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.

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?

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.

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.

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:

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."

Law Music Video: Lawyers, Guns and Money

This week's installment in the Law Music Video Series is Lawyers, Guns and Money by the late Warren Zevon.

The protagonist in the song finds himself in hot water in a foreign country.  He pleads home to his father to send "Lawyers, Guns and Money" to get him out of trouble.

What is the significance of the grouping of these three subjects?  Is it a natural or an odd assemblage?
How are they similar/different?
What can they individually accomplish?  Accomplish together?
Which  is likely to be more effective? Why?

Go to Church or Go to Jail? What Despotic Theocracy Has That Law?

The despotic theocracy espousing the "go to church or go to jail" rule is Oklahoma.  In sentencing a 17-year- old to probation for a vehicle related manslaughter charge, Oklahoma state court Judge Mike Norman ordered the defendant to attend church for 10 years.

"If Mr. Alred stops attending church or violates any other terms of his probation, Judge Norman said, he will send him to prison," reports the NY Times.

In response to concerns raised about the constitutionality of such a sentence, Judge Norman says,

“I think it would hold up, but I don’t know one way or another.”

I would hope that my undergraduate students would know the answer to that one. I would think there would be a pretty good success rate if I wrote that query up as an exam question. At least Judge Norman didn't make any ruling about the denomination of church that the defendant must attend.  But he certainly had one in mind, saying,

“I think Jesus can help anybody. I know I need help from him every day.”

People of the theocratic republic of Oklahoma could use a little help from the spirit of James Madison.




Apparently Alabama already has in place a program similar to Judge Norman's:

How We Can All Contribute to Law Enforcement

I tell my students that if one of their cell phones rings in class, I will simply stop talking and make sure that there is an uncomfortable silence with all attention focused on the offender.  There is no penalty other than the public embarrassment that results.  I imagine that there is a similar justification behind the program proposed in the following video:

Click the image below to see the video:

Negligence Claims and Insurance Contract Claims

Which of the mishaps pictured in the Liberty Mutual Ins. Co. ads below may give rise to civil tort claims for negligence?  Which give rise to a contractual claim for indemnity from an insurance policy? Which are just funny mishaps?



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Woman Fakes Mental Illness to Get Out of Jury Duty

A Colorado woman apparently went through rather elaborate machinations to claim to be a PTSD victim in order to avoid jury duty.

"Her makeup looked like something you would wear during a theater performance," court reporter Kelli Wessels told investigators at the time, according to the Denver Post. "When the judge asked the entire panel if anyone had a mental illness, [Cole] stated she had difficulties getting ready in the morning, which was apparent to me by the way she was dressed."

She was lucky to be dismissed from duty that day, but her luck ran out when she boasted about her charade on a radio call in program - a program to which the judge was listening. She was prosecuted for perjury and received a sentence of probation after a guilty plea.  I guess she didn't want to put her fate in the hands of a jury made up of people who actually were executing the civic duty that she disrespected.

Thanksgiving Break - More Bad Lawyer Ads (#5)

It's Thanksgiving week and there are no classes at the University of Connecticut this week. The blog will return next week.  In the meantime, please enjoy the latest compilation of  "bad lawyer ads" below.

See previous posts: bad lawyer ad posts: #1, #2, #3, and #4.

The production quality on this one is so poor, I can't tell if this is a real ad or a parody.

Law Music Video: Appointed Forever

This week's installment in the law Music Videos series is the parody, Appointed Forever, by the Bar and Grill Singers.

What are the implications for lawmaking resulting from lifetime judicial appointments?
How would those considerations differ in situations where judges are elected?
How does the Citizens United case affect judicial elections? How does that affect the legal system?
If you could draft new rules for judicial selection, what would they be? Why?

Creative Sentencing

A judge in Ohio has ordered a driver who repeatedly drove on a sidewalk to avoid stopping for a stopped school bus to stand at the site of her infractions wearing a sign that reads:

"Only an idiot drives on the sidewalk to avoid a school bus."

See the raw video below.

Examples of Potential Product Liability Claims

Below are examples of people using a product that resulted in an injury.  The product below is one that has become well known for its propensity to cause injury- the 4-wheeled All Terrain Vehicle.

See related post here.

Can This be an Express Warranty?

In this post we pointed to the UCC Article 2 express warranty provisions.  In the video below, a bold statement is made by the retail sellers of coffee.  Is it a statement of fact or "puffing"?

Uh-oh, Uh-uh-oh, Not Such a Good Time

Can you make a copyright claim based on five notes and a couple of uh-oh's? Ally Burnett,a singer from Alabama has sued Carly Rae Jepsen and Owl City for copying elements of Burnett's original tune, Ah, It's a Love Song in the Jepsen/Owl City hit, Good Time.

Judge for yourself:

Law Music Video: Razzle Dazzle

Today's installment in the Law Music Video Series is Razzle Dazzle from the movie Chicago.

Is a trial a "search for truth"? Or is it a contest - the one who tells the best story wins?
Is the difference between persuading the jury and deceiving the jury a bright line or a razor's edge?
Do TV cameras in a courtroom promote or impede fidelity to truth?
Do they encourage or discourage showmanship?
What is the trial lawyer's craft - presenting evidence or performing theatre?

If I Don't Get Caught, It Can't be Wrong!

Everyone cheats, right? It's up to someone else (a referee, a judge, a police officer, an administrative agency,etc.) to enforce the rules, right? If you can get away with it, then how bad can it be? Right?

Click on the image below to see a famous "successful" cheater's play.

Duke Basketball Successful ON The Court; Football Successful IN The Court.

On September 7, 2002, before a home crowd of 25,486, the Duke Blue Devils football team went down in defeat to the University of Louisville Cardinals by the lopsided score of 40-3. Duke, was contractually bound to play Louisville three more times (2007, 2008, and 2009). But, apparently seeking to avoid any further embarrassment, Duke notified Louisville that it would breach the contract.  The contract had a liquidated damages provision that required Duke to pay Louisville $150,000 per cancelled game, if Louisville, in good faith, could not schedule a replacement game with a "team of similar stature." In Louisville's estimation, a  team of similar stature apparently meant a Football Bowl Subdivision (formerly 1A) team from a Bowl Championship Series conference. However, Duke's lawyers took an interesting position. They argued that Duke football was so bad, that pretty much any college team would qualify as a "team of similar stature."

UL posed the following interrogatory in discovery: 
List all college varsity football teams (as that term is used in the agreement) considered by Duke to be a "team of similar stature" to Duke.

Duke responded:
Duke states that any and all college varsity teams in the Football Bowl Subdivision (formerly Division I-A) are teams of a 'similar stature' to Duke. . . . Additionally, Duke states that any and all college varsity football teams in the Football Championship Subdivision (formerly Division I-AA) that would be considered as good or better than Duke in football. . . are teams of a 'similar stature' to Duke. . . . [J]unior varsity programs of any of the aforementioned teams would not be teams of a 'similar stature' to Duke's varsity college football team.

Therefore, according to Duke, UL should have been able to schedule anyone and relieve Duke of its obligation to pay damages. The Court agreed.

UL's Law School dean disagreed, writing in his blog:

Strictly as a football fan, albeit one who is a Louisville Cardinals partisan, I respectfully disagree with Judge Shepherd. There is no adequate substitute for Duke football, a patsy nonpareil in college football. There simply is no other (1) Division I-A team (2) that plays such appallingly bad football (3) so consistently and persistently (4) all while maintaining its membership in a Bowl Championship Series conference.

As pleased as I am to witness a revival of the Louisville-Memphis rivalry, an old Metro Conference basketball grudge match moved to the gridiron, what I really want is a series of virtually guaranteed wins against the worst major college football team. And that team, despite its university's immense wealth and its city's sports tradition (think of Bull Durham and the 1942 Rose Bowl), is the Duke Blue Devils.

Judging from this recent article, searching for the proper "patsy" football opponent is a matter of art - and broken legal commitments. The implications of this decision on future football scheduling contracts is also a topic of important research. 

Watch the video below and hear Duke's lawyer urge the court to take judicial notice that Duke is "the worst football team in division 1 football."

A Picture is Worth a Thousand Little White Lies

The British Advertising Standards Authority has taken action to ban a Christian Dior mascara ad featuring Natalie Portman.  The ad portrays results that cannot be achieved by use of the product. The agency ruling noted that Dior called the ad portrayal as "aspirational," admitting the lashes were re-touched after the photo shoot. In the US, the FDA and the FTC have periodically taken action against cosmetics advertisers. But in this case, no complaint has been made.The British regulatory action followed a complaint by a competitor. In the US, apparently, no one wants to "throw the first stone."



The Cover Girl ad featuring Taylor Swift, below, was pulled after the National Advertising Division of the Better Business Bureaus found it to be misleading. The Government didn't even have to get involved here.  Of course, the case was easily made since the ad's small print stated, "Lashes enhanced in post production."



Related posts on Deceptive Advertising: Activia ad, Ralph Lauren.

Speed Limit, 85 MPH ... or 90... Maybe 95 ... Going Once, Twice ...

In discussing the jurisprudential theories of Legal Realism, one of my prime examples is to ask students to think about speed  limits.  Speed limits are set by law.  The law may set the speed limit in an area at 25 MPH - but drivers rarely heed that law. It is well known that there is only a very small chance of getting a ticket for driving 26, or 27, or perhaps even 30. Driving faster than that increases the likelihood of  the driver becoming the subject of law enforcement action.  A Legal Realist considering these facts might argue that the speed limit law is not 25 at all, but 30. The words of the law may say 25, but the law in action imposes no penalty until 30.  Therefore, the conduct that results from law (both the written word and the system in action) is that people drive 30 MPH.  If law is based on the conduct that is shaped by imposing penalties, then the speed limit law is actually 30.

Then I found some verification in this story on CBS This Morning (Click on the image below to see the report):


More Legal Realism, here.

Law Music Video: The Night the Lights Went Out in Georgia

Today's installment in the Law Music Video Series is The Night the Lights Went Out in Georgia by Reba McEntire or Vickie Lawrence or Jennifer Nettles (take your pick).  This is such a deliciously preposterous scenario. You could ask students to discuss the obvious due process issues. Or perhaps, consider it an allegory on injustices in the criminal system .  Ask students to identify realistic areas of challenges for attainment of justice in the legal system.

What is Law For if Not to Protect the Weak?

The Boy Scouts of America have for nearly a century kept secret files on volunteers and employees who have molested children. Recently, the Boy Scouts have been ordered to make public many of the documents. In some instances, files were begun after civic authorities brought charges.  But in other instances, it was the BSA that held the only evidence of the abuse. Sometimes authorities were notified.  Sometimes they weren't.  According to the Los Angeles Times:

In the majority of cases, the Scouts learned of alleged abuse after it had been reported to authorities. But in more than 500 instances, the Scouts learned about it from boys, parents, staff members or anonymous tips.  In about 400 of those cases — 80% — there is no record of Scouting officials reporting the allegations to police. In more than 100 of the cases, officials actively sought to conceal the alleged abuse or allowed the suspects to hide it, The Times found.

Victims often feel betrayed by the scouts who either never took action to protect others or who never reached out to apologize for the harm, or even to acknowledge the truth.

With these BSA revelations coming on the heels of decades of allegations of the Roman Catholic Church covering up child abuse by priests and the recent similar failure to report incidents at Penn State University, the question has to be: Why does the law so consistently fail in getting people with knowledge of these incidents to report them?  In all states, reporting is required by law.  Yet, those with the knowledge to put and end to the abuse stay silent.

Recently, a Connecticut physician was arrested and charged with failing to report child abuse.  His defense was that after reporting child abuse many times, he had lost faith in the child protective system to do any good.  What is the law for if not to protect the weak?

Related posts may be found here and here.

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

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.

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:

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?"

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:http://www.sportslogos.net/logos/view/wypyv9joaq76f59es93jfgo0g

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

Source of image: http://nhregister.com/articles/2012/10/22/news/shoreline/doc5085b39012285625970004.txt


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: http://articles.courant.com/2012-10-22/news/hc-morgan-huskys-1023-20121022_1_top-dog-husky-dog-uconn


The abandoned UConn trademark


source of image:http://theuconnhuskies.blogspot.com/

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: http://www.imaginehopelamond.com/staff.html

Watch out Prairie Trade Middle School!:


Source of image: http://schools.olatheschools.com/prairietrail/newsletters.html

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

Source of image: http://www.spiglerpetroleum.com/OrderForm/Carroll-HuskySpecial.htm

And Husky Corp:

source of image: http://www.husky.com/

Jonathan, the UConn Husky Mascot:

source of image: http://www.savedbydogs.com/2012/03/univesity-mascots-and-your-personal-dog.html

A white dog - the next target?

source of image: http://thepoodleanddogblog.typepad.com/the_poodle_and_dog_blog/2012/10/its-another-remarkable-husky-story.html

The UConn fight song:



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

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: http://stevemandich.blogspot.com/2006/10/sign-o-times-1993.html

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?

Klondor:

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:

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?

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.

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 blawprof@gmail.com.  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:

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.

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:

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?

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.

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.

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.

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."

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?

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.

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.

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":

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. Onlinecollege.org 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:

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

Law Music Video: The Loving Kind

This week's law music video post is The Loving Kind by Nanci Griffith.  See related posts here and here.

Nanci Griffith writes, "They changed the hearts of my nation, with their wedding vows." Would this have been true if the Supreme Court had upheld the Virginia Law? In other words, was it their wedding that fostered change or was it the court's willingness to embrace their wedding that changed the hearts (and minds) of the nation?

The award winning book, The Hollow Hope, argues that the Court's decision in Brown vs. Board of Education actually set back the cause of integration - that time and education would have brought quicker and more effective integration. Do you agree or disagree?  What, if anything, is the value of a Supreme Court decision on changing the "hearts and minds" of Americans?

More than 50 years after the Loving decision, there is still a durable belief among some that interracial marriage should be illegal. (This poll ascribes that position to 29% of likely Republican voters in Mississippi) Is this the best consensus that we can hope for in a pluralist society?  Do those who disagree with the Court's decision nevertheless acquiesce to it - or do they strive to change it?

Caps on Damages and Mandatory Arbitration

The video below shows former Alabama Supreme Court  Chief Justice Sonny Hornsby briefly outlining two issues that are explored in more detail in the movie Hot Coffee; Caps on Damages and Mandatory Arbitration. It is nice and short and might make a nice discussion starter in class.

"Caveat Emptor," Law Students

So, you are thinking about attending law school.  You do your "due diligence" by investigating schools, including reviewing placement statistics reported by the school. Three years later, $100,000 in debt and unemployed, you make a more critical examination of those placement statistics and find them to be . . . misleading, at best. Can you sue?

Some Cooley Law School graduates did - and lost. A U.S. District Court judge in Michigan dismissed the case on the grounds that no reasonable person could have relied on the placement statistics compiled and reported by the school.

With red flags waiving and cautionary bells ringing, an ordinary prudent person would not have relied on the statistics to decide to spend $100,000 or more [on law school tuition and fees].

Barring no holds, the opinion continues, Sometimes hope and dreams triumph over experience and common sense.  Nevertheless, it would be unreasonable for Plaintiffs to rely on two bare-bones statistics in deciding to attend a bottom-tier law school with the lowest admission standards in the country.  

Ouch! Although, the plaintiffs may have doomed their case by alleging in the amended complaint: Cooley publishes its own law-school rankings, which have been met with “great skepticism, if not outright ridicule, and no reputable academic or legal commentator takes it serious.”

The decision concludes, "The bottom line is that the statistics provided by Cooley and other law schools in a format required by the ABA were so vague and incomplete as to be meaningless and could not reasonably be relied upon.  But, as put in the phrase we lawyers learn early in law school–caveat emptor.

Law schools, apparently, should be placed in the category with used car salesmen. A prospective "buyer" should expect to be guarded against a healthy dose of "puffing."



Legal employment is a difficult market:

Male Vice Principal Spanks Young Teen Girls... And It's Legal!

In the first part of my Legal Environment course, I challenge students to think about the nature of law, leading to the ultimate determination that law is made up by people. The law is not inherently just, it is just inherently human.  It suffers, as all man-made systems do, from imperfections and the results of human frailties, prejudices, mistakes and beliefs.

As an example is this news story.  Texas is one of 19 states allowing corporal punishment in schools with parental permission.  So when a sophomore girl was caught helping another student cheat, she was given a paddling by her male vice-principal. And this was not the first example.  The school system's response? It's all perfectly legal.  Which apparently, it is! But, the school system's own regulations require paddling only by an administrator of the same sex as the student. So, to make sure this doesn't happen again, the superintendent proposed to change the regulation to allow cross-gender paddling!

So, first the law is in contradiction of all science regarding child discipline, brain function and behavior modification. Second, the law ignores the inappropriate quasi-sexual elements of what would be a clear sexual assault if it was conducted by any other authority figure, say a stepfather, outside the school (or in most  anyplace outside of the state of Texas). And then, the minimal regulations that exists to temper the sting of the law are changed to encourage pseudo-sexual assault because to protect against it is inconvenient!

I don't know what is in the water in Texas, but this story on the heels of the highly publicized state Republican platform to ban the teaching of critical thinking skills in schools create for us a great teaching resource on the issue of the nature of law.  It's made up by people. And there are no requirements for lawmakers to be rational, fair, just, kind, forward thinking, intelligent, educated, or even interested in the public good.