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Friday, November 29, 2013

Using Drones to Smuggle Drugs

After summarizing an unsuccessful drug-smuggling attempt in Georgia, the BBC reports on how drones are now being used to smuggle drugs into prisons:

Remote-controlled flying devices are becoming the tool of choice for those determined to smuggle in contraband, Stephane Lemaire, president of Quebec's correctional officers' union, tod the Ottawa Sun. 

"Usually the drones are carrying small packages of drugs or other illicit substances," he said. 
"Now that drones are relatively cheap to buy, they've become the best way to smuggle drugs inside," he added.

Nonmilitary drones are not all bad, however, as they "are increasingly being used in civilian life to make small deliveries, from pizzas to vital medicines."

Monday, November 25, 2013

DNA Collection Developments in Iowa

At the November 22 symposium on the Supreme Court's treatment of DNA issues in Maryland v. King and Association for Molecular Pathology v. Myriad Genetics, there were some conflicting accounts about the state of Iowa's law on DNA testing of arrestees or people convicted of crimes.  One presenter's slide indicated there was no such policy, while another presenter indicated that Iowa was going in a more permissive direction when it came to people convicted of misdemeanors.

After looking more into the issue, I found that Iowa's law is in an interesting state.  Currently, Iowa's law requires that those who are convicted of felonies, who are determined to be sexual predators, and who are found not guilty by reason of insanity, among a few other categories.  But that is going to change next year, as a recently-passed bill will require the collection of DNA samples from people who are convicted of misdemeanors.

While I don't think the Supreme Court has addressed the constitutionality of requiring DNA sample collection for those convicted of misdemeanors, this practice is most likely permissible, given the Court's ruling in Maryland v. King.  While Maryland v. King held that DNA could be collected in situations involving serious offenses, the Court held that all the state needed to collect the DNA was probable cause to arrest and booking of the suspect.  Because a central consideration of these cases is whether the suspect or defendant has a reasonable expectation of privacy, the misdemeanor conviction rule is probably permissible under King, since somebody who has been convicted, rather than simply arrested, has a lower expectation of privacy.

Why Maryland v. King May Indeed be Limited to Serious Offenses

On November 22 at the UCLA School of Law, the Program on Understanding Law, Science & Evidence (PULSE) and the UCLA Institute for Society and Genetics held a symposium entitled, The Supreme Genome?: Maryland v. King, Myriad Genetics and the meanings of DNA.

I had the opportunity to attend, and over the course of the event, I had several reactions to some of the points made.  The first thing I would like to discuss is a follow up to one of my earlier posts where I expressed doubt that the ruling was limited to "serious offenses."

To briefly recap the decision, Maryland v. King held that a buccal swab to collect a DNA sample of a felony arrestee did not violate the arrestee's Fourth Amendment rights.  The Court held that the minimal invasiveness of the search, combined with the state's interest in identifying the formally-booked arrestee balanced out to a conclusion that the search was not unreasonable.  The Court limited its holding to "serious offenses" -- presumably excluding DNA tests upon an arrest and booking for a misdemeanor from the scope of the holding.  It is still an open question whether "serious offenses" includes nonviolent felonies.

But portions of the decision indicate that the holding was not entirely based on the government's interest in identification and that the ruling's reasoning could apply to misdemeanor offenses as well as more serious.  Maryland v. King's broad language regarding identity as including criminal history, and its anecdotes relating to crimes that DNA evidence could solve (p. 12) indicate that the Majority was considering the government's interest in solving previous crimes, and that this interest could outweigh privacy concerns in misdemeanor cases.

For instance, the Majority cited the example of Timothy McVeigh as somebody who could have been caught using DNA identification.  McVeigh was apparently stopped for a traffic violation hours after the Oklahoma City bombing.  But if this example is to bolster the Court's point, the Court would need to admit that the government can take DNA samples when somebody is arrested for a non-serious offense (and perhaps when that arrestee is not formally booked).

The Majority's limitation of its holding to serious offenses was harshly criticized as ad hoc by Scalia's dissent.  If the justification for collecting DNA samples is to actually find out the suspect's prior criminal behavior, then it does not matter whether the suspect is under arrest for a serious crime or a misdemeanor when his or her DNA profile is collected.  In my initial reaction to the case, I agreed with Scalia's point.

But there is a way that this justification may be justified: we just need to look past much of the opinion's language and take the court at its word when it says that the justification for the DNA profile collection is to simply identify the arrested suspect and make sure he is who he says he is.

If simple identification of the arrestee is the government interest that outweighs the intrusion of the search, then that interest is presumably greater if the crime the government has probable cause to believe the arrestee committed is a "serious" offense.  Identifying defendants is important in all cases, but it is probably more important for the government to identify defendants if they are suspected of more serious crimes.

So Maryland v. King may indeed be coherently limited to serious offenses.  All that you need to do to get to this reading is to exclude the portions of the opinion that relate to "identity" as including prior offenses and the anecdotes and examples the Majority uses to justify its decision.  The next step to determining whether this coherent reading is, in fact, the correct reading, is to determine whether all of that language is part of the holding or dicta.

Thursday, November 21, 2013

Section 230 of the CDA and

Over at the ACLU's blog, Lee Rowland posts about Jones v. Dirty-World Entertainment Recordings, LLC, a case that is on appeal before the Sixth Circuit.  Here is the link to the ACLU's amicus brief in that case.

The case involves section 230 of the Communications Decency Act.  This is a law I am interested in, having written about it before here.  Section 230 typically immunizes websites from material that third parties post on the website.  For instance, if I write something defamatory about somebody in this blog, that person can sue me, but Blogspot will be protected from suit by the CDA.  This law is generally praised by proponents of internet speech because it makes websites less likely to remove posted material for fear of incurring legal liability.  Critics argue that the law should be changed because section 230 immunity promotes anonymous, online harassment that websites don't need to police.  But proponents of the law reply that the law owes its existence to Congress's concern that websites should be able to police themselves without incurring liability, and that this policing can promote discussion while eliminating harassing remarks.

As for the facts of Jones, the ACLU states: is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs.’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

While websites are generally immune from user-posted content under section 230, the Eastern District of Kentucky held that the website here could be found liable for the various comments.  A jury then found in favor of the plaintiff and returned a verdict in her favor of $338,000.

Rowland takes issue with the court's initial finding that the plaintiff could sue the website in the first place:

The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) 
. . .

The judge was flat wrong on the law. But this decision is even worse public policy. That’s because the essence of the trial court’s judgment was that by seeking critical, disparaging speech (gossip), Richie and were actively seeking unlawful speech (defamation), and didn’t deserve immunity. But dirt simply doesn’t equal defamation. And equating the two would be disastrous for other sites that offer a wide array of extremely valuable speech. 
For example, consumer watchdog sites encourage users to submit reports of corporate malfeasance — speech that is inherently critical, disparaging, even damaging for the companies complained about. But is clearly a great public service, not a hub for criminal activity. Similarly, environmental activists at sites like Frack Check WV invite users to submit horror stories about fracking in their communities; the Bed Bug Registry asks users to report bed bug infestations.
I think that Rowland raises an interesting point about the danger of hinging the test for section 230 immunity on whether the website simply encourages unlawful or defamatory content.  Not only would such an approach be inconsistent with most of the cases on this subject, that approach would end up chilling a great deal of important speech.

But I think that the Rowland downplays the important fact that Nik Richie, the owner of the website, added his own commentary in the wake of the other defamatory comments.  And while Richie's comment, taken alone, may not be defamatory, in context, the comment seems to add to the message of the messages it responds to, and indicate that Richie is endorsing and promoting those other messages.

I don't think that this case calls for the clear denial of section 230 immunity -- the question of whether Richie's post was enough to adopt the message of the other posts could be argued in either direction.  At the same time, however, I don't think that Rowland is giving Richie's post the weight it deserves.

UPDATE: 6/17/2014

In the original version of this post, I incorrectly attributed the first block quote in this post to the Electronic Frontier Foundation (EFF).

Wednesday, November 20, 2013

Non-Disparagement Agreements

Andrew Crocker and Kurt Opshal of The Electronic Frontier Foundation write about a horror story arising from a customer's signing a "non-disparagement agreement."  The customer, Jen Palmer, tried to purchase an item from KlearGear, but the item was never shipped to her.  After receiving a refund, but running into trouble trying to contact the company's customer service representative, she gave a negative review of the product on

KlearGear wrote to Palmer three years (!) later and demanded $3,500 based on her violation of a non-disparagement clause she had signed when she had tried to purchase the item.  That clause stated:

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts, its reputation, products, services, management or employees. 
Should you violate this clause, as determined by in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.
Palmer was unable to pay the fee to remove the comment and was unable to pay the $3,500 demand, and ran into credit problems as a result.

The EFF reports on a number of inconsistencies with KlearGear's claim, including the question of whether this clause had even existed when Palmer had made her purchase.  The EFF also argues that the non-disparagement agreement is unconscionable, noting that consumers typically do not have any say in the provisions of purchase agreements and that the language in these agreements tends to confer substantial privileges to the seller over the consumer.

I am inclined to agree that the non-disparagement provision is unconscionable.  While I don't think that any First Amendment claims can be made here, the vast asymmetry in the agreement and the likely inability of consumers to negotiate the agreement are problematic.  Moreover, the $3,500 payout is all but guaranteed, since the payout is required upfront, and will cover litigation fees that KlearGear ends up paying, even if any defamation suit it files ends up being groundless.

And as a final note on the issue, the non-disparagement clause avenue for punishing critics appears to be a way around insurance protection that many defendants may have in typical libel cases.  Eugene Volokh notes that many standard homeowner's insurance agreements have clauses that guarantee payouts for damages paid out in a libel suit, or costs incurred in defending against such a suit.  He provides an example of one such claim:

If a claim is made or a suit is brought against any insured for damages because of bodily injury … caused by an occurrence to which this coverage applies, we will: 
1. pay up to our limit of liability for the damages for which the insured is legally liable; and 
2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent…. 
“Bodily injury” means; … personal injury … arising out of … libel, slander or defamation of character; or … invasion of privacy.
A non-disparagement claim along the lines of the KlearGear agreement looks like a contract claim, and not a claim for "damages because of bodily injury," which seems to be restricted to tort claims.  And even if KlearGear were to successfully sue Palmer, such an insurance policy would cover the damages she would need to pay in that lawsuit, but not the contractually-required money she would need to pay for KlearGear's costs.

Tuesday, November 19, 2013

Sartore on Outlawry

Karen Tani at the Legal History Blog posts about what looks like an interesting new book, Outlawry, Governance, and the Law in Medieval England, by Melissa Sartore.  Here is a link to the part of the publisher's site that describes the book, and here is a link to an excerpt from the book.

According to the synopsis provided on the publisher's website:

Outlawry, Governance, and Law in Medieval England evaluates the role of exclusionary practices, namely outlawry, in law and governance in England from the tenth through the thirteenth centuries. Traditional historical narratives dismiss exile, outlawry, and banishment as ineffective and weak methods of maintaining social order. More specifically, the present volume reassesses these forms of exclusion in matters of politics, law, and society, as well as their influence on increased use of imprisonment in later medieval England. Outlawry, Governance, and Law in Medieval England is essential reading for scholars working in this field but is also highly recommended as a text for courses that assess medieval law and the practice of outlawry as well as the development of English Common Law.
And from the excerpt, here is a bit more detailed version of the book's thesis:

How did actions against wrongdoers in Anglo-Saxon England such as exile, banishment, and outlawry, transition to the widespread use of gaols and prisons in the administration of the English common law in the late thirteenth century? The processes of exclusion, namely outlawry, defined as the action of declaring a person to be outside the protection of the law; exile and banishment, or enforced removal from the land according to an edict or sentence; and abjuration of the realm (or a town), an oath to leave an area forever, were soon supplanted and supplemented with various forms of imprisonment, the condition of being kept in captivity or confinement and forcible deprived of personal liberty. This work explores the movement from outlawry, exile, and banishment to the emergent use of imprisonment in medieval England. 
From the late tenth through the thirteenth centuries outlawry held an essential place within political and legal practices in medieval England. Contrary to the dominant narrative which sees the rise of imprisonment as a progressive response to the older modes of outlawry and exile, this project argues that the older exclusionary processes actually facilitated the transition to systems of authority, law, and order grounded in the use of imprisonment. Outlawry and exile were such strong, effective processes resistant to control by royal authority that the Crown was forced to adapt and innovate in response, specifically with the use of imprisonment.

I am no expert in the history of the common law, but I have had the opportunity to take an abbreviated seminar on the subject which has been an illuminating and enjoyable experience. Last year, I also found the time to read Njal's Saga, where outlawry is presented as a constant threat hanging over the saga's wrongdoers.  Since reading that book, the historical practice of outlawry has intrigued me, and this book looks like a promising study of the subject.

Be Careful What You Tweet - It Can Be Used Against You

The BBC reports on a recent case from Norwich.  There, Emma Way was found guilty of failing to stop after an accident and failing to report an accident after she collided with a cyclist, knocking him off his bike and causing him to sustain minor injuries.

While the prosecutor described the case as a typical traffic accident, the case gained notoriety from what Way did after the accident. After she drove on, she went home and tweeted:

Definitely knocked a cyclist off his bike earlier. I have right of way - he doesn't even pay road tax! #Bloodycyclists."

This type of evidence would certainly be admissible in U.S. courts under Federal Rule of Evidence 801(d)(2)(A) because would it is Way's own statement and was offered against her.  With prosecutors and investigators increasingly using social media to solve and prosecute crimes, Way's tweet -- or writing a tweet or Facebook status update like it -- is one of the dumbest things that somebody could do after committing a crime.  Even if somebody who commits a crime plans to confess, posting the confession online, effectively making it available for police and prosecutors to find, removes most, if not all, leverage that the defendant may have in later plea negotiations.

But it looks like Way is going to get out of this situation just fine.  The BBC's report concludes:
Way refused to comment as she left court, saying she had signed an exclusive television deal.

Monday, November 18, 2013

Courtroom Cages

An interesting article in today's New York Times discusses the surprisingly common practice of putting defendants in cages during courtroom proceedings:

Long eschewed as prejudicial by American courts and by the International Criminal Court in The Hague, locked docks, either metal cells or enclosures made of glass or wood, are still common, not just in countries like Russia and Egypt where the judicial systems often face international criticism, but also in many Western democracies, including Britain and France.

The article reports that this practice is drawing international criticism -- largely because placing the defendant in a cage portrays the defendant as violent and dangerous despite the law's presumption of innocence.

Based on some of my previous scholarship, however, I think it would be remiss to obliterate the practice of caging defendants entirely, however. As I point out in my essay, this particular aspect of courtroom procedure may be fitting for a certain class of defendants who pose a particular danger to those around them.

The Lawsuit Abuse Reduction Act of 2013

While arguments for and against litigation reform were notably absent during the last presidential election, it looks like the House of Representatives has not bypassed the issue.  Patricia Moore at the Civil Procedure and Federal Courts Blog posts about the Lawsuit Abuse Reduction Act of 2013, a bill that passed in the House of Representatives on November 14.  As Moore notes, Lonny Hoffman criticized this bill in testimony here.

The Act calls for revisions to Rule 11 of the Federal Rules of Civil Procedure.  Rule 11 gives courts the power to lever sanctions against parties who file untrue or frivolous claims in court.  The Act makes issuance of sanctions for a Rule 11 violation mandatory.  It also reduces options for what those sanctions should be -- requiring that the offending party pay the other party the amount of money that the Rule 11 violation causes that other party.

Here is the relevant language of the bill, from Section Two:

(a) Sanctions Under Rule 11
Rule 11(c) of the Federal Rules of Civil Procedure is amended—

in paragraph (1), by striking may and inserting shall;
in paragraph (2), by striking Rule 5 and all that follows through motion. and inserting Rule 5.; and
in paragraph (4), by striking situated and all that follows through the end of the paragraph and inserting situated, and to compensate the parties that were injured by such conduct. Subject to the limitations in paragraph (5), the sanction shall consist of an order to pay to the party or parties the amount of the reasonable expenses incurred as a direct result of the violation, including reasonable attorneys’ fees and costs. The court may also impose additional appropriate sanctions, such as striking the pleadings, dismissing the suit, or other directives of a nonmonetary nature, or, if warranted for effective deterrence, an order directing payment of a penalty into the court.

I don't think that this is the right approach to take if lawmakers want to decrease the quantity of litigation.  From a simple accuracy perspective, the vast variety of situations that may arise in civil cases favor a flexible approach over a single type of mandatory sanction.

More importantly, if sanctions are mandatory, but the violation does not rise to the level where the monetary sanctions described in (3) seem warranted, the court may simply take advantage of the broad language in Rule 11(b) and conclude that no Rule 11 violation has occurred.  The judge would find this course of action appealing because finding a violation would require additional motions and argumentation in order for the cost of the violation to be determined. -- which would be more work for the judge.

By requiring a heavyhanded, mandatory remedy, this bill may lead to fewer findings that Rule 11 was violated -- which is hardly the outcome that lawmakers seeking control over lawsuit abuse desire.

UPDATE - I have changed the formatting of the quote from the bill to correct some issues with how it appeared on the main page of the blog.

Thursday, November 14, 2013

Upcoming Hastings Law Journal Symposium on 3-D Printing

The Hastings Law Journal has announced that its annual symposium will cover "The Legal Dimension of 3D Printing." The symposium will take place on February 21, 2014. Here is the tentative schedule:

Regulating Products of 3D Printing 
Practical Effects of 3D Printing on Intellectual Property Law 
Keynote Address – Mark A. LemleyWilliam H. Neukom Professor of Law
Stanford University 
The Right to Print Arms: 3D Printing and Gun Rights
I find 3-D printing to be a pretty interesting subject in general, although my discussions of it are largely constrained to issues surrounding 3-D printing and guns (See here, here, and here).  All of the topics listed on the schedule look fascinating, and I look forward to seeing the scholarship that comes out of the symposium.

I find the Second Amendment implications of regulating 3-D printed firearms to be particularly interesting.  Very little has been said on this topic -- the one published piece of which I am aware is a comment by Peter Jensen-Haxel, entitled, 3D Printers, Obsolete Firearm Supply Controls, and the Right To Build Self-Defense Weapons Under Heller.  A few more pieces seem to be in the works.  I found this short paper by Kevin O'Neill, entitled, Is Technology Outmoding Traditional Firearms Regulation? 3-D Printing, State Security, and the Need for Regulatory Foresight in Gun Policy, and it looks like Josh Blackman is working on a paper discussing the First and Second Amendment implications of 3-D printing regulations.

I have already written on the Second Amendment, and I am worried that if I write something else on the subject that I may be deemed even more of a "gun nut" than I currently am.  But I think that the technology and law in this area is so new and interesting that writing something on this might be worth the risk.

The Dangers of Cycling and Favorable Legal Treatment of Drivers

I have never been a regular bicyclist.  When I lived in Iowa I either lived too far from my destinations for biking to be practical, or so close to my destinations that biking was unnecessary.  Now that I am in Los Angeles, I recognize that biking might be a quick way for me to get places, but I am far too intimidated to brave this city's traffic.  After a harrowing near-miss with a very speedy, reckless driver, I find that I am sometimes jittery around pedestrian crosswalks.

In an op-ed in the New York Times entitled, "Is It O.K. to Kill Cyclists?", Daniel Duane writes about the dangers of travelling by bicycle in traffic.  He notes that drivers who kill or injure bicyclists often receive extremely favorable treatment from law enforcement -- often receiving only a minor fine, or avoiding prosecution altogether.  Considering why this is the case, Duane writes:

Laws do forbid reckless driving, gross negligence and vehicular manslaughter. The problem, according to Ray Thomas, a Portland, Ore., attorney who specializes in bike law, is that “jurors identify with drivers.” Convictions carry life-destroying penalties, up to six years in prison, Mr. Thomas pointed out, and jurors “just think, well, I could make the same mistake. So they don’t convict.” That’s why police officers and prosecutors don’t bother making arrests. Most cops spend their lives in cars, too, so that’s where their sympathies lie.
The Economist follows up on this op-ed, reiterating the dangers that American cyclists face, and recommending that United States jurisdictions adopt laws similar to those in the Netherlands that make it much easier for cyclists to sue drivers who injure them:

To sum up: in the Netherlands, if a motor vehicle hits a cyclist, the accident is always assumed to have been the driver's fault, not the cyclist's. As explained in this FAQ from the ANWB, the Dutch tourism and car owners' organisation, "the law treats pedestrians and cyclists as weaker participants in traffic... The driver of the motor vehicle is liable for the accident, unless he can prove he was overpowered by circumstances beyond his control (overmacht). The driver must thus prove that none of the blame falls on him, which is extremely difficult in practice."
I think that the comparison between the two systems' tort laws is interesting, and while I am not sure if I agree with all the provisions of the Netherlands' approach, examining that system provides an interesting perspective.

But even if the California reformed its tort law to match the Netherlands, I would probably still be too afraid to ride a bike in Los Angeles.

Wednesday, November 13, 2013

Could Oral Argument be More Important Than We Think?

For class today, I was assigned to read Lauritzen v. Larson, 345 U.S. 571 (1953).  While the case is interesting, I was intrigued by the last few words of the case:
Mr. Justice CLARK, not having heard oral argument, took no part in the consideration or
decision of this case.
Could it be that if a Justice does not hear a case, he or she cannot participate in the case?  If this were the case, it could cause interesting outcomes in the event of surprise absences.

Intrigued, I did a Westlaw search for all Supreme Court cases containing the phrase, "not having heard oral argument, took no part."  I found three opinions (including Lauritzen) that contained this phrase.  All of them were instances of Justice Clark not taking part, and two of the cases were argued on January 6, 1953 (LauritzenMay v. Anderson, 345 U.S. 528 (1953)),and one of them was argued on January 7, 1953 (Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953)).

Clark's absence in these cases was not earth-shattering.  One of the case had one dissenter, and the other two had three, so even if Clark had dissented, the  majority's decision would have remained.

I confirmed that these was not a typical Clark recusal based on a conflict of interest with his son, Ramsey Clark.  In 1953, Ramsey had not yet been appointed to the position of United States Attorney General (and the United States government was not involved in either of these cases).

If a Justice simply misses oral argument, does this mean that the Justice cannot take part in the decision?  The low number of cases where this has happened made me suspect the answer was "no," and some further investigation confirmed that Justices are permitted to take part in decisions by listening to recordings of oral arguments or by reading the transcript of the argument.

So the answer to this post's title, alas, is "no."  But Clark's absence from the decision in these three cases is nevertheless interesting, especially since I am aware of no reasons why he could not have participated by reading the transcript of the oral arguments.

Tuesday, November 12, 2013

Alienation of Affections in Illinois: Strategy, Reform, and Unintended Consequences

My last post had me thinking about Illinois and mistakes, and this reminded me that Illinois is one of several states that recognizes the tort of alienation of affections.

I learned about this tort during my first year of law school in Eugene Volokh's torts class.  In one of his older Volokh Conspiracy posts, he lays out the elements of the tort and the situations that most commonly give rise to alienation of affections lawsuits:

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim. [I have corrected some punctuation discrepancies that appear to have been caused by the post's older coding.]
As Volokh goes on to note, the tort is still around in a number of states, including Illinois.  People continue to file alienation of affections lawsuits, indicating that the tort -- while seemingly archaic -- is far from dead.  Also at the Volokh Conspiracy, David Bernstein posts on why he teaches this tort in his torts class.

Illinois's formulation of the tort differs slightly from Volokh's description of the general elements, as no "wrongful" act by the defendant is required (meaning that meddling in-laws had better beware).  As the Illinois court of appeals stated in Orbeta v. Gomez, 733 N.E.2d 1287, 1289 (Ill. Ct. App. 2000):
A cause of action for alienation of affections consists of three elements: (1) love and affection of the alienated spouse for the plaintiff; (2) actual damages incurred by the plaintiff; and (3) overt acts, conduct, or enticement on the part of the defendant causing those affections to depart.
While Illinois is one of the states that allows parties to file alienation of affections lawsuits, the state has limited the scope of damages that plaintiffs can claim in such suits.  The Alienation of Affections Act (codified at 740 ILCS 5/1) bars punitive and aggravated damages in alienation of affections lawsuits and also states:

In determining the damages to be allowed in any action for alienation of affections, none of the following elements shall be considered: the wealth or position of defendant or the defendant's prospects of wealth or position; mental anguish suffered by plaintiff; any injury to plaintiff's feelings; shame, humiliation, sorrow or mortification suffered by plaintiff; defamation or injury to the good name or character of plaintiff or his or her spouse resulting from the alienation of affections complained of; or dishonor to plaintiff's family resulting from the alienation of affections. 
Despite this limitation, plaintiffs can still seek actual damages, and the tort lives on as a strategic option for those who are interested in aggressive divorce litigation. explains that while an alienation of affection suit may not result in a large monetary award, the lawsuit can still be used to wreak havoc on the life of an ex-spouse (I apologize for any offense caused by the source's overgeneralizations about gender):

New Citation Rules in Illinois

Via the Legal Writing Prof Blog, I came across this video on how to cite Illinois cases:

When the movie laid out the citation rules in the abstract, I was convinced that the Illinois Supreme Court had made a huge mistake.  Even the part of my brain that I had set aside to remember California's citation rules was appalled as the example began and the year of the decision was written without parentheses.

But when the full example was written out, I realized that this citation format has some substantial points in its favor.  For one, it is more compact than reporter citations in both Bluebook and California styles because the reporter volume and year of the decision are combined into simply the year of the decision.  Moreover, the rule's requirement that citations be to paragraphs rather than pages may end up simplifying citations that would typically span across multiple pages in traditional reporter citations.  If one is trying to quote a line from a decision, or cite to a case's holding, that holding or quote will probably be contained within a single paragraph.

I know that this development means very little for editors of law journals, since the Northeastern Reporter will still contain most Illinois cases that those journals will cite.  And I think that West's reporters have such a strong foothold in the standards and expectations of lawyers and law scholars that citation styles will stay the same on the broader scale.

But the Illinois rule change illustrates how citation rules can develop to become simpler and more aligned with electronic, rather than print, sources.

Monday, November 11, 2013

Gonzaga University, University Firearm Policies, and the Second Amendment

Eugene Volokh posts at the Volokh Conspiracy about two Gonzaga University students who face possible expulsion (or as the Daily Caller refers to it, "EXPULSION") for using a firearm to repel a man who was attempting to enter their apartment.  CNN reports:

Two Gonzaga University students could be suspended or even expelled after using a handgun to defend themselves from an intruder in their university-owned apartment, an act which the university says violates the school's weapons policy. 
Gonzaga University, a private, four-year university in Spokane, Washington, says the students violated the school's weapons policy by having firearms in their apartment, which is in a complex near the campus.
Volokh raises some interesting questions about whether the apartment was "on campus" and therefore within the scope of Gonzaga's policy.  He also notes that the residence director's late-night visit and seizure of firearms may be problematic under landlord-tenant laws.

The incident has drawn a great deal of media attention (see, e.g., here, here, and here) and Gonzaga is reportedly re-evaluating its firearm policy in light of the controversy.  Critics argue that students should be able to defend themselves against intruders and that this policy restricts this ability too much.  Gonzaga defends its policy, noting that it is in place to protect student safety.

Gonzaga University is a privately-owned institution so the case raises no Second Amendment concerns.  Thankfully, I have not seen this argument made in any of the coverage I have read (although one Fox News pundit (whose name eludes me) made this point earlier today on Fox News's "The Real Story").

But the incident illustrates how a similar situation might arise in the context of student housing that is owned by a public university.  In a case like that, the policy's validity would be a much thornier issue and would raise questions of whether the university could ask students to waive their right to possess firearms as a condition of living in campus housing or (in the absence of such a waiver) whether a policy restricting firearm possession in public student housing passes Second Amendment scrutiny.

And in the spirit of shameless self-promotion, I invite you to read my comment where I consider the complicated dimensions of this issue!  (Available at the UCLA Law Review Website and on SSRN)

Metal Gun Made With 3-D Printer

For those who doubt the feasibility of 3-D printed firearms, CNN reports:

A Texas company says it has made the first metal gun using a 3-D printer, taking the debate over people's emerging ability to create their own firearms to a new level. 
Solid Concepts, a specialty manufacturing company, said in a blog post it has fired more than 50 rounds from the handgun, even hitting a few bull's-eyes at more than 30 yards.
When people voice concerns about the prospect of printed firearms, one of the most common responses is that printed firearms will be unsafe or unreliable.  This story illustrates how the technology seems to be developing at a pace that will soon invalidate these arguments.

(H/T: Max Bryk)

Major Bitcoin Theft Highlights Risks of Anonymity

The BBC reports:

A man who ran an online "wallet service" for storing Bitcoins has claimed hackers stole virtual currency from his site worth more than one million Australian dollars. 
The Australian man said 4,100 Bitcoins (US$1.04m, £650,000) were taken in two separate attacks. 
He said he would not report the theft to police as Bitcoin transactions are virtually impossible to trace.
The article ends with the man urging users not to store their Bitcoins in devices connected to the internet.  While Bitcoins are a flexible and interesting new currency, and while some think that they are a worthy investment, this story highlights the risks of Bitcoins, and the likely inability of law enforcement to follow up on Bitcoin theft.

The story also has interesting implications for the law of theft, given Bitcoins' intangible nature -- see Stuart Green's, Thirteen Ways to Steal a Bicycle for more on how the information age wreaks havoc with outdated formulations of theft.

Thursday, November 7, 2013

Baker and Huan on Federal Overcriminalization and Mens Rea

Volume 14, Issue 2 of the Federalist Society's magazine, Engage, includes an article by John Baker Jr. and William Huan entitled, The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime.  They write:

We argue that an issue at the core of federal criminal law reform is the restoration of the mens rea requirement. Addressing the erosion of mens rea requires appreciating the initial importance of mens rea, and the connection between that erosion and the growth of federal criminal law. This erosion of mens rea has been toxic to the moral legitimacy of federal criminal law. Finding a workable way to reassert mens rea within the context of so many complex and differently drafted federal criminal provisions is a challenging—but necessary—reform.
The article concisely states the issue of the overfederalization of criminal law and how many of these crimes lack mens rea (guilty mind) requirements.  Mens rea typically requires that people know the facts that make their conduct illegal, and in this way mirrors the notion that individuals who are found legally guilty of crimes should also be morally guilty.  These standards may vary, which requires the prosecution to prove that the defendant carried out the illegal act intentionally, knowingly, or recklessly (to name a few standards), depending on the type of crime charged.  Many federal standards lack mens rea standards.

One area of confusion that I am noticing in this article as well as in other discussions of federal overcriminalization stems from the reality that many of the crimes on the federal level are malum prohibitum.  This means that the crimes are wrong only because they are prohibited by law (as opposed to malum in se crimes that are wrong in themselves such as murder, rape, burglary, etc.).  Critics (including Baker and Huan) emphasize this point and illustrate the phenomenon with examples of crimes like coming in contact with migratory birds or feeding endangered animals.

In malum in se cases, mens rea requirements typically apply to the facts that make the conduct illegal and not the fact that the conduct is illegal.  If the defendant does not realize that the conduct is unlawful, this does not constitute a defense.  In federal criminal cases, however, most criticism of federal overcriminalization relates to the concern that defendants do not realize that their conduct is illegal.  Highlighting the technicality of malum prohibitum crimes, critics argue that prosecutors should be required to prove that the defendant had some level of knowledge that his or her conduct was illegal, or some intent to violate a law.  Accordingly, claiming that one is simply calling for mens rea requirements in federal crimes is misleading.  What critics are in fact calling for is an added element for the prosecution to meet -- that the defendant knew that his or her conduct was illegal.

Despite this problem (which appears in both this article and in the arguments of many other critics), the article's treatment of the overall issue of federal overcriminalization it is concise and approachable.  I therefore recommend the article to people interested in an introduction to the issue of the overfederalization of crime (despite my praises for overfederalization that I express here).

(H/T: Bill Otis of Crime and Consequences via the CrimProf Blog)

Judge Posner is a Cat Person

From an interview of the jurist by the Daily Beast's Noah Charney:

[Charney]: Tell us something about yourself that is largely unknown and perhaps surprising. 
[Posner]: Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

This point was especially important to me, but I think that the rest of the interview is very interesting as well.  I recommend that you read the whole thing.
(H/T: Howard Bashman of How Appealing)

3-D Printing and Encryption

I posted a while ago about how countries in Europe are worried that people might begin using 3-D printers in order to produce their own firearms and circumvent strict gun laws. I quoted a New York Times article on the topic that said:

A Danish company, Create it REAL, which makes 3-D printers, says it might have another possible solution. It has developed software that looks for the characteristics of weapon designs and, when detected, blocks the printer from making a firearm. “If certain features align, the software will not allow the user to view and print the model,” Create it REAL says on its Web site.

In that post, I mentioned that I thought this might be an effective way to control the printing of guns.  In the United States, at least, this would avoid concerns of unconstitutional state regulation because of the private nature of the safeguard.  I noted that this response would not be a cure all, however, because the danger of people hacking the system was still a concern.

It looks like one way to get around this regulation has emerged.  At Forbes, Andy Greenberg reports about a new app that allows users to encrypt files containing the designs of objects that can be 3-D printed.  Greenberg describes how the app alters the images in the files and the upshot of this app:

That means any controversial file–say, a figurine based on Mickey Mouse or another copyrighted or patented shape, or the 3D-printable gun created earlier this year known as the Liberator–could be ‘encrypted’ and made available on a public repository for 3D-printing blueprints like the popular site Thingiverse without tipping off those who would try to remove the file.

As long as this type of encryption can be adapted to fool a printer, this type of encryption would be likely to get around the Create it REAL safeguards.

Wednesday, November 6, 2013

Same-Sex Marriage, Child Custody, and the Miller Perspective

This week in my Conflict of Laws course we arrived at the subject of interstate disputes over judgments in child custody cases.  This led us to the case(s) of Miller v. Jenkins (or, as our book listed it, Janet Miller-Jenkins v. Lisa Miller-Jenkins).  A good summary of the case from the New York Times is available here, but here is my attempt to lay out the facts in as brief a manner as I can.

The Miller v. Jenkins series of cases arose from a string of complicated facts.  Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.  Lisa gave birth through artificial insemination during this union, but eventually filed a petition for dissolution of the union in 2003.  The Vermont court released a temporary order granting Lisa custody of the child, Isabella, and giving Janet visitation rights.

This is where things got chaotic.

Lisa went to Virginia and sought a court order that she be declared the sole parent of Isabella.  Before the Virginia court released its order, the Vermont court issued a ruling reaffirming its jurisdiction.  Nevertheless, the Virginia court declared that Lisa was Isabella's sole parent and that Janet had no rights of visitation.  The Vermont court then held Lisa in contempt for failing to allow Janet to visit Isabella in violation of the court's custody order.

Litigation ensued, and the courts ultimately decided that the Virginia trial court's decision had violated the Parental Kidnapping Prevention Act (28 U.S.C. 1738A).  Despite this outcome, Lisa continued to refuse Janet's visitation requests and was again held in contempt for violating the Vermont trial court's order.  Each time she was held in contempt, Lisa would appeal the ruling.  Eventually, the Vermont court ordered that Janet be given sole custody of Isabella.

Lisa took Isabella and, with the aid of various religious organizations, fled to Ontario.  From there they flew to El Salvador and ultimately to Nicaragua.  Timothy Miller (no relation to Lisa) was a missionary who flew with Lisa and Isabella to Nicaragua and was later arrested for aiding and abetting kidnapping.  Kenneth Miller, a pastor (also no relation to Lisa), was also involved in the scheme.  He helped purchase clothing to disguise Lisa and Isabella as Mennonites, secured their travel plans, and was ultimately arrested and convicted for aiding and abetting the kidnapping, and sentenced to 27 months in prison.

Lisa and Isabella have not yet been located.

The casebook that presented this case told the story of the case's aftermath in the notes, and noted that it seemed strange that conservative religious organizations helped Lisa as much as they did.  Lisa, after all, had been in a same sex union, which Kenneth and Timothy Miller would have considered an afront to their beliefs.

News coverage of the story provides some insight into the full state of affairs.  Additionally, the pastors and organizations involved in Lisa's flight have blogged extensively on their points of view, and this provides a dimension of the story that seemed lacking in the cases, casebook, and media coverage.  Because this angle of the story investigates Lisa Miller's circumstances (and involves an oddly large number of people named "Miller"), I call it the "Miller Perspective."

Tuesday, November 5, 2013

Eckert v. City of Deming: A Notably Outrageous 1983 Suit

A while back, I mentioned UCLA's "Hummel Memo," an assignment that almost every student needs to complete in their legal writing courses.  This memo gives students an opportunity to draft an objective memo on negligent infliction of emotional distress using a controlled selection of cases.  Employers and organizations in the Los Angeles area who hire students for internships or clerkships following the students' first year of law school are all familiar with the Hummel Memo as the most commonly used writing sample year-to-year.

The other assignment that all UCLA students know about is the "Chambers Memo," which introduces students to how to write a brief.  The case is a motion for summary judgment in a 1983 motion involving excessive force by a police officer.  Again, this is a very common writing sample -- especially when it comes to applying to law firms at the beginning of students' second years.

I mention this mainly to give a context of what I know about 1983 motions (although I am also aware of its use in Fourth Amendment situations and its sometimes quirky results in First Amendment cases).  I also mention this because my blog monitoring abilities have shown me that people have found this blog in web searches based on my mention of the assignment names, and might look at this post for advice (hint: Hammer v. Gross, while nice (for the plaintiff), is a plurality opinion.  Nobody, not even writing advisors, seemed aware of this) (other hint: this case, while involving some pretty different facts, may be worth looking into for the defense).

What prompted me to write this post, however, is not my recollection of my old assignment, but a recent 1983 case that's getting some play in the media right now.  The plaintiff filed a 1983 complaint in New Mexico arising from multiple cavity searches that police performed on the plaintiff after they stopped him for a traffic infraction and noticed, when he stepped out of the vehicle, that he seemed to be clenching his buttocks.

The best summary I have read of the case Kevin Underhill's account at Lowering The Bar.  This is one of the more outrageous and unpleasant fact patterns that I have seen in a 1983 case, and I think that it is especially notable (whoever's facts you accept) that the police were able to obtain a warrant to perform a cavity search based on their observation that the plaintiff's buttocks appeared to be clenched.

I won't go into detail about the facts here -- they are pretty graphic and unpleasant, and Underhill lays them out effectively.  One final reaction, however: while I felt that the facts were outrageous to begin with, the medical center's billing the plaintiff for the police-ordered cavity searches really took this case to the next level.  I think that the odds of a settlement are high here.

Monday, November 4, 2013

The Limits of Judicial Knowledge and the Importance of Briefs

Linda Greenhouse has this very interesting op-ed in the October 30th New York Times where she asks:

How do judges — especially appellate judges, who don’t hear witnesses or take testimony but must rely on the record compiled in the courts below — learn what they need to know? And, of course, how do they — or any of us — choose what to make of the knowledge they have?

Greenhouse surveys a number of cases, ranging from the Supreme Court's determination in Kennedy v. Louisiana that there was a national consensus against child rape -- citing Congress's failure to add child rape to a list of federal capital crimes over a decade earlier (and missing Congress's two-year old decision to make child-rape a capital crime in military cases), Judge Richard Posner's admission that he lacked full knowledge of the consequences of his decision in the voting rights case, Crawford v. Marion County Election Board, and Justice Scalia's admission that he lacked the knowledge of genetics necessary for him to join the Court's statement of facts in Association for Molecular Pathology v. Myriad Genetics.

I will admit that what drew me to the opinion was Greenhouse's mention of Kennedy v. Louisiana. The oral argument this case was portrayed in the fictional case, Serra v. Louisiana, in one of my favorite Boston Legal episodes, "The Court Supreme" (Season 4, Episode 17; transcript available here).

But as I continued past the initial Kennedy hook, I found that I was reminded of an article I read a while back that is forthcoming in the Emory Law Review. That article is Scott Moss's, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects (Lexis seems to indicate that the article has been released, giving the citation, 63 Emory L.J. 59, though the article is not yet available on the article's website).  Here is the abstract (from the version I found on SelectedWorks):

Sunday, November 3, 2013

Underwater Drones

Here's an interesting report on one unexplored aspect drone warfare's future:

Think of them as sleeper cells that go dormant for years, waiting for the signal that will send them into action. 
This is the high-tech version: unmanned drones that the government plans to plant on the ocean floor, ready to speed to the surface — and beyond — for surveillance, search-and-rescue and other operational support.
. . . 
The Defense Advanced Research Projects Agency is funding the construction of deep-sea capsules containing dormant aerial drones. DARPA documents say the agency is also willing to consider other types of unmanned vehicles that travel on the water but accomplish the same mission, though there are no current plans to arm any of them, according to a DARPA statement. The call for proposals made public earlier this year offers scant details, relying on the imagination of interested inventors.
This story focuses on drones that are stored on the seabed that fly to and above the surface when needed.  The Navy is also working on developing drones and drone carriers that function underwater.

The story reminded me of an article I read a while back on the future of armed conflict. The article is Eric Jensen's, The Future of Armed Conflict: Ostriches, Butterflies, and Nanobots, and is forthcoming in Volume 35 of the Michigan Journal of International Law. It is available on SSRN here. The article surveys how conflicts in the future will unfold, how developing technology will expand the battlefield, and how the law of armed conflict must adapt to developments.

Jensen notes the relevance of the seabed as a platform for future conflicts:

Currently the seabed and even non-surface waters have seen very little armed conflict. Submarine vessels have engaged surface vessels but there has been almost no conflict between submarines and none from the seabed. This is likely to change dramatically with technological improvements. For example, China has developed submersibles that can reach 99.8 percent of world’s seabed. As more and more underwater vehicles become unmanned, the need for breathable air dissipates. Underwater drones will eventually become armed and underwater engagements will quickly follow. 
Similarly, the seabed will quickly become militarized, once the need for air is erased. Not only will sensors be used to track surface and subsurface traffic, but armaments will soon follow and the seabed will become another area where States will employ weapons systems. [internal footnotes omitted]
If the military ends up moving forward with the drone development plans described in the first news article, the seabed may indeed become as relevant as Jensen argues.  I still, however, have some trouble accepting all of his predictions on where battles will be fought in the future:

Similar to the seabed, the ability to place weapons systems under ground and employ them effectively against an enemy is beginning to develop. Not only will underground weapons attack surface targets, but they will also be used to create surface effects through underground explosions and other means of manipulation. This will include the creation of earthquakes, tsunamis, and other surface effects that will severely affect an enemy. This is currently an unweaponized portion of the earth, but it will not remain so in the future. [internal footnotes omitted]
Or maybe I'm just too scared to consider this to be a possibility.

Saturday, November 2, 2013

Bernard Goetz Arrested for Attempting to Sell Marijuana

The New York Times reports:

Nearly three decades after becoming notorious as the subway rider who shot four teenagers on a Manhattan train, Bernard H. Goetz found himself back in the news on Saturday, after being charged with trying to sell marijuana to an undercover police officer.

Mr. Goetz, 65, was arrested Friday evening after attempting to sell $30 worth of marijuana to the female officer, the police said. The officer approached him in Union Square and asked if he was selling, according to the police. Mr. Goetz said that he was, and went back to his apartment. When he returned, about 7:30 p.m., he was arrested.
The Goetz case -- where Goetz opened fire on several black youths in a New York subway car -- is a widely-taught case in criminal law courses.  The case's rich (and disturbing) facts and racial dynamics effectively illustrate the debate over whether courts should adopt objective theories of self-defense (whether a reasonable person would have felt endangered) or subjective theories (whether the defendant actually felt endangered).  Goetz argued for a subjective interpretation of the law and failed, but was ultimately found not guilty of the attempted murder charges at trial.

While Goetz's most recent arrest is for a minor offense, I felt that the case was worth noting, given his notoriety in the world of criminal law scholarship.

Mascots, Hot Dogs, and the "Baseball Rule"

NBC Sports reports:

If it had been a foul ball or broken bat that struck John Coomer in the eye as he watched a Kansas City Royals game, the courts likely wouldn't force the team to pay for his surgeries and suffering. 
But because it was a hot dog thrown by the team mascot - behind the back, no less - he just may have a case. 
The Missouri Supreme Court is weighing whether the "baseball rule" - a legal standard that protects teams from being sued over fan injuries caused by events on the field, court or rink - should also apply to injuries caused by mascots or the other personnel that teams employ to engage fans. Because the case could set a legal precedent, it could change how teams in other cities and sports approach interacting with fans at their games.
Fox News elaborates on the facts:

Coomer, of Overland Park, Kan., says he was injured at a September 2009 Royals game when the team's lion mascot, Sluggerrr, threw a 4-ounce, foil-wrapped wiener into the stands that struck his eye. He had to have two surgeries -- one to repair a detached retina and the other to remove a cataract that developed and implant an artificial lens. Coomer's vision is worse now than before he was hurt and he has paid roughly $4,800 in medical costs, said his attorney, Robert Tormohlen.

Normally, courts apply the "baseball rule" in cases involving injuries at baseball stadiums.  Attendees are typically held to have assumed the risk that they would be hit by a fly ball or fragmented bat if an injury of that sort takes place.

But this rule has its limits.  For instance, in Lowe v. California League of Professional Baseball, 65 Cal. Rptr. 2d 105 (1997), the California Court of Appeal overturned a trial court's grant of summary judgment against a plaintiff who was suing after being struck by a foul ball while watching the Rancho Cucamonga Quakes at their home field.  The court noted that immediately before the injury, the plaintiff was distracted by the Quakes' dinosaur mascot, Tremor.  Tremor was hitting the plaintiff with his tail, which drew the plaintiff's attention.  Upon returning his attention to the field, the plaintiff was immediately struck by the ball.

The court held that the baseball rule did not bar the plaintiff's lawsuit.  It noted that the baseball rule exists to prevent lawsuits based on risks that are inherent to the observation of a baseball game.  The court held that Tremor's actions did not fit into this category, noting that "the antics of the mascot are not an essential or integral part of the playing of a baseball game."

It will be interesting to see how the Missouri case turns out.  I could not find any Missouri cases that mention "baseball rule," so it is likely that the Court will draw on authority from other jurisdictions.  I think that the Lowe reasoning would certainly help the plaintiff here, since the injury-causing object was a hot dog and not a ball or bat fragment, and because the hot dog was thrown by a mascot.

On the other hand, here, the mascot, Sluggerrr was not distracting the plaintiff, so the defendant may argue that he should have been alert to possible risks of flying objects.  Moreover, Sluggerrr was throwing a hot dog into the crowd -- an object that is far less dangerous than a fly ball or bat fragment.  The mascot's actions mirrored events that would typically be covered by the baseball rule, with the only difference being that the plaintiff was probably injured far less than he would have been had he been struck by a ball.

I think that if the Missouri Supreme Court takes the breadth of Lowe's language seriously, it may end up finding in the plaintiff's favor.  The tossing of a hot dog (a quintessential relic of baseball) may be negated by the antics of the mascot (a not-so-quintessential part of the game).  The facts of the Missouri case are pretty different, however, so the Missouri Supreme Court can probably distinguish Lowe if it wishes to decide the case on alternate grounds.