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November 30, 2010

Legal Blog Watch Selected for 'ABA Journal Blawg 100'


OK, not so likely, but it could happen if you and a couple hundred of your friends get on over to the 2010 ABA Journal Law Blawg 100 and vote for your favorite Watchers of Legal Blogs in the "News" category. Make it so!  2010_blawg100_badge_1

November 30, 2010 | Permalink | Comments (2)

Legal Disclaimer Hall of Fame: The Nelson Rocks Preserve

Yesterday's post seeking the best disclaimers for legal blogs produced a couple of strong suggestions, including the disclaimer used by Mark Bennett on his Defending People blog:

Criminal defense lawyers like me get paid lots of money to help people make decisions that will affect them for the rest of their lives. Our advice, when given, is based on a thorough understanding of the facts as well as years of experience dealing with the infinite nuances of the law.

If you make decisions that will affect your future based on things you’ve read on a website, you’re an idiot. Don’t blame me.

If you call me after you screw things up, it’s going to cost five times what it would have cost you before.

This and some of the other comments yesterday belatedly reminded me of the most badass interesting disclaimer I've ever seen, which belonged to Nelson Rocks Preserve, an outdoor recreation area located in Pendleton County, W.Va. I last saw the NRP disclaimer in 2006, when I wrote about it here. It has since disappeared from the site, apparently replaced by some standard boilerplate. But through the magic of the Internet Archive Wayback Machine, we can relive the glory of the NRP disclaimer exactly as it appeared in September 2006. It is reprinted below. Enjoy!



Nature is unpredictable and unsafe. Mountains are dangerous. Many books have been written about these dangers, and there's no way we can list them all here. Read the books.

Nelson Rocks Preserve is covered in steep terrain with loose, slippery and unstable footing. The weather can make matters worse. Sheer drops are everywhere. You may fall, be injured or die. There are hidden holes. You could break your leg. There are wild animals, which may be vicious, poisonous or carriers of dread diseases. These include poisonous snakes and insects. Plants can be poisonous as well. We don't do anything to protect you from any of this. We do not inspect, supervise or maintain the grounds, rocks, cliffs or other features, natural or otherwise.

Real dangers are present even on trails. Trails are not sidewalks. They can be, and are, steep, slippery and dangerous. Trail features made or enhanced by humans, such as steps, walls and railings (if any) can break, collapse, or otherwise fail catastrophically at any time. We don't promise to inspect, supervise or maintain them in any way. They may be negligently constructed or repaired. They are unsafe, period. Live with it or stay away.

Stay on the trails whenever possible. The terrain, in addition to being dangerous, is surprisingly complex. You may get lost. Carry food, water and first aid supplies at all times.

Rocks and other objects can fall from the cliffs. They can tumble down slopes. This can happen naturally, or be caused by people above you, such as climbers. Rocks of all sizes, including huge boulders, can shift, move or fall with no warning. Use of helmets is advised for anyone approaching the rock formations. They can be purchased or rented at Seneca Rocks. They won't save you if you get hit by something big or on another part of your body. A whole rock formation might collapse on you and squash you like a bug. Don't think it can't happen.

Weather can be dangerous, regardless of the forecast. Be prepared with extra clothing, including rain gear. Hypothermia, heat stroke, lightning, ice and snow, etc. can kill you. Rain can turn easy terrain into a deathtrap.

If you scramble in high places (scrambling is moving over terrain steep enough to use your hands) without proper experience, training and equipment, or allow children to do so, you are making a terrible mistake. Even if you know what you're doing, lots of things can go wrong and you may be injured or die. It happens all the time.

The Preserve does not provide rangers or security personnel. The other people in the preserve, including other visitors, our employees, agents, and guests, and anyone else who might sneak in, may be stupid, reckless, or otherwise dangerous. They may be mentally ill, criminally insane, drunk, using illegal drugs and/or armed with deadly weapons and ready to use them. We aren't necessarily going to do anything about it. We refuse to take responsibility.

If you climb, you may die or be seriously injured. This is true whether you are experienced or not, trained or not, equipped or not, though training and equipment may help. It's a fact, climbing is extremely dangerous. If you don't like it, stay at home. You really shouldn't be doing it anyway. We do not provide supervision or instruction. We are not responsible for, and do not inspect or maintain, climbing anchors (including bolts, pitons, slings, trees, etc.) As far as we know, any of them can and will fail and send you plunging to your death. There are countless tons of loose rock ready to be dislodged and fall on you or someone else. There are any number of extremely and unusually dangerous conditions existing on and around the rocks, and elsewhere on the property. We may or may not know about any specific hazard, but even if we do, don't expect us to try to warn you. You're on your own.

Rescue services are not provided by the Preserve, and may not be available quickly or at all. Local rescue squads may not be equipped for or trained in mountain rescue. If you are lucky enough to have somebody try to rescue you or treat your injuries, they may be incompetent or worse. This includes doctors and hospitals. We assume no responsibility. Also, if you decide to participate in a rescue of some other unfortunate, that's your choice. Don't do it unless you are willing to assume all risks.

By entering the Preserve, you are agreeing that we owe you no duty of care or any other duty. We promise you nothing. We do not and will not even try to keep the premises safe for any purpose. The premises are not safe for any purpose. This is no joke. We won't even try to warn you about any dangerous or hazardous condition, whether we know about it or not. If we do decide to warn you about something, that doesn't mean we will try to warn you about anything else. If we do make an effort to fix an unsafe condition, we may not try to correct any others, and we may make matters worse! We and our employees or agents may do things that are unwise and dangerous. Sorry, we're not responsible. We may give you bad advice. Don't listen to us. In short, ENTER AND USE THE PRESERVE AT YOUR OWN RISK. And have fun!

NRP Management


November 30, 2010 | Permalink | Comments (2)

Feds Seize Domain Names in Crackdown on Counterfeit Goods and Piracy

On Monday, a government office that is part of the Department of Homeland Security swooped in on 82 websites, leaving visitors to the sites to see only the "scary eagle" graphics below:

The government seized 82 domain names that it believes are linked to counterfeiting and piracy. Wired's Threat Level reports that U.S. Attorney General Eric Holder explained on Monday that the crackdown is part of “Operation In Our Sites v. 2.0,” which seeks to identify and stop websites that sell counterfeit goods or facilitate illegal music piracy.

Threat Level notes that most of the seized domains are for websites that deal goods, such as and After federal agents made undercover purchases of counterfeit goods from certain sites, a court authorized the seizure of those sites’ domain names.  Critics of the government's action point out that in some cases, "the proprietors of the targeted websites were not given advance notice of the action, and had no opportunity to challenge the seizure in court."

The Market Ticker blog adds that the seizure is only of the domain names, and not of the websites themselves. That means that the owners of the websites can get back up and running by simply re-registering for a top-level domain not under the US Government's jurisdiction (such as ".info" instead of ".com.")

November 30, 2010 | Permalink | Comments (1)

Judge Carton Rules: The Hershey Co. vs. Mars Inc.

Judge Carton has not been on the bench much lately, but the opportunity to nip in the bud what will undoubtedly be years of foolish litigation about candy wrappers was too enticing for His [Fake] Honor to pass up.

The Patriot News reports that The Hershey Co. has sued one of its competitors, Mars Inc., regarding the packaging that Mars uses for its Dove chocolate bar with peanut butter. Hersheys claims that the Dove wrapper infringes on its trademarks because it is so similar to the packaging Hersheys uses for its Reese's line of candies. You see, Mars had the audacity to use a wrapper that uses brown and a bit of orangish yellow, which Hershey's claims is "unfair competition."

 Below is the transcript of Judge Carton's ruling in the case, in open court today.

10:31 a.m.:

JUDGE CARTON -- Counsel, thank you for your arguments, and for the sample candy bars. The court will stand adjourned while I review the evidence.

[2 minute recess]

10:33 a.m.:

JUDGE CARTON -- Thank you, please be seated. The court has taken five seconds to look at the two wrappers and they look absolutely nothing alike. Are you sure you gave me the right candy bars? Hey, wait, am I being Punk'd?!

One wrapper is bright orange and one is brown. The court is not persuaded in the least that the presence of a tiny yellow/orange swoosh on the Dove bar makes it look like a Reese's bar. In fact, there is really not one thing similar about these wrappers. Case dismissed. I'm returning the wrappers to counsel. The candy is no longer available to be returned.

November 30, 2010 | Permalink | Comments (0)

November 29, 2010

Monday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: I'm a federal judge. Do I really need to adjudicate a copyright infringement case about a cartoon character who sings a song called, "What What (In the Butt)”?  This is what it has come to for me? Really??

Answer: Yes, really, your Honor.  (Entertainment Law Matters, Did South Park Episode Infringe “What What (In the Butt)”?)

 2) Question: Our national water polo team is trying to get ready for our match in the Asian Games. Why do I have 50 voicemails from the Information Ministry of our country?

Answer: Perhaps your government objects to the white crescent moon from your country's flag jutting up from the groin area of your bathing suits? (AP, Singapore Government: Polo Team's Trunks "Inappropriate")

3) Question: I'd like the lawyers in my firm to submit their timesheets on a more timely basis. I'm thinking about hitting the send button on an angry email that threatens to put all offenders names in a hat, randomly pick out a name and publicly fire one unlucky person on the spot. Should I go for it?

Answer: Don't do it!  (Above the Law, Akin Gump Partner Pens Email Fantasy About Firing Delinquent Time Keepers)

November 29, 2010 | Permalink | Comments (0)

Swiss Voters Approve Referendum to Automatically Expel Criminals From Country

On the Slaw blog, Simon Fodden alerts us to an interesting referendum that was approved yesterday by voters in Switzerland. Just under 53 percent of voters voted in favor of a proposal to automatically expel foreigners convicted of various crimes from the country altogether. According to the Swiss Federal Department of Justice and Police, the vote means that going forward, "foreign nationals who have committed one of the criminal offences named in the text of the initiative should automatically lose their right of residence and be deported to their country of origin."

It is the automatic nature of the expulsion that is most controversial. All countries, Fodden writes, have provisions for deporting non-citizens who commit crimes, and the proposal appears to be at odds with international laws that prohibit sending people back to countries where they may be tortured or face the death penalty.

Fodden writes that the proposal -- an initiative of the right-wing Swiss People’s Party (SVP) -- was unsuccessfully opposed on the grounds that it was xenophobic and perhaps racist in nature. As proof of a possible racist motivation, opponents reportedly pointed to an SVP poster promoting the measure that showed white sheep kicking a black sheep off the Swiss flag and out of the country.

November 29, 2010 | Permalink | Comments (2)

Are the Airport Full-Body Scanners Coming to Courthouses?

I've been following the TSA saga like the rest of the blawgosphere. I posted about it, read the bazillion articles, chuckled at the mock TSA Twitter feed, read Eric's more recent summary and finally got TSA fatigue and kind of lost interest. As I don't plan to fly any time soon I thought I could safely put the issue behind me, but no.  "Just when I thought I was out, they pull me back in!"

It is actually not the TSA pulling me back in but the fact that, according to The Associated Press, the controversial full-body scan now being protested at airports may be coming to courthouses. For someone like me who was hoping to sit out all future "Don't Touch My Junk" debates, this is troubling. Although far fewer people would be affected by courthouse full-body scans, we're talking now about lawyers, blawgers and litigants being subjected to this type of security -- not the most quiet, passive or forgiving bunch.

The AP reports that the U.S. Marshals Service is now exploring the use of the scanners at federal courthouses and that two state courthouses in Colorado are already deploying full-body scanners. At these two courthouses, "a guard in a separate room monitors the gray images with pixelated faces and genital areas, and the images aren't stored on a computer." 

Some commentators observed that the security risks in courthouses are different from airports and may not justify such scans. "What we are still worried about at a courthouse is angry divorce litigants with a gun," law professor Sam Kamin told The AP. "Metal detectors are pretty good at that." Court officials counter that metal detectors cannot detect things like plastic guns and knives.

The U.S. Marshals Service stated that while it believes in the technology and will continue to explore its use, it has no "current plans for deployment."

November 29, 2010 | Permalink | Comments (5)

In Search of the Most Awesome Law Blog Disclaimers

Disclaimer In a post today on his SPAM NOTES blog, Venkat Balasubramani offers a "Law Blogging FAQ." Venkat provides some useful pointers in the post, which I recommend to lawyers who are considering starting a blog.

One of the FAQs relates to the question of whether it is necessary to have a disclaimer on your law blog explaining that what appears on the blog is not legal advice. As a practical matter, I think that anyone stupid enough to rely on a blog post for guidance in an important legal matter in their own life will never get that far due to some variation of Darwin's Law of Natural Selection. That is, prior to having the opportunity to rely on a law blog post to their great detriment, they will have already likely walked into a lion's cage at the zoo or offed themselves by walking down a busy highway because Google Maps told them to do so.

Assuming, however, that it is necessary to have a disclaimer on your law blog, what should it say? Venkat notes that he has a simple disclaimer that says "nothing on the blog is legal advice." That seems fine, but should we be a bit more creative or direct here? After all, as discussed above, the intended audience for such a disclaimer is presumably the group of extremely dim bulbs that thinks a blawger is their lawyer because they managed to click their way to the blog's URL.

What are the most idiot-proof or otherwise awesome disclaimers you've seen on a law blog? An old favorite of mine from the now-defunct Corp Law Blog was:

"This blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog."

I also like the disclaimer on Scott Greenfield's Simple Justice blog:

"Nothing in this blog constitutes legal advice. This is free. Legal advice you have to pay for."

What are some other great law blog disclaimers?

November 29, 2010 | Permalink | Comments (8)

November 24, 2010

Joint Terrorism Task Force Apprehends Camo-Clad Teen Dancers

This is the kind of news I miss, not living in New York anymore.

Last Wednesday, the Lincoln Tunnel was shut down for 45 minutes because of what they like to refer to as "police activity." NBC News (via Lowering the Bar) has the fantastic details on this activity.

It seems a dance troupe from Florida that was making its way from New Jersey into Manhattan to appear on the BET show, "106 & Park" wasn't quite prepared for New York traffic. When the group hit a jam at the tunnel, they -- eight 16-year-olds -- decided they would have a better chance of making their taping if the got out of their vehicles and hoofed it. Through the effing Lincoln Tunnel.

Also, they were dressed in camouflage. This was, no doubt, the most excitement the Port Authority police had seen in some time. So they called in the NYPD/FBI Joint Terrorism Task Force. And officers pursued the kids, catching up near the Manhattan side of the tunnel, where they were held at gunpoint until they could explain themselves.

The "It seemed like a good idea at the time" defense must have worked, since police offered the group an escort to the studio. What sayeth the adult who was in charge of the trip?

"I am from Florida. We don't have tunnels," Terrell James, the group's 24-year-old choreographer, told "Apparently we couldn't do that."

Apparently not, Terrell.

November 24, 2010 | Permalink | Comments (1)

QB Storms Off Field, Legal Blogger Responds

Here at Legal Blog Watch, the Rules of Procedure dictate that we can, essentially, write about anything we want. For that, I will undoubtedly be giving thanks tomorrow.

Some other legal blogs, however, don't have such forgiving rules it seems. Bloggers who ply their trade on such sites sometimes work extraordinarily hard to tie something they feel like writing about to the "approved" topics. This is entertaining to me. So I thought I'd share with you my favorite recent example.

Tenessee Titans quarterback Vince Young's "meltdown," after being pulled from Sunday's game against the Washington Redskins, is big news to sports fans. It's being talked about on lots of sports blogs. But Jason Beahm doesn't write for a sports blog. He writes for FindLaw's Small Business Law Blog, "Free Enterprise."

Thus was born Beahm's post yesterday entitled "Can You Fire Employee for Throwing a Tantrum?" Here's Beahm's answer as related to the non-sports world:

Well, absent a specific employment contract, they can be fired at will. That means that shouting at people and storming out of a meeting is a fireable offense. Wearing a paisley tie could be as well. That's because at will employment allows a company to terminate employment for no cause. The only caveat being that the basis of termination cannot be illegal under federal or state law. In addition, an employee is also free to leave the company for reason or no reason all.

Then he goes back to pontificating on football. This is the thriving blawgosphere. Embrace it.


November 24, 2010 | Permalink | Comments (0)

ABA Ethics Group Issues Working Paper on Outsourcing

The ABA Journal reported yesterday that the organization's Commission on Ethics 20/20 has released a discussion draft of proposed changes to the Model Rules of Professional Conduct, addressing the perennial hot topic of outsourcing.

Well, let me be clear. The draft does not propose changing any of the rules themselves, but just adding to the comments on the rules. Essentially, all the additional comments say is, "If you're gonna do it, do it right." But they say it much purtier. For example, the proposed comment to Rule 1.1:

[7] A lawyer may retain other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client provided the lawyer reasonably concludes that the other lawyers’ services will contribute to the competent and ethical representation of the client. The reasonableness of the conclusion will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal and ethical environment in which the services will be performed. When retaining lawyers and others outside the lawyer’s own firm, the requirements of Rule 5.5 (a) must be observed. When using the work of nonfirm lawyers in providing legal services to a client, a lawyer must also reasonably conclude that such work meets the standard of competence under this Rule. If information protected by Rule 1.6 will be disclosed to the nonfirm lawyers, informed client consent to such disclosure may be required. For example, if the rules, laws or practices of a foreign jurisdiction provide substantially less protection for confidential client information than that provided in this jurisdiction, the lawyer should obtain the client’s informed consent to such disclosure.

The draft report accompanying the proposed changes gives a brief history of legal outsourcing, tells readers how impressed they should be by how much background material the commission looked at before coming up with this draft, and has a throw-in line about how sensitive the commission is to the current job market for lawyers.

The commission chair, Judge Kathryn A. Oberly of the D.C. Court of Appeals says the group is "not wedded" to the proposed draft and is seeking comments from any and all interested parties. I imagine they'll get some from those who think outsourcing is to blame for the lack of opportunities for un- and under-employed attorneys, but I'd be willing to bet that the final version of the proposed amendments looks very similar to this draft.

Personally, I think the proposed rules could benefit from some stronger language about disclosure to clients; if you're using a team of Indian lawyers to work on a summary judgment brief, your client should be in the loop from day one.

Readers: thoughts on the report?

November 24, 2010 | Permalink | Comments (2)

November 23, 2010

Social Media Gurus 'Can't Believe They're Still Getting Away With This'

I wrestled for a few minutes over whether to focus this final post of the day on Ken of Popehat's body slam of the Legal Internet Consultant who way-too-aggressively sought to build Ken a legal website; or on Brian Tannebaum's use of an article in the UK's Daily Telegraph to fuel his running assault on the uselessness of social media gurus for lawyers. I decided to go with Tannebaum, so buckle up.

Tannebaum says he awoke to find, to his considerable glee, "the greatest article I've ever read on the fraud that is the social media guru." The article by Milo Yannopolous takes a look at the "social media gurus, a rag-tag crew of blood-sucking hucksters who are infesting companies of all sizes, on both sides of the Atlantic, blagging their way into consultancy roles and siphoning off valuable recession-era marketing spend to feed their comic book addictions."

So you can see where Yannopolous is going with this, and oh does he ever go there. Yannopolous ties his attack to a conference attended by about 200 such "oddballs" (who he describes as a "mixture of chippy girls with unruly fringes and sweaty, overweight blokes with bits of burger stuck in their beards") where the theme running through the event was, "I can't believe we're still getting away with this."

Tannebaum uses many of the points made by Yannopolous to emphasize and link to similar points he has been making on his My Law License blog about the efforts of self-proclaimed social media gurus in the legal field:

He nails it on why these frauds are able to exist: One of the conditions that has allowed the faux-academic colloquy of the social media industry to grow so fast is a lack of checks and balances online, especially within social networks. Highly questionable practices go either unremarked upon or purposefully ignored by the Twitter bubble. When someone gets caught with their trousers down, you're more likely to see messages of support than opprobrium. Plus, the industry is well mobilised, and dishes out a number of ludicrous awards to itself.

Milo sees the groupie nature of these scam artists, referring to it as a poisonous cult of the social media guru.

Social media gurus, what say you? Defend your existence in the comments below!

November 23, 2010 | Permalink | Comments (22)

Online CLE: Click Your Own Buttons, or Else!

Here is today's ethics challenge. When taking an online Continuing Legal Education course that requires you to respond to prompts every 10 minutes or so to ensure that you are actively participating in the course, which of the following is most likely to result in a disciplinary proceeding against you by the state bar?

(a) Refusing to respond to the prompts on "general principles" and then submitting the online hours for credit.

(b) Creating a computer program that responds to the prompts automatically while you play golf, and then submitting the online hours for credit.

(c) Directing your secretary to watch the courses on a laptop and respond to the prompts as if you were watching the courses, and then submitting the online hours for credit.

Go ahead, ponder. I'll wait....

OK. I suspect that maybe (a) and certainly (b) would also result in a disciplinary proceeding, but this post from the Legal Profession Blog proves that there is now precedent that (c) will, for sure, get you in very hot water.

The takeaway? Click your own buttons.

November 23, 2010 | Permalink | Comments (0)

What Happens in Canada, Stays in Canada

If you are not into the whole "monogamy" thing, Canada may soon be the place for you. If two cases now going through the court system go the right way wrong way the same way, Canada may soon be a place where both prostitution and polygamy are legal.

As I discussed here, in late September a Toronto judge struck down the country's prostitution laws altogether, finding that the laws were endangering sex workers’ lives. (You may recall the memorable words of Terri-Jean Bedford, the woman who challenged the prostitution law, when asked how she was going to celebrate the victory: "I’m going to spank some ass,” she said, while cracking a riding whip).

The Precedent blog reported yesterday that an appeal of the Toronto judge's opinion was heard yesterday by the Ontario Court of Appeal, and that lawyers for government warned of "dire consequences" if the ruling striking down several prostitution laws in the province comes into effect (scheduled to occur next week).

But why stop at prostitution? In Vancouver, Canadian laws against polygamy are also being challenged in a court case now underway. The Globe and Mail reports that a lawyer for the Crown stated before a packed courtroom yesterday that those challenging the law "urge the court to make Canada the sole Western nation to decriminalize polygamy. The reasonably apprehended result would be an influx of polygamous families who are presently barred from the country in addition to the practice’s domestic growth.” Polygany is reportedly spreading in Canada's Muslim community due to uncertainty as to the criminal provisions against the practice.

The Globe and Mail reports that

The case will consider whether the law against polygamy is consistent with the Charter of Rights and Freedoms, and also look at what are the necessary elements of an offence – that is, whether Section 293 requires that polygamy involve a minor or some other element of abuse or exploitation.

Oh, Canada!

November 23, 2010 | Permalink | Comments (0)

November 22, 2010

Jurors in Conn. Home Invasion Case Offered Counseling

Via Al Nye the Lawyer Guy, I was pointed to an Associated Press article about a Connecticut court offering counseling to jurors who had served in a particularly horrifying home invasion trial.

The article describes the nightmares experienced by one of the jurors after hearing testimony -- and seeing photos -- in the trial of two men who tortured and killed a woman and her two daughters after a home invasion. The article notes that, while the counseling offered in the Connecticut case was part of a pilot program, several states have established systems to aid jurors needing help to deal with their experiences.

This article from Time gives a thorough treatment to the issue, in the context of the 2007 murder trial of Colton Pitonyak, who murdered Jennifer Cave in Austin, Texas in 2005. Cave's mother pushed for the passage of a bill to offer such counseling statewide after sitting through the trial herself.

Nye wonders whether suits against the state or other participants in the process for emotional distress, or standard pretrial waivers of any such claims, are coming next. Let's hope not.

November 22, 2010 | Permalink | Comments (1)

Desperate, Unhygienic W.Va. Woman Pleads Guilty, Sentenced to 90 Days

Williams In a classic judicial move, I'm going to preface this post with the assumption that readers are familiar with the underlying facts. Because to say that the story of Melissa Lee Williams has gone viral would be a significant understatement.

Williams is the woman credited by The Smoking Gun with "utter[ing] a line never previously recorded in a police report." What's that line? Some vague sense of decency prevents me from retyping it here. If you really don't know, click any one of the links I'm providing. For our purposes, let's just say that Williams pulled a knife in a motel room and threatened to kill two guys (one of whom was her estranged husband) if one of them didn't ... service her. The one who was not her husband had initially volunteered, but was repelled for olfactory reasons. Seriously, click here for details.

In an update, The Smoking Gun reported last week that Williams pleaded guilty to assault and was sentenced to 90 days in jail. It's unclear to me whether the plea form indicates that all 90 days were suspended, or whether the 90 days that were suspended were in addition to 90 days she's actually expected to serve. If she's actually going inside, here's to hoping the Jackson County, W.Va., jail has a liberal shower policy.

November 22, 2010 | Permalink | Comments (2)

Lawmakers to Introduce 'Repeal Amendment,' Presumably Add Asterisk to Supremacy Clause

In an effort to force the rewriting of junior high social studies books nationwide, The Daily Caller reported Saturday that Republican Congressmen Eric Cantor and Bob Bishop will be proposing to amend the Constitution to allow state legislatures to repeal any federal laws they don't care for.

Here's what the proposed amendment would look like:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

While Darren Hutchinson at The Dissenting Justice isn't impressed, there are some intellectual types who have come out in favor of such an amendment. For example, here are the thoughts of professor Randy Barnett and William J. Howell, Republican speaker of the Virginia House of Delegates, writing in the Wall Street Journal in September (as reprinted on the Cato Institute's website):

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

So, the best defense of this idea you can come up with is that it might result in a fun game of "dueling legislation?" Looking forward to the updated version of this little number.

November 22, 2010 | Permalink | Comments (7)

More on TSA Screening and 'Opt-Out Day'

As Bruce noted last week, the TSA's new and "improved" -- if you are into strangers groping you -- screening procedures have been getting tons of exposure all over the internets. And, as someone who intends to travel by air over the Thanksgiving holiday, I've been reading a lot of it.

Without injecting too much of my personal view, I thought I'd share some of the recent news and commentary that struck a chord with me. Here are some highlights:

  • Secretary of State Hillary Clinton discloses that she would not want to be fondled by TSA agents. Good thing she gets to fly private.
  • Kent Scheidegger at Crime & Consequences calls the Opt-Out Day campaign "beyond despicable" and "a cruel and heartless act of vandalism that will seriously hurt other passengers, not the people at whom it is supposedly directed." Eugene Volokh agrees it's a bad idea, but goes easier on the venom.
  • TSA agent "pats down" a 3-year-old girl who just happens to be the daughter of a news anchor.
  • Nevertheless, TSA chief John Pistole goes on CNN yesterday morning and says the patdowns are here to stay. At least for a few hours.
  • And, finally, some foreign perspective on the controversy.


November 22, 2010 | Permalink | Comments (3)

November 19, 2010

Oregon Woman Learns She Has Been Banned by UPS From Home Deliveries

You already know that I'm a sucker for the stories where a corporation rolls out its ultimate "death penalty" punishment on a customer, such as "you can never come here/buy here/eat here/Facebook here again!" So it should be no surprise that I'm writing about Deborah McCarthy, who was recently advised by UPS that she will never have a package delivered to her house by UPS again. The Beaverton, Ore., woman was advised by UPS that all of her future packages must be delivered to a neighbor.

What caused UPS to drop the hammer on McCarthy? The Oregonian reports that the ban began in  mid-April, when McCarthy, whose ability to drive is limited due to a medical condition, attempted to use UPS to return an item that had arrived broken. McCarthy says the UPS driver who came to her door appeared to be in a bad mood from the moment he arrived, and things got worse from there. The driver

rather aggressively grabbed for the box after handing her another, new delivery.

As he started down the driveway, she looked at the new package and commented that it looked a bit banged up, too.

"Then he just spun around, stormed back up and got in my face saying, 'You want me to take that one, too'" said McCarthy, who admitted she was home alone and a bit scared. "I slammed my door and said, 'Maybe.'"

And thus began the UPS ban on Deborah McCarthy. A UPS spokesman told The Oregonian that the company knows McCarthy wants packages delivered to her home, and not to her neighbor, but "as it stands, "UPS will not deliver to her house." The spokesman would not explain why.

McCarthy says she has heard that UPS claims she "seemed threatening" but points out that she is 5-foot-2-inches tall and weighs about 100 pounds. Her neighbor, who may be biased because he is stuck receiving all of her UPS packages, says McCarthy is "about as dangerous as my seven-pound Chihuahua."

November 19, 2010 | Permalink | Comments (15)

New Battle Cry in the Foreclosure Wars: 'Show Me the Note!'

A new battle cry has begun to spread among homeowners fighting to keep their homes out of foreclosure: “Show Me the Note!”

CBS San Francisco reports that a key foreclosure document -- the promissory note that borrowers sign in which they promise to pay the mortgage to the lender -- is increasingly difficult for lenders to produce. Consumerist adds that if the lender can't quickly produce the note, homeowners may be able to buy some more time in the process.

While notes can remain at the bank that issued the mortgage, notes are also commonly traded or sold to other institutions. CBS reports that about 10 years ago, Wall Street created an electronic system for tracking and registering such trades called MERS – the “Mortgage Electronic Registration System.” However, because the transactions are all electronic, MERS never gets the original promissory note.

Attorneys for foreclosed upon homeowners argue that foreclosures that proceed without production of the actual promissory note are illegal. “It’s an industry-wide fraudulent scheme,” said one such lawyer. The parties that are foreclosing have no authority to foreclose and take the property away from these borrowers and homeowners.” Lawsuits have now been filed against MERS and hundreds of banks alleging illegal foreclosures due to the lack of the notes.

MERS told CBS that its system is not fraudulent, and the company expects to "settle these foreclosure battles in its favor."

November 19, 2010 | Permalink | Comments (8)

Video: Carton and Lipman, Live From the Legal Blog Watch Studio!

For those of you who have ever wanted to go behind the scenes at Legal Blog Watch, check out the video below of me and my LBW co-author, Eric Lipman, in the Legal Blog Watch studio. Links providing details on many of the items we discuss in the video are posted below.


TSA-Focused Rants Take Over the Entire Blawgosphere and Internet

Texas Cheerleader Fights for Right Not to Cheer for Her Alleged Assailant

Lamebook Fights for Its Right to Make Fun of Facebook

Legal Blog Watch Undercover: Texas Traffic School, Part 1

Polar Bears Treated Better in Denmark Than in D.C.

Urban DIctionary: Tweetup

And the Award for the 'Greatest Contribution to Reducing Assholishness' in the Legal Profession Goes to...


November 19, 2010 | Permalink | Comments (1)

November 18, 2010

Debating the Clarity of Supreme Court Opinions and the Role of Concurrences

Over at the Volokh Conspiracy last night, Orin Kerr posted a critique of Adam Liptak's critique of recent Supreme Court opinions. Right off the bat, I think it's hard to argue with Kerr's conclusion that, as in all aspects of life, there will always be whiners:

No matter what Supreme Court opinions look like, there will always be someone who criticizes them for not being clear enough. If an opinion is long, the criticism will be that the opinion has too much discussion that leaves the meaning of the decision uncertain. If an opinion is short, the criticism becomes that the opinion does not provide enough explanation and therefore leaves its meaning uncertain. If an opinion is based on a narrow ground, the criticism will be that it does not resolve enough to really clarify the law. On the other hand, if the opinion is broad, the criticism becomes that it resolves so much at once that it creates more questions than it answers and leaves the law muddied. (If an opinion manages to be of exactly average length and scope, then the criticism becomes that the opinion is too bland.)

When I was practicing in New York, I was often heard thanking some higher power or another for how mercifully short most opinions were that came out of the Appellate Division. Until, of course, I came across a case that stated the rule I thought I needed, but was completely devoid of any factual background information that might have aided in crafting persuasive arguments for my clients. So, yeah, short is sometimes bad, long is sometimes bad, and you can't please all of the people all of the time.

Kerr also takes Liptak to task for his musing on the role of concurrences.  While Liptak says (in fairness, based largely on the quotes of others) that the increasing number of concurring opinions, including those in cases decided unanimously, tends to add a layer of confusion to the interpretation of the opinions, Kerr disagrees. And I, like several of the commenters on the Volokh post, think Kerr's money quote is dead on:

In my experience, judges and lawyers in the lower courts know exactly what to do with concurrences in Supreme Court opinions that don’t provide the crucial vote. For the most part they just ignore them, unless the concurrences happen to have some language that the lawyer or judge needs to support the argument they’re making anyway.

I've seen junior attorneys cite to concurrences as the primary -- or even the sole -- authority for certain propositions in memos and draft briefs, and it made me shudder. That's just not how things are done. I can tell you from a clerk's perspective that, if the only thing a party can come up with to support its position is a concurring opinion, he's starting out in a hole.

Then again, I haven't read the book on concurrences and their significance.


Until, of course, I come across a case that states the rule I think I need, but is completely devoid of any factual background information that might aid in crafting persuasive arguments for my clients.

November 18, 2010 | Permalink | Comments (2)

Allred Finagles 4-Figure Settlement for Former Whitman Housekeeper

We last mentioned the infamous Gloria Allred when someone (presumably kidding) decided to offer her for sale on eBay. No doubt the tongue-in-cheek auction listing was spurred by Allred's antics in connection with her representation of Nicky Diaz Santillan, former housekeeper to defeated California gubernatorial candidate Meg Whitman.

Well, if she so desires, Allred can now claim victory in that matter. Whitman and her husband have agreed to pay Santillan $5,500 in back wages. As Aaron Worthing, guest posting on Patterico's Pontifications, notes, that will be cold comfort to Santillan if she ends up being deported because her illegal status was revealed as part of her publicity spree.

Worthing, in fact, calls for a California bar investigation of Allred, for allegedly manipulating Santillan to satisfy Allred's own cravings for attention. We'll see if Allred gets listed on eBay again, with the price jacked up because of her latest "win."

November 18, 2010 | Permalink | Comments (14)

Students: Is Your Law School Like a Game Show?

No, the title of this post is not a reference to the still-raging debate about whether going to law school is or is not the stupidest thing a kid could possibly do if he's looking for, you know, a job upon graduation.

It's a little bit more mundane than that. As reported in yesterday's ABA Journal, some law professors are using technology make sure their students are up to speed (and are not spending class time reading about which boy-band members are getting pelted with prophylactics on stage). Specifically, they're distributing "clickers" to their students.

The New York Times ran an article the other day on the use of clickers in higher education generally, but the ABA Journal article mentions professor Daniel Moriarty of Albany Law School, who required his students to "click in" the answers to their homework at the beginning of each class.  Or, at least he did in 2007, when the linked post was written. And just like as when a contestant used an "ask the audience" lifeline on "Who Wants to be a Millionaire," the number of students choosing each multiple choice answer is displayed on a large screen for all to see.

I had never heard of this sort of thing before. Professor James B. Levy at the Legal Skills Prof Blog seems to think it's a great idea. Talk to me, law students. How pervasive is this practice? Pros and cons? Ever tempted to take the physical challenge?


November 18, 2010 | Permalink | Comments (1)

November 17, 2010

Wednesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: So, what was it? Was "Wall Street: Money Never Sleeps" a "sequel" or a "spinoff?"

Answer: We still don't know. The judge ruled yesterday that Michael Douglas' ex-wife filed her lawsuit alleging a right to money from any "spinoffs" of Douglas' movies in the wrong state. (New York Post, Judge tosses Michael Douglas' ex-wife's bid for 'Wall Street' money)

2) Question: Yes, I want to buy a used truck but, doggone it, I also want to buy an AK-47 assault rifle. Is there any way that I can do all of my shopping at once?

Answer: Try Nations Trucks in Sanford, Florida. They've got you covered. (Consumerist, Buy A Truck, Get A Free AK-47)

3) Question: This lady at a local bar I'm hanging out at just gave me a "breast exam." She claimed she was a plastic surgeon but I'm a bit dubious. What can I do?

Answer: Call her supposed "office" and see if she is legit. If not, she could end up in jail for the "unlicensed practice of medicine." (AP, Cops: Woman Posed as Doctor to Do Breast Exams)

November 17, 2010 | Permalink | Comments (0)

You're Nobody Until You Have a Mock Twitter Account Lampooning You

Twitterbird In the year 2010, you're nobody until somebody sets up a mock Twitter account making fun of you on a daily basis. British Petroleum? Check. Russian President Dmitry Medvedev? Check.

As discussed earlier today, it's "all TSA all the time" now on the Internet so it was probably inevitable that we would end up with @TSAgov (via Kashmir Hill). @TSAgov is the work of "Agent Smith," whose bio states that "We pat your groin. We see you naked. We're the doormen to the sky. Why? Because everybody is a terrorist."

Agent Smith takes a break from his duties as a fake TSA officer to issue tweets such as:

And so on. Thanks for sharing, Agent Smith!

November 17, 2010 | Permalink | Comments (1)

Welcome Back to the Blawgosphere, Mark Herrmann!

Welcome back to the blawgosphere, Mark Herrmann!

Mark-Herrmann Above the Law announced yesterday that it will be adding a new column geared at in-house counsel called “Inside Straight.” The column will be written by Mark Herrmann, currently vice president and chief counsel for litigation at Aon. From 2006 to 2009, Herrmann wrote the popular Drug and Device Law Blog while he was a partner at law firm Jones Day. Herrmann is also the author of "The Curmudgeon’s Guide to Practicing Law".

Herrmann joked that his year off from blogging has left him with "withdrawal symptoms,” and said that he is flattered to be able to contribute to ATL.

In December 2009, Herrmann signed off from blogging, announcing that after 20 years at Jones Day he was joining Aon. He said that while he loved the drug and device area of law, it seemed "too silly for words" to "think about lawsuits involving insurance brokers by day and then come home to read (and write about) drug and device law by night? I mean, I love this stuff, but I'm not nuts."

Herrmann later published this article in the winter 2010 issue of Litigation magazine, in which he looked back at his experience as a blogger and warned of some of the many "blind spots" he had when he launched the Drug and Device Blog. He concluded in the article that

[t]he spoils of blogging may not be precisely those that you anticipate when you start. Anyone who
chooses to launch a blog should, unlike us, start the endeavor with their eyes open.

Ultimately, and more than anything else: Blog for love, not for money. At least, that’s why I do it. But then again, I’m a fool.

November 17, 2010 | Permalink | Comments (2)

TSA-Focused Rants Take Over the Entire Blawgosphere and Internet

Tsa As far as I can tell, the blawgosphere and the Internet in general are now almost exclusively reserved for complaining about and discussing the new security efforts being rolled out by the Transportation Security Administration (TSA).

It started with accounts and opinions of the new "back-scatter body imaging device," which allows the TSA to essentially X-ray and see under your clothing. The discussion then moved on to the new, highly-intrusive pat-down option available to people who opt-out of the back-scatter device, which is said to involve a search of one's "crotchal area" that does not end until the TSA officer "meets resistance" (wink wink) in that area.

But that was last week. Now the blawgosphere and anyone else who knows how to tap on a keyboard is taking the issue to DEFCON 2. A group called We Won't Fly has labeled the back-scatter machines "porno scanners" and organized a National Opt Out Day for Nov. 24, 2010 (but be prepared for "screaming, intimidation and groping" when you opt out, they warn). Gizmodo is taking issue with TSA's claim that the images captured by the back-scatter machine are never saved by publishing 100 such images taken from a machine in Orlando, Fla. (By the way, if the other back-scatter machines out there are producing images as ridiculously blurry as those on the Orlando machine, then the fear of TSA "seeing under your clothes" may be quite overblown).

Some of the most recent TSA-focused rants from the blawgosphere include:

  • Popehat asking yesterday whether the U.S. would give in to a "Pervert Jihad" that demanded that our citizens give complete strangers working for the government a brief look at a blurry naked picture of themselves. If the U.S. did not meet this demand, the hypothetical Pervert Jihad would threaten to kill about 450 Americans every year -- the capacity of a jumbo jet. 
  • Crime and Federalism arguing that all of the "white folks furious that TSA has decided to 'grope' them" should realize that "[t]his is the same sh*t that black men deal with every f***ing day of their lives."

Finally, after the nation was assured by Homeland Security Secretary Janet Napolitano that the TSA pat-downs are "same-gender" (i.e., male TSA employees do not perform searches on women travelers), the "Americans For Truth About Homosexuality" issued a press release "question[ing] the propriety of 'same-gender' TSA 'pat-downs' -- if the TSA agents doing the 'patting down" are homosexual, lesbian or bisexual."

"But what about homosexual TSA agents?" AFTAH President Peter LaBarbera asked:

"Isn't it just as inappropriate for a 'gay' male TSA agent to pat down male travelers as it is for a normal, heterosexual male TSA agent to pat down female travelers?

"The reality is, most traveling men would not want Barney Frank to pat them down at the airport security checkpoint," LaBarbera said. "Neither would it be fair to assign Ellen DeGeneres to pat down female travelers.

Stay tuned next week, when we take this issue to DEFCON 1.

November 17, 2010 | Permalink | Comments (5)

November 16, 2010

Missing Something in Your Life? Adopt a Volume of the 'Federal Reporter'

Books Adopting a highway, a manatee, or a star is sooo passe. And adopting an actual child? Well, do you really want to be associated with the types of people who do that?

I didn't think so. If you want to feel good about yourself, why not adopt a volume or two of the "Federal Reporter"? The National Law Journal is reporting this morning that Public.Resource.Org's Law.Gov movement is looking for lawyers (or, I imagine, any other generous souls) willing to donate $1,200 to support its transcription of one of the 300 volumes of the first series of the "Federal Reporter". You know, the one your Bluebook tells you to abbreviate "F."

The group is calling the appeal YesWeScan. Cute. If you adopt a volume, your name will be forever enshrined not just on the "Public Domain Wall of Fame" but on the HTML file associated with each individual opinion in your volume. But hurry, because it seems that at least seven of the volumes have already been spoken for. One of them by this guy.

The best part? Public.Resource.Org is a legit 501(c)(3), so your adoption donation is tax deductible! I wouldn't expect any personal letters and photographs from your "Reporter" volume, but you will be able to brag at holiday parties that you have "sponsored" some of the cases applying Plessy v. Ferguson. Beat that, Mr. World-Renowned Neurosurgeon!


November 16, 2010 | Permalink | Comments (0)

New Blog on the Block: Kramer Levin's 'Business Immigration Post'


Legal blogs. We watch 'em. So when one legal blog tells us that another legal blog has been launched, we click over and check it out.

That's how, via the Immigration Law Prof blog, we happened upon the Business Immigration Post, maintained by the Immigration Law group at Kramer Levin. There's not a whole lot up there yet, so I can't dissect, analyze and judge the content. Cause, you know, I'm an expert and such.

So far, what we've got are a couple of "FAQ"-like posts and one column on immigration reform by the co-chair of the group, Ted Ruthizer (who should take advantage of his e-mail alias -- "truthizer" -- either by becoming a superhero or by inventing a new kind of polygraph). But I'm sure more is in the pipeline.

So if you're an immigration lawyer, or just like reading about them, give Business Immigration Post a click.

November 16, 2010 | Permalink | Comments (0)

Phone Book Publishers Sue Seattle Over Opt-Out Ordinance

When I first read about the city ordinance passed in Seattle last month, establishing a Yellow Pages opt-out registry for residents and requiring publishers to comply with it, my first thought was, "Brilliant!"

Know who disagrees? The Yellow Pages publishers. They've filed suit in federal court, claiming that the ordinance is unconstitutional. Their press release would impress the tea party. While the publishers claim to be in agreement with the concept of an opt-out system, they just kinda wanna run it themselves without government involvement. And avoid the "recovery fees" and "license fees" also imposed by the ordinance.

The publishers and their trade group have even created a website that will allow you to opt out online -- Or, rather, they will in 2011. For now what you get is the opportunity to enter your ZIP code, which brings up the name and phone number of the publishers in your area. Which you probably could have looked up in the Yellow Pages anyway.

Until this is all sorted out, if the Yellow Pages shows up at your door, you can always use it to line your worm bin. Whatever that means.

Image: Gizmodo


November 16, 2010 | Permalink | Comments (0)

November 15, 2010

New York Appeals Case Will Examine Golfers' Obligation to Yell Out, 'Fore!'

LBW readers already know that in November 2009, the Supreme Court of Nova Scotia decreed that the "Happy Gilmore" golf shot is a breach of the standard of care required of a golfer playing on a course with other golfers.

But the Happy Gilmore ruling is just one in the long string of issues that make up golf jurisprudence. For instance, what about the obligation to scream out, "Fore!!!??" The AP reports that tomorrow, the New York Court of Appeals will hear oral argument in the case of two doctors who were playing golf together. Dr. Anoop Kapoor hit a shot from the rough that went 50-80 degrees off course and hit Dr. Azad Anand in the head, blinding him in one eye. Anand was standing just 15-20 feet away from Kapoor when Kapoor took his shot.

Anand subsequently sued Kapoor, alleging that he failed to yell  "Fore!" as a warning before the shot. The trial court dismissed Anand's lawsuit, ruling that he assumed the risk of injury by golfing. The intermediate appeals court agreed, holding that Anand was "'not in the foreseeable danger zone' and his friend had no duty to yell the customary warning." However, one dissenting justice wrote that there may be an issue as to whether Kapoor "unreasonably increased" Anand's risk by not shouting out "Fore!" before the shot.

I guess it all depends on what the "foreseeable danger zone" is? For the record, if you're golfing with me, the foreseeable danger zone is, sadly, any part of the golf course not located behind me.

November 15, 2010 | Permalink | Comments (4)

And the Award for the 'Greatest Contribution to Reducing Assholishness' in the Legal Profession Goes to ... ABCs Ad-thumb-500x64-4198

Today, Victoria Pynchon's Negotiation Law Blog awarded its "Golden Asshole Award" to Carrie Sperling. Before anyone gets too ticked off here, let me quickly clarify that receiving the Golden Asshole Award is supposed to a good thing, as it goes out "once a month to the individual making the greatest contribution to reducing assholishness* in the profession." So, umm, congrats Carrie!

Sperling is the author of a recent paper,"Priming Legal Negotiations Through Written Demands," that draws upon research in social psychology to demonstrate that lawyers' written demand letters

deserve more attention and study. The words lawyers use to convey their demands can have powerful, lasting effects on the course and nature of negotiations because they almost certainly frame the issues, anchor a recipient’s perceptions, and prime the recipient’s goals and behaviors. If we are to fully understand what causes protracted, hostile litigation as opposed to cooperative negotiations and lasting resolutions, we must start by applying sound negotiation theory to the written demand.

The paper starts with an interesting anecdote that helps demonstrate how an initial written demand can have the exact opposite effect of what is intended, perhaps even permanently destroying any hope that the sender may have had of achieving his or her objective:

As I left for work one crisp, sunny April morning, I spotted a five-by-seven printed form on my car’s front windshield. The form’s message proclaimed, in large, bold letters, “youparklikeanasshole.” The form had a checklist of infractions like “two spots, one car,” “that’s a compact?” and “over the painted lines.”The bottom of the printed form said,

Parking is far too limited in our overcrowded streets and parking lots, and you happened to park like an asshole. Go to the above web site to see why someone else thought you parked like an asshole. Don’t be too offended, we all do it one time or another—it just so happens you got caught.

My next-door neighbor, who evidently put the note on my car, listed my infraction as “other” with a follow-up explanation written by hand: “You are parking too close to my garage. It’s hard for me to pull my truck in.” I studied the note for a few moments. I felt my heart start to pound and my whole body became uncomfortably warm. I wadded the note and tossed it. I was angry. When I arrived at work twenty minutes later, I was still angry. I told my co-workers about the note.

They all agreed with me; it was rude and inappropriate.

When I returned home that evening, I visited with neighbors who were not complaining about my parking. I showed them the note, now crumpled and dirty. They, too, became angry. One neighbor suggested exacting revenge on the note’s author by letting the air out of his tires. Another neighbor excitedly suggested something involving Crisco. Although I am a trained mediator, I became giddy about the prospect of getting even.

Perhaps it was a moment of self reflection that led me to question why I was even thinking of revenge. But that written demand evoked intense emotions in me and in my neighbors. We did not care about investigating appropriate responses or attempting to resolve the problem; we wanted to make my neighbor pay for his rude behavior. Instead of encouraging me to change my behavior in the way my neighbor requested, the note had an entirely different effect. The written demand prompted me to make my neighbor regret placing that note on my windshield.

This incident led me to question the legal demand letters lawyers write. I wondered if demand letters often evoke similar negative emotional reactions in their recipients. And, if so, do those emotions influence the recipients’ behaviors in ways that hinder settlement?

I think the parking story above is a great example of a person trying to achieve a reasonable goal (to get a neighbor to stop parking in an improper way that impedes his own ability to park his car), but completely undercutting that goal through a needlessly infuriating "demand letter" of sorts. If any lawyers reading Sperling's article can use it to avoid repeating this pattern in their own future demand letters, then perhaps there actually will be a reduction in assholishness in the legal profession.

November 15, 2010 in Games | Permalink | Comments (9)

'Plain Writing Act of 2010' Seeks Clearer Government Communications

Plain language The Legal Writing Prof Blog notes that last month, President Obama signed into law the Plain Writing Act of 2010. The Act's stated purpose is "to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use." Hallelujah!

The Act was introduced by Rep. Bruce Braley, D-Iowa, who stated in a press release that it will result in "tax returns, federal college aid applications, and Veterans Administration forms in simple easy-to-understand language, making government more transparent and saving the government millions of dollars."

Braley says that a re-write of one letter from the Veterans Benefits Administration asking beneficiaries to update their contact information increased responses by 75 percent, saving the VA approximately $8 million in follow-up costs.

The Act states that within nine months of its enactment, each federal agency will train its employees in plain writing and establish a process to ensure compliance with the new plain writing rules. The Act also requires that within one year of the date of enactment, "each agency shall use plain writing in every covered document of the agency that the agency issues or substantially revises."

It is unclear how "enforcement" of the Act will work. Indeed, the Act specifically states that "[t]here shall be no judicial review of compliance or noncompliance with any provision of this Act" and, moreover, "no provision of this Act shall be construed to create any right or benefit, substantive or procedural, enforceable by any administrative or judicial action."

Still, the goal of having federal agencies produce user-friendly documents is quite commendable, and will hopefully result in government communications that are actually understandable and useful. To view the power of plain English, see this example I discussed back in August 2010 from simplicity guru Alan Siegel. You can also check out, which appears to be a hub for the "plain writing in government" movement.

November 15, 2010 | Permalink | Comments (2)

November 12, 2010

2L Calls on Congress to Deal With Impending 'Personal Drone' Menace

Pervy neighbors all across the country might well have University of North Carolina 2L Ashley Dean in their crosshairs today. Yesterday, on the blog of the school's Journal of Law and Technology, Dean warned of the coming plague of drones operated by private citizens, and suggested that lawmakers might want to get out in front of the technology by coming up with some preemptive regulations to protect the privacy of all Americans.

No, seriously.

Currently, the Federal Aviation Administration only allows the government to use drones domestically.  However, new standards might allow broader use of the technology in the near future.  In fact, as of now there are no current rules regarding recreational use of drones, as long as they do not impact air safety.

Picture it. My drone flying over your yard while yours is banking hard right trying to get a glimpse into the bedroom window of the young lovers who just moved in across the street. Chaos!

Dean thinks now -- before personal drones are widely available -- is the time to start tackling the issue.

It is clear that there are numerous legal implications surrounding the use of drones for recreational purposes.  Despite the fact that the technology is still evolving and likely will not be widely available to the public for several years, lawmakers should consider preemptively crafting laws that deal with some of the problems that can currently be identified, thereby circumventing future legal problems before they develop.

Ashley, you may want to tin foil up your windows, because your plea may have come too late. The drones are here. Try to enjoy your weekend anyway.

November 12, 2010 | Permalink | Comments (3)

Dingy Gray Sox: Chicago Scouts Charged With Taking Kickbacks From Latin Players

It's not exactly a "Say it ain't so" moment, but if you have a flair for the dramatic, you might call it a scandal. As reported by Courthouse News, the director of the farm system and two scouts for the Chicago White Sox have been indicted for lying to team management about the amounts some Latin American players, or the teams with which players were affiliated, were demanding to sign with the Sox. The scouts would get the funds from the big league team, turn them over to the player or foreign team, and then take their cut back.

According to the indictment, the three employees ran this racket between 2003 and 2006, netting a total of over $400,000 between them. In the press release announcing the indictment, U.S. Attorney Patrick Fitzgerald (remember him?) said ... well, OK, he really didn't do anything other than summarize the allegations. I just felt like throwing his name in there.

Did this scheme negatively affect the Sox by depriving them of higher caliber players they should have been signing? Mark Potash of the Chicago Sun-Times says no. I would tend to agree. The best player to hit Mexico in the past decade didn't get there until well after 2006.

November 12, 2010 | Permalink | Comments (0)

Have Plans Tomorrow? If Not, How About the Bernie Madoff Auction?

Madoff Shoes So, New York readers, what are you doing tomorrow morning? Sure, you could swing by the Union Square Greenmarket and pick up some fresh ingredients for a delicious dinner, as I did on many a Saturday morning during my days in the NYC.  Or you could go for a run along the Hudson River -- the weather should be perfect, brisk fall morning-style. Or both.

But those are things you can do every Saturday. Why not try something different? Like the U.S. Marshals Service auction of a bunch of Bernie Madoff's crap. That's right, tomorrow, Nov. 13, at 10 a.m. (registration begins at 8:30!), the USMS will be auctioning off stuff once owned by the Ponzi king.

Kevin, at Lowering the Bar, has done you the service of combing through the entire auction catalog and picking out some choice lots that you might want to bid on. Like the Tiffany clock Madoff was given by Hofstra in recognition of "Alumni Achievement." Or his bronze armadillo. Or, of course, some of his "Mr. Casual" shoes, pictured above. If the deadline for online bid registration hadn't passed, I might go for one of the several Rolexes on the block, or maybe Bernie's old flask and cigar box -- clearly whatever he was drinking and smoking was some powerful, powerful stuff.

You can check out the rest of the catalog here. And, all kidding aside, if you stop by the Sheraton tomorrow morning, shoot us an e-mail and describe the scene. We'll make you famous.

November 12, 2010 | Permalink | Comments (1)

Amazon Pulls 'Pedophile's Guide' After First Defending Sale on Free Speech Grounds


Everybody -- even multi-billion dollar corporations -- reserves the right to change their mind. According to CNN, has, as of last night, ceased selling "The Pedophile's Guide to Love & Pleasure," a self-published e-book that had been available on the site since Oct. 28.

When complaints began rolling in earlier this week, the company refused to pull the e-book, issuing the following statement:

Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable. Amazon does not support or promote hatred or criminal acts, however, we do support the right of every individual to make their own purchasing decisions.

It seems that two days of exponentially increasing calls for boycotts have led Amazon to reconsider; the "Boycott Amazon for Selling Pedophile Guide" Facebook Page has 6426 fans as of the time of this post. Nevertheless, as the L.A. Times' Technology blog reported yesterday, there is at least one other "pro-pedophilia" book still available on the site, with the almost equally unsettling title "Understanding Loved Boys and Boylovers."

While the e-book has been pulled, the customer discussion forum about the "Pedophile's Guide" is still up and running. Some commenters have defended Amazon's initial decision not to censor its offerings. There are also more than a few who speculate that the release of the book was nothing more than a "publicity stunt." If so, it may well have been a brilliant one. According to Silicon Republic, 300 copies of the book were sold over the course of the day or so between its availability being publicized and its being pulled, and ... wait for it ... author Phillip Greaves now plans to write a novel.

November 12, 2010 | Permalink | Comments (2)

November 11, 2010

Thursday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: I'm a new father! The baby was born a few minutes ago. Where is the smoking area, I need to light up a marijuana joint and celebrate!

Answer: The smoking area is down the hall, then turn -- wait, what!? Dude, you may not light up a joint in a hospital, smoking area or no smoking area, baby or no baby. Sorry!  (AP, Pa. Man Celebrates Son's Birth with Joint, Faces Drug Charges, Say Police)

2) Question: I'm a police officer. This lady supposedly ran out on a bill at a restaurant, so we went to her residence to investigate. Now she's attacking me with some kind of plastic toy rocket or something? What should I do?

Answer: We've seen this before, officer. Sometimes people use “a rigid feminine pleasure device” as a weapon. That constitutes aggravated assault, and you don't have to stand for it. (Trib Local Gurnee, Police say woman attacked officer with sex toy)

Zoe car 3) Question: I see that automaker Renault wants to name its new line electric car the "Zoe?" Zoe Renault? That's my name! They can't do that, can they? First names are for humans!

Answer: Sorry, Zoe, but according to one French judge, first names are for cars, too.  (AP, Renault Can Call Car 'Zoe', Judge Rules)

November 11, 2010 | Permalink | Comments (1)

FDA Taking 'Scared Straight' Approach on New Cigarette Warning Labels

Mouthcancer After so many years of seeing cigarette boxes with warning labels ("SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious ... zzzzzzzzzzzz"), smokers have likely tuned those warnings out completely. Yesterday, the FDA announced its plan to take these warnings to the next, more-alarming level, with 36 new proposed warnings that include graphic images of corpses, cancer victims and suffering children.

On its website, the FDA states that the new campaign is the result of "The Family Smoking Prevention and Tobacco Control Act," which requires larger and more visible graphic health warnings on cigarette packages and ads. Accordingly, the FDA has proposed "nine new textual warning statements accompanied by color graphics depicting the negative health consequences of smoking."

The nine new warnings are here -- click on them to see the graphics that will hopefully scare you or a loved one into putting cigarettes down for good.

November 11, 2010 | Permalink | Comments (4)

Is the Overly-Snarky Judge in Your Case Secretly Making an Audition Tape, Part II

Salcido_deann As you may recall from this post last month, San Diego Superior Court Judge DeAnn Salcido's (pictured) plan to become the next "Judge Judy" hit a bump in the road when she admitted to the California Commission on Judicial Performance that she had secretly filmed the proceedings in her courtroom on at least two occasions. Salcido then essentially used the filmed proceedings as an audition tape, passing it on to an entertainment lawyer who showed it to a TV producer. As THR, Esq. reported, the transcript of Salcido's taped proceedings show her in "full snarkiness" mode, perhaps playing to the hidden cameras.

The Recorder now reports that Salcido's plan may have hit an even bigger obstacle (although she may now have more time available to pursue her Hollywood dreams). Yesterday, Salcido reportedly agreed to resign from the bench today to settle a disciplinary action against her resulting from the tapings. In exchange for her resignation and her agreement "to never again seek or hold judicial office in California," The Recorder says, the CJP issued only a public censure of Salcido. The CJP found in its censure that "while the cameras were rolling, the proceedings took on the atmosphere of a game show."

The CJP listed numerous inappropriate remarks by Salcido to litigants captured on the audition tape, including her explanation to one man who she placed on probation that "what that means is don't come before the court on another case ... 'cause you will definitely be screwed and we don't offer Vaseline for that."

November 11, 2010 | Permalink | Comments (0)

Porn Industry May Play the 'Shame Card' in Litigation, Part II

As I wrote here less than two weeks ago, following a secret meeting in Tucson last month, the porn industry appeared to be on the verge of unleashing a litigation storm against piracy that would make use of an unusual weapon: the "Shame Card." As one industry executive stated last month, "It seems like it will be quite embarrassing for whichever user ends up in a lawsuit about using a popular shemale title.... going public is probably not worth the risk that these torrent and peer-to-peer users are taking."

In fact, the industry has now gone forward with this litigation campaign. Law and Disorder reports that "over the last two weeks, one lawyer with an AOL e-mail address [Kenneth J. Ford], working out of a Martinsburg, West Virginia office, has managed to file more than 16,700 new lawsuits against file-swappers with a taste for Batman and booty." Ford's Adult Copyright Company sued 7,098 John Does on Oct. 29, and followed that up with lawsuits against 9,729 more anonymous defendants on Nov. 4.

The litigation strategy appears to be to use the courts to identify the people behind the infringing IP addresses that are downloading pirated porn, and then present them with an unpleasant choice: promptly settle online, using a credit card, or be named individually in a lawsuit for pirating "Batman XXX: A Porn Parody" or "Teen Anal Nightmare 2."  Your choice, Mr. Porn Pirate! 

Image: Sahaab

November 11, 2010 | Permalink | Comments (12)

November 10, 2010

Convicted Cyberstalker Granted Resentencing by 9th Circuit

"Cyberstalking" has always seemed like a sort of amorphous, subjective concept to me. Nevertheless, there's a federal statute making it a crime. And the California Appellate Report blog reports today on a case which leads me to believe that one man from Montana made it his mission to show me what cyberstalking is all about.

The opinion is hot off the presses, having just been released today. The defendant, Jeffrey Grob, sounds like a real winner. After his girlfriend a) had a miscarriage; and b) broke up with him, he decided the best way to deal with his grief was to send her a bunch of e-mails and text messages. One of which, reproduced in the opinion, reads as follows:

If you ever come back to Montana again I am going to slit your throat. I am not even kidding. It would make be fill [sic] so good to see you bleed as you gasp for air. I hope your are [sic] ready for retribution, because it is coming. You are going down bitch.

Hmm. I wonder why the girlfriend might have broken up with him. Grob's conviction was based on 22 e-mails and 50 text messages, some of which accused the ex-girlfriend of "killing our baby" and attached photos of dead infants. Yeah, Jeff probably makes a great impression on a girl's parents.

Grob didn't appeal his conviction; he pleaded guilty. But he did appeal his sentence of 37 months. He argued that the district judge erred in including a prior misdemeanor conviction for criminal mischief when it calculated his criminal history category under the Federal Sentencing Guidelines.

The 9th Circuit held that it was, in fact, improper to include the criminal mischief conviction in the criminal history calculation. That inclusion, the court said, made the guidelines range 37 to 46 months, rather than 33 to 41. Thus, the case was kicked back to the district court for resentencing.

I know the guidelines are just advisory, and not mandatory, these days. So here's to hoping that the judge who resentences Grob, whether it's the same one or a different one (I mean, there are only five!), finds a creative way to sentence this clearly disturbed man to 37 or more months even without considering the criminal mischief conviction. The women of Montana will appreciate it.

November 10, 2010 | Permalink | Comments (4)

Joe Miller Doesn't Like the Way Alaska Wants to Count Write-In Ballots

Here's a shocker: According to Rick Hasen's Election Law blog, Joe Miller, Republican candidate for a Senate seat in Alaska, filed suit yesterday against the state's Division of Elections, complaining about the proposed process for counting write-in votes. The counting will begin today, unless the federal district court says otherwise.

Miller doesn't like the state's avowed intention to count votes where the write-in candidate's name is misspelled if "voter intent" can be discerned. But Murkowski issss kinda hard to spell, and all indications are that, if the officials give voters a little leeway with the spelling, Murkowski will win the race, relegating Miller to another six years of having tea with Sarah Palin.

Hasen takes Miller (or, more accurately, his lawyers) to task for failing to include a discrete due process claim in the complaint, based on the fact that the rules for counting were issued after the votes were cast. Miller did seek a preliminary injunction, so, theoretically, we should have some word from the court on a pretty expedited timeline. Stay tuned.


November 10, 2010 | Permalink | Comments (4)

Nicaraguan Army Relies On Google Maps to Its Detriment

Technology is a wonderful thing. Except when it's not.

This morning, Lowering the Bar reminds us of the lawsuit brought by a woman who claimed Google Maps made her walk into traffic. And now brings us the news that unthinking pedestrians aren't the only ones putting blind faith in Google's map service -- apparently, so are Central American military commanders.

Yes, the Nicaraguan army crossed into Costa Rica last week, and then the troop commander blamed Google Maps for the error. To its credit, Google has admitted that its maps were off "by up to 2.7 kilometers." Well, sort of. The Google spokesman felt the need to point out that the issue "arose in the compilation of the border source data with the US Department of State."

Way to almost start a war, Secretary Clinton and Mr. Schmidt. Oh, right. To have a war, you need both countries to have armies.


November 10, 2010 | Permalink | Comments (0)

Profile of a Whistle-Blower: Former FAA Lawyer David Pardo

Seeing as how the busy holiday travel season is upon us, you might be interested in reading the profile of pilot and former Federal Aviation Administration attorney David Pardo, posted yesterday on the Lawyers and Settlements blog.

Pardo's whistle-blowing was related to the FAA's interpretation of fatigue rules for mechanics and dispatchers. After the crash of a Colgan Air plane in February 2009, Pardo claims the FAA sought to change its interpretation of those rules, all hush-hush-like,  without the required public notice and comment period. And Pardo did not think that was OK. Here's what followed:

"Once I raised concerns internally regarding the refusal to adhere to regulatory procedures, the FAA engaged in a retaliation campaign against me. Firstly, the day after I sent an e-mail stating the law required certain things and I wouldn't sign off on it, my boss agreed with me; she presumed the FAA would proceed with Notice-and-Comment.

"Secondly, that same day, there was a hostile and intimidating conversation in my office with my direct supervisor, who objected to my e-mail. Thirdly, three weeks later, the FAA issued an identical letter without Notice-and-Comment. One month after that, I received a low-performance evaluation. I objected with the evaluation, took it up the chain of command and filed a complaint for reprisal with the US office of Special Counsel.

"After that, there was infighting in the office, the FAA did not respond to my complaint and I was assigned to a different branch. On September 1st, realizing that the external government agencies were not responding to my allegations, I e-mailed the Secretary of Transportation and his general counsel. I notified them of the situation and requested a fair and just investigation into my allegations. Five days after that I created my blog."

On Sept. 20, 2010, David Pardo was terminated from the FAA and given a permanent restraining order not to step foot in any Department of Transportation (DOT) HQs, buildings or facilities.

The blog Pardo refers to is the FAA Lawyer Whistleblower blog, on which Pardo is very active. Most of his posts are aviation- or whistle-blower-related, as per his mission statement. And some of them are a little scary. If you scroll back through the blog, Pardo has posted many of the documents related to the incident that he says got him fired, including email exchanges with attorneys in the Department of Transportation's Office of Special Counsel.

Some of Pardo's emails and letters might -- what's the polite way to say this -- lead you to question his stability. Some of the "evidence" he proffers as proof of a cover-up/conspiracy involving bribery is a bit far-fetched. Regardless, Pardo's story is interesting, and when dealing with anything related to airline safety, I say best to err on the side of caution. Happy flying!

November 10, 2010 | Permalink | Comments (4)

November 09, 2010

In Which I Discover 7 Years Late That All of These Buttons Are Fake

Closedoor I hereby assert special jurisdiction over the subject matter below under rule 3 of the Rules of LBW Procedure. And I'm not happy about it.

I don't know what I was doing back in January 2003 and February 2004, but apparently it did not include religiously reading the Wall Street Journal and The New York Times. Had I been doing so, I clearly would not have spent the last seven years (on top of the many decades of my life that preceded 2003) adjusting office thermostats, pushing the "Close Door" button in elevators and punching the "Walk" button at street corners. 

According to the old articles linked to above, which I discovered seven years late via Consumerist today, many of the buttons in your life are fake. For instance, nearly all office thermostats are fakes. As one employee in a heating company with many landlord clients (and who installs dummy thermostats) explained, "complainers in the cubicles" were wearing on his employer's nerves. "You just get tired of dealing with them and you screw in a cheap thermostat. Guess what? They quit calling you."

How about those "Close Door" buttons? According to the WSJ , they're fake, too, "unless you're a fireman or an elevator operator with special access to the system. The rest of the time, in deference to various building codes, it's deactivated, according to engineers at Otis Elevator."

There's more. The "walk" button at intersections? Also fake. According to the NYT, the city of New York, for example,

deactivated most of the pedestrian buttons long ago with the emergence of computer-controlled traffic signals, even as an unwitting public continued to push on, according to city Department of Transportation officials. More than 2,500 of the 3,250 walk buttons that still exist function essentially as mechanical placebos, city figures show. Any benefit from them is only imagined.

I feel so very, very used.

November 9, 2010 | Permalink | Comments (7)

Texas Cheerleader Fights for Right Not to Cheer for Her Alleged Assailant

Cheer In Texas, an interesting legal dispute continues to play out over a cheerleader who refused to cheer for a basketball player on her school's team who she alleges raped her. When the player went to the foul line to shoot free throws, the rest of the cheerleaders performed a cheer that included his name. The cheerleader at the center of the case, who is known as "H.S.," did not cheer for the player, and instead "stepped back, folded her arms and sat down."

The San Francisco Chronicle reports that at halftime of the game in question, a school district official told H.S. that she had to cheer for the player or go home. H.S. refused, was kicked off of the cheerleading team and ultimately filed a lawsuit in federal court alleging that the school district's actions violated her right to free speech.

The Chronicle reports that in October 2009, the lower court dismissed her case, finding that "H.S. had not been engaging in free speech because her actions conveyed no specific message to onlookers, other than disapproval" of the player. In September 2010, the 5th U.S. Circuit Court of Appeals affirmed the lower court, finding that "in her capacity as cheerleader, H.S. served as a mouthpiece through which (the district) could disseminate speech - namely, support for its athletic teams." The 5th Circuit concluded that the school district "had no duty to promote H.S.'s message by allowing her to cheer or not cheer, as she saw fit." On top of that, the 5th Circuit found H.S's lawsuit to be frivolous, and ordered her to pay the school district's legal fees. H.S. intends to seek a rehearing.

The basketball player denied raping H.S. He pleaded guilty to a misdemeanor assault charge, however, and received a suspended sentence, the Chronicle notes.

November 9, 2010 | Permalink | Comments (5)

Lamebook Fights for Its Right to Make Fun of Facebook

Lamebook First, I'm happy to report that there is such a thing as "Lamebook," a parody website that "highlights the funny, absurd, and often ‘lame’ content that gets posted on the Facebook website.” My quick review of the Lamebook site confirms that there is plenty of absurd Facebook material being captured.

Second, I'm interested to see that Lamebook is so committed to its mission of highlighting Facebook's lameness that, according to the Tex Parte blog, it has filed a preemptive lawsuit in federal court in Austin, Texas. The lawsuit seeks a declaratory judgment "of non-infringement and non-dilution [of Facebook's trademarks] and a declaration that the First Amendment protects the Lamebook mark."

The Tex Parte blog reports that since March 2010, Facebook have been objecting to the use of the name "Lamebook" as an infringement of its trademark. Lamebook counters that it is a “clear parody,” protected under the First Amendment. 

Check out the Lamebook site here. If you think it is worth saving, Lamebook is seeking donations to its legal fund.

November 9, 2010 | Permalink | Comments (1)

November 08, 2010

Today at the (Canadian) Supreme Court: 'Advance' Sexual Consent

 I have no idea what's going on down in D.C. today. There are plenty of other sites you can read if you're really interested in that.

But I did happen to notice what's on the agenda for the esteemed justices (or lords, or whatever they're called; all I know is they still dress funny in court up there, and apparently have an elf problem) of the Supreme Court of Canada.

And it's a doozy. Today, as reported by CTV News, the court will be hearing argument on the concept of "advance" consent to sexual acts. Say what?

The Montreal Gazette has further details. And they're the kind of details I don't necessarily want to copy and paste here. Suffice to say, the victim admits agreeing to some kinky sex acts, including so-called "erotic asphyxiation," but claims not to have consented to the particular act that was occurring when she came to after passing out.

A Canadian appellate court ruled that the defendant, described as the victim's "on-again, off-again partner of seven years," did not commit sexual assault, overturning his conviction. The court will hear argument on behalf of the Women's Legal Education and Action Fund, which intervened in the case, along with the Canadian attorney general.

The organization's brief (or "factum," because they dig Latin up there even more than we do) is pretty persuasive. Then again, it's hard to conceive of the fact that someone would have to argue that an unconscious person cannot consent to sex. Stay tuned for the post-argument press and the decision.


November 8, 2010 | Permalink | Comments (1)

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