July 2014: Bar Exam Apocalypse - Day 3

Today was the final day of the California Bar Exam. Cheers erupted when the proctor said the three incredible words, "You are dismissed." I fought a final time through the sea of people to get to the one, narrow escalator that carried me up and away to freedom.

ExamSoft's awful treatment of the bar exam now has a hashtag -- #Barghazi -- so I guess that all the hype is real. Coverage is available from more sources here, here, here, and Deadspin.

Since California is one of the few remaining states administering the bar exam today, I found that uploading the exams was not as cumbersome as it was on Tuesday, although I did get a strange error-looking message with strings of incoherent text after my files were uploaded. The website says that I'm good to go, though, so I hope that this is the last time I need to deal with them.

As far as natural and man-made disasters are concerned, today was not as dramatic as days one and two. But a building-wide fire alarm at 3:30 a.m. was still rather upsetting, and I eventually fell back to sleep wondering if I could sue everybody in my apartment building on a res ipsa loquitur theory.

The bar exam is over, and over the next few days I will be moving to Orange County and then going on a vacation to Lake Tahoe until next Friday. Blogging may be light because of this, though now that bar exam studying is finished, I may end up turning to the blog in order to fill the void.

Congratulations to all of the law students who survived this year's Bar Exam Apocalypse! I'll let you know in November if everything turned out okay.

Bar Exam Dress Codes

The California bar exam does not have a dress code, and many people I know who are taking the exam are thankful for this. I am ditching my own tradition of wearing a tie during exams -- it served me well in law school, but given the length of the bar exam and the stress involved, I think that I will do best with more comfortable clothing.

But this wouldn't fly in a state like Virginia. For the Virginia Bar Exam, the Board of Bar Examiners has one of the most delightful dress codes I have ever seen:

The Board is aware that many law firms and other professional offices have "dress down" policies of varying descriptions. There is no "dress down" or "casual dress" policy at the Virginia Bar Exam. 

Applicants who come to the Virginia Bar Exam are expected to dress in proper attire. For men, proper attire is coat and tie. For women, proper attire is traditional business attire. 

Recognizing the high calibre of professionalism that has traditionally characterized the bar, the Board is confident that no further discussion of this topic will be necessary.

This is the strictest dress code I have seen for a bar exam, and after looking through some states' rules for their bar exams, it seems that dress codes for these exams are pretty rare. I did find that the Georgia Office of Bar Admissions mandates "quiet shoes" with soft soles, and prohibits flip flops in order to avoid disruption during the exam. And if a test-taker wants to dress in the spirit of Virginia's requirements, that person's coat may be subject to search for prohibited items.

On a side note, if I ever start a law firm, I will probably steal the Virginia Board of Bar Examiners' dress code word-for-word.

July 2014: Bar Exam Apocalypse - Day 2

The fallout over yesterday's ExamSoft disaster continues, with the legal blogosphere chiming in on the matter. Jonathan Adler predicts that students who do not pass may end up suing ExamSoft, which is something I will keep in mind if the exam doesn't turn out the way I want it to. Coverage from the Wall Street Journal law blog is available here.

Yesterday, I suggested that the end is near (in an apocalyptic sense), in light of this software meltdown and massive flooding at UCLA. Today, for the most part, things seemed better, although I learned this evening that we had a bit of a close call:

A 3.0 magnitude earthquake occurred 5.59mi W of Manhattan Beach, California. Details: http://t.co/U1lX7Q2XJt Map: http://t.co/gpXNtshuLC
— LA QuakeBot (@earthquakesLA) July 30, 2014

This seems to have happened right at the beginning of the lunch break -- and the epicenter was far enough away that the impact was minimal at my testing location. But it is still a worrisome sign, especially since those of us in California (unlike most of the country) still have one more day of testing to go.

July 2014: Bar Exam Apocalypse - Day 1

Above the Law reports that the bar exam software, ExamSoft is crashing like crazy right now as people across the country try to upload their exam answers. Their Twitter feed is currently filled with dozens of messages assuring test-takers that they are working on fixing up their system, and upload deadlines are being extended an an expanding number of states.

I managed to eventually upload the exam, but it took quite a while, and ExamSoft's upload page on its website seemed to remain inaccessible.

Meanwhile, across campus, a 30 foot geyser of water sprang into being, flooding parts of campus. The AP reports:

Firefighters, some using inflatable boats, have saved at least five people who were stranded in the underground parking structures.

And from Jeong Park of the Daily Bruin:

looking up at the flood. pic.twitter.com/krCAINLbj0
— Jeong Park (@JeongParkDB) July 29, 2014

I would say the end is near, but there are still two days to go.

The California Bar Exam Begins Today!

Blogging will be light over the next few days since I will be taking the exam:





Good luck to everybody taking the bar exam in California and elsewhere!

DC Federal Judge: Ban on Carrying Guns in Public Violates Second Amendment

The case is Palmer v. District of Columbia. Earlier today, Judge Frederick Scullin of the Federal District Court for the District of Columbia ordered a permanent injunction against the enforcment of sections 7-2502.02(a)(4) and 22-4504(a) of the District of Columbia Code. These sections prohibit the licensing and carrying of concealed firearms. The Washington Post and Reuters have coverage of the opinion. The text of the opinion is available here.

I have only had time to skim the text of the opinion itself. The court relies heavily on Peruta v. County of San Diego, where the Ninth Circuit struck down San Diego's restrictions on concealed carry permits. I discussed Peruta in this post. There, I noted that the Ninth Circuit stuck to the language of the Supreme Court's opinion in District of Columbia v. Heller and was able to reach its decision without applying a clearly defined level of scrutiny to the gun restriction. That appears to be the case in the Palmer holding as well. From the opinion:

In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. 

The district court notes that "reasonable restrictions" on carrying firearms did not raise the same constitutional concerns, noting the Seventh Circuit's language in Moore v. Madigan that these restrictions would not infringe the right to self defense. Moreover, the district court includes language indicating that governments can restrict firearm possession by felons, children, and the mentally ill.

In my post on Peruta, I pointed out the split in authority on the scope of the right to carry guns in public. Palmer is a noteworthy addition to this list of cases, and I hope that it is appealed, since this would bring the issue of public carrying of firearms back to the federal appellate level once again.

California's Maxims of Jurisprudence

I just came across California Civil Code sections 3509-3548, also known as California's Maxims of Jurisprudence." Some of these maxims are versions of familiar canons of statutory construction. Some of them are adopted from the maxims of equity. And some of the maxims (especially those appearing farther down the list) are best characterized as legal kōans. Most of them would make excellent party conversation. Here they are:

3509. The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of this code, but to aid in their just application. 

3510. When the reason of a rule ceases, so should the rule itself. 

3511. Where the reason is the same, the rule should be the same. 

3512. One must not change his purpose to the injury of another. 

3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. 

3514. One must so use his own rights as not to infringe upon the rights of another. 

3515. He who consents to an act is not wronged by it. 

3516. Acquiescence in error takes away the right of objecting to it. 

3517. No one can take advantage of his own wrong. 

3518. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. 

3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. 

3520. No one should suffer by the act of another. 

3521. He who takes the benefit must bear the burden. 

3522. One who grants a thing is presumed to grant also whatever is essential to its use. 

3523. For every wrong there is a remedy. 

3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose. 

3525. Between rights otherwise equal, the earliest is preferred. 

3526. No man is responsible for that which no man can control. 

3527. The law helps the vigilant, before those who sleep on their rights. 

3528. The law respects form less than substance. 

3529. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due. 

3530. That which does not appear to exist is to be regarded as if it did not exist. 

3531. The law never requires impossibilities. 

3532. The law neither does nor requires idle acts. 

3533. The law disregards trifles. 

3534. Particular expressions qualify those which are general. 

3535. Contemporaneous exposition is in general the best. 

3536. The greater contains the less. 

3537. Superfluity does not vitiate. 

3538. That is certain which can be made certain. 

3539. Time does not confirm a void act. 

3540. The incident follows the principal, and not the principal the incident. 

3541. An interpretation which gives effect is preferred to one which makes void. 

3542. Interpretation must be reasonable. 

3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer. 

3545. Private transactions are fair and regular. 

3546. Things happen according to the ordinary course of nature and the ordinary habits of life. 

3547. A thing continues to exist as long as is usual with things of that nature. 

3548. The law has been obeyed.

How effective are these provisions in legal arguments? While they may be good ideas to keep in mind, the California Court of Appeal noted in Lass v. Eliassen (270 P. 745, 747 (1928)) that "neither a fiction nor a maxim may nullify a statute," and where the legislature's drafting of statutory requirements is clear, the maxims of jurisprudence are no use to a party seeking to circumvent the law as written.

Despite the court's unenthusiastic approach in Lass, if I am ever in doubt over what to say on a bar exam essay, I will plan on simply writing out as many of these maxims as I can remember and hope for the best. And someday, when I have learned enough to understand maxims 3530, 3538, and 3547, at that point I will know everything there is to know about the law.

Criminal Punishment for the Theft of Virtual Items?

From Erica Buist at The Guardian:

All right, own up: did you steal Mike Weatherley's sword on World of Warcraft? If so, you'd better watch out. He's really upset about it. So much so that, as David Cameron's chief adviser on intellectual property, he has asked ministers to consider passing a law that would mean people "who steal online items in video games with a real-world monetary value receive the same sentences as criminals who steal real-world items of the same monetary value".

. . .


"If you've spent £500 building up your armed forces and someone takes them away online, I guess you can feel hard done-by and you want your £500 back," he told Buzzfeed. He also pointed out: "The perception from some people is that if you steal online it's less of a crime than if you steal physically." 

It's hard to argue with his logic. Gamers spend a lot of money on virtual items, and invest time in building armed forces or gigantic warships. These things may be nothing more than a collection of pixels on a screen, but the money isn't virtual, and neither is the time, or the feeling of having been robbed.

Buzzfeed also covers this proposed law.

I agree that some aspects of online theft are similar to theft in the real world. Many online items are purchased with real money. Thieves can steal these goods under the pretense of exchanging or trading items, but then leaving upon receipt of the valuable goods. This entry in a World of Warcraft forum is an example of such a fraudulent transaction. Law students studying for the bar should recognize this as something resembling the quirky crime of larceny by trick.

But there are crucial differences between the theft of physical items or money and the theft of virtual goods in an online environment. Blizzard, the company that makes many of these online games, warns players of these online scams, but also says that they will "assist where possible" when a scam can be verified. And as the players in the earlier forum mention, if there is a chat record that details the fraudulent transaction, the player can usually receive another copy of their virtual good, and the person who stole the good will probably be banned.

If somebody can receive an identical copy of their stolen good once it is stolen, and if offenders face effective exile from the online world in which the theft takes place, I am not sure that prosecuting online thieves would be a constructive undertaking. It makes sense to criminalize online theft that results in the loss of money from a person's bank account (say in instances of identity theft). But when the theft deprives somebody of a virtual item that can be replaced with an identical item without cost to the website, the theft, while fraudulent, does not seem to cause enough harm to warrant criminal prosecution.

Obama's Upcoming Executive Order on Drone Privacy: Some Thoughts on Preemption

Politico reports:

President Barack Obama plans to issue an executive order to develop privacy guidelines for commercial drones operating in U.S. airspace, POLITICO has learned. 

The order would put the National Telecommunications and Information Administration, an arm of the Commerce Department, in charge of developing the guidelines. NTIA would bring together companies and consumer groups to hammer out a series of voluntary best practices for unmanned aerial vehicles.

The Federal Aviation Administration (FAA) has been working on drafting rules and regulations governing the safe use of domestic drones. But Politico reports that critics are concerned with the agency's failure to draft rules governing drone surveillance.

While there are no federal laws or rules that restrict the use of drones to invade other people's privacy, several states have enacted or proposed legislation that would restrict intrusive drone use by private parties. Idaho, Texas, and Wisconsin have passed laws that restrict private drone use that infringes on the privacy of others. A law that would criminalize drone use that intrudes on the privacy of others has been proposed in California. Tennessee has passed legislation that restricts private actors from using drones to interfere with hunters. Other states, including Iowa, Indiana, and Florida have passed laws that restrict government use of drones.

While there are not many details available about the contents of the executive order, Politico reports that the NTIA would not enact rules that would restrict government drone use. While this would leave the majority of state drone laws unaffected, President Obama's order and the ensuing federal regulations could have a substantial impact, preemptive on state laws that concern the use of drones to invade privacy.

Illustrating the Power of Metadata With Cats

The New York Times reports:

Using cat pictures — that essential building block of the Internet — and a supercomputer, a Florida State University professor has built a site that shows the locations of the cats (at least at some point in time, given their nature) and, presumably, of their owners. 

Owen Mundy, an assistant professor of art who studies the relationship between data and the public, created “I Know Where Your Cat Lives” as a way of demonstrating “the status quo of personal data usage by startups and international megacorps who are riding the wave of decreased privacy for all,” Mr. Mundy wrote in a post about the site.

Mundy's website can be accessed here, where you can randomly generate cat photos and view their locations. The website also contains a page with charts that illustrate cat photo rates by country, state-by-state breakdowns of cat picture rates in the United States, and even city-by-city breakdowns.

Mundy was able to put this site together by simply downloading a sample of one million publicly available pictures and placing them on a map using GPS data that many cameras attach to images which are then shared online. This GPS information is an example of "metadata" that websites, businesses, and the government can track and collect.

For some websites, the government needs to obtain permission to access personal information. In the case of the cat photo website, however, Mundy writes that the images he used and their information was publicly available on Flickr, Twitpic, Instagram, and other sites. I would imagine that if Mundy can obtain the information as easily as he did, the government would be able to access this information without much trouble as well.

As a general rule, those who wish to avoid prosecution should avoid posting photos of illegal activity online. Moreover, I would not be surprised if the NSA ended up devoting a team of specialists to track this new website's cat photos and locations, so criminals should be especially careful about posting photos of illegal activity that also include cats or that are tagged "cat."

It is Not Illegal to Ride a Bicycle While Drunk in Hungary

...as long as you can steer. From the Wall Street Journal Law Blog:

In a country with zero tolerance for driving under the influence, a Hungarian government decree that allows cyclists to drink and ride on major roads came as a surprise over the weekend. 

Hungary, which fines drunk drivers heavily, takes away licenses, bans them from driving and locks them up in jail if they’ve caused an accident, since Saturday allows cycling regardless of the level of intoxication provided that cyclists are capable of steering. 

. . . 

Before Saturday, if riders were caught on main roads with blood alcohol level higher than 0.5 grams per liter, they were to pay a fine of 30,000 forints, or $131. Lawmakers say riders can only hurt themselves and not others, unlike drivers of motor vehicles. 

The decision raised some eyebrows.

Meanwhile, it remains illegal to bike under the influence in California. California Vehicle Code section 21200.5 states:

Notwithstanding Section 21200, it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person's blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person's blood pursuant to Section 23612, and, if so requested, the arresting officer shall have the test performed. A conviction of a violation of this section shall be punished by a fine of not more than two hundred fifty dollars ($250). Violations of this section are subject to Section 13202.5.

I think that this law is sensible. California's drunk cycling punishment is less than the punishment for drunk driving, but losing $250 is still less than desirable. Proponents of the Hungary reform claim that bike riders only hurt themselves and not others, but I don't think this is correct. Bikes can crash into pedestrians and cause serious injuries, and cars swerving to avoid drunken cyclists can cause all sorts of damage.

While the thought of pulling over and fining drunken bicyclists may seem comical, laws against cycling under the influence make sense. While these laws probably should not be as strict as Slovakia's and the Czech Republic's laws (which call for fines of up to $2,000, according to the Wall Street Journal Law Blog), it is good to have at least some law against bicycling while intoxicated.

A Challenging But Educational Moot Court Problem Idea

During my third year of law school, I had the opportunity to help develop the problem for the UCLA Cyber Crimes moot court competition. It was a fascinating experience, and seeing the problem come to life as I watched various teams from across the country was very rewarding. For those who are interested, I blogged about the details of the competition here.

In moot court competitions, problem developers write out a lower court opinion and give competitors a list of potential cases, statutes, articles, and other resources that they may use in arguing the appeal of the opinion before the Supreme Court. These problems are often based on actual cases that are currently being reviewed -- or that will soon be reviewed -- by the Supreme Court. 

In my experience, problem developers lean toward creating problems that involve questions of constitutional law. This is understandable, since constitutional law cases often involve interesting fact patterns and closely related policy concerns. In my experience as a moot court competitor and a member of the moot court board, I saw that problems concerning statutory interpretation were less-popular among the competitors, and problem developers tended to shy away from these cases.

Even if competitors might not enjoy the prospect of a problem based on an issue of statutory interpretation, a moot court problem based on statutory interpretation can be extremely useful for students. While statutory interpretation is often neglected by law school courses, it is an important skill for the practicing attorney to have, and its usefulness cuts across a wide range of legal subjects.

The difficult part for the moot court problem developer who wants to write a problem centered around statutory interpretation is finding a case going before the Supreme Court that can tie into wider questions of policy (so that the interests of students -- and judges -- are piqued).

This term, the Supreme Court is hearing such a case: Yates v. United States.

A 23.6 Billion Dollar Punitive Damages Verdict Against RJ Reynolds Tobacco Co.

The BBC reports:

A US court has ordered the country's second largest cigarette company to pay $23.6 billion (£13.8bn) to the wife of a smoker who died of lung cancer. 

RJ Reynolds Tobacco Company was hit with the punitive fine in addition to $16.8m (£9.8m) in compensatory damages.

. . .

The punitive damages awarded to . . . [the plaintiff, Cynthia] Robinson were said to be the largest of any individual case stemming from a class action lawsuit filed in Florida.

The Chicago Tribune also has an article on the verdict. Both outlets report that RJ Reynolds plans to appeal, and the Tribune notes that "[s]uch industry appeals are often successful."

RJ Reynolds will almost certainly succeed if it appeals the punitive damages award.

When juries return a verdict on damages, they may award compensatory damages, which serve to compensate the victim for harm suffered and make the plaintiff whole. Juries may also award punitive damages if they find that the defendant acted in a particularly egregious manner. Punitive damages serve to deter defendants from acting this way.

I have blogged previously on cases here and here, where juries have awarded punitive damages thousands of times higher than the compensatory damages. As I mentioned in those posts, the Supreme Court has strongly suggested that punitive damage awards that are more than ten times the amount of the compensatory damage award are unconstitutional violations of due process.

What about this case?

Here, the jury concluded that the plaintiffs were owed $16.8 million in compensatory damages as a result of the wrongful death. The $23.6 billion punitive damages verdict is roughly 1,400 times the compensatory damages that were awarded.

Given the vast disparity between the compensatory and punitive damages, it is highly likely that RJ Reynolds will succeed if it appeals the punitive damages award. While this award is indeed noteworthy, it is not going to be around for long.

UPDATE

Reuters quotes a number of legal experts in this article who also think that the punitive damages award is not likely to stand.

No, the University of Wisconsin - Madison is Not Planning to Distribute Grades Based on Race

I feel the need to make this seemingly-obvious point because John Leo at Minding the Campus is claiming the exact opposite. From his strongly-worded post:

A remarkable article on the University of Wisconsin (Madison) appeared yesterday on the John William Pope Center site. In it, UW economics professor W. Lee Hansen writes about a comprehensive diversity plan prepared for the already diversity-obsessed campus. The report, thousands of words long, is mostly eye-glazing diversity babble, filled with terms like “compositional diversity,” “critical mass,” “equity mindedness,” “deficit-mindedness,” “foundational differences,” “representational equity” and “excellence,” a previously normal noun that suffers the loss of all meaning when printed within three words of any diversity term. 

But Professor Hansen noticed one very important line in the report that the faculty senate must have missed when it approved this text: a call for “proportional participation of historically underrepresented racial-ethnic groups at all levels of an institution, including high-status special programs, high-demand majors, and in the distribution of grades.” So “representational equity” means quotas at all levels. And let’s put that last one in caps: GRADES WILL BE GIVEN OUT BY RACE AND ETHNICITY.

While affirmative action is a fascinating topic from a constitutional law and federal courts perspective, I typically try to avoid discussing it because of the strong reactions this topic can inspire. But when bad arguments or sketchy claims are made in a debate -- even one involving a controversial subject -- I think that it can be worth stepping in to call out the nonsense.

And if that nonsense is in all capital letters...at that point a reply is all but necessary.

Noll on Weaponizing Neurotechnology

From Lawrence Solum's Legal Theory Blog, I learned about a forthcoming article in the London Review of International Law by Gregor Noll entitled, Weaponising Neurotechnology: International Humanitarian Law and the Loss of Language.

Here is the rather short abstract:

Are operators of weapon systems which draw on neuroscience, or their commanders capable of applying [International Humanitarian Law] IHL? Only at the price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place. To be meaningful, this review system would need to take the metaphysical foundations of neuroweapons into account.

A bit of a longer summary can be found in the paper's introduction:

This question, formulated in Section C and underlying the remainder of the text, is whether operators of weapons systems drawing on neuroscience, or their commanders, are capable of applying IHL. Section C first explains how rapid processing is traded off against consciousness, and why this might be a problem for IHL. Second, it shows that some scholars, whether from law or from other disciplines, react rather optimistically to the promises of neuroscience. Third, I try to take that optimism to its extreme by sketching the development of an IHL software that could be integrated into future weapons systems, automatising judgements on whether a certain conduct is in conformity with IHL norms or not. This enables me to ask what would be lost if we were to use such a machine. Section D answers this question from a micro-perspective, focusing on the cognitive unity of the human being. It draws on the critique of neuroscience as a degenerate form of Cartesianism that has been formulated within analytical philosophy. Section E is devoted to the loss of language, which leads me to consider the work of the German philosopher Martin Heidegger. In the concluding Section F, I suggest that the ‘nature’ of man as reflected by neuroscience risks to undermine the ability to apply IHL in the use of neuroweapons.

And there are some predictions about the future of warfare that are both fascinating and frightening to think about:

Arms development in general follows a temporal logic of surprise: being first with the latest. My main example of neuroscientific applications in the military domain is very literally about acceleration. In a great number of battlefield situations, the human brain is actually faster than a computer when it comes to perceiving threats, yet a computer is faster than a human being in calculating countermeasures. Obviously, those militaries combining the two – human perception and machine calculation – will gain an accumulated temporal advantage over those who do not. As I will illustrate in what follows, time competes with conscious decision-taking. 

. . .

I believe that neuroweapons are the logical sequel to UAVs, and the debate on the ‘autonomy’ of the latter prepares the ground for the acceptance of neurotechnology in the development of weapons. While currently one operator is needed to control a single UAV, developments take place that will allow a single operator to control a swarm of UAV in the future. Consequently, there will be a strong case for neuroscientific enhancement of the cognitive capabilities of that operator. Today, all the talk is about drones, while we should be talking about the neurotechnology that will follow in the wake of their deployment.

This paper contributes to the broader scholarly discussion over autonomous military robots and the ethical questions they raise. Noll seems skeptical about whether international humanitarian law could govern neurotechnological weaponry since this may come at the "price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place." But as other commentators like Kenneth Anderson and Matthew Waxman argue, the development of autonomous weapons systems is inevitable and the application of legal and ethical rules to these systems should accompany that development as it happens.

The development of autonomous military technology and technology that is connected on a fundamental level to the brain functions of human operators pose interesting legal and ethical questions. While some of this technology may seem fanciful now, I think that it may be a real possibility down the road, and these difficult questions may eventually be unavoidable.

Guardian Article Either Poorly Written, Or Law School in England is Very Different from US

I came across this article in the Guardian that gives advice to students in England who are planning to study law. The article is written for students who are finishing secondary school, since law school is an undergraduate course of study.

But beyond that plain difference between the English and US systems of legal education, there were a few other passages that led me to believe that law school in England is very different from American law school. Here are a few parts of the article that led me to this conclusion:

Having a clear vision of why you are studying law, whether it's to pursue a career as a barrister or because you look sharp in a suit, will give you the motivation to succeed if you are struggling to get to grips with the subject. 

. . . 

The important thing is not to stress too much, just because it's law. Student Sheerin adds: "Your first year is for having fun and there is always a way to balance that with the academic pressures. Making sure you have friends on your course will mean you have a strong support network for when things do get tough."

While I am far more enthusiastic about law school than most other law students I know, even I think that if somebody's "clear vision" of why they should study law is nothing more than how good they look in a suit, that person should seriously reevaluate their priorities. And I would be fascinated to meet any American law student who agreed that the "first year is for having fun."

Perhaps my amazement is misplaced -- after all, law school is an undergraduate course of study in many countries, and the "fun" of beginning college-level education is certainly going to be more pronounced than the "fun" of leaving college or a job for even more school.

Or maybe law school in England is similar to law school in the US and this author is simply woefully misinformed.

Thanks to Legal Cheek, I find myself leaning somewhat in the direction of the latter theory. Legal Cheek draws the reader's attention to the photo that accompanies the Guardian article, which at first seems to be standard law-book stock photography. But a close examination of the photo reveals that the assigned reading in English law courses is very different from that which is assigned in American courses:

Federal Court Rules California's Death Penalty is Unconstitutional

The case is Jones v. Chappell. From the LA Times:

A federal judge in Orange County ruled Wednesday that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. 

U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.

. . . 

Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.

. . .

The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said.

The full opinion is available here.

Judge Carney notes that delays at various steps of the appeal process contribute to the lengthy nature of death penalty reviews. Defendants who are sentenced to death typically need to wait about three years for appellate counsel to be appointed, and the briefing process tends to take an additional four years due to the complexity of death penalty case files. Contributing to the delay is a lack of attorneys to represent defendants in state habeas proceedings.

Judge Carney notes that the purposes of California's punishment system are to deter offenders and to obtain retribution for wrongdoing. But Judge Carney argues that offenders who commit a capital crime are so likely to die while waiting on death row, that California's death penalty "is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain." And any retributive purposes that the death penalty is supposed to fulfill are defeated if only an arbitrary few defendants are executed.

The Times notes that this case can be appealed, and I suspect that it will be. The Times also notes that this is the first time a federal court had held a death penalty scheme unconstitutional because of the procedural delays inherent to the system. Because of this novel basis for finding California's system unconstitutional, I am not sure how this case will turn out on appeal.

Whatever the outcome of this case will be in the courts, I suspect that it will get the attention of California's government. Essentially all of Judge Carney's reasons for finding California's death penalty unconstitutional stem from an underfunded and under-resourced system of appellate representation. By devoting more resources to death penalty appeals, many of the delays that Judge Carney discusses could be ameliorated -- at least for future cases.

But the government would probably also face some additional legal obstacles, most notably, making the chemicals for lethal injection available. My understanding is that the chemicals needed for lethal injection are not available for executions in California, since the legality of these chemicals has been tied up in litigation since 2006. To make the death penalty a feasible prospect for those convicted of capital crimes, this litigation will need to either be wrapped up or sidestepped through the use of alternate execution methods or chemicals.

Even if California's government manages to address some of the delays that Judge Carney discusses in his opinion, the state may need to do quite a bit more to make this new constitutional argument go away, especially if the Ninth Circuit is receptive to the logic of Judge Carney's opinion.

You May Not Be Spying With a Drone -- But You Might Still be Breaking the Law

There has been a lot of recent news coverage over a Seattle woman's report that a drone flying outside of her window was spying on her. At Forbes, Gregory McNeal discusses this story and other stories about drones. McNeal argues that a lot of news coverage of drones is overly dramatic and even misleadingly alarmist. From McNeal's article:

Last month a Seattle woman said that a drone made her nervous because it was flying outside of her window. Early media reports called the device a flying “Peeping Tom.” Soon afterwards, national reports exploded with more than one hundred stories, focused mostly on the news media’s construction of a privacy violation. Now, the photograph of the flight has been provided to Forbes, and it shows that the company flying the drone was merely making a panoramic photograph of the city skyline. The arc of this story — a buzzworthy first report, that later ends up being false— is emblematic of many drone related stories which threaten to jeopardize the nascent industry. 

The Seattle non-incident gained national media attention after the woman called her building’s concierge to complain that the drone may have been used to look into her apartment. What received less prominent national media attention was the statement of Joe Vaughn, founder of startup company Skyris Imaging. Vaughn said that he and the pilot of the drone were shooting a panoramic view of the city for a client who was planning to build a 20-story office tower near the woman’s apartment building. 

. . . 

Vaughn demonstrated he takes concerns about safety and privacy seriously. He contacted the police to report what the company was doing, and said he had talked by phone with the woman who complained. ”I called her and let her know I’m sorry she was startled but we were doing an honest job, we were not peeping toms. There were no images taken at all of this
woman.”

. . .

The Seattle story, like many other drone related stories reveals a pattern in coverage about these new devices. Journalists cover a story, featuring sensational allegations in the lede and introductory paragraphs, only to have the “but it wasn’t true” paragraph buried later in the story.

I agree that some of the coverage about the danger of drones and how they may violate privacy has been over-hyped. That tends to be par for the course with Internet coverage of just about everything these days.

But I also think that other coverage of drone use has been misleadingly optimistic towards harmful use of drones. Take, for example, an instance where a drone shot footage while it flew through a fireworks show. Many commentators marveled at how beautiful this was. But only a few people (including, interestingly, McNeal) pointed out that this drone use was highly dangerous and almost certainly illegal.

When it comes to discussions of drones and opinions on whether they are dangerous or harmless, it is easy to find coverage of identical events that is skewed in the direction of either opinion.

But there is a more specific point that I want to make in this post about the Seattle incident in particular. Joe Vaughn, the owner of the drone, claimed that he was not violating anybody's privacy because he was using the drone to survey a potential site for an office building. Visiting Vaughn's website reveals that Vaughn offers his services in a number of fields, including surveying land for real estate and agriculture, and for shooting marketing imagery.

While Vaughn's drone use may not be for the nefarious purpose of spying on somebody, in stating that he was using his drone for his real estate surveying business, Vaughn may have inadvertently admitted that he was using his drone illegally. The Federal Aviation Administration (FAA) bans the use of drones for commercial purposes unless a business has applied for a permit to use the drone. And since the FAA's first authorization of such a permit only happened back in June, I am fairly certain that Vaughn is not flying his drone with federal authorization.

While Vaughn may not have been spying with his drone, he may have just admitted that he was using his drone illegally. Businesses that use drones for real estate surveying tend to veer dangerously close to the line that separates legal, hobbyist use of drones from potentially prohibited commercial use. And while there is certainly room for debate over whether the FAA's restrictions have the force of law, I think it is ironic that Vaughn's justification for his drone use may end up being an admission of illegal activity.

Updated Guide for Submitting Law Review Articles

Via Paul Caron's TaxProf Blog, I learned that Allen Rostron and Nancy Levit have updated their "Information for Submitting Articles to Law Reviews & Journals" document on SSRN. From the description:

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 203 law reviews.

The document also contains ranking information for law journals. Up till now, I knew that this document existed but I didn't pay too much attention to it since many journals have policies restricting submissions by law students. But I look forward to making my way through the article submission process now that I've graduated.

Although I won't be giving the process any thought at all until the bar exam is over.

Greenberg on "Crypto-Anarchists" Cody Wilson and Amir Taaki

At Wired, Andy Greenberg has an excellent article on "crypto-anarchists" Cody Wilson and Amir Taaki. Wilson and Taaki are involved in projects like Dark Wallet that would make digital currencies like Bitcoins hard, or impossible, to trace. Wilson is the person behind Defense Distributed, the company that made the first gun entirely out of 3D printed parts. The article describes how Taaki and Wilson got involved with their endeavors and details their projects and goals.

From the article:

Dark Wallet also offers what it calls “stealth addresses” that allow a user to receive bitcoins at an encrypted address, where only he or she can retrieve them using a private key. When a coin passes through either a CoinJoin transaction or a stealth address, it becomes vastly more difficult to track, making taxation, regulation, and prosecution virtually impossible. “We want a bitcoin that laughs at the regulatory pageantry,” Wilson says. “We’re going to permanently problematize bitcoin’s reputation.”

. . . 

“Everywhere there’s a computer, there would be the promise of a gun,” [Wilson] told me when we first spoke in 2012. “I see a world where contraband will pass underground through the data cables to be printed in our homes as the drones move overhead. I see a kind of poetry there. I dream of this very weird future and I’d like to be a part of it.”

Wilson and Taaki pursue a vision of a world where people have "tools that make illegal behavior so commonplace and technically trivial that the law ceases to be relevant." People who agree with this vision embrace technologies like Bitcoins and 3D printers because these technologies upset existing legal regimes and therefore resist traditional regulation.

The interest in circumventing laws with new technology is not restricted to idealists like Wilson and Taaki. The article points out that groups promoting terrorism have specifically identified Dark Wallet as a useful tool for funneling illegal funds. Digital currencies like Bitcoins are increasingly used for illegal activities such as the sale of drugs and child pornography.

Wilson and Taaki's ideal of undermining traditional laws illustrates why governments need to develop regulations for emerging technologies, or adapt existing regulatory schemes to apply to new technology. Law has often lagged behind technological advances, but the need to bring law up to speed gains new urgency when those behind the development of technology are actively seeking to bypass regulations.

Additionally, this article illustrates the particular importance of legal scholarship that tries to answer questions about regulating new technology. Not only will this scholarship tend to be novel, but it will be useful, since legal scholarship on bitcoins, 3D printing, and other emerging technologies will be the first arena where legal questions about these new technologies are presented and answered.

Brady Campaign Sues Over Kansas Gun Law

The Associated Press reports:

The Brady Campaign filed a federal lawsuit last week against a 2013 state law declaring that the federal government has no authority to regulate guns, ammunition and accessories manufactured, sold and kept only in Kansas. Brady officials argue that it is a blatantly unconstitutional attempt by a state to nullify federal laws. 

. . . 

The law makes it a felony for any U.S. government employee to attempt to enforce federal regulations for Kansas-only firearms, ammunition or accessories and allows lawsuits by the state attorney general or county prosecutors to block federal enforcement attempts. The statute also says no state or local official shall attempt to enforce any federal gun regulation for Kansas-only items.

The full complaint is available here. The Brady Campaign argues that the federal government has the authority to regulate firearms that are made and sold within Kansas. From the complaint:

58. In the exercise of its Commerce Clause authority, Congress has enacted “comprehensive legislation to regulate the interstate market in a fungible commodity.” See Raich, 545 U.S. at 22. This firearms regulation properly reaches the intrastate manufacture, ownership, and possession of firearms and ammunition. Kansas has no power to “carve out” intrastate “Kansas” firearms from the comprehensive federal regulation.

59. The United States Court of Appeals for the Tenth Circuit explicitly upheld federal regulation of entirely intrastate possession of firearms. United States v. Haney, 264 F.3d 1161 (10th Cir. 2001). The court held that the firearm regulation was an “essential part of the federal scheme to regulate interstate commerce in dangerous weapons.” Id. at 1168. The court found “no question that the market in firearms generally is heavily interstate — indeed, international — in character.” Id. at 1169 (citing 18 U.S.C. § 922(q)(1)(D)). The court also found that “[b]ecause of the ease of moving weapons across state and national lines, Congress has rationally concluded that it cannot rely on the states to control the market in these devices by themselves.” Id.  Another federal appellate court squarely rejected a Montana law that attempted to do exactly what Kansas attempts here—to carve out an intrastate firearms market that Congress cannot regulate. See Montana Shooting Sports Ass’n. v. Holder, 727 F.3d 975, 982-983 (9th Cir. 2013) . . . .

The Brady Campaign seems to be on pretty solid legal ground in challenging the Kansas law. If the federal government has the authority to pass a law, and if a state law conflicts with the federal law, then under the Constitution's Supremacy Clause the federal law will trump the state's.

From a legal perspective, this case is fairly simple, since the Kansas law is pretty clearly unconstitutional. But that hasn't stopped supporters of the law from arguing that the Brady Campaign is playing politics with this lawsuit. From the AP:

GOP Gov. Sam Brownback's spokeswoman Eileen Hawley said, “It’s unfortunate that the Brady center has chosen to file such a politicized lawsuit.”

However...

So far, the law has been mostly a symbolic protest against the federal government. There have been no known attempts to arrest federal employees or lawsuits over federal enforcement actions. . . . .

The law also is a vehicle for Republican politicians in Kansas to showcase the depth of their opposition to Democratic President Barack Obama’s administration ahead of this year’s elections. Brownback is a strong supporter of the law, and his re-election campaign sent out a fundraising email the day after the lawsuit was filed, seeking financial help for his “stand against the attacks from the Obama Administration and their gun-grabbing friends.”

Meanwhile, the Brady Campaign argues that Kansas's opposition to the federal government is akin to the sentiments that motivated opponents of Brown v. Board.

While the legal merits of the case are relatively simple, it will be interesting to watch the law's supporters and the Brady Campaign continue to duke it out on the public relations level.

Kevin Underhill's Guest Posts at the Volokh Conspiracy

In case you weren't reading the Volokh Conspiracy last week, Kevin Underhill was guest-posting on the subject of strange and humorous laws. Underhill normally discusses strange laws and interesting legal stories on his blog, Lowering the Bar.

I recommend that you check out Underhill's blog. And for a sample of the subjects Underhill typically discusses, I strongly recommend his posts from last week. I have links to each of them below -- each one accompanied by a quote from the post.

"Pointless Declarations"

[California's] official state animal, the California grizzly bear, has been extinct since 1922. In fact, it had been extinct for over 30 years when the California legislature made it “official.” I don’t know exactly what kind of message that sends, if any.

"Odd Laws Still on the Books"

In short, the [Guano Islands Act] allowed any citizen to claim an island on behalf of the United States, as long as that island was uninhabited and covered in bird poop.

"Laws Addressing Some Human Oddity"

Connecticut has decided that the rules of civilized warfare should extend at least in part to squirrels, rabbits, and other protected fur-bearing animals. And that is fine with me.

"The Government Not Minding its Own Business"

Of greater concern, and drawing more attention, is China’s law requiring permission to reincarnate. State Religious Affairs Bureau Order No. 5 requires any “reincarnating living Buddha” to fill out the appropriate forms for government approval, after which they will go looking for the corresponding “Buddha soul child” and (if approved) “issue a living Buddha permit.” Although the bureau claimed, apparently with a straight face, that this measure was intended to promote religious freedom, it is clearly aimed at controlling Tibetan Buddhism. But as is so often the case with laws that involve government meddling, it is both ridiculous and not fooling anyone.

"Mysterious Laws"

Then there are the Hittite laws on … let’s say, fraternization with the animal kingdom. If a man were caught fraternizing with a cow, sheep, or pig, the penalty was death (for the man). Horses and mules, though, no penalty at all — except that you could never become a priest. But then there was Section 199, which provided the death penalty for any ox that “spring upon a man” for the same purpose. (Does this happen?) The man would not be punished in this scenario, but a sheep would be killed as a substitute. So, bad for oxen and sheep, but pigs caught springing (does that happen?) wereexpressly exempted from any punishment. I guess this might all be explained by religious taboos, which we can’t expect to make too much sense. Still, Section 199 is perplexing.

It is Not Illegal for Mustached Men to Kiss Women in Public in Iowa

I recently came across this list of things about Iowa that "you probably don't know" on my Facebook news feed. The first item on the list caught my eye:

1. In the state of Iowa, it is illegal for a mustached man to kiss a woman in public. Shorn face PDA only please.

This "fact" reminded me of a recent post by Kevin Underhill over at the Volokh Conspiracy. He writes:

There are an untold number of “dumb law” lists on the Internet or in book form, but with rare exceptions the people who compiled those lists didn’t actually confirm they were real. Sure, it’d be kind of funny if a California town had a law against riding a bicycle in a swimming pool, but as far as I can tell, it doesn’t. Believe me, there’s no need to make this stuff up.

I began to wonder if that mustache law could be real. So I decided to put my legal research skills to the test. I started where anybody who cares about saving money and informing the public should - with Google.

I found no shortage of websites claiming that this "dumb law" exists. But common to all these websites was a dearth of citations to any Iowa statute. Websites making the mustache law claim without any citation can be found here, here, here, here, here, here, here and here. Although with names like omglaws, sodahead, and stupidlaws.com, I'm not sure why any citation is needed.

There are some citations out there. Yahoo Voices, Bored.com, the Date Report, and Crime Wire cite Dumblaws.com, for instance. But while Dumblaws.com provided several links to the text of some of the laws it listed, there was no citation for the mustache law.

Having struck out with Google, I decided I might as well take advantage of my final few weeks of Westlaw access. Searches of Iowa materials such as (kiss! /s mustache!) and even (kiss! & mustache) turned up no laws restricting the kissing activities of mustached men. A "mustache" search of the Iowa Code on the legislature's website led to a number of regulations on barbers, but no kissing prohibitions.

I'm going to go ahead and say it: there is no Iowa law that prohibits men with mustaches from kissing women in public. The law is fake and has gained a life of its own through the terrible power of the Internet.

To those who may argue that this law may be in a municipal code: the claims that Iowa law criminalized mustached men from kissing women in public are all claims about Iowa law, not some ordinance or municipal law of an Iowa city or town. The mustache law is often listed alongside examples of dumb municipal laws, implying that the mustache law is a statewide regulation.

I unfortunately cannot provide a citation for the claim I am making in this post. After all, I am arguing that a law does not exist, and I cannot cite something that does not exist. If anybody wants to dispute the claim I am making here, I welcome the commentary. But I would like a citation as well.

Academic Honesty, Self-Plagiarism, and Copying Footnotes

In doing some research for an earlier post, I came across a pair of articles that had some remarkable similarities. They were both by the same author, and they were written in the same year, but they were in different journals and involved different topics. The citation for the first article is 44 Brandeis L.J. 865, and the citation for the second is 56 J. Legal Educ. 560.

Here is a passage from the first article, published in Summer, 2006. I have noted the number of each footnote in brackets, since I will go over these later:

Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum.[174] A wrong involving theft of property was termed furtum.[175] When violence accompanied such a wrong, it was termed rapina, or vi bona rapta.[176] The protections afforded by the action in injuria addressed directly the interests protected by today's torts focusing on personal physical injury: the right to be free of physical interference with one's own person. The wrong would be redressable whether it was intentional or merely negligent, and could include “a multifarious variety of wrongs,” such as, without limitation, striking, whipping, kidnapping, or falsely imprisoning.[177] It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing or deed,[178] or importunings to inchastity.[179]

And here is a passage from the second article, published in December, 2006:

Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum.[73] A wrong involving theft of property was termed furtum.[74] When violence accompanied such a wrong, it was termed rapina or vi bona rapta.[75] The protections afforded by the action in injuria addressed directly many of the interests protected by today's tort law governing personal injury, including striking, whipping, kidnapping, or falsely imprisoning.[76] It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing, or deed,[77] or importunings to inchastity.[78]

It should be readily apparent that in the December article, the author has copied exact sentences from his earlier article, and has closely paraphrased those sentences which he did not copy.

Additionally, there is substantial overlap in the text of the footnotes as well. From the Summer, 2006 article:

174 Hunter, supra note 115, at 139-40. 

175 See Lawson, supra note 120, at 146. 

176 Hunter, supra note 115, at 140. 

177 Id. 

178 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings. 

179 Hunter, supra note 115, at 140.

And from the December, 2006 article:

73 Hunter, Introduction to Roman Law, supra note 52, at 139-40. 

74 Id. at 146. 

75 Id. at 140. 

76 Id. 

77 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings. 

78 Hunter, Introduction to Roman Law, supra note 52, at 140.

I did not look into much more of each article's substance, since these two paragraphs were the subject of the research I was doing at the time. But a bit of skimming indicates that the copying is not limited to the instances I have quoted.

The overlap between these articles raises several interesting questions about the ethics of scholarly writing and re-using old work. I will discuss those questions in the remainder of this post.

The Convicium Approach to Defamation

Earlier, I blogged about a Yankee fan, Andrew Rector, who is suing ESPN and several announcers for defamation after they made remarks about him sleeping during a game. In that post, I argued that Rector's complaint was doomed on the merits, in part because the defamatory statements he described in his complaint were statements of opinion rather than false statements of fact.

Looking back, I may have been too harsh to argue that Rector's lawsuit was meritless. Instead, Rector seems to have simply filed his lawsuit in an untimely manner, and in the wrong court. R.H. Helmholz explains further, in his book, Roman Canon Law in Reformation England:

The sixteenth and seventeenth-century ecclesiastical courts carried further a change that had begun at the same time their jurisdiction over imputations of secular crimes were beginning to be attacked in the last quarter of the fifteenth century. That was to permit actions to be brought for convicium. Convicium meant abusive and hurtful language which did not, however, necessarily impute the commission of a crime. Post-Reformation practice built upon and expanded this change. Thus one finds imputations that were in truth no more than insults -- words like "whore of thy tongue" -- appearing in the act book records. It became possible to invoke ecclesiastical jurisdiction when one had been called merely "a hypocrite", "a false knave", "a cozener", or "a scurvy drunken baggage". To say that a man had "no more conscience than a dog", or even that he "went to church to pray for his dog", could amount to actionable convicium. None of these abusive but unincriminating phrases would have been actionable under the Provincial Constitution of 1222 that had dominated medieval practice. That Constitution required the imputation of a crime and the requirement had had the effect of limiting the number of defamation causes the Church courts heard. This development removed that limit. 

Behind the new remedy lay the theory that any words uttered out of malice and against "fraternal charity" should subject the speaker to ecclesiastical jurisdiction and discipline just as surely as those which expressly imputed a crime. In the act books, these causes were sometimes expressly styled as being undertaken "for the reformation of manners". . . . Defining what words might be said to offend "fraternal charity" is not an easy thing to do, and contemporary civilians did not offer precise definition. (58-59) (footnotes omitted)

Rector complained that he had been called words like "stupor, fatty, unintelligent, [and] stupid," by commentators. These terms would almost certainly be characterized as statements of opinion. While statements of opinion like these are not actionable under modern defamation law, it would appear that Rector would have a pretty good claim for convicium. While I did not hear any announcers call Rector "a false knave," or "a scurvy drunken baggage," the insults he is claiming are in the same vein as these examples of actionable convicium.

Admittedly, Rector filed his lawsuit a little bit too late. He would have been best off filing this lawsuit in the 16th or 17th century when convicium actions were more commonly accepted. Also, Rector filed his lawsuit in a New York trial court, where his convicium claim would probably fail. Rector would be better off filing his complaint in an English ecclesiastical court.

But in light of my discovery of the strategy Rector may have intended to pursue, I may have been overly hasty to claim that his lawsuit was meritless. On paper, Rector raises a decent convicium claim -- he's simply filed the lawsuit in the wrong court and in an untimely manner.

North Carolina Students Use 26th Amendment to Challenge Voter ID Law

I recently heard about this story in the New York Times detailing a lawsuit challenging North Carolina's statute requiring people to provide photo identification when voting. The Times describes North Carolina's law:

Under the North Carolina law passed last year, the period for early voting was shortened and same-day registration was eliminated. Beginning in 2016, voters will need to show photo identification, and student ID cards, including those issued by state universities, will not be acceptable. In most instances, neither will an out-of-state driver’s license. 

The law also eliminated a program in which teenagers filled out their voter-registration forms early and were automatically registered when they turned 18.

The link to the story contained the words in the subtitle: "College Students Claim Voter ID Laws Discriminate Based on Age." I was initially skeptical, since age is not a suspect classification and laws that discriminate based on age are not likely to be overturned for being discriminatory.

But my skepticism was based on doctrine that stems from the Fourteenth Amendment's Equal Protection Clause. While the plaintiffs challenging North Carolina's Voter ID law are arguing that the law violates the Equal Protection Clause, they are also taking a novel approach based on the 26th Amendment. From the Times:

[L]awyers for seven college students and three voter-registration advocates are making the novel constitutional argument that the law violates the 26th Amendment, which lowered the voting age to 18 from 21. The amendment also declares that the right to vote “shall not be denied or abridged by the United States or any state on account of age.” 

There has never been a case like it, and if the students succeed, it will open another front in what has become a highly partisan battle over voting rights.

I'm not sure whether the students will succeed with this argument. Given the lack of established case law or standards governing 26th Amendment lawsuits, I don't think anybody knows how the court will treat this theory. It will be interesting to see how the court handles the argument, and whether similar lawsuits will be filed in other states.

Also, Ann Coulter isn't going to be happy about this.

How Not to Sue for Defamation (And How Not to Draft a Complaint)

From Deadspin, I learned of a delightful new lawsuit from New York. The Deadspin post's title, "Yankees Fan Caught Sleeping in Stands Sues Everyone for Defamation," sums up the lawsuit nicely.

Here is the video that gave rise to the lawsuit, where ESPN Announcers Dan Shulman and John Kruk (or "Kruck" - according to parts of the complaint) discover and comment on the plaintiff, Andrew Rector:



Through the magic of Scribd, a portion of the complaint is available. I say "a portion" because the document does not include a claim for damages nor does it appear to have a space for the plaintiff's attorney to sign. But even though the document purports to be the statement of facts for the lawsuit, the final paragraphs of the document veer into discussions of the plaintiff's legal theory, so at least something can be said about the merits of the claim. Moreover, CBS reports that the plaintiff is seeking 10 million dollars in damages.

How solid is Rector's claim?

Should Judge Posner be Recused from Anti-Abortion Speech Cases?

Gerard Magliocca raises this question over at Concurring Opinions in light of Judge Richard Posner's article at Slate, where he comments on McCullen v. Coakley. In McCullen, the Court struck down a Massachusetts law that prohibited people from standing within 35 feet of the entrance to reproductive health care facilities. The law was enacted in light of protesters who would approach patients seeking abortions and attempt to deter them from undertaking the procedure.

The Court held that the 35-foot buffer zone violated the First Amendment. Even though the law did not regulate the content of speech, the First Amendment required the law to be "narrowly tailored to serve a significant governmental interest." The 35-foot buffer zone was too broad, since the state could have chosen to prosecute those protesters who harassed or intimidated women seeking abortions, or gotten injunctions against specific people or groups who were particularly disruptive.

Magliocca suggests that counsel in any cases involving laws restricting the speech of those protesting abortion should file a motion seeking Judge Richard Posner's critical commentary of the Court's decision. Posner, in his commentary, writes:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

28 U.S.C. § 455(a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Magliocca argues that Posner's remarks in the article raise reasonable questions about whether he can be impartial toward anti-abortion protesters.

What would Posner think about a motion for his recusal based on opinions he's expressed outside the courtroom? In an interview with Posner, published in the American Bar Association Journal, Joel Cohen raises this very question:

[Posner]: I don't have a reputation for being vengeful, do I? 

[Cohen]: I'm not suggesting that. I'm suggesting if I were a litigant before you and you had written articles containing, shall I say, some vitriol about a position that I might want to articulate in your courtroom, I might want to get you off the case. It would be easier for me if I were rarely before your court. It seems to me when you write, as you do so frequently, it could raise an issue that might concern litigants. Whether they make a recusal motion or not, they might wonder if they'll get a fair shake before a judge with so many, many opinions as you have. 

[Posner]: The fallacy, I think, in what you're saying is the concept of the fair shake. I don't think people have the right to a tabula rasa—some total ignoramus who's never thought about any of the issues. And if you've thought about them, you have opinions. Why shouldn't you express them? You have to be ready to change them obviously. But you give people useful information by telling them what you think.

From this answer in the interview, it looks like Posner would not be very receptive to the motion that Magliocca suggests. Posner may argue that his article in Slate does not foreclose the possibility that he will change his opinions, so it is not reasonable to question whether he will be impartial in anti-abortion protest cases. And Posner may also point out that it is better for parties to know what he thinks, since this information may be useful.

I am not sure that this explanation could overcome concerns raised by Posner's commenting that certain parties are "nuts" and that their contribution to the marketplace of ideas is "negligible." While Posner may hold these opinions, committing them to writing and publishing them on Slate indicates that these opinions are probably more solidly-held than other opinions than ones he would not be willing to argue to the public. And while it may be useful for parties to know what judges think, it is not immediately clear to me how parties can make constructive use of the knowledge that Posner thinks they are "nuts."

Old School Judicial Activism in the Ecclesiastical Courts

I recently got a copy of R.H. Helmholz's Roman Canon Law in Reformation England, and I have been reading in the brief intervals of spare time I have between long stretches of memorizing law and attempting to find a new apartment.

Helmholz points out that statutory interpretation in the medieval ecclesiastical courts was characterized by judges and practitioners taking aggressive liberties with statutory interpretation and often departing from the words of the relevant texts. He describes the law of wills as an example of this chaos:

Instances of the freedom which medieval jurists felt in dealing with the texts abound in the literature, but a particularly instructive example is provided by one of the questions already mentioned, on which English practice diverged from the formal texts. That is the question of how many witnesses must be present at the execution to allow a court to treat a last will and testament as legally valid. The texts of the two papal decretals on the subject seem clear enough. There must have been two trustworthy witnesses plus the parish priest present at the time an ordinary last will and testament was made for it to be probated. If a bequest ad pias causas were at issue, however, then the presence and testimony of "two or three legitimate witnesses" would suffice. 

These two decretals never functioned as modern lawyers expect statutes to. In the hands of medieval commentators, they and the Roman law on the subject led to speculation, distinction, and disagreement. How many witnesses were required became a quaestio dubitabilis, a quaestio perdifficilis. On the one hand, the civil law's rules requiring the solemnity and certainty afforded by several witnesses were evidently "just and for the common utility." Perhaps they were to be preferred. On the other hand, the law's paramount goal was to establish and enforce the testator's last true wishes, and the testimony of two persons or sometimes even fewer ordinarily sufficed to do this. At least in the forum of men's conscience nothing mattered except the intentions of the testator, and this implied a more relaxed standard, perhaps more relaxed than that provided in the two decretals. Antonius de Butrio (d.1408), for instance, held that the testimony of only two unimpeachable witnesses would be enough. He reasoned that the undelrying rationale, "the mind" of the decretal was what counted, and that the mention of the parish priest was a matter of accident, not substance. Hence two witnesses sufficed. Other canonists took a stricter view, some even holding that a higher standard than that found in the decretal should be required. (12-14) (footnotes omitted)

One of the most notable contemporary trends in legal thinking is a shift toward an "originalist" approach to reading law and interpreting cases. Originalism, crudely stated, is the philosophy that laws and cases should be construed in accordance with their plain meaning as understood at the time the laws were drafted and the cases decided. Justice Antonin Scalia is one of the most notable proponents of this approach, and he sets forth a detailed originalist approach in his book, Reading Law: The Interpretation of Legal Texts.

Scalia worries that an alternative approach would lead to judges imposing their own views on what the law means, and that "nine unelected lawyers living in a marble palace" should not be entrusted with this role. In the absence of originalism, Scalia worries that the absence of guiding principles could lead to uncertain and undemocratic results.

Would courts devolve to the level of ecclesiastical courts' divergent treatments of laws in the absence of an originalist philosophy? Probably not. But the confusing network papal decretal interpretations in the ecclesiastical courts shows that modern complaints of judicial activism are somewhat lacking in old school outrageousness.

In any event, I am happy that I am not learning about the ecclesiastical approach to the law of wills. California takes a two-(disinterested)-witness approach -- hold the priest -- and that's all I need to know about that particular part of the law.

Wall Street Journal Law Blog Issue-Spots Potential Federal Courts Exam Question

When I was in law school, one of my hobbies was attempting to predict the content of law school exams. I've been fairly successful in predicting exam questions, and I go into more detail here on how students may go about predicting the content of exams.

Here, I would like to offer a specific prediction about next year's exams: I think that there is a good chance that federal courts classes offered during the upcoming fall semester may include House Speaker John Boehner's plan to sue President Obama as a fact pattern. Boehner has stated that President Obama's use of executive orders is unconstitutional and plans to sue, claiming that the President has "not faithfully executed the law."

Going into the potential causes of action Boehner may claim and addressing the merits of the lawsuit is something I don't have the time to do in this post. But I would direct those interested in learning more to the Wall Street Journal Law Blog's informative post on the lawsuit, which concisely outlines many of the potential avenues the lawsuit may take and the obstacles it may face.

Students in particular may want to look over the Journal's post, since its coverage of the various facets of the case provides a good outline for a possible issue-spotting answer to an exam question that asks students to discuss the merits of the lawsuit.

I think that this issue is likely to come up on fall federal courts exams because it is a rare example of media coverage of a lawsuit that primarily revolves around federal courts questions. While issues of standing and political questions are often too technical for mainstream media coverage, this case is being aggressively publicized (probably for political purposes), and the high profile nature of the parties involved has gotten the attention of many national news outlets. There is a possibility that this issue could be tested in the spring, but that may depend on whether this lawsuit continues to attract coverage.

Of course, if this issue continues to draw media attention, it might become so well-known that it would not be a practical item to include on the exam. If most students have heard about the lawsuit and read ongoing, in-depth media coverage, this could end up leading to uniformly thorough answers. As a caveat to this caveat: some media outlets may cover this issue more than others, and continuing coverage by select networks (especially those that are not frequented by most law students or professors) shouldn't count too much against the probability of this issue being tested.

While predicting exams is no science, a newsworthy lawsuit in an under-publicized area of law coupled by a nifty blog post that issue-spots the lawsuit is probably worth a moment of a student's attention.