloway, was shocked when his college aged son told him that 300-400 high school and college aged kids were having a Labor Day weekend party in Holloway's country home in the Hudson valley, and tweeting pictures of the festivities.  Holloway got on-line and saw a picture of a drinking youth standing on top of the dining room table that he bought with his Super Bowl bonus.  Significant damage was done to the house that Holloway has owned since 1981. Police are investigating and the pictures posted on twitter and over 170 other tweets have already helped identify over 200 of the estimated 300+ partygoers.

Holloway, a motivational speaker, is trying to turn the event into a teachable moment.  He has created a website for identifying participants but also to invite them to get involved in community service - starting with coming over to clean up his house.

Holloway suggests:
 Suppose these students came together and created a voice of accountability and reconciliation that spread across the county with all the power and speed of social media?    It’s happened before?    That would definitely save lives.

Featured prominently among tweeted pictures of youths at the party is a girl wearing a UConn sweatshirt. Ouch!

Friday, September 20, 2013

Law Music Video: Songs in the Classroom

On occasions too numerous to link here, I have suggested the beneficial pedagogical use of song in the legal studies classroom. Perhaps the broadest support is included here.  Or click on the tabs for law lessongs, law songs or music videos in the index on the left.  Clearly, I am not the only educator thinking this way.  Contracts professor Mark Petit at BU Law School has been a national news story for using songs in his class.  ALSB colleague Robert Emerson at U of Florida uses costumes and theater to reach his students.

The Friday Law Music Video posts for the next several weeks will feature other examples of college professors making pedagogical use of songs in their classrooms. Perhaps, you will find encouragement to experiment with non-traditional but effective teaching methods.

Thursday, September 19, 2013

Wednesday, September 18, 2013

No Wonder Our Students Get Confused About How Law Works.

Recent inconsistent and perplexing decisions by the NCAA regarding the eligibility of college athletes have been in the forefront of college sports reporting. We all know that the NCAA is not a law-making body.  It is a private membership organization. However, it does make rules for its membership and it enforces those rules. Given the number of questions that I have received over the years from my students asking, "Can the NCAA do this or that?" I am pretty sure that many of my students are confused about the role of the NCAA.  many see their rules and regulations and enforcement decisions as "law." And, of course, within the organization, and for the college athletes governed by these rules, they do have the effect of law on college athletics.

So, that is why the recent spotlight on the NCAA's historical pattern of acting without reference to precedent presents a teaching moment for us. As reported by SB nation, several seemingly similar cases have been decided inconsistently. Cases that seem to fall well within the spirit of a rule are denied over seeming technicalities. And, in all this, the NCAA acts without explanation.  Imagine if a court justified its ruling on the basis of "because I said so."

This recent NCAA publicity gives an opportunity to use news events that your students already know to make comparisons to law and the legal system and enhance learning.

Click the NCAA logo below to go to a video report:

Tuesday, September 17, 2013

The Dating Contract

There are precious few light-hearted videos on contracts that are appropriate for use in class.  While this one does feature a young woman "flipping the bird" it is pretty mild as far as these student-made videos go.

Monday, September 16, 2013

Proximate Cause: Tragic Events Underlie Causation Issue.

Thanks to my colleague Robert Bird for sharing this news story.

The Lincoln (Nebraska) Journal Star reports that a Nebraska man has filed a wrongful death lawsuit against WalMart and the maker of the plastic bags into which WalMart associates bag groceries.  Apparently, the man's wife purchased two 42 ounce cans of a Lachoy product and a 2 lb. bag of rice.  The WalMart cashier allegedly put all items into one bag without double-bagging.  In the way to the car, the bag broke, one of the cans fell out breaking the victims toe and causing a gash.  Eventually the gash became infected and subsequently resulted in the victim's death nearly a year later.

Assuming the cashier's failure to double-bag the groceries is a breach of the duty of care, and assuming that the plaintiff was not more than 50% negligent for not double bagging it on her own or using a grocery cart to move the groceries to her car, was the injury a natural and probable and foreseeable result of the breach of duty? Is there a sufficient legal nexus or proximity between the duty breach and the death? It sounds like a law school exam question.

See other posts on causation here and here.

Friday, September 13, 2013

Thursday, September 12, 2013

No One Likes to Get Served With Legal Papers

No one likes to get served with legal papers. I don't think process servers get enough credit and have raised these issue in the past:  here, here and here.

Consider the article that runs under this headline: "Police" Sword Wielding Man Chased State Marshal"

Process servers face assaults, hostile law enforcement officers, lax regulation . . . etc.   Watch:

Wednesday, September 11, 2013

Beer Ethics

View the Beer vs. God controversy as reported, or rather opined, by Fox News.  The source of this video is from a YouTube site belonging to Mass. Tea Party and bears the title "God Cut From Commercial - Sam Adams Omits 'Their Creator' Phrase in Constitution."  Hmmm?  Does the Constitution mention a creator - or was that some other old timey document from back in the day. Constitution - Declaration of Independence - whatever . . . it still proves . . . something, I think.

The brewery's response is that the Beer Institute standards for ethical advertising do not allow the use of religion to sell beer.

I wonder what the reaction would have been if the commercial said "God wants you to buy this beer."

Tuesday, September 10, 2013

Featured Case Revisited: Wood v. Lucy, Lady Duff Gordon

This blog previously featured a post on the case of  Wood v. Lucy, Lady Duff Gordon.  As most readers will know, that is a case on consideration wherein a potentially illusory promise was given life by Judge Cardozo's imposition of an implied obligation of good faith.

Perhaps some of the resources below can help to breathe life into a century old case and turn a dry legal principle like "consideration" into an enjoyable learning experience.

Stanford law Professor R. B. Craswell, whose songs have previously been featured in this blog, now has a catchy tune that not only describes the facts and the holding of the case, but hearkens back to the historical era of the proceedings.

Sometimes, it is helpful to get students to see cases from the perspective of the parties, rather than as simply a legal principle to study. This case involved parties who were colorful characters. Lucy, Lady Duff Gordon's troubles stemming from her successful escape form the Titanic disaster are well documented. See the video at prior post, here.  Lady Duff Gordon's fashion house was known as the "House of Lucile." More of her background can be read here:  Lucile, Her Life By Design

Image from:

When Lucy started listing her clothes for sale with Sears Roebuck, Wood sued for breach of contract. Images from the Sears Roebuck Catalog that constituted Duff Gordon's breach of contract:

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Duff Gordon image from:

Lady Duff Gordon at work with one of her models:
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Finally, below is a video of a remastered 1917 film showing Duff Gordon's fashions and technique of using live models, a transformative innovation in the fashion industry.

Monday, September 9, 2013

Criminalizing Homelessness

If we start with the premise that law can be employed as a tool to shape society, then we should probably be disturbed about this report from Morning Edition on NPR.  You will hear as you listen to the story, that more municipalities are criminalizing homelessness and cracking down on churches and agencies that try to aid the homeless.  Rather than investing in shelters, soup kitchens, mental health and addiction services, the governmental response is to target the victim.  Is this the best use of law?  Is it an issue of justice or expedience? Can homelessness be "solved" by criminalizing it?

Business interest are a factor here as cities seem to be using these laws to try to clear the presence of the homeless from their downtown business districts. That raises other questions about the role of law.

The NPR story available at the audio link is very good.  Below is a video that might be used to complement the story.

Friday, September 6, 2013

Law Music Video: The Chemical Worker's Song by Great Big Sea

This week the law music video is The Chemical Worker's Song by Great Big Sea.  

What is the nature of "industry" and what role should law play in its regulation of worker safety, consumer safety, financial dealings, etc.?

Thursday, September 5, 2013

Separation of Church and State U?

An article in the Wall Street Journal explores a growing trend of faith based dormitories being built and run by  religious organizations on the campuses of public universities.  What are the issues that relate to separation of church and state?  The Freedom From Religion Foundation has raised them. What do you think?

These guys (The Young Turks) discuss the issues in their typically "hip" sort of, "It's cool - my college had a Black dorm and a Native-American dorm" kind of way:

Wednesday, September 4, 2013

Law Must Have Legitimacy - or at Least the Appearance of it.

Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a  great degree on the law's legitimacy - or at least the belief that the law is legitimate.  That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law).  Last week, this blog featured a video from Judge Posner talking about judicial decision-making.  In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do.  So they dress the justifications for their decisions up in fancy constitutional theories.  Those "fancy theories" serve to legitimize the decision.  That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc.  Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.

Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.

Here is Justice Breyer talking about the importance of legitimacy:

Here is a clip from the movie "The Man of the Year."  The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy.  On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip.  If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice.  We wouldn't want any of that learning going on for free!)