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Saturday, May 31, 2014

Sandwiches as Economic Indicators in Political Debate

NPR has an article entitled The 2014 Club Sandwich Index. From the article:

Because it is a recurring motif on the menus of fancy country clubs and haute hotels, the club sandwich is also a key economic indicator these days. To wit, has developed the Club Sandwich Index to determine the relative expensiveness of cities around the world. 
The 2014 results — of the third annual survey — have just been released. For the CSI average price, researchers tallied the prices of club sandwiches at hotels in 28 different countries. The most expensive club sandwiches in the world are served in Geneva, where the average cost is about $33. In New York, the cost for a club is close to $18. 
"The Club Sandwich Index offers travelers a simple price comparison to show how far their money may stretch in each country," Kate Hopcraft of said in a statement. "The next time you're tucking into a club in Geneva, remember you could have three more for your money in New Delhi."
This reminded me of an incident last month where Congress caught a little flack after several members used Big Macs and charts with pictures of burgers purported to be Big Macs to illustrate inflation during a debate.
But this was not the first instance of a Congressional debate over food. The NPR club sandwich article links to this historical highlight from the Archives of the House of Representatives where members of Congress debated over the contents of club sandwiches in the House Restaurant:

Representative Charles Underhill of Massachusetts strode to the well of the House with two sandwiches. In support of the House Restaurant’s funding request, put forth by Underhill’s Committee on Accounts, he compared the House club favorably with one from a local cafeteria. Newspapers reported his rousing defense – “Look at the size of this piece of chicken and compare it with this piece of chicken in our own restaurant, and with this larger piece of chicken, and large piece of toast, more mayonnaise, tomato and lettuce, we get only 5 cents more for our sandwich.”
We will have to wait and see if Congress switches to the club sandwich index in light of NPR's report.

Wednesday, May 28, 2014

Who Says The Uniform Commercial Code Isn't Beautiful?

For the beginning of my bar review program, I have been going through Kaplan's review sessions for core subjects. I completed the contracts review sessions the other day, and I found that while I did okay on the common law and remedies questions, I did not perform as well on the portion of the review that covered the Uniform Commercial Code (UCC).

I initially thought that my struggles were due to the cut-and-dry nature of the UCC's rules. The review lectures pointed out that if I didn't remember a rule for a certain scenario, it would be hard to narrow down the potential answers. Since I hadn't reviewed these rules since my first year of law school, I chalked off my struggles as a consequence of rusty memorization.

But perhaps I didn't do as well on the UCC questions because this area of law is too ugly. At least, that's what Kenneth Ching argues in his article, Beauty and Ugliness in Offer and Acceptance (H/T: Legal Theory Blog). Here is the abstract:

This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.
I took a break from bar review to look over Ching's article to see if my struggles with the UCC were aesthetic in origin. I have come to the conclusion that they are not, and that further review and memorization of the UCC should get me up to speed on the rules. In fact, I did some of that review while I was reading Ching's article and as a result I developed some serious qualms with Ching's claims.

Tuesday, May 27, 2014

A Growing Push for Changes to the ECPA

The New York Times reports:

A Reagan-era law that allows the government to read email and cloud-stored data more than six months old without a search warrant is under attack from technology companies, trade associations and lobbying groups, which are pressing Congress to tighten privacy protections. Federal investigators have used the law to view content hosted by third-party providers for civil and criminal lawsuits, in some cases without giving notice to the individual being investigated. 
Nearly 30 years after Congress passed the law, the Electronic Communications Privacy Act [ECPA], cloud computing companies are scrambling to reassure their customers, and some clients are taking their business to other countries.
The Times reports that there are bipartisan efforts to modernize the law, but because the law is not "sexy," these bills have stalled. Regarding the content of the Senate bill:

The bill would require a search warrant for access to electronic communications, with exceptions for some emergency situations. It would also require the government to notify individuals within 10 days that their information was being investigated. However, it does not address rules for location data, like GPS information from an individual’s cellphone.
Given recent revelations about the scope of government surveillance and the economic impact of countries moving their electronic activities to other countries, the stalled attempts to change this bill may end up gaining more momentum.

The article quotes Orin Kerr, who describes how the ECPA could be changed in a recent article in the Pennsylvania Law Review. Here is the abstract:

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress were to repeal ECPA and enact a new privacy statute to replace it. 
The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for noncontent records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even U.S.-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes. 
This Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for U.S.-based users and a permissive regime for users located abroad.
Agencies like the SEC protest the proposed changes to the ECPA, arguing that they do not have the power to seek warrants for the disclosure of electronic communications. It will be interesting to see whether these bills attract enough attention to move forward, and whether the parties negotiating the bills can reach a meaningful compromise on how to modernize the law.

Monday, May 26, 2014

Iowa's New Drone Law: Vague and Limited, But Brings Hope for Future Improvements

The Des Moines Register reports that Iowa Governor, Terry Branstad, recently signed a number of bills into legislation, including a regulation on the use of drones by law enforcement officers. The full text of the bill is available here. It reads:

Section 1. NEW SECTION. 321.492B Use of unmanned aerial vehicle—prohibition traffic law enforcement.  
The state or a political subdivision of the state shall not use an unmanned aerial vehicle for traffic law enforcement.  
Sec. 2. NEW SECTION. 808.15 Unmanned aerial vehicle—information admissibility. 
Information obtained as a result of the use of an unmanned aerial vehicle is not admissible as evidence in a criminal or civil proceeding, unless the information is obtained pursuant to the authority of a search warrant, or unless the information is otherwise obtained in a manner that is consistent with state and federal law.  
The department of public safety, in consultation with the attorney general, state and local agencies, and other interested organizations, including but not limited to organizations with expertise in unmanned aerial vehicle technology, shall examine whether the Iowa criminal code should be modified to regulate the use of unmanned aerial vehicles, shall develop model guidelines for the use of unmanned aerial vehicles, and shall report such guidelines to the general assembly no later than December 31, 2014.
I blogged previously about proposed drone legislation in Iowa, but the bill that Branstad signed is far less extensive than that earlier legislation. The only meaningful restriction in the current law is the restriction of drone use for traffic law enforcement. While the law prohibits the use of information obtained by drones in criminal and civil proceedings, the bill allows the use of information that is obtained in "a manner that is consistent with state and federal law," meaning that as long as drones are used in a manner similar to helicopters or planes in non-traffic enforcement contexts, the drone use will be consistent with existing Fourth Amendment law.

For instance, police could use a drone to track a person to see if that person ends up going to locations where criminal activity is known to occur. Drones could also track people who are suspected of crimes to see if those people drive to a location to commit a crime. As long as the drone tracks movements and activities that could be observed by members of the general public, the drone surveillance will be consistent with existing state and federal law.

As the law currently stands, it would appear that law enforcement agencies would not be able to use drones to catch speeding motorists or to spot other traffic violations in Iowa. It is less clear whether this law would prohibit law enforcement officers from using drones to survey the scene of a recent traffic accident, since this type of drone use could be permitted or restricted depending on how broadly the phrase "traffic law enforcement" is interpreted.

It is good to see that the bill calls for further consideration of effective drone regulations, and I hope that the guidelines that are eventually produced are a bit clearer than the current law. It will also be interesting to see if the eventual guidelines end up calling for the regulation of private actors' use of drones.

New ABC Show on Why Law Students Should Take Professional Responsibility Before Criminal Law

ABC's upcoming show, How to Get Away With Murder, looks like it will be two things: (1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter. Here is the trailer:

Consider the third piece of advice that the professor gives to her students: that students "bury" any adverse evidence. This will almost certainly lead to violations of Model Rule of Professional Conduct 3.4, which prohibits attorneys from unlawfully altering or concealing evidence. The comment to the rule acknowledges that criminal defense attorneys may come into possession of incriminating evidence, and while they may perform their own analysis of the evidence, they may not destroy or alter the evidence in the process, and may ultimately be required by law to turn the evidence over to law enforcement.

Even more disturbingly, students taking a criminal law course may be interested in criminal prosecution, rather than criminal defense. If prosecution-inclined students take the "bury" advice to heart and apply it in the prosecution setting, they will commit flagrant Brady violations, leading to reversed convictions and likely sanctions for prosecutorial misconduct. These students will also run afoul of Model Rule 3.8(d), which requires prosecutors to reveal exculpatory evidence to defense attorneys.

It will be interesting to see how this show is received by the legal crowd and the general public. The show seems to focus on law school rather than on practicing lawyers, which is a risky move. But if the trailer is any indication, the show's portrayal of legal education may be so inaccurate that it may end up being a success.

I also look forward to the show's spin-off, How to Get Away With Unconscionability, where the students' contracts professor only lists one phrase on the board: "Arbitration Clause."

Thursday, May 22, 2014

Batman v. Superman: My Thoughts on Potential Cases

Linda Holmes of NPR has an fun article about the upcoming sequel to Man of Steel. The title of the sequel will be Batman v Superman: Dawn of Justice. Holmes notes that the "v" in the title is typically used in the titles of court cases, pointing out that the title is not going to be "vs." or "versus." Accordingly, Holmes reaches the hopeful conclusion that Batman v Superman will be a legal drama, rather than a typical superhero movie.

Holmes provides a few examples of what the plot of the movie may be. The first is:

Batman sues Superman over an incident in which Superman accidentally picks up Batman's cape at the dry cleaner's, which leads to the revelation that Superman only sees black and white, which renders his colorful costume very ironic. Batman v Superman!
As somebody who has just graduated from law school, and who has seen Man of Steel, I join in Holmes's hope that Batman v Superman will be a legal drama rather than a repeat of its loud, humorless, two-dimensional, and destruction-filled predecessor. I thought that I would throw out some of my own bar-review-inspired ideas for the plot of the sequel.

Blizzard Suing the Makers of Starcraft II Cheats and Hacks

The BBC reports:

Activision Blizzard is trying to sue hackers who have created cheats for its Starcraft II video game. 
The publisher says the software undermines online multiplayer battles and could cause players to lose interest in the title.
The full complaint is available here.

Blizzard argues that those who make the cheats for Starcraft II infringe Blizzard's copyrights by copying or recreating the game in the process of manufacturing the cheats. Moreover, Blizzard's terms of use for its online competitors prohibit users from making "cheats, automation software (bots), hacks, mods, or any other unauthorized third-party software designed to modify the Service, any Game, or any Game experience." Blizzard argues that makers of cheats know that this contract exists, and that the makers of cheats induce Starcraft II players to violate their contracts, which undermines the game's legitimacy. The hackers Blizzard is suing are those who are able to circumvent Blizzard's "Warden" security measures which generally prohibit players from using hacks and modifications.

Blizzard has sued makers of mods before. In 2013, the company won a lawsuit against Ceiling Fan Software, which had manufactured a bot for World of Warcraft players. The District Court for the Central District of California's ruling is available here. The bot would allow the World of Warcraft players' online characters to "engage in repetitive and elongated play" of the game, which would allow players to obtain experience and "virtual currency" over "periods of time impossible for human players (for example, through the night or for hundreds of hours without interruption)" (apparently the court was not familiar with the habits of some human players of World of Warcraft).

In its lawsuit against Ceiling Fan, Blizzard argued that these bots violated the same terms of use that Blizzard is raising in its current lawsuit against the Starcraft II hackers. The court held that Ceiling Fan's bots and their distribution of the bots was tortious interference with the Terms of Use contracts to which World of Warcraft players had agreed. The court that decided the Ceiling Fan case is the same court in which Blizzard has filed its lawsuit against the Starcraft II hackers.

While I am not familiar enough with the mechanics of manufacturing cheats, bots, and hacks to know if Blizzard's copyright claims will succeed, it looks like Blizzard has a pretty good chance of arguing that the defendants interfered with its terms of use contracts.

Wednesday, May 21, 2014

California Bill Seeks to Oppose NSA Surveillance

Reuters reports:

The federal government would need a warrant from a judge if it wants the cooperation of California officials in searching residents' cellphone and computer records, under a bill making its way through the state legislature.

The bill, which passed the state Senate with just one opposing vote on Monday, was introduced in the wake of information leaked by former National Security Agency contractor Edward Snowden showing massive internal surveillance of U.S. citizens by the NSA.
The bill is SB 828, and the text of the bill is available here. It would add a section to the California Government code that would read:

The state shall not provide material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a valid warrant that particularly describes the person, place, and thing to be searched or seized, seized or a court order, or in accordance with judicially recognized exceptions to warrant requirements. 
That is the text that appears on the legislature's website, my understanding is that the bill would appear without the struck-through "seized" and with the italic words included as a normal part of the text, but I thought I should include the full text as it appears on the government's website.

I think that the bill will be ineffective, however, for two reasons.

Tuesday, May 20, 2014

I Have Graduated From Law School!

But that does not change anything in this blog's disclaimers (in short: I am not a lawyer, this is not legal advice, and no attorney-client relationship is formed between me and any readers of this blog).

An Article on Bee Stings That I Did Not Write

In case you didn't notice, I have a pretty generic name, so whenever I submit a paper for publication, I sign my paper as "Michael L. Smith," so that I don't get completely lost among the crowd of similarly-named authors. But there are still other Michael L. Smiths out there, and sometimes they write papers.

Here, for instance, is a paper entitled Honey bee sting pain index by body location, written by a Michael L. Smith who is most certainly not me. Perhaps the abstract of the paper will clarify why I want to expressly disclaim authorship:

The Schmidt Sting Pain Index rates the painfulness of 78 Hymenoptera species, using the honey bee as a reference point. However, the question of how sting painfulness varies depending on body location remains unanswered. This study rated the painfulness of honey bee stings over 25 body locations in one subject (the author). Pain was rated on a 1–10 scale, relative to an internal standard, the forearm. In the single subject, pain ratings were consistent over three repetitions. Sting location was a significant predictor of the pain rating in a linear model (p < 0.0001, DF = 25, 94, F = 27.4). The three least painful locations were the skull, middle toe tip, and upper arm (all scoring a 2.3). The three most painful locations were the nostril, upper lip, and penis shaft (9.0, 8.7, and 7.3, respectively). This study provides an index of how the painfulness of a honey bee sting varies depending on body location.
Thank goodness there are people out there willing to do the research to answer these questions so we don't have to find out for ourselves. And Smith was diligent in his methodology. From the text of the article:

In total, three full stinging rounds were conducted at the Liddell Field Station of Cornell University in Ithaca, New York (42°27.6′N, 76°26.7′W). The author was stung over a total of 38 days, between 20 August 2012 and 26 September 2012. To keep the author as blind to the ratings as possible, notes were kept hidden from previous days. After two stinging rounds had been conducted (each stinging round covered all anatomical sting locations), the scores were reviewed, to see if there was a large discrepancy between scorings per sting location. Only one location differed by 3 units (foot arch), and two locations by 2 units (upper thigh and behind the ear). Even though the consistency between the first two rounds was high, a third round of stinging was performed.
Smith's article is...innovative, and it will be interesting to see if he survives whatever future research he has planned.

Thursday, May 15, 2014

A Probation Condition Prohibiting the Defendant From Fathering Children

From the Christian Science Monitor:

An Ohio appeals court has upheld a judge's order that a father can't have more kids until he pays his back child support.

The decision this week by the appeals court didn't provide an opinion about whether the judge's order was appropriate. Instead the appeals court said it didn't have enough information to decide the merits of the case without a copy of the pre-sentence report detailing Asim Taylor's background. 
In January 2013, Judge James Walther said Taylor couldn't have more children while he is on probation for five years. The judge said the order would be lifted if Taylor pays nearly $100,000 in overdue support for his four children. covers the case here. Daniel Taylor at the Findlaw Blog notes that while this sentence is peculiar, it is not a surprise to see a sentence like this in Ohio:

Northeast Ohio is also developing a reputation for doling out "weird" punishments. A judge in nearby Cleveland once ordered a woman to wear an "idiot" sign in public after she was filmed driving on the sidewalk. South of Cleveland in Brimfield, Ohio, Police Chief David Oliver has used Facebook to publicly shame criminal suspects.
The opinion is available here. While the majority of judges reach the decision that there is not enough information to decide the merits of the case, there is an opinion by Judge Donna Carr, who concurs in the judgment and holds that the probation condition is appropriate:

Given the number of children by multiple mothers, the high amount of the arrearages, Taylor’s ability to work, the fact that he was actually earning enough money to retain counsel below, his continued refusal to make any payments toward the support of his children notwithstanding his notice of the charges against him, and his complete lack of remorse or justification for his actions, I would conclude that an antiprocreation condition of community control was not unwarranted under these facts. Moreover, I would conclude that the condition was narrowly tailored to serve the purposes of community control.
Judge Carr's conclusion has some support. Carr cites State v. Oakland, a 2001 Wisconsin state Supreme Court decision that upheld a probation condition prohibiting the defendant from having children.

While the probation condition may be legal, I certainly have some reservations over whether probation conditions that extend this far are desirable.

The Latest in the Magnificent Garner-Posner Battle

Reviews have been written, books have been authored, lawyers have been hired, and arbitration methods have been invented.

Brian Garner, the Editor in Chief of Black's Law Dictionary, is a coauthor of the book, Reading Law (the other coauthor is somebody named Antonin Scalia). Richard Posner, a judge on the Seventh Circuit and "law demigod," criticized Garner and Scalia in a New Republic article, and followed up on this criticism in his book, Reflections on Judging.

Garner replied by commissioning a report on Posner's criticism from Steven Hirsch, a partner at Keker and Van Nest. In that report (available here), Hirsch wrote that eight out of 12 of Posner's lines of criticism were unwarranted. Garner states that he wanted an objective take on the dispute, and that Hirsch's report provides this perspective.

Posner has just replied to this report. From Legal Times:

“Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email Saturday to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.”

Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, continued: “How beautifully that simplifies arbitration! No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list possible arbitrators and the disputants cross out the ones they don't like.”
It will be interesting to see how this dispute plays out, and whether the latest version of Black's Law Dictionary will have an updated definition of "arbitration" in light of Posner's recent remarks.

Wednesday, May 14, 2014

It is Now Legal to Annoy People in New York

The New York Times reports:

The criminal defense lawyer William Kunstler used to say, “This is New York and there’s no law against being annoying.” 
On Tuesday, the state’s highest court appeared to agree, striking down a statute that made it a felony to communicate with someone “in a manner likely to cause annoyance or alarm.” 
. . . 
The case involved Raphael Golb, a 54-year-old Greenwich Village resident who waged a yearslong campaign against the academic rivals of his father, Norman Golb, a Dead Sea Scrolls scholar. Using dozens of pseudonyms, the younger Mr. Golb accused the rivals of ignoring or plagiarizing his father’s work to further their own careers. For added effect, he opened email accounts in the names of some of his antagonists, and wrote messages appearing to confess to wronging Norman Golb. 
. . . 
In striking down the statute on aggravated harassment dealing with speech that was merely annoying or alarming, the judges unanimously ruled that the law was unconstitutionally vague and overbroad. They cited another court’s ruling that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” Mere annoying speech, the lingua franca of many New Yorkers, was not enough.
The New York Court of Appeals took a similar approach to the Indiana Court of Appeals, which also took issue with the term "annoying." As I posted here, in February, the Indiana Court of Appeals struck down a law prohibiting people from harassing or annoying people while drunk in public.

The term "annoy" is a dangerous word to put in a statute, since it is likely to raise vagueness challenges. Whether something is "annoying" is a very subjective question, and this can give a dangerous amount of discretion to those charged with enforcing the law.

Cyrus Vance Jr., the Manhattan District Attorney, criticizes this opinion for striking down an important component of anti-harassment laws. While the impact may have a wide-reaching impact -- especially if statutes are drafted in a repetitive manner -- I think that the court's decision was correct, and that legislators should generally avoid vague terms like "annoying" when they are drafting harassment statutes.

Japanese Prime Minister to Reinterpret Constitution to Avoid Amendment Process

Steven Schwinn at Constitutional Law Prof. Blog has an interesting post on how Japanese Prime Minister, Shinzo Abe, hopes to change Article 9 of the Japanese Constitution. Schwinn writes:

Japanese Prime Minister Shinzo Abe plans to change Japan's pacifist constitution--not by amending it, but by reinterpreting it. 
Abe is expected to announce a plan to amend several laws that would allow the Japanese Self-Defense Forces to engage in collective self-defense, that is, military defense of allied countries even when Japan is not directly threatened. This will mark a shift in the role of Japan's military overseas, which is currently limited to non-combat peacekeeping duties under Article 9 of the Constitution.
Article 9 renounces war as a right of the sovereign and bars Japan from maintaining armed forces and using military force to further its objectives. The Christian Science Monitor has more on this story, writing:

Abe's target is Article 9 of the 1947 Constitution – drawn up by US occupation forces after World War II – which renounces Japan’s right to wage war as a means of settling international disputes. It says that "land, sea and air forces, as well as other war potential, will never be maintained.” 
Successive administrations have interpreted the clause to facilitate the build-up of a well-equipped military, yet one with a strictly defensive posture. 
. . . 
“Abe is basically looking for the easiest way to change the Constitution,” says Koichi Nakano, a political science professor at Sophia University in Tokyo.
I am no expert in Japanese constitutional law, but the Christian Science Monitor goes on to quote Jiro Yamaguchi, a political scientist, who notes that there are "no institutional barriers to the cabinet changing its interpretation of the Constitution," so it seems that Abe's push for interpretation may end up succeeding absent any intervention from Parliament. Looking to the text of Article 9, it looks like this would not be the first reinterpretation of this part of the constitution, which, if read literally, would prohibit an army, navy, and air force.

Sunday, May 11, 2014

Louisiana Gun Cases Test the Limits of "Strict Scrutiny"

At Volokh Conspiracy, Eugene Volokh has a post about State v. Webb. There, the Louisiana Supreme Court held that an enhancement to a drug crime conviction based on the defendant's possession of a firearm related to the drugs does not violate the Louisiana Constitution's protection of the right to bear arms.

This case is important because the Louisiana Constitution contains notably strong language when it comes to keeping and bearing arms. Article I, Section 1 of the Louisiana Constitution states:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.
"Strict scrutiny" is the highest level of scrutiny to which laws can be subjected, and laws are often (but not always) overruled when courts apply strict scrutiny. In order to survive strict scrutiny, the government must have a compelling interest, and the law it enacts must be narrowly tailored to achieve this interest.

State v. Webb is the latest in a series of Louisiana cases that have found laws restricting the possession of firearms to meet strict scrutiny. In State v. Draughter, the Louisiana Supreme Court held that felons on probation could be restricted from possessing firearms because they were technically in the custody of the state. And Volokh also notes that in State v. ex rel. J.M., the Louisiana Supreme Court held that restricting the possession of firearms by juveniles under age 17 was constitutional.

Even though the Louisiana Constitution contains some of the strongest language against restrictions on individual citizens' abilities to keep and bear arms, the state supreme court has consistently upheld laws restricting the possession of firearms. While the language in the state constitution is strong, the level of protection does not seem too different from most other states' constitutions.

Saturday, May 10, 2014

District of Columbia's Proposed Marijuana Decriminalization Illustrates Federalism Conflict

The New York Times reports:

If Congress allows a District of Columbia law to take effect that would decriminalize the possession of small amounts of marijuana, and someone with one foot on the National Mall and another foot on city property is caught carrying the drug, would that person be charged with a crime under federal law? 
That was just one of the questions raised in a congressional hearing on Friday examining the potential complications of relaxing marijuana laws in a city controlled by Congress and policed both by federal and local law enforcement agencies.
State decriminalization of marijuana is becoming increasingly common, and this trend raises conflicts with federal law. Commentators like Erwin Chemerinsky (et. al) have labeled this "one of the most important federalism conflicts in a generation."

The District of Columbia's push to decriminalize marijuana is particularly interesting because of the large percentage of federal land in DC and the high number of federal personnel that patrol the area. If Congress and the Senate don't stop DC's decriminalization efforts, the city may end up becoming a hotspot for interesting cases of differentiated drug enforcement.

Wednesday, May 7, 2014

Proposed Louisiana Drone Law Shot Down

So reports this typo-ridden article at

[State Senator Dan] Claitor argued the new technology could result in the invasion of privacy. A number of media representatives, though, spoke against the bill, touting [the] usefulness of drones to report vital information to the public and law enforcement during natural disasters and other newsworthy events.
The bill would have prohibited warrantless use of drones by law enforcement agencies, but there were numerous exceptions to this broad ban. And the bill would have restricted private use of drones to conduct surveillance on other people, but only if the specific intent of the drone user was to conduct surveillance on non-consenting third parties.

I think it's a shame that the bill failed. I blogged in more detail about the proposed drone law here. There, I noted that while the law was a bit cumbersome, the numerous exceptions to its otherwise broad prohibitions meant that the law could prevent the overly invasive use of drones, while still permitting their usage in many other situations.

Additionally, I think that the critics were right to point out that reporters' abilities to use drones may have been restricted by the law, but the bill provided many exceptions for use of drones by law enforcement officers. As I noted in my earlier post, law enforcement officers would still be able to use drones to survey recent accident scenes, and collect information with drones during states of emergency or in hot pursuit situations. So while critics pointing out limits on private parties may have a point, I don't think that these critics would be correct to label the bill as overly restrictive for law enforcement agencies.

With this bill's death, Louisiana joins North Dakota and other states that have refused to regulate drones. While Louisiana's drone bill will not become law, I hope that states considering drone restrictions take the bill into account as one of the better proposals for regulating this emerging technology.

NSA's Failure to Monitor Minecraft Leads to Inevitable International Digital Terrorism

A while ago, I blogged about some classified documents released by Snowden that revealed that agents with the National Security Agency (NSA) had infiltrated World of Warcraft and Second Life. The agents set up characters and interacted with other users in an effort to uncover terrorism plots.

While the agents did not find any criminal activity, one could (perhaps sarcastically) argue that users are probably less likely to engage in virtual terrorism in World of Warcraft. While entire virtual cities have been destroyed in the past, I am aware of no similar destruction since news broke about the NSA's surveillance.

But in places where the NSA has not announced a presence, virtual terrorism remains. The BBC reports:

A virtual replica of Denmark created to help educate children has been disrupted by "cyber vandals". 
Small portions of it were blown up, despite a ban by its creators, the Danish Geodata Agency (DGA), on the use of "dynamite". 
Large US flags were erected at the starting area, as well as red, white and blue "America" signs. 
. . . 
Buildings were destroyed using virtual dynamite - the use of which had been banned on the Danish server - after users discovered it could be detonated when hidden in mining carts.

It is unclear at this early stage whether this incident will affect international relations. Thanks to the brave efforts of Minecraft users, the damage is being repaired and war will hopefully be avoided:

"It was the players who cleaned up the damage, replacing it with green grass and flowers the following morning," said [Chris] Hammeken, [chief press officer at the Danish Geodata Agency].
Privacy advocates may scoff at the NSA's surveillance of the digital worlds of Minecraft and World of Warcraft, but this incident reveals that in the absence of government surveillance, meticulously constructed buildings and landscapes may be wantonly destroyed. If that doesn't justify the forfeiture of online privacy, I'm not sure what does.

Media Companies File Amicus Brief Arguing That Broad Drone Regulations Violate First Amendment

The Wall Street Journal reports on media companies' opposition to strict federal restrictions on drones:

Some of the largest U.S. news organizations are accusing the Federal Aviation Administration of infringing on their First Amendment rights by effectively prohibiting them from using drones for reporting in the country. 
Fourteen news organizations, including the Associated Press, New York Times Co. . . .. , and Tribune Co. . . . , filed a joint brief in a high-profile legal case that is testing the FAA's legal authority to regulate drones. 
In the brief, the media groups criticized the FAA's "overly broad policy" that restricts use of commercial drones in the U.S., saying it violates the First Amendment right of newsgathering and has already had "an impermissible chilling effect" on some journalists' reporting.
I blogged previously about the administrative decision by the National Transportation Safety Board that invalidated the Federal Aviation Administration's (FAA's) fine. I think that there are some interesting First Amendment questions raised by strict drone regulations, since the use of drones in journalism are becoming increasingly commonplace. Jason Koebler at Motherboard surveys how journalists are turning to drones:

Meanwhile, some journalists have started using drones to document the news—in Connecticut, a TV-station producer flew a drone over the aftermath of a car accident. The FAA has said it’s looking into the issue. Last week, a storm chaser in Arkansas used a drone to document a tornado in the state—the FAA similarly said that it’s “looking into” the issue. The FAA has also grounded drone journalism programs at the University of Missouri and the University of Nebraska.
The FAA is planning to release proposed rules governing the use of drones in November, and this brief will hopefully alert the agency that it will need to keep the First Amendment in mind when it is drafting its regulations.

Here is the brief itself:

Tuesday, May 6, 2014

Orin Kerr Isn't a Katz Person

At The Volokh Conspiracy, Orin Kerr criticizes commentators who write on Fourth Amendment issues for using puns in the titles of their notes and articles. Specifically, Kerr calls out writers who make puns based on Katz v. United States, which is the foundation of most modern Fourth Amendment doctrine. My favorite title Kerr mentioned was the student noteHerding Katz: GPS Tracking And Society’s Expectations Of Privacy In The 21st Century. The most strained use of the pun, in my opinion, was in the article, It’s Raining Katz and Jones: The Implications of United States v. Jones–A Case of Sound and Fury, which (to my surprise) was written by a professor rather than a student.

Kerr's selection comes from the last few years, but Katz puns are not a new phenomenon. Some quick research on the issue led me to The Uninvited Canine Nose and the Right to Privacy: Some Thoughts on Katz and Dogs, (11 Ga.L.Rev. 75, 89 (1976)). This phenomenon is not limited tot the titles of law reviews -- the California Court of Appeal in People v. Salih, 219 Cal. Rptr. 603 (Cal. App. 1985) pointed out in a footnote that: "Succinctly stated, sniffing dogs are not controlled by Katz."

Kerr's criticism brings to mind a more general way of making legal research more amusing: when you are confronted with a list of titles of law review articles, try guessing by the title alone whether the entry is an article written by a professor, or a comment or note written by a student. After two years of reading many law review articles and comments, I have developed a good eye for this, but the Raining Katz and Jones article proved to me that my professor/student distinguishing ability is still not 100 percent accurate.

Circuit Splits Blog is Alive Again

I'm happy to see that the Circuit Splits Blog is up and running after being inactive since September 2013 (without any posts on circuit splits since April 2013). The new posts started in mid-April and seem to be coming at a pretty steady pace.

This blog is especially helpful for students who are interested in writing comments, since splits in authority tend to present tangled legal issues that are worthy of comment. Papers on splits that have not been taken up by the Supreme Court may be more likely to have a real-world impact, since comments and articles on these splits may get renewed attention if the Court decides to resolve the split in the future.

The Aggravating Structure of California's Animal Fight Laws

While I was writing my previous post on abnormally dangerous animals, I got caught up in some peripheral research on liability schemes for keeping wild animals. Defendants who keep wild animals are typically strictly liable for any damage those animals end up causing. According to section 507 of the Restatement (Second) of Torts, the rationale for this strict liability is that the defendants who keep dangerous wild animals "create a danger not normal to the locality in question." To put this into more understandable terms, if somebody were to keep a bear or lion in a cage, they would be liable for any damage the animal would cause upon its escape. Plaintiffs harmed by the animal would not need to show that the person keeping the animal was negligent.

This led to some tangential research into the issue of California laws relating to bears, which brought me to California Penal Code section 597b outlaws fights between animals, but it does so in a complicated and unpleasant manner. Here are several subsections of the statute:

(a) Except as provided in subdivisions (b) and (c), any person who, for amusement or gain, causes any bull, bear, or other animal, not including any dog, to fight with like kind of animal or creature, or causes any animal, including any dog, to fight with a different kind of animal or creature, or with any human being, or who, for amusement or gain, worries or injures any bull, bear, dog, or other animal, or causes any bull, bear, or other animal, not including any dog, to worry or injure each other, or any person who permits the same to be done on any premises under his or her charge or control, or any person who aids or abets the fighting or worrying of an animal or creature, is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine. 
(b) Any person who, for amusement or gain, causes any cock to fight with another cock or with a different kind of animal or creature or with any human being; or who, for amusement or gain, worries or injures any cock, or causes any cock to worry or injure another animal; and any person who permits the same to be done on any premises under his or her charge or control, and any person who aids or abets the fighting or worrying of any cock is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, or by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine.
 . . .
(d) For the purposes of this section, aiding and abetting a violation of this section shall consist of something more than merely being present or a spectator at a place where a violation is occurring.
Subsection (a) comes across terribly because it makes sure to avoid addressing dog vs. dog animal fights. Those fights are addressed in California Penal Code 597.5, which takes a much harsher approach to those fights. It outlaws the training of those animals with the intent that they eventually fight, and it makes training the animals and conducting the fights felonies, rather than misdemeanors.

This explains some of the choppiness of subsection (a), though I think the statute could be more artfully drafted. But why was cockfighting not included in (a) by simply adding "cock" into the "bull, bear, or other animal" list? And why would a cock just not be an "other animal," under the original list? This would seem to make subsection (b) completely unnecessary.

I have no explanation for this odd drafting other than my own theory that lawmakers wanted to appear tough on cockfighting. Adding an unnecessary additional subsection that specifically addressed that practice was the way to exude this tough attitude.

Monday, May 5, 2014

Criticism of Legal Scholarship: Don't Judge an Article by its Title

At ACS Blog, Reuben Guttman criticizes the power of US News Rankings, and argues that these rankings have prompted law schools to select future lawyers, judges, and scholars on the basis of test scores and GPAs. This overall argument, while familiar, is important, and Guttman provides a largely compelling argument.

But one of the later paragraphs of Guttman's post caught my eye:

As to the faculty, US News appears to put some premium on scholarship. This means law schools are urged to hire those teachers that publish. But publish what? Do faculties of law schools have to publish books and articles that are useful to practitioners, judges, or legislators or, at least, indirectly impact the lives of people? No. They just have to publish. And as they are urged to publish, they strive to publish about things that no one has written about. Consider these articles: "Postmodernism and Dworkin: The View from Half-Court," 17 Nova L. Rev. 799 (1993); "South Park & The Law," 14 Tex. Rev. Ent. & Sports L. 47 (2012); "Professor Kingsfield: The Most Misunderstood Character in Literature," 33 Hofstra L. Rev. 955 (2005); and "Capital: Conferring with the Flowers: History and Class Consciousness in L. Frank Baum’s Land of Oz, a General Theory of Magic and Law," 20 S. Cal. Interdis. L. J. 67 (2010). 
Does the focus on the esoteric advance the profession or prepare students for the practice? Even Justice Roberts recognizes the irrelevance of this type of scholarship. During the Fourth Circuit Judicial Conference, Justice Roberts stated, “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”
As a break from outlining federal courts, I thought that I would cite check Guttman's point here.

To begin, I'll admit that Capital: Conferring with the Flowers: History and Class Consciousness in L. Frank Baum's Land of Oz, a General Theory of Magic and Law, is indeed an esoteric article on communist theory and Baum's book, Land of Oz, and is written in a disjointed and platitudinous manner. Of course, the journal in which the article is published presents itself as an "Interdisciplinary" journal, so perhaps the author's choice of subject and style of writing is characteristic of a certain nonlegal discipline. But I will grant that this is an acceptable example of overly theoretical work.

But let's consider the other three citations Guttman provides...

Friday, May 2, 2014

Canada Avoids "Fish Royal" Tragedy

A few days ago, I blogged about a recently-beached whale in Canada. Inhabitants of nearby towns worried that the whale would explode, but the Canadian federal government was reluctant to remove the whale. It appears that there are now three beached whales. I noted that the scenario was eerily similar to the "Fish Royal" case in A.P. Herbert's Uncommon Law where the Crown's refusal to take action over a beached whale results in the complete abandonment of a town due to the whale's stench.

In the Fish Royal case, the first option the Crown considered was that the beached whale be sent to a museum:

[A] letter was addressed to the Director of the Natural History Museum informing him that an unusually fine specimen of Balaena Biscayensis was now lying in Pudding Bay and that the Minister was authorized by His Majesty to offer the whale to the Museum in trust for the nation, the Museum to bear the charges of collection and transport. 
On July 3rd . . . the Secretary to the Natural History Museum replied that he was desired by the Director to express his regret that, owing to lack of space, the Museum was unable to accept His Magesty's gracious offer. He was to add that the Museum was already in possession of three fine specimines of Balaena Biscayensis.
Here, Canada's federal government expressed  the towns of Rocky Harbour and Trout River will not undergo the same experience as Pudding Magna. The BBC reports:

Canada's Royal Ontario Museum will take two blue whale carcasses that washed up on the coast of western Newfoundland. 
Whales on the beaches of Rocky Harbour and Trout River were among several believed to have died in heavy ice. 
The towns did not have the resources to move the decomposing whales, which experts fears could bloat and explode. 
"The chance to preserve, study and examine up to two skeletons is a once-in-a-lifetime opportunity," the museum said in a statement.
It looks like Rocky Harbour and Trout River will avoid the stench and potential explosion of these beached whales. But now that it is in possession of two whale skeletons, this solution may not be available to future towns who seek to rid themselves of whale carcasses.

Thursday, May 1, 2014

Are Modern Police "Soldiers" Under the Third Amendment? And if They Are, Does it Matter?

That is the question that Sandra Eismann-Harpen raises in this comment, Rambo Cop: Is He a Soldier the Third Amendment? (41 N. Kent. L. Rev. 119 (2014)). Here is the abstract:

This Comment analyzes whether modern police fall within the meaning of soldier under the Third Amendment. It provides the historical context for the Third Amendment, and reviews the meaning of soldier within this historical context. Then, it analyzes the culture, techniques, weaponry, et cetera of modern police within the framework of the Third Amendment. Because militarized police present the same fundamental risk to American civil liberties that they posed several centuries ago, the judiciary should apply the Third Amendment to both federal and state action, and the definition of soldier under the Third Amendment should include federal, state, and local law enforcement.
For those who are not immediately familiar with the more arcane amendments, the Third Amendment states:
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
I have seen the question raised before. Ilya Somin, spoke about this issue in discussing a case where the residents of a house where police violently gained entry to monitor a nearby home where they suspected drug activity was occurring. In his post, Somin wrote:

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.” On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.
I wrote about that case in this earlier post.

In her comment, Eismann-Harpen takes on this question beginning with a discussion of the Third Amendment claim that prompted Somin's prompt. Eismann-Harpen discusses how police tactics and equipment have evolved to mirror the military, and argues that, under an originalist understanding of the Third Amendment, modern police are much more similar to founding-era soldiers than founding-era police.

I haven't done the research on the issue, and Eismann-Harpen's discussion seems fairly thorough, but the question remains: even if police officers are "soldiers" within the meaning of the Third Amendment, does that matter? In my view, the biggest problem with Third Amendment claims arising out of police officer intrusion on homes is not that the officers aren't "soldiers," but that the officers are not "quartered" in the home.

Simple intrusion into a home does not seem to fit the modern or founding-era definitions of "to quarter." I discussed this term in an earlier post where I argued that plaintiffs should not be able to argue that military software is "quartered" in civilian computers. In that post, I was criticizing an article by Alan Butler. In that article, Butler noted that modern and founding-era definitions of "quartered" are similar:
The modern usage of the term “quarter,”—to “lodge, or dwell,”—generally matches the traditional definition of “quarter” at the time of the framing—“to lodge; to fix on a temporary dwelling.” Furthermore, the modern definition of “to lodge”—“to provide temporary quarters for” or “to establish or settle in a place”—also tracks the traditional definition of “to lodge”—”[t]o place in a temporary habitation” or “[t]o afford place to.”
I don't think that simple intrusion into the home would rise to the level of police being lodged, dwelling in, or inhabiting a home. "Quartered" seems to imply a more permanent intrusion than a simple intrusion, and the terms used to define the term imply that the person being quartered is treating the home as his or her place of residence -- which doesn't seem to fit in cases where police enter and use a home to monitor a nearby location. I would certainly agree that police in that instance have "seized" the residence, and a Fourth Amendment violation may occur, but not a Third Amendment violation.

Eismann-Harpen's comment is an interesting exploration of how modern policing has grown increasingly militarized. But as far as the Third Amendment is concerned, the "police-as-soldiers" argument is only one part of an ultimately futile Third Amendment claim.

(H/T: The Originalism Blog)

Privacy Rights for eReader Users

I recently learned about an interesting comment by Meredith Mays Espino entitled, Sometimes I Feel Like Somebody’s Watching Me . . . Read?: A Comment On The Need For Heightened Privacy Rights For Consumers Of Ebooks, (30 J. Marshall J. Info. Tech. & Privacy L. 281 (2013)). From the introduction:

If you use an eReader, or other electronic device for your reading, someone is watching you read. Rather, something is watching what you read, how long you read, whether you stopped reading at a certain page, whether you bookmarked certain passages, and even whether you needed to look up a word if you are reading from an eReader. eReaders and other electronic devices are quickly becoming the primary mode of reading. The books, magazines, and other reading materials that are available from sources such as Amazon, Barnes & Noble, Google Play, and iTunes are almost limitless. 
. . . 
Due to privacy implications for readers, governmental and commercial entities should be prohibited from mining reader data without strict safeguards, including passage of the Reader Privacy Act in all states and amending the definition of “library” in all state and federal statutes to include purveyors of ebooks. In order to ensure that data cannot be used to destroy patron privacy, libraries and ebook services should be prohibited from collecting information beyond that which is necessary to complete the business transaction and should subsequently destroy circulation information after each transaction is completed.
This is an important issue and an interesting proposal. Of course, readers could do what I do and simply stick to physical books, but this alternative might be a bit too radical for people to accept.