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Wednesday, April 30, 2014

Lawmakers Catch On to the Zombie Apocalypse Implications of Florida Gun Bill

I recently blogged about a Florida bill that would, if passed, permit the unlicensed carrying of guns during state- and local-government declared states of emergency. In my previous post, I noted that the law seemed to be a pretty good idea. While, in the short run, the law may result in numerous deaths due to gunfire in the midst of riots and hurricanes, the bill will ultimately give Florida citizens the ability to fight the undead when the zombie apocalypse eventually occurs.

I am not the only person who has taken this stance. The ZombieLaw Blog notes that Florida state Senator Dwight Bullard has proposed an amendment to the bill which would change the title of the bill to read: "An act relating to the zombie apocalypse."

The ZombieLaw Blog also notes that Bullard tweeted this the morning before he filed the amendment:

The Florida Senate has postponed action on the bill. The ZombieLaw Blog asks if there is a video of the amendment being raised, which apparently happened briefly today. If there is a video record of this event, it is probably part of this video, which documents today's Senate proceedings.

I have a final exam tomorrow, so I don't have the time to locate any discussion of the zombie amendment in that four-hour video. But perhaps I will leave the session recording on as background noise while I hammer out my outline this evening, and if I happen to come across anything interesting I will be sure to update this post.

The Legal Implications of Sinking Countries

From the Legal Theory Blog, I learned of Abhimanyu George Jain's recent article, The 21st Century Atlantis: The International Law of Statehood and Climate-Change Induced Loss of Territory (50 Stan. Int. L.J. 1(?) (2014)). Here is the abstract:

International law demands territory as a precondition for statehood. If the Maldives loses its territory as a result of climate change, will it cease to be a state? In light of the negligible contribution of Maldives and similar states to climate change, if they were to lose their statehood and international legal personality on account of climate change, serious questions would arise as to the legitimacy and efficacy of international law. But these states will not lose their statehood, for three reasons. First, in light of the diminishing utility of territory for states, at least for the continuation of established states, territory need not be a necessary requirement. Second, international law is silent as to the extinction of statehood upon physical disappearance of statehood, and equity demands that statehood be preserved in this situation. Third, the political realities of recognition will operate to ensure continuing statehood. But this continuing statehood begs the question of how these states will exist without territory. There are two options: acquisition of new territory or de-territorialised existence. Both are possible but present significant practical hurdles. In the short term, the de jure statehood of these states will be protected, but in the longer term, it is likely that they will cease to exist as states de facto.
I was reminded of an article that I had the opportunity to look over while I was an articles editor for the UCLA Pacific Basin Law Review. That article is Migration for Environmentally Displaced Pacific Peoples: Legal Options in the Pacific Rim, by Gil Marvel Tabucanon. The citation is 30 UCLA Pac. Basin L.J. 55 (2012), but unfortunately I cannot find a publicly available version of the article to link to here. Here is the abstract, though:
This paper explores the complex relationship between the environment and migration, namely the various protection options available for environmentally-displaced Pacific peoples under the laws of the United States, Canada, Australia, and New Zealand. It seeks to ascertain whether flexibility exists in these countries' domestic laws for environmental migrants from neighboring Pacific countries. It asks if humanitarian and ministerial discretion admissions and preferential admission schemes sufficiently address potential Pacific island relocations brought about by global warming and climate change, and identifies both opportunities and challenges in legislation. 
This paper argues that in the absence of an international legal protection regime for environmental migrants, states need to expand immigration opportunites for persons fleeing from environmental threats. In recent decades, the four above-mentioned Pacific Rim states have developed relatively open and liberal migration policies, albeit not specifically geared towards environmental migration. Admitting environmental migrants under equitable and just terms is not only in line with the fundamental values and interests of these Pacific Rim states, but it is also central to their ethical, humanitarian, and domestic legal obligations, although the latter are ad hoc and limited.
These are two of a growing number of articles on how island nations and people living there will be able to address the seemingly insurmountable challenge of rising oceans. This is a growing problem that the international community will need to address at some point soon.

An Interesting Upcoming Case About Fish and Statutory Interpretation

The Supreme Court will hear the case, Yates v. United States, during its October term in 2014. Scotusblog has the details of the case here. Here is the issue:

Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.
Yates discusses his case here. Volokh Conspirators Eugene Volokh and Jonathan Adler have thoughts on the case, with Adler noting that this case raises important questions of how far federal criminal law can extend. Calvin Massey at The Faculty Lounge argues that law enforcement in this case overreached and that the charge in this case "is a mockery of the legislative intention." At Sentencing Law and Policy, Douglas Berman suggests that the Supreme Court could use this case to address concerns of federal overcriminalization. If the Court ends up going in that direction, the case could become a very big deal indeed.

Tuesday, April 29, 2014

The Legal Treatment of Beached Whales

The BBC reports:

The residents of a town on Canada's Newfoundland island fear a blue whale carcass that washed up on its boardwalk last week could explode at any time. 
The 25m (81ft) whale on Trout River's rocky beach is one of several believed to have died in heavy ice weeks ago. 
Town Clerk Emily Butler says the body is bloated with methane gas caused by decomposition and will soon reek, regardless of whether it explodes. 
Local and federal authorities disagree which are responsible for its disposal.
Wondering what the stakes are in this case, I turned to the internet and found this (warning, graphic) video of an exploding whale. It would seem that the bloated whale on the shore by Trout River poses a real threat.

On reading this story, my thoughts turned immediately to the (fortunately fictional) case of Tinrib, Rumble, and Others v. The King and Queen or the "Fish Royal" case from A.P. Herbert's Uncommon Law. In that case, the inhabitants of Pudding Magna, a small town, bring a lawsuit in an attempt to prompt the Crown to remove the body of a whale which has washed up on the shores of the town. The whale was "Fish Royal" and was therefore the property of the King, so the people of the town turned to the Crown to oversee the removal of the whale.

The case describes the Crown's elusive behavior, noting that it punted at the suggestion of using the whale as a military target, and was leery of destroying the whale with explosives because it would be using public resources to destroy the government's own property. At the end of the case, the Ministry of Agriculture and Fisheries refuses to handle the matter because the whale is a mammal and not a fish. At that point, the townspeople have all left, due to the overwhelming stench of the decomposing whale.

While Herbert's Fish Royal case was a joke, The inhabitants of Trout River, and another nearby town, Rocky Harbour, are in an eerily similar situation as the townspeople in Fish Royal. Canadian federal authorities claim that they aren't responsible for removing the whale. CBC News has detailed coverage of the story, including the towns' dispute with the government:

Rocky Harbour Mayor Walter Nicolle said the government and DFO [Department of Fisheries and Oceans] are telling the communities they have to deal with the carcasses. 
Nicolle said it's a difficult task to get rid of such a big animal, and small communities like his don't have the resources. 
"We talked to DFO and they don't want to take responsibility to remove the whale. The whale is in the Rocky Harbour boundaries, so the cost should be [covered] by the town," said Nicolle. 
[Trout River restaurant owner, Jenny] Parsons said the council in Trout River is dealing with the same problem — what to do with the world's largest mammal when it washes up on your shore? 
Nicolle said the DFO won't pay to remove it, and has to grant clearance before the town is allowed to move it. 
"It's in their jurisdiction when it comes to us removing the whale, but it's in our jurisdiction when it comes to costs of removing it." 
Nicolle said time is running out for Rocky Harbour to find help getting rid of the whale, and every day the stink is getting worse.
The threat of an impending explosion makes this case even more dramatic than the Fish Royal scenario. Rumors that this is a publicity stunt for the upcoming season of 24 have not been confirmed. Hopefully the federal government gets its act together so that the citizens of Trout River and Rocky Harbour avoid the unpleasant fate of the citizens of Pudding Magna.

Pew and Smithsonian Poll Finds Most Americans Balk at Prospect of Personal and Commercial Drones

That is one of the findings in a national survey run by the Pew Research Center and Smithsonian Magazine. From the Pew Research article that summarizes the survey:

The legal and regulatory framework for operating non-military drones is currently the subject of much debate, but the public is largely unenthusiastic: 63% of Americans think it would be a change for the worse if “personal and commercial drones are given permission to fly through most U.S. airspace,” while 22% think it would be a change for the better. Men and younger adults are a bit more excited about this prospect than are women and older adults. Some 27% of men (vs. 18% of women), and 30% of 18–29 year olds (vs. 16% of those 65 and older) think this would be a change for the better. But even among these groups, substantial majorities (60% of men and 61% of 18-29 year olds) think it would be a bad thing if commercial and personal drones become much more prevalent in future years.
The poll itself is pretty interesting and addresses public opinion on a wide variety of prospective technological developments, but I think that the drone findings are of particular importance, given the wide array of legislative developments regarding drones in recent years. 

The poll did not seem to compare people's opinions of domestic use of government drones to the use of personal and commercial drones, but I wish that it had. My instincts tell me that approval ratings of government drones would be even lower than the ratings for personal and commercial drones. I base this assertion on my observation that lately, more state restrictions on drones have solely targeted government drones, or have placed far more detailed and heavy restrictions on government drones, compared to privately operated drones.

While the poll may not have explored this distinction, I am fairly certain that an answer will become more apparent as more states continue to enact drone regulations.

Federal Courts Can Be a Tough Subject

Howard Wasserman at PrawfsBlawg has this post about the argument in Susan B. Anthony List v. Driehaus. Wasserman quotes this selection of the argument:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness. 
MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
Wasserman explains why Mr. Carvin was having a difficult time with the question:

It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.
I took Federal Courts this semester and I will soon need to work through the standing/mootness distinction as I put my outline together. I considered including this selection from the Susan B. Anthony List argument as a fallback position to take if I am confronted with a set of facts that blurs the line between standing and ripeness. But I am not sure that Professor Varat will be as sympathetic to that approach on an exam as Professor Wasserman is to this approach in oral argument.

Monday, April 28, 2014

Mass Death Sentence (And Mass Death Sentence Reversal) in Egypt

The BBC reports:

A judge in Egypt has sentenced 683 people - including Muslim Brotherhood leader Mohammed Badie - to death in a mass trial, lawyers say.

. . .

The same court also reversed 492 death sentences out of 529 it passed in March, commuting most of the death sentences to life in prison.
In light of the mass reversal of sentences that accompanied the new death sentences, it's anyone's guess as to how many of these new death sentences will go unreversed.

Forget Cruel and Unusual Punishment, Waterboarding Violates the Establishment Clause... least if Sarah Palin is in charge of things. The Hill reports on a speech Palin gave before the National Rifle Association annual meeting on Saturday. From The Hill:

“They obviously have information on plots to carry out Jihad,” she said at the National Rifle Association (NRA) annual meeting on Saturday evening, referring to prisoners. "Oh, but you can’t offend them, can’t make them feel uncomfortable, not even a smidgen. Well, if I were in charge, they would know that waterboarding is how we baptize terrorists.”
There's a video of it too!

Palin gets to the quote above at around the 6:45 mark, in case you don't have the time to watch the full video.

The First Amendment prohibits, among other things, Congress from making a law "respecting an establishment of religion." I imagine that forced baptism of prisoners would run afoul of this constitutional protection.


The American Conservative criticizes Palin's remarks, calling her statement "sacrilegious."

Washington Case Illustrates the Range of Animals That May be "Abnormally Dangerous"

According to section 23 of the Restatement (third) of Torts, if a defendant keeps a type of animal that the defendant knows is abnormally dangerous for an animal of its kind, then the defendant is liable for whatever harm that animal causes, regardless of the defendant's mindset. Kenneth Simons discusses and criticizes the development of the restatements of this tort here.

This sort of issue comes up a lot in dog-bite cases. A plaintiff suing over a dog bite can pursue a claim under a strict liability theory if he or she can prove that the defendant knew that the dog had a propensity to be dangerous. This is usually done by proving that the dog has bitten somebody in the past, although facts other than prior bites can be used to show dangerousness.

But other animals may be abnormally dangerous, including (according to at least one plaintiff) ducks. That is what the plaintiff is arguing in this interesting case coming out of Estacada, Oregon. The earlier link lays out the basic facts surrounding the case, but for a better summary, I'd recommend Kevin Underhill's post on the case at his blog, Lowering the Bar. Underhill summarizes the facts of the case:

Cynthia Ruddell alleges that she was just stepping out of her motor home "on or about May 7, 2012," when she was suddenly attacked by a local duck. The duck's onslaught allegedly caused Ms. Ruddell "to fall in her attempt to escape the duck, landing on her right outstretched hand and fracturing bones in her right wrist." She also injured her right elbow and shoulder, the complaint says, and to date has incurred somewhere around $25,000 in medical expenses.
Here's the link to the complaint itself. The plaintiff alleges that the defendant knew that the duck "had abnormally dangerous propensities in attacking people in an aggressive manner similar to how it attacked and injured [the plaintiff] . . . ."

It will be interesting to see what other evidence of attacks the plaintiff puts forward. I must admit that I'm a little bit skeptical at this point -- from a strategic perspective, it makes sense for the plaintiff to include the strict liability claim, because it leaves open the option to make that argument. But I'd be much more willing to believe this claim if the case involved a goose, rather than a duck. Metzer Farms writes about "How to Thwart an Aggressive Duck," but the aggression in those situations seems to be limited toward other ducks, rather than people. And this misleadingly-titled video, "Aggressive Ducks 1" hints that ducks may be dangerous, but the only aggressive animals I see in the video are Canadian geese.

With any luck, this case will raise serious questions over the limits of abnormally dangerous animals doctrine and go to the Oregon Supreme Court, resulting in a well-written published opinion that is included in future tort law casebooks. I can only hope that this post's critical comparison of duck vs. goose aggression makes it into the footnotes of those books.

Sunday, April 27, 2014

Rick Santorum is Wrong About the History of Gun Control

I blogged a few days ago about Georgia's new law that expands the ability of people to carry concealed firearms. Georgia's law expands the rights of people to carry firearms in and around airports (though not past security screenings), in bars, and in other places.

Recently, former presidential aspirant Rick Santorum spoke out in favor of the bill, arguing that it will make Georgia a safer place. The Hill reports on an event where Santorum defended his view on the law:
He dismissed a question from “Face the Nation” host Bob Schieffer that the bill could turn the state into the “O.K. Corral.” 
“Everybody romanticizes the O.K. Corral and everything that happened, but gun crimes were not very prevalent back then,” Santorum responded. “Why? Because people carried guns.”
But I recall from Adam Winkler's excellent book, Gunfight, that the widespread carrying of guns was not the reason why gun crime was so prevalent in the old west -- especially not in Tombstone, Arizona where the showdown at the O.K. Corral took place. According to Winkler:
Americans have long celebrated that shootout as a defining incident in our cultural heritage of guns. Less often recognized, however, is the central role gun control played in that day's events. Two years before the gunfight, the Tombstone city council adopted a law known as Ordinance No. 9. The title of the ordinance was "To Provide against the Carrying of Deadly Weapons." 
It was the failure of the Clantons and McLaurys to abide by the requirements of Ordinance No. 9 that provoked the shootout. Recall that Ike Clanton was arrested and fined twenty-five dollars, not a trivial amount in 1881. The fine was the penalty imposed on Ike for walking around the town armed, in violation of Ordinance No. 9. When Wyat Earp beat Tom McLaury on the street, it wasn't just out of anger. Wyatt demanded that Tom turn over the concealed firearm that Earp believed tom was carrying, again in violation of the ordinance. Instead of depositing their guns upon their arrival in Tombstone, the Clanton/McLaury gang was still armed when spotted at the gun shop loading up on ammunition just a few minutes before the shootout. . . . [N]o one doubts that the Cowboys had broken the law -- a gun control law. (172-173).
Winkler goes on in his book to note that gun control ordinances like Ordinance No. 9 were extremely common in western towns. While carrying guns on the frontier for self-defense was a near-universal practice, many towns required those passing through to leave their guns with the sheriff while they were within city limits.

So Santorum is completely wrong here. Gun crimes were rare in the west not because people constantly carried firearms, but because they constantly had to forfeit their firearms when entering towns. In Santorum's defense, Bob Schieffer's question hinted at the misconception that western towns were filled with guns, but that does not excuse Santorum from turning the misleading reference into a complete tall-tale.

Saturday, April 26, 2014

A Nine Billion Dollar Punitive Damages Verdict and Why it Won't Last

Some of my favorite shows are on late at night. As a result, I have seen a lot of commercials from law firms that solicit potential plaintiffs in drug-related injury cases. One commercial I saw the other night claimed that a plaintiff had received a 6 billion dollar verdict in a lawsuit against a drug company. I thought that this was misleading -- damages in that amount needed to have been given to a class of plaintiffs, right?

Turns out my instinctual reaction was wrong. The ad was referring to this 6 billion dollar verdict against Takeda Pharmaceuticals. The 6 billion dollar amount was a punitive damages award and was based on the company's apparent practices of covering up the risk of harms posed by one of its drugs. This verdict was accompanied by an additional 3 billion dollar punitive damages award against its marketing partner, Eli Lilly. In addition to punitive damages, the plaintiff was awarded 1.25 million in compensatory damages.

The Wall Street Journal Law Blog summarizes why these damages will probably be reduced:

But how likely is it that the companies will actually fork over that amount? Not very, say legal experts. 
“There’s no way that these [damages] will be $9 billion at the end of the day,” said Mark Lanier, the lawyer for the husband and wife who sued the companies. U.S. District Judge Rebecca Doherty, who is presiding over the case in Lafayette, La., “will do what she thinks is right,” he said. 
. . . 
Compensatory damages are meant to compensate a party for loss or injury. Punitive damages are meant to punish and deter. But the two must bear some relationship to one another, the U.S. Supreme Court has ruled. 
In the 2003 case State Farm Mutual Automobile Insurance Co. v. Campbell and the 1996 case BMW of North America Inc. v. Gore, the high court ruled that excessive punitive damages are unconstitutional. 
What is excessive? It depends on the size of the compensatory damages. Generally speaking, punitive damages that are more than nine times that of compensatory damages have a poor survival rate, the Supreme Court ruled. Put another way, the ratio of compensatory damages to punitive damages typically should be a single digit.
The punitive damages multiplier in this case is far larger than a single digit. With compensatory damages measuring in at 1.25 million, the punitive damages are 7,200 times that amount. That's even higher than the 5,000-to-one verdict that I blogged about here (which was also something I learned about due to late-night television shows).

While this case involves a notably high ratio that is almost certain to be overturned, I still think it is a little strange that the plaintiff's attorney said that there was "no way" that the verdict would stand. While the attorney is almost certainly correct, if I were a party involved in litigation, I would not want my attorney speaking out and saying that the verdict I'd just been awarded is certain to be reduced.

Thursday, April 24, 2014

Georgia Law Expands Right to Carry Concealed Firearms

The New York Times reports:

The 29-page law, which goes into effect on July 1, was approved overwhelmingly last month by the Republican-controlled Legislature with some support from Democrats. It will expand the roster of places where gun owners who hold concealed-carry permits can take their weapons to include bars. Critics said its scope created new dangers.
The law permits those with licenses to carry concealed firearms to carry firearms in airports where unscreened passengers or visitors are allowed. And it allows school districts to permit their teachers to have firearms.

The bill does have its limits, so some gun rights advocates are still unsatisfied:

And although the law is a significant victory for proponents of gun rights, it is less broad than some of them envisioned. Houses of worship are still allowed to bar weapons, and a proposal that would have permitted guns on college campuses faltered during the legislative session. 
“Was HB60 all we wanted?” GeorgiaCarry.Org, a nonprofit group, posted on its website in March, referring to the bill. “Of course not! But we feel that we got a great bill and this will clear the way for some great improvements in the future. And those of you who have been with us for any length of time know, we ask for everything we want and accept what we can get without giving up any of the gains we have made in the past. We keep marching down the field, and one day, we will get all our rights back.”
The bill expands Second Amendment protections far beyond the U.S. Constitutional minimum that the Supreme Court laid out in District of Columbia v. Heller and McDonald v. City of Chicago. In both of those cases, the Court strongly implied that the government could still restrict firearm possession on governmental property and in schools.

Georgia's constitution mirrors the Second Amendment, with Article 1, section 1, paragraph 8 of the Georgia Constitution stating that "The right of the people to keep and bear arms shall not be infringed." Georgia law seems to mirror the scope of Second Amendment law. The Georgia Supreme Court, in Hertz v. Bennett, 751 S.E.2d 90 (Ga. 2013) held that a statute outlawing the possession of firearms by convicted felons did not violate the state constitution -- which is consistent with limiting language in Heller and McDonald.

Some organizations who have raised questions about the law say that they may challenge the law down the road. But now that the law is in place, I expect that any attempt to limit the new protections would be viewed as an attempt to limit the right to bear arms and would be met with serious opposition.

Florida Gun Bill is a Good Idea for Combating the Zombie Apocalypse

The Miami Herald reports:
Under a bill backed by the National Rifle Association and other gun groups, riots could be the newest safe haven for those carrying firearms without a permit. 
HB 209, which is expected to be voted on Friday by the Florida House, would allow people with clean criminal backgrounds to conceal firearms without a permit during emergencies — including riots and civil unrest like the 1996 racial disturbances that rocked south St. Petersburg — declared by the governor or local officials.

Read more here:
The Daily Beast provides some opinionated coverage of "Florida's Zombie Apocalypse Gun Bill" here. And Talking Points Memo discusses the bill here. The text of the bill is here. While the unlicensed carrying of firearms is generally prohibited, the bill would change the broad prohibition so that it would not apply to:

(a) A person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor pursuant to chapter 252 or declared by a local authority pursuant to chapter 870.
The bill is not without its critics. From the Herald:
“To allow people to go into a riot while concealing a gun without a permit is the definition of insanity,” said Pinellas County Sheriff Bob Gualtieri. “The bill is crazy. It’s absurd.”
But as The Daily Beast's title indicates, the drafters of this bill have the long game in mind. Much like the insightful lawmakers who drafted the United States' broad federal criminal laws, Florida's lawmakers have clearly introduced this bill so that people are not deterred from taking up arms in the event of the zombie apocalypse.

While some people may end up getting hurt or killed by misguided gunowners during riots and non-zombie emergencies, in the long run, this bill will end up saving thousands of lives, and possibly the world.

Wednesday, April 23, 2014

Review: Bond on Justice McReynolds

I recently read James E. Bond's book, I Dissent: The Legacy of Chief Justice James Clark McReynolds. I am not exactly sure what drove me to read Justice McReynolds' biography -- from what I knew of the justice, he was bad-tempered, prejudiced, and not a very noteworthy legal mind. A Google search for "worst supreme court justice" leads to the Wikipedia page on McReynolds. Business Insider also labels McReynolds as the worst justice ever, emphasizing his antisemitism.

I guess that I wanted to learn more about McReynolds in order to get an idea of just how bad a Supreme Court Justice can be. To other readers with this goal -- I do not recommend Bond's book. While Bond presents some of the negative history of the Justice, the book overall paints an almost glowing picture of the man. For those readers seeking to obtain knowledge about one of the lesser-known Justices, Bond's book may be useful -- the book gives a pretty decent account of McReynolds life and career before his time on the Court, and gives a helpful survey of some of McReynolds' better-known opinions.

Tuesday, April 22, 2014

Iowa Senate Candidate Bob Quast Promises to Raffle Off Car to Voters

Iowa politics have been interesting this year. Democratic Senator Tom Harkin will not be running for a sixth term this midterm, and candidates are already vying for his vacant seat. Bruce Braley, who is currently a U.S. representative for Iowa's First District, is running as the Democratic candidate. But things are a bit more amusing on the Republican side of the race. First, there was the "Squeal" ad from Joni Ernst, who promised she was qualified "cut pork" in Washington based on her experience castrating hogs on an Iowa farm.

Then there was the #GotBalls ad from Bob Quast, who promised to vote for term limits, and to shoot the testicles off of the man who murdered his sister if that man ever bothered Quast's family. Quast seems to be running as a write-on candidate, and it is not clear what party he is affiliated with -- although his strong Second Amendment stance and ridicule of "Braleycare" seems to put him closer to the Republican side of the aisle.

Wanting to know more about Quast, I visited his website, where I was confronted with this video which began playing automatically:

While not as shocking as Quast's first ad, I was taken aback by Quast's promise to give away a car to voters. I looked further into Quast's website and found a list of questions and answers where he went into more detail on the car giveaway:
Q2: Is Bob really serious about giving away his 2014 Chevy Spark campaign car?
A2: As a heart attack, so long as doing so doesn't violate any existing law, rule, regulation, or other work of the nation's busy attorneys and lawmakers. If Mr. Braley or his attorney friends/financial donors pass a new law prohibiting Bob from making a campaign promise that he intends to make real (giving away his campaign car on Nov. 5, 2014, if Bob wins the general election for US Senate), then there can be no free car, as Bob doesn't want to occupy the prison cell vacated by his sister's killer.

Q3: Who is eligible to win Bob's 2014 Chevy Spark?
A3: Any Iowan who is registered to vote by Nov. 4, 2014, who goes to and submits the requested personal info (like your email so we may annoy you with more funny videos and occasional requests for $6 or $10 investments to pay for even more funny stuff that also educates you on all of Bob's serious platform issues). You see, Bob thinks differently and doesn't plan to ever raise the multi-millions of legal bribes going to other "professional" career politicians. When Bob goes to Washington, DC, he shall owe no favors to any big donors nor the senior management of either party. Bob plans to spend six years working hard, solving problems others created, reporting directly to the awesome Iowans who elected him, and then coming home at age 50 to his family and friends. There's also this little cause called the Lynnette Quast Craft Charity he'd like to run for the rest of his life. Sadly, there are a limitless number of "clients" who need Bob's help!
The Daily Beast reports on Quast's promise here, noting that while buying votes is illegal, it is a surprisingly common practice for politicians to raffle off prizes in exchange for website signups. The Daily Beast links to this New York Times article on how gun raffles are an increasingly popular tool among republican candidates.

At the Election Law Blog, Rick Hasen remarks that Quast'spromise is probably legal, since there is "no payment for turnout or voting." I am certainly no expert on the subject, so I'll take Hasen's word for it. Whatever the case may be, Iowa's midterm election is shaping up to be chaotic and humorous, and I look forward to seeing how the race unfolds.

Does Removing Lead from Gasoline Reduce Crime?

That's the question this BBC article explores in detail. From the article:

Many Western nations have experienced significant declines in crime in recent decades, but could the removal of lead from petrol explain that? 
Working away in his laboratory in 1921, Thomas Midgley wanted to fuel a brighter tomorrow. He created tetraethyl lead - a compound that would make car engines more efficient than ever. 
But did the lead that we added to our petrol do something so much worse? Was it the cause of a decades-long crime wave that is only now abating as the poisonous element is removed from our environment? 
. . . 
If you want to understand the causes of crime - and be tough on them - you need to start with lead, says Dr Bernard Gesch, a physiologist at Oxford University who has studied the effect of diet and other environmental factors on criminals. 
"Lead is a very potent neurotoxin," says Gesch. "It has a range of effects on the brain that have been demonstrated through hundreds of different biological studies. Lead alters the formation of the brain. It reduces the grey matter in areas responsible for things such as impulse control and executive functioning - meaning thinking and planning."
The article goes on to discuss how the amount of lead in the environment corresponds to whether there is lead in gasoline, citing this study by Rick Nevin, published in 2000 in Environmental Research, as an early example of research on the issue.

The article notes that studies carried out in different countries reveal crime rates corresponding with the amount of lead exposure. For example, "[l]eaded petrol was removed from British engines later than in North America - and the crime rate in the UK began to fall later than in the US and Canada."

The theory remains difficult to test, and there are those who question the validity of connecting health impacts from environmental factors to criminal, rather than behavioral, activity. But the article raises some interesting points, and is worth reading in full.

Juxtaposing US Internet Policies: Surveillance vs. Encouragement

The New York Times reports on the apparent tension that emerges when one considers the U.S. government's approach to Internet freedom in repressive states in contrast to the NSA's broad surveillance programs:

A group of academics and computer enthusiasts who took part in the 2011 uprising in Tunisia that overthrew a government deeply invested in digital surveillance have helped their town become a test case for an alternative: a physically separate, local network made up of cleverly programmed antennas scattered about on rooftops.
The State Department provided $2.8 million to a team of American hackers, community activists and software geeks to develop the system, called a mesh network, as a way for dissidents abroad to communicate more freely and securely than they can on the open Internet. One target that is sure to start debate is Cuba; the United States Agency for International Development has pledged $4.3 million to create mesh networks there. 
. . . 
“Exactly at the time that the N.S.A. was developing the technology that Snowden has disclosed, the State Department was funding some of the most powerful digital tools to protect freedom of expression around the world,” said Ben Scott, a former State Department official who supported the financing and is now at a Berlin policy nonprofit, the New Responsibilities Foundation. “It is in my mind one of the great, unreported ironies of the first Obama administration.”
The article provides an interesting discussion of the United States' efforts to promote social networking and internet freedom on order to facilitate communication in countries where internet access is heavily restricted and monitored. The discussion of mesh networks is particularly detailed and interesting, and shows how these networks may be an effective, resilient way for people to access the internet. The article concludes:

Resilience could become the prime argument for mesh networks, with privacy as a bonus, said Jonathan Zittrain, a professor of law and computer science at Harvard and co-founder of the Berkman Center for Internet and Society. That is similar to the original Internet, before it was controlled by corporate hands and scoured by government spies, he said. 
“It makes mesh more like the Internet than the Internet,” he said.

Monday, April 21, 2014

Which Law Review Has Held the Most "Influential" Symposium on the Second Amendment?

Over at the Volokh Conspiracy, David Kopel has a post about his new article, The First Amendment Guide to the Second Amendment, which is forthcoming in the Tennessee Law Review.

In his post, Kopel writes:

Back in 1995, the Tennessee Law Review published a symposium issue on the Second Amendment and firearms policy. That symposium was probably the most influential law review symposium ever published on the topic.
I disagree.

Back in 2009, the UCLA Law Review held a symposium entitled, The Right to Bear Arms After D.C. v. Heller. Here is a link to the Concurring Opinions post on that symposium, which has links to each of the articles in that symposium.

I have drawn on several of the articles from UCLA's symposium in my own papers on the Second Amendment, and I recalled that they had appeared to be widely-cited. Motivated by Law School and Law Review pride, I decided to compare the citation counts of Tennessee's symposium articles compared to the citation counts of UCLA's symposium articles. I determined citation rates based on Westlaw Next's "Citing References" function. In line with Westlaw's divisions of citations, I distinguished citations between citations in court opinions, secondary sources (like treatises and law review articles), appellate court documents, and trial court documents.

While "influence" is a difficult thing to quantify, citations are probably a good proxy, since they indicate how widely read and relied upon a journal's articles are. Moreover, citations are the primary factor in determining law journal rankings, so I don't think that my use of citation counts is totally off-base here.

Here are the results of my survey:

Tennessee Law Review Symposium (1995)

8 Articles in the symposium issue

19 Cases
10 Federal Circuit Cases
4 State Supreme Court Cases
2 Federal District Cases
3 State Court of Appeals Cases
366 Secondary Sources
63 Appellate Court Documents
12 Trial Court Documents

TOTAL: 460
(385 cases and secondary sources)

UCLA Law Review Symposium (2009)

14 Articles in the symposium issue

55 Cases
2 U.S. Supreme Court Case Citations (Both from McDonald v. City of Chicago dissent)
28 Federal Circuit Cases (two in dissenting opinions)
5 State Supreme Court Cases
15 Federal District Cases
5 State Court of Appeals Cases
337 Secondary Sources
101 Appellate Court Documents
25 Trial Court Documents

TOTAL: 518
(392 cases and secondary sources)

From these numbers, it looks like the UCLA Law Review Symposium issue has had more influence than the Tennessee Law Review Symposium Issue. While Tennessee had more secondary source citations than UCLA, UCLA pulled ahead by having more case citations. The breakdown of the types of cases indicates that the cases citing UCLA's articles were of a comparable level of authority to the cases that cited the Tennessee articles. And I think that case citations are particularly important when it comes to measuring law journal influence, since these are citations in real cases, rather than other articles that nobody other than legal scholars will read.

There are a few objections somebody may make to my comparison . One might argue that UCLA's Symposium Issue had more articles than Tennesee's which gave UCLA more chances for citations. I agree that UCLA's per-article influence may be lower than Tennessee's, but the claim that I sought to test in my comparison was that Tennessee's symposium issue was more influential -- so my conclusion comparing the two issues as wholes stands. Because I am only evaluating this simple question, I found no need to control for time of publication (meaning that Tennessee stands at an advantage, since its articles were published 14 years before UCLA's).

One might also object to my listing of court documents. Westlaw probably has more court documents from recent years, and court documents citing the Tennessee articles soon after their publication may not be in the database, since these documents may have been submitted to courts in the late 1990's and early 2000's. While I am not sure how Westlaw's document-collecting procedures operate, even assuming that this objection is correct, UCLA still has more case and secondary source citations than Tennessee (although it is a much closer contest if one takes only these citations into account).

I would also like to note that I would not have reached this conclusion had it not been for Eugene Volokh's article, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and Research Agenda. With 71 secondary source citations and 31 case citations, this article was certainly the most influential in the issue.

To conclude, while the Tennessee Law Review's 1995 symposium on the Second Amendment was notably influential, I do not think it is the most influential law review symposium on the issue. By my count, the UCLA Law Review's 2009 symposium holds that honor.

General Mills Reverses Changes to its Legal Terms, Removing Arbitration Provision

The New York Times reports:

General Mills, one of the country’s largest food companies, on Saturday night announced in a stunning about-face that it was withdrawing its controversial plans to make consumers give up their right to sue it. 
In an email sent after 10 p.m. on Saturday, the company said that due to concerns that its plans to require consumers to agree to informal negotiation or arbitration had raised among the public, it was taking down the new terms it had posted on its website. 
“Because our terms and intentions were widely misunderstood, causing concerns among our consumers, we’ve decided to change them back to what they were,” Mike Siemienas, a company spokesman, wrote in the email. “As a result, the recently updated legal terms are being removed from our websites, and we are announcing today that we have reverted back to our prior legal terms, which contain no mention of arbitration.”
How did General Mills think their terms had been mischaracterized? In its blog, the company elaborates on its legal terms revisions. General Mills' post includes this remark:

We’ll just add that we never imagined this reaction. Similar terms are common in all sorts of consumer contracts, and arbitration clauses don’t cause anyone to waive a valid legal claim. They only specify a cost-effective means of resolving such matters. At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood.
I mentioned in this previous post that I thought there was some misinterpretation about what the legal terms said -- some people had been reporting that purchasing General Mills products would result in a forfeiture of the right to sue, but the legal terms only appeared to apply to those customers who received coupons or "joined" the company's "online community" -- not all customers.

But the terms of the legal agreement said that the agreement applied to customers who "joined" General Mills' websites "as a member" and those customers who "joined" the company's "online community." This was the provision that led many to report that the legal terms applied to users who "liked" the company on Facebook, or followed the company on Twitter. And I think this interpretation of the terms follows from the former language in the agreement. So while General Mills is correct to say that the agreement did not preclude customers from suing as a result of a simple purchase, I don't think they are right to say that the agreement did not preclude lawsuits by consumers who liked the company on Facebook.

While I thought that General Mills' legal agreement contained some questionable provisions, and while General Mills' reversal of these changes is probably a good business move, this reversal means that the interesting legal questions I discussed in my previous post will not be explored by the courts.


Dave Hoffman at Concurring Opinions discusses the General Mills legal agreement and its revision here.

North Dakota: A State Without Drone Restrictions

I have written a number of posts on state drone laws in an effort to highlight different approaches that states may take in regulating this new technology. But I have not yet written about states that have chosen to leave drones unregulated.

North Dakota is one such state. Currently, there are no laws in North Dakota that directly restrict the use of drones, both by the government and by members of the public. This means that members of the public can freely use drones without running into trouble with state law enforcement. The possibility of federal interference remains a possibility, but a relatively low one.

North Dakota law enforcement is taking advantage of the lack of regulation. In a highly publicized case, law enforcement officers used a predator drone to apprehend several suspects who had previously resisted police officers' attempts to force the return of several stolen cows. While the suspects challenged officers' use of the drone as a violation of their Fourth Amendment freedom from unreasonable searches and seizures, the court rejected this challenge.

I think that drones can be useful while remaining non-intrusive, and I think that state legislatures should take a lighter approach towards regulating drone use -- especially drone use by private actors. It will be interesting to see if states like North Dakota without drone restrictions continue to take advantage of drone technology for law enforcement, and whether highly publicized cases of police drone use end up prompting regulation.

Sunday, April 20, 2014

Holmes Quotes: On the Intersection of Law and Life

This is the second in a series of posts where I posts quotes from Justice Oliver Wendell Holmes. This post's selection reveals Holmes' enthusiasm for the deep relationship between law and various aspects of life, and how true engagement with the discipline of law requires deep devotion of one's thoughts and efforts:

And what a profession it is! No doubt everything is interesting when it is understood and seen in its connection with the rest of things. Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life--so share its passion, its battles, its despair, its triumphs, both as witness and actor? 
. . . 
If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and onlely passion--only to be won by straining all the faculties by which man is likest to a god.

(From Arthur Dehon Hill, Oliver Wendell Holmes, Justice of the Supreme Court of the United States, 39 Harvard Graduates Magazine 265-289 (March, 1931)) (Marke, The Holmes Reader, p.14).

Thursday, April 17, 2014

In Its New Statement of Legal Terms, General Mills Greatly Restricts Consumers' Rights to Sue

The New York Times reports:

General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.
Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site. 
In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms.
General Mills' online agreement certainly seems to go as broad as it told the Times. At the top of its webpage, it states, "Please note we also have new Legal Terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration." Looking to the legal agreement suggests that the terms apply to a broad range of activities, although they may not apply to all consumers who purchase General Mills products. Here are the portions of the agreement that give me this impression:

1. Your agreement to these legal terms 
These terms are a binding legal agreement (“Agreement”) between you and General Mills. In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.

Of course, your decision to do any of these things (i.e., to use or join our site or online community, to subscribe to our emails, to download or print a digital coupon, to enter a sweepstakes or contest, to take advantage of a promotional offer, or otherwise participate in any other General Mills offering) is entirely voluntary. But if you choose to do any of these things, then you agree to be bound by this Agreement.
. . . 
3. Dispute resolution; binding arbitration 
. . . 
Later portions of the arbitration waiver indicate that consumers who go to arbitration cannot consolidate their classes with other consumers, meaning that consumers who agree to the contract waive any class action rights.

This is a pretty notable development in General Mills limitation of its own liability, and I don't think that this contract will stand up in all the situations the contract claims to cover. Also, I don't think that General Mills has accurately stated what its contract actually says in its discussion with the New York Times.

Monday, April 14, 2014

Indiana Passes Law Restricting Government Drone Use, Password Requests, and Cell Phone Tracking

Indiana has passed a law that restricts the government's ability to use drones, request passwords, and track cell phones without a warrant. Reports on the law are available here and here. The full text of the law is available here.

The bill prohibits law enforcement officers from using drones to collect evidence. There are several restrictions to this ban: law enforcement officers may use drones in situations where exigent circumstances would justify a warrantless search, to prevent terrorist attacks, in search and rescue operations, in responding to a natural disaster, and in non-law enforcement related situations. Law enforcement officers may also collect information using a drone with the consent of the person whose property is viewed with the drone.

I have mentioned before that while I am generally in favor of defining limitations on government use of drones, overly broad restrictions may lead to unreasonable curtailment of government use of technology. In my opinion, Indiana's law generally seems to be okay, since it contains most exceptions I would want a drone-restricting law to have. The law would leave police unable to use drones to make effective, accurate visualizations of certain situations where use of a drone may be helpful, and where it would not be typically viewed as a privacy violation. For example, police responding to an accident may seek to have a drone diagram and photograph the scene from an aerial perspective. But this law would prohibit police use of drones for that purpose.

The bill also restricts officers' ability to request users' passwords for electronic devices. Searches of phones and computers tend to reveal far more information than searches of other containers, and cases that analogize these devices to containers or diaries tend to stretch the boundaries of metaphor. I am not sure if Indiana's law will add much to protections that users already have, however, since the presence of a password on a phone or computer would make that device analogous to a closed or locked container, meaning police would need to obtain a warrant to access those devices without the added protection of the law.

Finally, I want to highlight that the law restricts the government from using cell phone tracking technology without a warrant unless exigent circumstances demand the use of this technology. This restriction comes as more and more states are adding or considering adding warrant requirements to techniques that locate cell phones. The Massachusetts Supreme Court recently ruled that police need to get a warrant before collecting cell phone location information, in contrast to the Fifth Circuit's opinion that no warrant is needed to obtain this information.

This statute is a good example of how many difficult Fourth Amendment questions may end up being answered by legislatures rather than by the courts. As technology develops, Fourth Amendment precedent may not be sufficient to provide protection of privacy that most people desire. In light of this concern, the most desirable outcome is for states to develop laws to meet these concerns, rather than for courts to strain the boundaries of precedent. Indiana's law is a good sample of laws that we can expect more states to pass as this reality becomes increasingly apparent.

New York Police Routinely Handcuff Shooting Victims: Thoughts From the Medical and Prosecution Perspectives

That is the subject of this article in the New York Times. From the article:

The New York Police Department routinely performs warrant checks on shooting victims. If an outstanding warrant is found, the police generally handcuff and shackle the victim, often for the whole hospital stay, no matter how minor the underlying offense or how grievous the injuries.
“That’s the procedure,” the department’s chief spokesman, Stephen Davis, said, explaining that the “patrol guide says prisoners will be handcuffed at all times.” 
“We’re not handcuffing him by virtue of him being a victim,” Mr. Davis said, referring in general to instances where shooting victims were arrested on minor warrants. “But if he has a warrant, it would require him to be in our custody.”
The Times goes on to provide several examples of this practice, and illustrates the burdens the practice places on gunshot victims.

While I am neither a medical expert, nor a criminal prosecutor, I have had the opportunity to work in both hospital and prosecutorial settings, and I think that the NYPD's uniform approach to this issue is misguided.

The Rights of Animals and the Rise in Veterinarian Malpractice Lawsuits

That is the subject of this interesting essay by David Grimm at the Wall Street Journal. Grimm writes:

Felony anticruelty laws in all 50 states impose up to $125,000 in fines and 10 years in prison for anyone who abuses animals. The federal Pets Evacuation and Transportation Standards Act, passed after Hurricane Katrina, requires rescue agencies to save pets as well as people during natural disasters. Judges have been increasingly willing to treat cats and dogs like people in the courtroom, allowing custody disputes over pets and granting large awards in cases like Ms. Lohre's—including so-called noneconomic damages typically reserved for the death of a spouse or a child. In a few recent court cases, judges even gave dogs their own lawyers. 
But not everyone is cheering. Cleaners, groomers and dog walkers have been hit with large lawsuits when harm has come to family pets. And veterinarians have been particularly spooked by the rising legal status of cats and dogs. 
In 2004, a Los Angeles man won a $39,000 veterinary malpractice verdict for the death of his Labrador mix. The American Veterinary Medical Association warned that "personhood" for pets could flood the courts, drive vets out of business and ultimately harm dogs and cats by making veterinary services prohibitively expensive.
Grimm goes on to describe how personhood worries may spill over to non-pet animals like "livestock and lab rats," and that veterinarians are worried about a slippery slope in this direction. As far as livestock are concerned, I would expect that any push to give rights to animals commonly raised for consumption would be met with resistance from both the public, lobbyists, and existing federal laws that permit and regulate the treatment and slaughter of these animals.

But the essay sheds light on an interesting issue that I had not previously considered. It will be interesting to see if the trend toward more malpractice lawsuits in the veterinarian world continues, and how this might affect the overall industry.

Saturday, April 12, 2014

A Five-Thousand to One Punitive to Compensatory Damages Ratio

From Fox News' late-night show, Red Eye, I learned about the unpleasant story of James Caroll Butler, who attempted to spike his coworker's coffee with urine. The coworker, Michael Utz, fortunately did not drink the tainted coffee, and sued Butler for the emotional distress that Utz suffered as a result of Butler's actions.

In his lawsuit, Utz asked for quite a bit of money:
Utz, a plant mechanic for the town’s environmental services department since 2002, claimed that the urine-laced coffee pot caused him severe emotional distress, asking the court to award him $728,000 ($378,000 in compensatory damages and $350,000 punitive damages).
In the end, Utz did not get the hundreds of thousands of dollars he sought in his complaint. But the jury did end up awarding him $5,001. Why the extra dollar?
According to court records, the jury awarded Utz $1 in compensatory damages and $5,000 toward punitive damages.
As a bit of background for those unfamiliar with these remedies, compensatory damages are meant to make the plaintiff whole and repair harm done by the defendant. Punitive damages, on the other hand, are meant to deter the defendant from carrying out similar conduct in the future, and by awarding punitive damages, the jury expresses that the defendant's conduct was particularly reprehensible.

As loathsome as Butler's conduct was, if he were to appeal, I think that he would have a good chance at having those damages reduced. In State Farm Mut. Automobile Ins. Co. v. Campbell, the Supreme Court struck down an award of $25 million in punitive damages accompanying a reward of $1 million in compensatory damages. The Court stated:

[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. (citations omitted)
While the Court refused to state a solid rule, it heavily insinuated that a punitive damages award more than nine times the amount of  the compensatory damages would be struck down as a violation of due process.

Here, the jury awarded only one dollar in compensatory damages, meaning that the punitive damage award was five thousand times the compensatory award. While the jury may have wanted Butler to be punished (and while Butler was also convicted of misdemeanor criminal assault for his actions), the composition of the award clearly indicates that the jury thought that Utz suffered very little, but Butler's action was very bad.

I think that the jury could have awarded Utz substantial damages for emotional distress. But they didn't, and with a ratio like this, I could see this award being overturned if Butler is inclined to appeal -- though keeping this incident in the news may not be Butler's favorite outcome.

Holmes Quotes: The Individual Lawyer's Place in the Legal System

A friend of mine recently gave me Julius Marke's, The Holmes Reader (Oceana, 1955). This book contains a collection of Justice Oliver Wendell Holmes Jr.'s speeches and papers and is an excellent primer on some of Holmes' non-opinion work.

As I get into the book, I am struck by the number of excellent quotes from Justice Holmes, and I have decided to devote a series of posts to quotes that I find notably inspiring, striking, or surprising. The first quote in this series falls into the inspiring genre, and reflects Holmes' view of the individual lawyer's role in the broader legal system:

The glory of lawyers, like that of men of science, is more corporate than individual. Our labor is an endless organic process. The organism whose being is recorded and protected by the law is the undying body of society. When I hear that one of the builders has ceased his toil, I do not ask what statute he has placed upon some conspicuous pedestal, but I think of the mighty whole, and say to myself, He has done his part to help the mysterious growth of the world along its inevitable lines towards its unknown end.

(From Arthur Dehon Hill, Oliver Wendell Holmes, Justice of the Supreme Court of the United States, 39 Harvard Graduates Magazine 265-289 (March, 1931)) (Reader pp. 12-13).

Friday, April 11, 2014

The Social Security Administration "Creates" Thousands of "Undead" Americans

That's the subject of this post from the Funeral Law blog, which discusses this CNN Money article on how the Social Security Administration wrongfully declares approximately 14,000 people dead each year. The SSA receives millions of death reports each year. Some of these reports are mistaken, but occasionally, these mistaken reports are entered into the SSA's "Death Master File" database.

Banks work with the SSA to prevent fraudulent use of identities, so anybody who has been entered into the Death Master File database has their accounts frozen. Moreover, those people stop receiving government benefits that they may sorely need.

The Funeral Law Blog reports that those who have wrongfully been declared dead are not out of luck, but the process to be "revived" is not an easy one:

There is hope for those 14,000 people the SSA wrongfully declares dead each year. First, they will need to find a copy of their death certificate and have it amended to make them not dead. They then need to take the amended death certificate and a photo ID to their Social Security office. After the SSA declares you revived, you can then go to your bank and work with them to re-open your accounts. While this process will likely take months, it is probably a better option than dying to save time on the paperwork.
Hopefully the SSA can solve this problem soon. While only a small percentage of SSA beneficiaries become "undead," the consequences of this designation are extremely inconvenient for those unlucky few.

Recent Developments in Selfie Law

The Wall Street Journal Law Blog has a post discussing a recent lawsuit filed by Katherine Heigl against Duane Reed. Heigl argues that Duane Reed's tweet of a paparazzi photograph of her carrying bags from the store violates the Lanham Act by tricking consumers into thinking she endorses the store. The post notes that there is doubt over whether this suit would succeed, since Duane Reed's tweet may be considered a "communication" rather than an advertisement.

This follows about a month after the internet exploded with terrible copyright law discussions when commentators got it into their heads that Bradley Cooper owned the copyright to Ellen Degeneres' Oscar Selfie (See, e.g., here and here).

The BBC reports that:
Spending lots of time on Facebook looking at pictures of friends could make women insecure about their body image, research suggests.
Which leads me to (only sort of facetiously) wonder whether further research that solidifies a link between selfie-viewing and psychological harm could lead to liability lawsuits against the website (section 230 of the Communications Decency Act could add a fascinating wrinkle to this thought experiment).

Carmen Rasmusen Herbert writes (in one astounding paragraph) about how people may bully others by posting unpleasant comments on people's online selfies, raising the question of whether the insulted selfie-poster could fire back with a lawsuit for intentional infliction of emotional distress (perhaps by drawing on Esposito-Hilder v. SFX Broadcasting for support).

I couldn't resist searching for "selfie!" on Westlaw. I only found two cases involving selfies. In U.S. v. Doe, 2013 WL 4212400 (W.D. N.C. 2013), the court held that a magistrate judge could base the issuance of a search warrant on a police officer's assertion that individuals often take "unflattering" pictures of themselves, and that a suspects phone would therefore probably contain incriminating evidence. In U.S. v. Chaidez-Reyes, 2014 WL 547178 (N.D. Ga. 2014), the court mentioned the possibility that the government could have made similar argument in a cell phone seizure case, but pointed out that the government failed to make this argument.

Selfies implicate a surprising number of legal issues. It seems that there should at least be a law review symposium devoted to the phenomenon. Or perhaps a legal treatise. Smith on Selfies has a nice ring to it, after all.

Baude's Reply on Zombie Federalism

A while ago, I posted a response to Will Baude's paper on Zombie Federalism. There, I argued that Baude's claim that states should decide whether zombies are "persons" was flawed because this approach could undermine a strong federal approach to the zombie menace, which I describe in this essay.

Baude responded to my argument here. He writes:

First, Smith’s essay automatically assumes that all zombies will be evil enemies of the human race. Maybe that is true, but what if it is not? And given that most of us do not believe in zombies in the first place, how much confidence should we give to our beliefs about what nonexistent zombies would be like if they did exist? 
Second, if Smith is right that all zombies would be an inherent threat to humanity, there is nothing to fear from federalism. No U.S. state would want to enable the decimation of the human race, and so no state would grant rights to evil zombies. 
Third, that means that zombie federalism matters if, and only if, there is disagreement, at the state level, about whether the newly discovered zombies really are evil. And in the case of disagreement on such a fundamental, existential question, why should we be so sure that we — or really, Congress, the president and the Supreme Court — know the right answer ex ante? Surely the federal government needs and has the power to manage spillovers, but that does not automatically imply a top-down answer to the hard fundamental questions. 
The one serious point is that much of the above applies, mutatis mutandis, to other cases of disagreement over fundamental questions.
The ZombieLaw Blog covers this discussion and adds some points on the matter here. I am proud to point out that a "zombified" image of me appears in that post as well. My colleague, Seth Fortin, points out that this debate has some interesting implications for government policies addressing race.

Baude raises some interesting points. In my capacity as the author of an essay where I urge the use of federal criminal law to prosecute the undead, I will stick by my guns that zombies will be evil. I would also argue that we can be sure that Congress knows the right answer to the zombie problem because Congress has already enacted the right answer into law in the form of broad federal criminal laws rife with strict liability crimes and mandatory restitution requirements.

I admit, however, that I may have been too quick to conclude that states will grant rights to zombies if they are given the freedom to do so. Most people will probably agree that zombies are dangerous, and will refuse to support policies granting personhood to zombies. Those people who feel a misguided sympathy toward zombies are likely to soon find themselves among the ranks of the undead. In this respect, Baude makes an interesting and important point about federalism arguments.

Wednesday, April 9, 2014

"North Korean Official Reportedly Executed With a Flamethrower," or: Please Read This Post

The quoted part of this post's title is the title of this story at the Washington Post. Here is an excerpt of the story that I found particularly interesting:

If true, the killing shows the chilling lengths to which Kim is willing to go to expunge any trace of his executed uncle, Jang Song Thaek, once a powerful player in North Korean politics. Now, months after Jang’s execution and his temporary erasure from state media, Jang’s older sister and her husband — North Korea’s ambassador to Cuba, Jon Yong Jin — have also reportedly been executed. 
But if the story’s false, it would be at least the third time in as many months that an apocryphal tale involving North Korea has caught fire in today’s media, which rewards outlandish stories — regardless of their veracity — with clicks, shares and likes.
It makes sense for journalists to include disclaimers with stories about events within North Korea, given a glut of recent, false stories about the country, including the rumor that North Korea's leader/dictator Kim Jong Un had his uncle fed to dogs, and the story that all North Korean men have to have the same haircut as Kim Jong Un.

But here, the Washington Post is attempting to have its cake and eat it too. In one paragraph, the Post is aghast at the horrible punishment practices in North Korea, and in the very next paragraph, the Post notes that the story could very well be false and even criticizes papers for seeking clicks, shares, and likes at the expense of fact-checking.

The Post is right to point out that many articles and posts on the internet are given provocative titles so that users will be more likely to click on the link to the post. These titles often veer into the realm of the misleading. But the Post's criticism of this practice is disingenuous when its article containing this criticism bears the title, "North Korean Official Reportedly Executed With a Flamethrower."

Monday, April 7, 2014

Reporting on the Snowden Leaks: The Tension Between Hype and Integrity

DW has published an interview with the journalist, Holger Stark, a correspondent for Der Spiegel. I was struck by one particular question and answer in that interview:

You have already published six feature pieces on the NSA scandal. Now you have written the book "The NSA Complex" with your colleague Marcel Rosenbach. Are we slowly starting to get the full picture of organized mass surveillance? 
The NSA systematically taps fiber optic cables - the main arteries of Internet traffic conveying the largest streams of data. It engages some American companies as collaborators and cooperates with partner intelligence agencies abroad, including Germany's Federal Intelligence Service [also known by its German acronym, BND]. This system enables control of nearly the whole stream of relevant data and then processing it with sophisticated intelligence analysis programs to see what is important. 
I think we have grasped this principle, but the material is so extensive that we will still be seeing interesting and partly surprising and shocking reports about it over many months.
One of the more persistent lines of criticism that I have seen of Edward Snowden's release of NSA documents and the press's treatment of this information is that the information is presented to the public in an overly dramatic and potentially misleading fashion. While Snowden has released numerous documents to the media, news outlets have discretion when it comes to deciding what to publish.

While this discretion may be helpful to ensure that complicated details are released in a coherent and interesting manner, there is a point where selective or overly dramatic release of information overshadows the full extent of the story. Stark's foreshadowing of "surprising and shocking" future reports seems to step into overly dramatic territory.

I have not adopted a strong, personal opinion on NSA surveillance, but I imagine that I would be aggravated by Stark's answer no matter what side I took. If I were a supporter of government surveillance practices, I would urge timely release of the information (assuming it will inevitably be released at some point) so that I could defend or explain the government's tactics. If I were a critic, I'd want to know about what the government is doing now, rather than later -- since some of my activities might fall under the scope of surveillance programs that have yet to be disclosed.

Admittedly, it takes time to sort through information and decide what stories are worth presenting. But Stark's answer is unsettling because it sounds less like a claim that he needs time to work on his stories and more like a teaser.

"Supreme Court Passes on NSA Bulk Phone Surveillance Case"

That's the title of this article at Ars Technica. It begins:
The Supreme Court declined Monday to resolve the constitutionality of the National Security Agency's bulk telephone metadata surveillance program, leaving intact what a lower-court judge described as an "almost-Orwellian" surveillance effort in which the metadata from every phone call to and from the United States is catalogued by US spies. 
The move by the justices comes as the Obama administration and Congress consider dramatically revamping the spy program disclosed in June by NSA whistleblower Edward Snowden.
The case that this article discusses is Klayman v. Obama, where the District Court for the District of Columbia held that section 215 of the PATRIOT Act, which authorizes broad collection of phone dialing information, is likely unconstitutional. I discuss that decision at more length here.

The subtitle to the Ars Technica article is that the case will "likely" end up in the Supreme Court, but the text of the article focuses more on the legislative situation:

The high court's inaction Monday means the future of the phone surveillance program will most likely play itself out in the political theater before the judicial arena. Section 215 of the Patriot Act, the stated provision allowing the bulk collection, expires June 1, 2015. 
There are some 30 different legislative packages in Congress on the topic. And Obama said he wants to overhaul the surveillance process altogether by removing the metadata from the possession of the nation's spooks.
As I discuss here, I think that Congress is more likely to deal with section 215 than the courts. And Congress's ability to specifically tailor reforms on a wide-ranging basis means that it may be more effective at reforming the law than the courts.

Wednesday, April 2, 2014

Baude on "Zombie Federalism"

I've learned of an important new paper by Will Baude. The title is Zombie Federalism. Here is the abstract:

The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies.

What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.
As readers of my own work should know, I am inclined to disagree with Baude. As I explain in my essayProsecuting the Undead: Federal Criminal Law in a World of Zombies, battling the armies of the undead will require the living to present a unified front, and a federal standard of zombie personhood will prevent the fragmentation of this front. Leaving states to define whether zombies are persons would lead to uneven legal treatment of the undead, which could undermine the uniform prosecution of these zombies under the federal criminal law.

While I am happy to see additional attention to the important field of zombie law, adopting a theory of zombie federalism threatens the ability of the living to combat the undead in the coming zombie apocalypse.

Tuesday, April 1, 2014

Why Wells?: Exploring the Freedom of Information Act's Ninth Exemption

Yesterday in my administrative law class, we discussed the Freedom of Information Act (FOIA) (5 U.S.C. §552). There is a lot in that act, but for purposes of this post, I am focusing on §552(b), the subsection of the act that exempts certain information from FOIA's requirement that governmental agencies provide information to parties' requests. Specifically, I am focusing on the ninth exemption to FOIA's requirements, which exempts "geological and geophysical information and data, including maps, concerning wells" from FOIA's disclosure requirements.

Other exemptions to FOIA allow the government to retain information that pertains to trade secrets, national security, or private information about agency personnel. Those exemptions make sense to me, but in light of those exemptions, I was led to wonder, "why wells?"

After some searching, I found the Department of Justice Guide to the Freedom of Information Act, which explains the breadth of the subsection nine exemption. In doing so, the guide illustrates the lack of cases that address the exemption.

I decided to look through the few cases that discuss the ninth exemption, and I found that they outlined an evolution in courts' interpretation of FOIA's ninth exemption. I explore this evolution after the jump.