Big Brother Busts Cyber Stealing

Big Brother is monitoring your illegal downloading.  And starting this week, he will send you letters telling you that he knows what you are doing.

Copyright scofflaws illegally downloading music, movies and videos will receive gentle reminder letters from their internet providers that their internet activities are being monitored and they have been busted. Participating internet service providers have agreed to "punish" repeat offenders by compromising their internet speed for several days as a concrete reminder of their prior bad acts.  Read all about it here.

Is this a breakthrough in policing the internet for illegal conduct?  Is this an historic partnership of law enforcement and private enterprise? Is it a further clarion call for an overhaul of intellectual property law and new business models for the entertainment industry?  Whatever it is, its Big Brother qualities are creepy.

We Owe a Lot to Lindsay Lohan

There are a few important contributors to the law who seem to pop up  as examples or exemplars in my Legal Environment course on more than a few occasions during the semester. If I give it some thought, I can readily name a few that come to mind; Justices Oliver Wendell Holmes, Benjamin Cardozo and Antonin Scalia, Presidents John Adams, Woodrow Wilson and Abraham Lincoln, Economic Philosopher Adam Smith, and commentators Bill O'Reilly and Stephen Colbert and, of course, Lindsay Lohan.

With the addition of the case described below, the actress and celebrity accounts for three separate examples of legal principles applied to real facts.  First, there was the lawsuit for civil assault brought against her by the passenger in a car that she apparently chased at high speeds through the streets of LA in 2007; an incident that also resulted in her arrest.  It allows for explanation of all the elements of civil assault - apprehension or fear of imminent bodily harm without the element of physical contact.

Then, there was the $10M lawsuit against e-trade that was the subject of this post.

And now we have a federal court ruling in a lawsuit that Ms. Lohan brought against musical artist "Pit Bull" for the use of her name in the lyrics of his song, Give Me Everything.

This is insane: the way the name growin'

Money keep flowin'

Hustlers move aside

So, I'm tiptoein', to keep flowin'

I got it locked up like Lindsay Lohan

According to the complaint, the use of Ms. Lohan's name in the above quoted lyrics constituted an alleged violation of NY State Civil Rights law, and gave rise to claims for unjust enrichment and intentional infliction of emotional distress. Not surprisingly, the Defendant's 12(b)(6) motion was granted. Judge Hurley's decision may be read here. The lyrics are protected from the Civil Rights claim as artistic expression and fall well below the liability threshold of "extreme and outrageous conduct."

Although he rejected the imposition of sanctions under Rule 11 for filing a frivolous claim, the judge did not let plaintiff's counsel off the hook. His order imposes a $750 fine for alleged misrepresentations in a letter to the court and an additional $750 for filing an Opposition Brief with content plagiarized from websites and  prior filings and missing legal citation.

So, my thanks goes out to Lindsay Lohan.  Her contributions to the law allow my students to see past the stuffy and stayed reputation of the law as the province of dead rich white guys.

Give Me Everything by Pit Bull and friends:

"A Person's a Person . . ."

In the Dr. Seuss classic, Horton Hears a Who!, the philanthropic pachyderm proclaims that "A person's a person no matter how small." The Supreme Court version might read, "A person's a person even a corporate cabal."

To draw attention to the claimed absurdity of the notion of corporate "personhood," a Marin County California man has, for the last ten years, been driving in the "2 person carpool" lane with a stack of corporate documents in the passenger seat hoping to be ticketed for a violation. He recently got his wish and challenged the ticket in court on the "a person's a person..." theory. No, he was not successful in obtaining a court's finding in his favor.  But then, I think his real object was to get bloggers like me to write about his case and suggest that it would be an amusing yet thought provoking example to use in your law classes. So, here it is.

Jonathan Frieman, JD, corporate avenger:

The "Business" of Law

While students inherently "know" that lawyers in the private practice of law charge money for the legal services provided, they often do not grasp exactly what that means. The following video shows a family law attorney addressing other lawyers with advice on how to structure fee agreements and collection of fees. I find it serves as a small dose of reality for students.

Law Music Video: Prof. Steven Friedell

Who would ever have thought that singing songs in classes with adults could be an effective pedagogical method? What else can be said about watching an exceptional teacher at work? Here is Prof. Steven Friedell, Rutgers Law.

A Gun in Every Toy Chest?

Children are precious. As a society, we employ law in diverse ways to protect children from any of a host of physical and emotional dangers.  It is hardly controversial that there are laws designed to protect kids from the obvious dangers of abuse and neglect. Kids also must be in car seats, wear helmets while riding bikes, and refrain from unhealthy eating at school.  Kids can't operate heavy machinery, make contracts or buy cough syrup.  Why, then, do we tolerate marketing directly to children? Issues have arisen in the past with direct marketing of food, cigarettes and cars among other products.  But the latest controversy involves direct marketing of guns to children in the aftermath of the Sandy Hook shootings.

If law reflects our values, what conclusions should be drawn about how we value childhood vs. business profits? This direct marketing seeks to cash in on a demographic that is not experienced enough to make wise decisions. Further, these marketing programs define culture for children by creating phony "suggestions" of what life should include. The question that I find myself asking my students on an increasingly regular basis is, "Is this the best that we can do?"

Image source: NY Times

Digital Life After Death

Who owns your Facebook account after your death? Suppose a teenager or young adult passes away.  Unless his or her parents had already "friended" the deceased, the parents will not have even have access to the deceased photos and other information posted there. Without account log-in information, parents or family will not be able to access the accounts to shut them down or remove offensive comments posted there by "trolls." Suppose the young adult was an artist with photos posted to Instagram or other sites. How can the family get control of their artistic works? What happens to your extensive digital music library? E-mail, social media, billing accounts, etc. - we are a connected society, but have few laws dealing with the nature of digital rights.  Is it "property" that passes by the state laws of intestacy?  To what extent can digital information be bequeathed in a will? Legislatures are starting to pay attention and to attempt to deal with these issues. What do you students think the law should be?

Below is an interesting video. The company featured here, Entrustet, purports to allow you to designate who should get your digital property in the event of your death. Or, to authorize them to delete material before anyone else can see it! However, by taking the position that your digital material is "property" doesn't that mean that only a valid will may designate heirs? The digital designations contemplated here would not meet the will requirements under any state law. It's also interesting how the company clumsily refers to the "dead person" rather than the more genteel "deceased."

Here is a news report on the original issue:

Big Business Wants More Federal Regulation ... of Tort Rights

In the video below, Former Senator and "Law and Order" actor Fred Thompson gives us a primer and description on the virtues of Federalism and then takes a stand against those who are trying to nationalize every little activity.

Do you think that Fred was talking about the industry backed Product Liability Reform bill that would have limited tort recovery by injured victims of defective products that passed Congress and was vetoed by President Clinton?

Or perhaps he was referring to the industry backed "Personal Responsibility in Food Consumption Act" that would have placed a federal government bar on certain food injury cases This bill has been passed twice by the House of Representatives.

Or maybe Fred was thinking about the industry backed challenge to a California law against slaughtering non-ambulatory animals on the basis that the Federal Meat Inspection Act preempted state regulation.

Or Fred could have had in mind the industry backed claim that Federal law preempted state tort actions by victims of a drug company's failure to warn. Or maybe it was the industry backed claim of federal preemption of state tort claims for injury by medical devices.

The more I think about it, I think that is exactly what Fred must be talking about.

 

SNL Consumer Probe

The images below are links to the famous Saturday Night Live "Consumer Probe" skit. Candace Bergen, playing a consumer reporter interviews Irwin Mainway (DanAkroyd) of Mainway Toys as he hawks his infamous band of dangerous products including, famously, the "Bag o' Glass."

Consumer Reporter: So, you don't feel that this product is dangerous?

Irwin Mainway: No! Look, we put a label on every bag that says, "Kid! Be careful - broken glass!" I mean, we sell a lot of products in the "Bag O'" line.. like Bag O' Glass, Bag O' Nails, Bag O' Bugs, Bag O' Vipers, Bag O' Sulfuric Acid. They're decent toys, you know what I mean?

It's a great way to introduce a product liability segment in  your Legal Environment class.

I can almost hear Emily Litella query: "What's all this fuss about "pro-duck liability?" "Oh, never mind."

Click on the image below to go to the video clip at Yahoo:



Click on the image below to go to the video clip at NBC.com:



Other videos for introducing product liability may be found at earlier posts: here and here.

Law Music Video: "One Day The Lawyers"

In Fred Johnston's song, One Day the Lawyers, the "lawyers" are blamed for seemingly every evil from the black plague to global warming. But he does call for the day that he will see the lawyers in handcuffs where they will ostensibly be prosecuted and brought to justice by . . .  lawyers. So, maybe there is hope.

We Only Lend to Christians?

Below is the text of an e-mail message that I received on my University computer (identifications redacted):

Hi my name is Pastor XXXXX. I am the Senior Pastor at the First XXXXXX Church in XXXXXX, Connecticut. I am also on the board of directors at a company called Christian Mortgage. We are a mortgage refinance company based on christian principles.

  

We can help you refinance your mortgage and get a lower monthly payment.

Your next mortgage payment could be HUNDREDS less per month. We try our best to help ALL Christians. Even if your credit is not the best, or if you have been denied by other lenders, we can still help you!

  

Our foreclosure rate is lower then the average because we only lend to Christians. This helps us get you the lowest monthly mortgage payment. We work with over 100 of the biggest banks and financial institutions. We have them compete against each other to get you the lowest monthly payment.

  

I thought it was important to tell you this because your home is the most important and expensive asset in your life. Your family will have a better life if your mortgage payment is hundreds less every month. To see what your new monthly payment would be, go to our website and fill out the form.

 Here is our website: www.ChristianMortgage.org

God Bless you and your loved ones,

Pastor XXXXXXX

Senior Pastor - First XXXXXXXX Church http://FirstXXXXXXChurch.org

  

Psalm 136:26 Give thanks to the God of heaven, for his steadfast love endures forever.

I'm confused.  

1. What does "only lending to Christians" have to do with there being a lower foreclosure rate and a lower monthly payment, and

2. How does this organization avoid the Equal Credit Opportunity Act? 

Historical Interpretation of the 2d Amendment

The gun-control debate is likely to be in the forefront of the news for some time to come.  In the spirit of "seizing the teachable moment" students can be directed to engage in a number of intellectually challenging and educational debates or thoughtful reflection on the relationship between law and society (using law to address social problems, public policy decision-making and the rule of law); on the legislative process (effect of lobbying, public hearings and comment); and on constitutional interpretation (2d amendment).  I always thought it odd that Justice Scalia, long known as an originalist would deviate from the language of the amendment to consider the intent of the framers in the landmark decision of DC v. Heller.

From a 2008 interview with CBS's Leslie Stahl:

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

From DC v. Heller:

If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny.

- U.S. Supreme Court Justice Antonin Scalia in District of Columbia v. Heller (2008)

In class, I often juxtapose Justice Scalia's quote with that of "Founding Father" and Revolutionary, Samuel Adams:

"Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

It doesn't seem to me that Adams was terribly interested in protecting the right of citizens to rise up and bear arms against the Republic.  In fact, I had always thought that Shays's rebellion was one of the precipitating events for the calling of the Philadelphia Convention.  When former colonial army captain Daniel Shays led an armed rebellion against the Supreme Judicial Court of Massachusetts in 1786, the federal government was powerless to respond. This deficiency fueled the fires for reconsideration of the Articles of Confederation.

In early 1787 John Jay wrote that the rural disturbances and the inability of the central government to fund troops in response made "the inefficiency of the Federal government [become] more and more manifest."

So, far from the 2d Amendment protecting the possibility of a citizen's militia rising up against the government, I though the 2d Amendment was written to counter against the likelihood of a citizen's militia rising up against the government.

Shouldn't the interpretation of the 2d Amendment rest on actual historical evidence rather than on ideology? Students should take the opportunity to consider that gun control arguments from both the left and the right may be overlooking important historical evidence. Students should be made aware of the explanation of the 2d amendment as described in the blog post linked here. It is a position that I find surprisingly absent from the modern gun control debate, but which is an important part of the understanding of the meaning of law and constitutional interpretation.

Truth, Jury Duty and the American Way!

Below are a couple of kick-a** jury duty videos!  Take that all you YouTubers whining about how you have to get out of jury duty!  Especially that one guy who claims jury duty is unconstitutional.

"If you were on trial, who would you want to decide your fate; a member of the government or a jury of your peers?"

Right on! Power to the people!

Oyez! Oyez! Oyez!

To help create an atmosphere of respect and legitimacy for the court, we use formalities and traditions that give the court a near religious aura.  The judges wear robes.  The courtrooms are typically formal with liberal use of rich woods and stone. The judge sits higher than anyone in the room. Only certain people may proceed forward beyond "the bar." The parties speak a legal language that sounds foreign to the untrained ear.  And, of course, there are the formal opening words, barked out by the appropriate court officer.  How many of your students have heard the formal opening words of court?

Click here to go to an audio recording of the opening words of the U.S, Supreme Court sessions.

Click here to go to an NPR report on the sounds of a North Carolina courtroom.

Law Music Video: Liberty Song

This week the law music video is Liberty Song by Jordan Page.  I love his call to advocacy.  But I am not as enamored with his Libertarian ideology.  Doubtless, Mr. Page would agree with this quote from Woodrow Wilson:

“Liberty has never come from the government. Liberty has always come from the subjects of the government. The history of government is a history of resistance. The history of liberty is the history of the limitation of government, not the increase of it.”

I prefer this one from John Locke:

“So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law: but freedom is not, as we are told, liberty for every man to do what he lists (for who could be free when every other man’s humour might domineer over him?), but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”

What do your students think?

Caveat Emptor - on Crack?

Legal rules sometimes serve a logic that is not readily evident and can seem downright cruel. It's likely that is what a Pennsylvania homeowner is thinking today. Janet Milliken purchased a Thornton, Pa. house for herself and her children in June 2007 for $610,000 from the Jocono family.  The Joconos had owned the house for about a year, having purchased it from the estate of Konstantinos Koumboulis - about 8 months after Koumboulis murdered his wife in the house and then committed suicide there.  The Joconos knew of the murder-suicide, but neither they nor their real estate agent ever disclosed the incident to Milliken.  While the incident was well publicized in Thornton, Milliken had moved from California and had no knowledge of the history of the house.  The case raises issues similar to those found in the well-known Rye, NY haunted house case of Stambovsky v. Ackley - except for the result.  In a split decision, an appellate panel of the Pennsylvania Superior Court ruled that caveat emptor applied.

The court first reviewed statutorily mandated disclosures and determined that murder-suicide was not among the categories of required disclosures. The court then dispatched with the common law fraud claim by determining that the fact was not "material." Because the defect was essentially a matter of  the psyche for which a monetary value could only be subjectively determined, it could not be considered a material defect.

In making a pragmatic decision applying a logical desire to limit the law to matters of certainty and objectivity, the court seems to ignore the very human elements of the case. As a result, the law looks unreasonable and its legitimacy to the public eye is compromised.  And while the court may have justified the result on legal reasoning, it could just as easily have found the other way with sufficient legal precedent (the court rejected persuasive precedent from Ohio on similar facts) as was pointed out by the dissent.

The majority did mention in a footnote that their support of caveat emptor was in some way justified given that the tragic incident would likely have turned up on an internet search.  Unfortunately, the house address was never given in the decision so I could not repeat the search to see what turned up. The court did not specifically tie the internet search rationale to the justifiable reliance element of fraud, but referred to it generally as an argument to ameliorate the apparent harsh effects of caveat emptor.

Connecticut has a statute that covers this situation, but it hardly seems more helpful to the innocent buyer.  The statute puts the burden on the buyer to notify the seller in writing that the fact that someone has died in the house is a material fact. Failing to do so is conclusive in shielding the Seller from a fraud claim for failure to disclose. At least the statute gives the buyer a chance. Apparently, in Massachusetts the fact of commission of a homicide  in a house is defined by statute as not being a material fact.

The Thornton, PA house:

Saying One Thing in Public; Saying Something Different in Court

News organizations are reporting ironic circumstances that might be a good discussion starter in class on the issues of law, justice, or the lawyer's role as advocate. A plaintiff filed a medical malpractice claim in Colorado state court against a Catholic Hospital following the death of his 7-month pregnant wife and the loss of the twin fetuses that she was carrying. The Catholic Hospital's lawyers have defended the claim based on the loss of the fetuses on the basis that the fetuses do not have any rights recognized by law. This position has been upheld by the trial court and on the initial appeal. Of course,the position espoused in court by the lawyers for the Catholic Hospital is contrary to the teachings of the Catholic Church regarding fetuses.

After allegations of sexual abuse of children by Catholic priests came to light, church administrators apologized for facilitating and covering up the abuse and expressed concern for the well-being of the victims.  At the same time, the church's lawyers were in court admitting no wrongdoing and dragging plaintiff victims over the coals in discovery in the hopes they would fold their lawsuits.

The Catholic Church must certainly not be the first or only organization or entity to argue a position in court that contradicted its own moral position.  But then, that is the lesson.

Judgment Against Catholic Diocese after aggressive cross examination of plaintiff:

Will Lawsuit Trump Maher's Joke?

National news services are reporting that Donald Trump plans to sue Bill Maher because Trump "accepted" Maher's "offer" to pay $5 M if Trump provided proof that he was not the offspring of his mother pro-creating with an orangutan. Apparently anticipating Maher's defense, Trump insists:

"I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact he was nervous when he said it. It was a pathetic delivery, but he said, 'I will give' and I said I will accept, so let’s see what happens."  

The legal standard, of course, is intent to contract - not the level of joviality or vengeance contained in the purported offer.  So, see the video clip below and judge for yourself.  Is it a contract offer or not?

update: Lawsuit withdrawn (to be re-filed later?)

The Nuance of Judicial Decision-Making

Below are two videos about Judicial Decision-Making. The first is from Supreme Court Associate Justice Samuel Alito's confirmation hearings. In it, he describes how justices are bound in their decision-making to follow the rule of law as expressed through precedent.  The second video features U. of Maryland Law Professor Sherrilyn Iffel explaining how diversity in a court's make-up is important to the decision-making process.

Students may wonder if the views expressed in these videos are inconsistent. If there is a "rule of law" and judges are bound to follow it, then why would diversity on a court make a difference? Of course, these videos are not inconsistent.  But it is this nuance of what a "rule of law" means and what goes into judicial decision-making that is often difficult to convey to undergraduate students.

One of the most rewarding aspect of teaching undergraduates is feeling a part of this process where students evolve out of their "civics class" type understandings of the legal system into educated adults with a more mature understanding of the relationships between law and society.

Law Music Videos: Contract Law Sea Shanties

This week's edition of the law song video series features two sea songs about contract cases.  First, from Stanford Law Professor R.B. Craswell, comes Sailing to Pyramid Harbor.  More contract law songs are available at Prof. Craswell's YouTube channel.  The second song is my own, The Bonnie Ships Peerless. Other law songs can be found at my YouTube channel. I hope that you enjoy these learning resources and find a way to work them into your curriculum.