Congratulations to Those Who Passed the California Bar Exam!

Today is the day that those who took the July California Bar Exam learned whether they have passed.  For those who passed, congratulations!  For those who did not -- all is not lost.  The bar exam is a challenge like no other and those who passed this year are yet again in the minority of test-takers.

Queenan on the Coming "National Plague of Dumb Lawyers"

At the Wall Street Journal, Joe Queenan writes this column about how law schools' lowering their admissions standards will lead to a plague of dumb lawyers. Queenan describes the chaos that will result:

Dumb lawyers will lose clients huge amounts of money by confusing “escrow” with a salad. They will forget that they are not supposed to show the court the telltale coal scuttle or the bloodstained handkerchief or the strangled parakeet, and their clients will do hard time as a result. 

Procedurally, dumb lawyers will paralyze an already sclerotic legal system. They will misplace files, spill coffee all over the DNA samples, take the wrong exit on the expressway and end up defending the wrong conscienceless psychopath in the wrong court in the wrong state. They will forget that they are not supposed to call the jury a bunch of pathetic losers with bad perms like the one Melissa McCarthy has in “Spy.”

Terrifying as this prospect sounds, at least it is not a world without lawyers.

Criminal Charges Against Man Who Shot Down Drone Dismissed

So reports the Wall Street Journal Law Blog, taking note of this story from Wave 3 News about a Kentucky man who shot down a drone that he claims was hovering over his property.  From the Wave 3 News report:

The man who calls himself the "Drone Slayer" called a judge's decision a victory. 

Bullitt County Judge Rebecca Ward on Monday dismissed the case against William H. Merideth, who admitted to shooting down a drone he said was hovering over his home last July. 

"I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone," Ward told the courtroom. "And I’m going to dismiss his charge."

John David Boggs, the owner of the drone "appeared stunned."

Boggs had posted this video of the drone's last flight, making clever use of the soundtrack and less-than-clever use of emojis:




Based on the video, the drone seemed to be so high that Meredith's claim that the drone was hovering over his property is a bit strained. While the drone did indeed appear to be flying and hovering over multiple people's properties, it seems high enough that Meredith's claim that his property was being violated is weak.

There are several gems in this story. First, there is this intriguing point:

Merideth also was facing a charge for firing his gun in a residential neighborhood. That charge was dismissed as well.

The WSJ Law Blog reports that this gun was a "12-gauge, short-barreled shotgun loaded with birdshot." This birdshot was fired high into the air over what appears to be a fairly well-populated suburban area. And yet the charge was dismissed.

Finally, on a completely unrelated note, all of this took place in a county called "Bullitt."

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

Chemerinsky on "The Return of the Jedi"

The title of this post refers to the title of Erwin Chemerinsky's article in the most recent issue of The Green Bag.  There, Chemerinsky notes that the October 2014 term of the Supreme Court was filled with more liberal victories than any term in recent memories.  However...

Does this mean that the Roberts Court has moved to the left? Not at all. It always is dangerous to generalize from a single Term. A year ago, for example, commentary on the Court focused on the fact that 66% of the cases were decided unanimously. This year, by contrast, only 34% of the cases decided after briefing and oral argument were unanimous. Next year, the Court will be deciding cases about affirmative action, voting rights, the First Amendment rights of non-union members, and possibly abortion. These are all areas where Justice Kennedy is much more likely to side with the conservative Justices. So if this year was the “Return of the Jedi” for liberals, next year well could be “The Empire Strikes Back.”

In all of today's excitement about The Force Awakens, I couldn't let this one go.  Chemerinsky does a fine job summarizing the 2014 term's opinions in his article, but his out-of-order use of "Return of the Jedi" and "The Empire Strikes Back" is flat out wrong.  A far cleaner Star Wars reference (and one that could have persisted through the entire introduction) could have been to analogize the Warren Court to the Jedi Order that maintained order during the years of the Old Republic, but which ultimately may have played an unwitting role in both the rise of the Empire and collapse of the Jedi.

Following the dark time of Sith/conservative Supreme Court decisions, Chemerinsky may look upon the 2014 term and say "A New Hope?"

California Governor Vetoes Drone Bills; Denounces Creation of New Crimes

The Los Angeles Times has this report on California Governor Jerry Brown's veto of several bills that would criminalize flying drones over wildfires, schools, and prisons and jails.  Governor Brown vetoed all three (and several other) bills with a veto message denouncing the creation of new crimes.

Of all of the drone-related bills mentioned in the article, the most notable is the bill prohibiting drone flights over wildfires.  I have not looked very much into coverage of the bill, or other laws restricting wildfire observation and interference with firefighting efforts to know if there are indeed pre-existing laws that would neatly apply to flying drones in the vicinity of a wildfire.  Moreover, the bill prohibiting drone flights near wildfires would immunize firefighters who disabled the drones -- a helpful provision that, again, I am not sure already exists in other laws restricting interference with fire fighting.

The intricacies of the drone-wildfire bill aside, Governor Brown's veto message makes a refreshing point about California's vast penal code. Here is the veto message:

Each of these bills creates a new crime -- usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Over the last several decades, California's criminal code has grown to more than 5,000 provisions covering every almost conceivable form of human misbehavior. 

During the same period, our jail and prison populations have exploded. 

Before we keep going down this road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost-effective.

Sincerely,
Edmund G. Brown Jr.

I have blogged about some of California's stranger criminal laws here and here. I think that Governor Brown is correct to criticize the creation of new crimes that may already punished under existing statutes. Hopefully more legislators take heed of this message and maybe (just maybe) some of them will take up the thankless task of clearing up some of the chaos that already exists.

Perspectives on a Looming Decline in Bar Exam Passage Rates

As rumblings grow over the possibility of another summer of poor bar exam results, yesterday's New York Times ran this "Room For Debate" feature on declining bar exam passage rates. There were several notable contributions to the discussion regarding the notable fall in pass rates across the country which began in July 2014. 

To sum up each contribution with one (greatly simplified) sentence each: Deborah Merritt argues that the National Conference of Bar Examiners (NCBE) has too much control over access to the practice of law and is overly hasty in blaming law students' credentials for decreased passage rates; Linda Greene writes that law schools have a duty to help students better prepare for the bar exam and should identify and support those students who are most at risk to fail; Jerome Organ argues that law students' declining credentials are to blame for decreased bar passage rates and that this trend will continue; Brooklyn Law School Dean Nicholas Allard argues that the bar exam is outdated and in need of drastic overhaul; and Diane Downs notes that in an era of declining law school applicants, those who choose to attend have made a more deliberate, meaningful decision to become lawyers.

I think that each of the authors raises some good points, although, as I have noted before, I think that Dean Allard's criticism places too much blame for declining pass rates on the NCBE.  As Greene notes, law schools have a duty to better prepare their students for the bar exam. Dean Allard's criticism avoids acknowledging the legal teaching profession's responsibility to adapt to the disturbing trend of poor bar exam performance in a world where, like it or not, the bar exam exists. 

That's not to say that I don't think the bar exam could, and should, change. The exam could certainly be run more efficiently (two days, please), and results should be processed in a timely fashion (compare the date of this post to this post). But as for subject matter and format, it is easy to criticize a written, standardized exam. But I am at a lost when asked to think up any practical alternative. And those who know me know that I'm certainly not a supporter of dropping the test entirely.

As for law students and prospective law students taking all of this in, while proposals for change and criticisms of the exam may circulate, I suspect that the bureaucratic nature of the bar exam will make change a slow and painful process. My best advice for those considering law school now is don't count it out, but do carefully consider the realities of the field before making a hasty decision, and realize that tomorrow's bar exam will probably still look a lot like today's.

For previous posts on falling bar exam pass rates, see here, here, and here.

One-Armed Piano Players Do Not Need to Play For Free in Iowa

This is a second post in which I identify a rumored law and research whether it exists. In an earlier post, I researched rumors that Iowa law prohibits mustached men from kissing women in public and concluded that no such law exist. Here, I investigate the rumor that Iowa law requires one-armed piano players to perform for free.

There are several phrasings of this supposed law. The most commonly shared version is "One-armed piano players must perform for free." Websites, books, and articles proclaiming this law's existence may be found here, here, here, here, here, here, here, and here. None of these websites cite any statutes or cases.

One book quotes the supposed Iowa law as stating, "A one-armed piano player may be seen, but not if admission is charged to view his performance." This looks pretty authoritative because it is in quotation marks and sounds a bit more like it comes from a law or case. And it's in a book, not just the Internet.  But, for what it's worth, websites sharing similar versions of this phrasing are here and here.

After searching through the Iowa Code and Iowa cases, I was unable to find any law or case that prohibits one-armed piano players from charging admission for their performances. The quoted, second version of the law appears in only one other website.

Based on my research of statutes and cases, I have concluded that there is no Iowa law that prohibits one-armed piano players from charging admission for their performances. As a caveat: my search was limited to the Iowa Code and Iowa case law. I did not search any municipal codes because all websites referencing this law claim that it is a state law, rather than a particular city ordinance.

If you, the reader, happen to find a particular case or statute prohibiting one-armed piano players from charging admission to their performances, I welcome you to share the citation in this post's comments. But I strongly suspect that searching for such a citation is an endeavor that is destined to fail.

Sunstein on Academic Legal Writing

Through the TaxProf Blog, I learned of this recent essay by Cass Sunstein, In Praise of Law Reviews (And Jargon-Filled, Academic Writing). Here is the abstract:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

I have long been of the opinion that a great deal of criticism of academic legal writing consists of the recycling of the same tired arguments every few years. I try not to be dismissive of this criticism -- but it just seems that there are some instances of classic criticism and dozens of dreary echoes.

In his essay, Sunstein takes on the classics. I have expressed my appreciation (or at least, good-humored enjoyment) of Fred Roddell's, Goodbye to Law Reviews in previous posts. But Sunstein has none of it -- arguing that Roddell's approach is "smug" and filled with contempt. And in responding to Roddell's criticism of law reviews, Sunstein makes one of his central points:

Rodell seemed to hold up general interest magazines as the standard, but rigor is not exactly their stock-in-trade. It should be unnecessary to say that the arguments that can be found there are often attention-grabbing, glib, result-oriented, and careless (and a little ridiculous). As for people, so too for genres: Their vices are a product of their virtues. What Rodell deplored as unnecessary formality, and a kind of incomprehensibility, is the dark side of the effort to avoid superficiality and glibness. Notably, some contemporary law professors seem strongly, drawn to more popular outlets, producing blog posts or online columns, where significant numbers of readers might be found, and where publication is essentially immediate. But a great deal is lost by writing of this kind, which tends not to be rigorous, and which does not really develop an argument or add to the stock of human knowledge.

I find this argument interesting, and I think that it is worth considering, especially in light of trends towards the media of blogs and Twitter in producing legal commentary and arguments. Published articles, at least, have no shortage of references for the points they make, and it may be harder to get unsupported assertions around journal editors.

But I don't think that Sunstein's argument will have much of an impact on the critics of law journals. True, an article in a law journal may be more rigorous than a blog post or an article in The Atlantic. But law journals are published and edited by law students, and critics argue that these articles are less-rigorous than that which is typically published in other fields. Sunstein would likely note that those professors who eschew law journals for popular articles also tend to shy away from more rigorously-edited publications. But the criticism still remains.

I am left with two main questions after reading Sunstein's essay. I would like to know how he would respond to the criticism that law reviews are not rigorous enough compared to other academic publications. And in a different vein, I would like to know what Sunstein thinks about online supplements to law reviews, which produce shorter, less-footnoted, and more quickly published pieces than printed law reviews. Are these online supplements akin to the general interest articles that lack rigor? Are they simply shorter versions of the over-footnoted, dry, and difficult law review articles? Or are they a possible middle ground where both rigor and readability can be achieved?

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

A Perfect Storm of Terrible Legal Writing

From the ABA Journal, I learned about the resignation of Professor William Bradford of West Point. Bradford resigned after publishing a notably awful article entitled Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column. Bradford also is alleged to have "misrepresenting his military and academic credentials," as reported in this Guardian article. The Guardian notes:

Bradford had represented himself in academic papers as an “assistant professor” at the Defense Department-run National Defense University. But he was not a professor there, nor even a staff employee, according to NDU representatives. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.

And as for that article it can be found here. The abstract reads:

Islamist extremists allege law of war violations against the U.S. to undermine American legitimacy, convince Americans that the U.S. is an evil regime fighting an illegal and immoral war against Islam, and destroy the political will of the American people. Yet Islamists’ own capacity to substantiate these claims is inferior to a critical cadre of American law of armed conflict academics whose scholarship and advocacy constitute information warfare that tilts the battlefield against U.S. forces by arguing — against evidence and reason — that the Islamist jihadis a response to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the U.S. cause, that military action is an aggressive over-reaction, and that the U.S. is engaged in war crimes that breed terrorists, threaten the rule-of-law, and make us less safe. Rather than lending their prodigious talents to the service of their nation, these legal academics, for reasons ranging from the benign to the malignant, have mustered into the Islamist order of battle to direct their legal expertise against American military forces and American political will. This psychological warfare by American elites against their own people is celebrated by Islamists as a portent of U.S. weakness and the coming triumph of Islamism over the West. 

This Article defends these claims and then calls for a paradigmatic shift in our thoughts about the objects and purposes of the law of armed conflict and about the duties that law professors bear in conjunction with the rights they claim under academic freedom. It then examines the consequences of suffering this trahison des professeurs to exist and sketches key recommendations to attenuate its influence of this, shore up American political will, and achieve victory over ISIS and Islamist extremism more broadly.

Bradford's difficult-to-follow (and 185 page!) article reveals that he is not above name calling:

Most pointedly, this charge is aimed at a clique of about forty contemptuously critical LOACA [Law of Armed Conflict Academy] scholars (“CLOACA”) who, by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations. Moreover, CLOACA, rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments—against evidence and reason—that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the Western cause, that law enforcement suffices and military action is a gross over-reaction, that U.S.-led interventions in Iraq and Afghanistan are illegal aggression per se, that the United States is engaged in a pattern of war crimes à la Nazi Germany, that U.S. criminality breeds more terrorists and threatens the rule of law, that U.S. leaders should be prosecuted for crimes that make Americans less safe, and that dissenters merit professional condemnation and prosecution to shame or compel them into silence.

Bradford's article led to this notable response from the National Security Law Journal, which published Bradford's article this spring. From the response:

Moving forward, the current Editorial Board is committed to generating legitimate scholarly debate, representing all points of view, in the area of national security law. However, we have learned from this experience, and we recognize the responsibility that attends our publication decisions. The process of selecting articles is one our Editorial Board takes very seriously, and we are re-examining our selection process to ensure that we publish high quality scholarly articles.

I haven't seen many retractions like this. But I wouldn't be surprised to see one forthcoming from the University of Melbourne's Media and Arts Law Review, which recently published this abomination on arbitration, trial by combat, and Game of Thrones.

Varriale v. State: DNA Submitted Without Express Limitation on Consent Can be Used to Investigate Other Crimes

So holds Maryland's Court of Appeals (the state's court of last resort), in Varriale v. State. The opinion can be found here. Here is the abstract of the case provided by the Court:

The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Spencer Hsu at the Washington Post covers the case here. Additional coverage from the Baltimore Sun is available here.

To summarize the facts of the case: officers investigating a reported rape learned that George Varriale had been located near the scene of the crime. They asked for his consent to collect DNA evidence from his person, and Varriale agreed. While Varriale's DNA did not implicate him in the rape, his DNA ended up matching a sample collected in 2008 in a burglary. Varriale was charged with the 2008 burglary and after his motion to suppress the DNA evidence was denied, he entered a conditional guilty plea which preserved his rights to appeal.

Varriale is one of several recent cases that illustrate how evolving technologies can strain the acceptability of long-established concepts in Fourth Amendment law. An example of an earlier one of these cases is the 2014 U.S. Supreme Court case, Riley v. California, which involved officers searching the cell phone of an arrestee. Under the long-established concept of searches incident to arrest, officers are permitted to search the person, and immediate surroundings of an arrestee, including containers within that area. In Riley, however, the Court held that this doctrine does not extend to the contents of a cell phone. Noting the wealth of information cell phones contain, the Court held that the search incident to arrest doctrine did not justify the search.

In Varriale, the concept being tested is consent. Well-established Fourth Amendment doctrine states that police officers may search somebody's person, vehicle, or house as long as the person voluntarily consents to the search. Officers are not required to inform the person that he or she has the right to refuse consent. Officers' searches, however, are limited based on the scope of the person's consent. For example, if a suspect consents to a search of her car, that does not mean that officers may search her house -- they would be required to ask that suspect's consent to extend the scope of the search to her house.

Varriale illustrates a broad approach to consent in the DNA context. Mr. Varriale signed a written consent form for the collection of DNA evidence which included the following clause:

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

Varriale argued that the phrase "any evidence found to be involved in this investigation" limited the scope of the permissible search to the investigation into the suspected rape. The prosecution argued that the phrase "can be used in any future criminal prosecution" indicated that the officers' use of the DNA was not limited to the rape investigation.

The Court held that Varriale's consent to the search was enough to remove any reasonable expectation that officers would not use the DNA to investigate additional crimes. Rather than focusing on the language of the consent form, the Court centered its reasoning around the nature of DNA, and that DNA, like fingerprints, retains the same identifying information over time. The Court held that it was reasonable to expect that officers would retain the DNA sample for future use in investigating other cases, and noted that the defendant did not expressly limit the scope of his consent to the present case. Accordingly, Varriale did not have a reasonable expectation that officers would not use his DNA sample to investigate other crimes.

Officers are not required to tell suspects that they have the right to refuse consent. And Varriale establishes that officers are not required to describe the potential scope of the investigation that may be done into evidence submitted with consent. Instead, it is reasonable for suspects to expect that their DNA may be used for identification purposes in other cases since DNA information provides identification information that remains consistently accurate over time.

Does this broad approach to consent go too far? Suspects who are asked to submit samples of their DNA may be focused on the case at hand, especially if the suspects know that the case involves a crime like rape in which DNA will likely be crucial evidence. These suspects might not realize that state governments and investigating agencies retain DNA databases like fingerprint databases, and therefore may not realize that their consent may implicate them in other matters. Without a statement that the DNA evidence may be retained and used in other cases, suspects may expect that their DNA will be used only in the present investigation.

And while DNA may be analogized to fingerprints, DNA contains more information than fingerprints provide. For example, somebody's DNA may be a close, but not exact, match to another sample. Such a close match might indicate that the person whose DNA was collected is related to the person who provided the other sample. These so-called "familial" matches may be used to investigate crimes as well. For instance, had Varriale's DNA been a close match to a sample in the database, officers may have inquired as to whether Varriale had any close family members and investigated their potential involvement in the 2008 burglary. The wide scope of possible uses for DNA samples requires courts to stretch the assumption that those consenting to the collection of their DNA are truly aware of what their consent entails.

As DNA continues to become a more commonly-used tool to investigate crimes, I would not be surprised to see more cases like Varriale make their way through the courts. It will be interesting to see how other courts address the doctrine of consent in DNA cases, And if courts end up reaching different conclusions, I would not be surprised to see the Supreme Court ultimately take up this issue.

"Bitcoin's Dark Side Could Get Darker"

That's the title of this interesting article by Tom Simonite over at the MIT Technology review. Simonite outlines a myriad of ways that online, "smart-contract" platforms such as Ethereum may be used to facilitate activities that, at best, are difficult to regulate, and at worst, are criminal.

From the article:

In a paper to be released today, Juels, fellow Cornell professor Elaine Shi, and University of Maryland researcher Ahmed Kosba present several examples of what they call “criminal contracts.” They wrote them to work on the recently launched smart-contract platform Ethereum. 

One example is a contract offering a cryptocurrency reward for hacking a particular website. Ethereum’s programming language makes it possible for the contract to control the promised funds. It will release them only to someone who provides proof of having carried out the job, in the form of a cryptographically verifiable string added to the defaced site. 

Contracts with a similar design could be used to commission many kinds of crime, say the researchers. Most provocatively, they outline a version designed to arrange the assassination of a public figure. A person wishing to claim the bounty would have to send information such as the time and place of the killing in advance. The contract would pay out after verifying that those details had appeared in several trusted news sources, such as news wires. A similar approach could be used for lesser physical crimes, such as high-profile vandalism.

Admittedly, not all uses of bitcoin and smart-contract platforms are criminal. But many non-criminal uses may still be very difficult to regulate. The article concludes:

“The potential for Ethereum to alter aspects of society is of significant magnitude,” says Wood. “This is something that would provide a technical basis for all sorts of social changes and I find that exciting.” 

For example, Wood says that Ethereum’s software could be used to create a decentralized version of a service such as Uber, connecting people wanting to go somewhere with someone willing to take them, and handling the payments without the need for a company in the middle. Regulators like those harrying Uber in many places around the world would be left with nothing to target. “You can implement any Web service without there being a legal entity behind it,” he says. “The idea of making certain things impossible to legislate against is really interesting.”

"Arbitration by Combat"

An article on Game of Thrones, trial by combat, and arbitration that I coauthored with Raj Shah is now available on SSRN. You can download the full paper here. Here is the abstract:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. While modern legal systems reject trial by combat as an unjust and barbaric practice, this article examines whether trial by combat may be employed as a means of private dispute resolution in the United States. This article evaluates whether ‘arbitration by combat’ provisions based on Game of Thrones and various historical approaches to trial by combat would be upheld by state laws and protected under the United States’ Federal Arbitration Act (FAA). This article concludes that while Game of Thrones-style arbitration by combat may violate state contract and criminal laws, arbitration by combat that conforms to less-violent historic practices may survive state law challenges and may even fall under the protection of the FAA.

Raj and I wrote this for a special issue of the Media and Arts Law Review dedicated to the subject of "Law and Law Breaking in Game of Thrones." Melissa de Zwart of the University of Adelaide Law School was extremely helpful throughout the editing process, as was an anonymous peer reviewer who provided numerous insightful suggestions and comments. Raj was extremely helpful and patient as a coauthor, as several deadlines in the editing process tended to coincide with me being in trial. Even when my schedule became hectic, Raj managed to provide thoughtful edits for the paper as a whole, making the final article far superior to what I alone could have produced.

Readers should know that I have not read any of the Game of Thrones books and that I have only seen a few episodes of the series. Raj is to thank for the sections of the paper regarding Game of Thrones (although I have seen some clips of the show's trial by combat to understand how violent the practice can be). Raj also primarily wrote the sections pertaining to the Federal Arbitration Act -- my contributions to the paper include the discussion of historic trial by combat and state-level obstacles to arbitration by combat provisions.

Finally, I would like to note the inadvertently timely publication of this article. A New York attorney recently invoked trial by combat in his own litigation proceedings. While that instance of trial by combat is unlikely to take place, I hope that our article can provide some insight into how trial by combat proceedings may find their way into the litigation process.

Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

New Jersey Court Reportedly Bars Woman From Entering All Walmart Stores in Country

The ABA Journal has this story about a court that may have gone too far to protect Walmart from a shoplifter:

A judge in Mount Olive Township, New Jersey, has banned a shoplifter from ever shopping at a Wal-Mart store anywhere in the country. 

The defendant, 64-year-old Johanna Cassimore of Hopatcong, New Jersey, tells the New York Daily News she plans to appeal the sentence. “It was stupid. I disagree and I’m appealing it,” Cassimore said. “The judge can’t say that. He doesn’t own Wal-Mart.” 

The sentence by Judge Brian Levine also requires Cassimore to pay $258 in fines and to complete 10 hours of community service, according to the New York Daily News, NewJerseyHills.com and NJ.com.

Other reports on this case can be found here and here. The New York Daily News clarifies that the court involved was the Mount Olive Municipal Court.

Under New Jersey Law (specifically, NJSA 2B: 12-16), a New Jersey Municipal Court's jurisdiction is limited to the territory of the municipality in which the court is located. This means that the Mount Olive Municipal Court would have jurisdiction over the Walmart stores within the boundaries of the Mount Olive Township, but not over stores outside of the township.

I initially suspected that somewhere along the line, the word "county" became misspelled or misheard so that it transformed into "country." While I am not aware of any reports that verify this suspicion, I would not be surprised if it ended up being the case. But even if this alternative is correct and the court meant to bar Cassimore from all Walmart stores in the county, that order would also appear to overstep the boundaries of the court's jurisdiction. While Central Municipal Courts have jurisdiction over matters arising within the boundaries in the county, it does not appear that the Mount Olive Township Municipal Court is such a central municipal court. The jurisdiction of that court appears to be limited to all locations within the boundaries of the township.

The court's stay-away order appears to be reasonably related to the crime that Cassimore committed, and I would not be surprised to see a probation condition requiring Cassimore to stay away from Walmart locations in Mount Olive. But requiring Cassimore to stay away from all Walmart stores in the country would be an overly broad probation condition, and an appeal would likely result in the reduction of the order's scope.

Good Luck on the Bar Exam!

Students across the country are taking, or will be taking, the bar exam over the next few days. California's bar exam begins today and will end on Thursday.

To those who are taking the bar exam, good luck!

And to those who will not be taking California's bar exam until a few years down the road -- you are already in luck. Above the Law notes that the California State Bar Board of Trustees has voted to reduce California's three day bar exam to two days. The change is scheduled to take place in 2017, and it will make the California bar exam a far less cumbersome affair than it already is.

California's Fractional Statutes

One interesting phenomenon I have noticed in a few of California's statutes is the numbering of sections with fractions rather than decimal points. I first noticed this when I ran across California's law prohibiting the destruction or defacement of items of archaeological significance. The Penal Code section prohibiting this is section 622 1/2. 

California frequently numbers uses decimal points in numbering its statutes. For instance, California's criminal trespass law is an unwieldy behemoth, commencing at Penal Code section 602. Section 602's intricate, specific, and often inapplicable definitions of trespass consists of subsections and subdivisions of those subsections, going so far as 602(y), which prohibits the avoidance of security screening procedures in courthouses and other public buildings. Beyond section 602, a number of other decimal-pointed 602 sections further define instances of trespass, including the amazing section 602.12 which prohibits entry onto land with the purpose of interfering with research. To see section 602 and the following sections, you can find a list of those statutes here.

But despite California's frequent use of decimal points, there are several examples of fractional statutes and sections. A quick search of Westlaw reveals that California has repealed or renumbered numerous sections that contained fractions rather than decimal points. But several fractional statutes still exist. These mainly appear in California's Water Code Appendix, which contains several fractional sections, including section 28-141 1/2 which specifies the code sections governing claims for money damages against water districts. There is also section 33-281 1/4(o) which deals with the lease and sale of land deeded to water districts as a result of tax delinquency.

California's constitution also contains at least one example of a fractional section. Article 9, Section 6 1/2 states that the California Constitution does not prohibit the formation of school districts in multiple counties or the issuance of bonds by those districts.

I have not looked into the codes of other states to see if the practice of fractional sections is more widespread. But from my cursory investigation into California law, it looks like these sections are holdovers from historic practices of numbering statutes with fractions rather than decimal points. 

I think that the use of letters or decimal points rather than fractions is a better way of organizing statutes. And I am not aware of citation rules for citing fractions. For instance, does there need to be a space between the section number and the fraction? Does the fraction need to be formatted as 1/2 or ½? I am not aware of the answers to these questions. Ultimately, decimal points and letters are easier to work with, and California's fractional statutes remain as a quirky remnant of old drafting practices.

California Penal Code 602.12 and Unlawful Entry Onto Property to Interfere With Research

Consider a couple of hypothetical situations.

Al is a graduate student at UCLA who lives in Los Angeles, California. It is summertime so Al's grading duties are more relaxed than they normally are during the school year. But Al has a dissertation to complete (or to begin) so he is trying to make the most of his less-hectic schedule to get some research done. Al's buddy, Mike, on the other hand, is not a graduate student and therefore is experiencing summer in all of its glory -- free from the shadow cast by research obligations with no clear end in sight. Mike thinks that Al is working too hard on his research and decides to get Al to take an afternoon off and go on a hike. Mike calls Al, and tells him he's coming over to get him to take an afternoon off from research. Mike then walks over to Al's apartment, knocks on the door, and Al lets him in.

Ruth and Jessica are roommates living in Irvine, California. Ruth is an assistant professor finishing up her first year of teaching law school at UC Irvine. Jessica is a third year associate at Tuchman Marsh, an aggressive, uncompromising, and generally unpleasant law firm. Jessica finally has an evening to spare since the deposition she worked all week to prepare for is finally complete. As she drives home from work at the early hour of 8:00 p.m., she decides that tonight she and Ruth should head out for a few drinks. Jessica knows that Ruth is in the thick of researching for her latest research project on historic Bulgarian evidence law, so she figures that Ruth will be more than willing to take a break for some alcohol. Jessica walks into her apartment and tells Ruth that it's time for a girl's night.

Mike and Jessica have both committed misdemeanors.

They have both violated Penal Code section 602.12, which states:

602.12. (a) Any person who enters the residential real property of an academic researcher for the purpose of chilling, preventing the exercise of, or interfering with the researcher's academic freedom is guilty of trespass, a misdemeanor. 

(b) For the purposes of this section, the following definitions apply: 

(1) "Academic researcher" means any person lawfully engaged in academic research who is a student, trainee, employee, or affiliated physician of an accredited California community college, a campus of the California State University or the University of California, or a Western Association of Schools and Colleges accredited, degree granting, nonprofit institution. Academic research does not include routine, nonlaboratory coursework or assignments. 

(2) "Academic freedom" means the lawful performance, dissemination, or publication of academic research or instruction. 

(c) This section shall not apply to any person who is lawfully engaged in labor union activities that are protected under state or federal law. 

(d) This section shall not preclude prosecution under any other provision of law.

Aside from California's Maxims of Jurisprudence, this is one of my favorite California laws. It doesn't require proof that the defendant forced his or her way onto the property -- the property owner can let the defendants in and may even share the property with the defendants. It doesn't require proof that the defendant ultimately interfered with any research -- even if Al and Ruth turned down the the invitations to take a break, the initial entry into the property is the crime. This crime is a misdemeanor, so under Penal Code section 19 Mike and Jessica may be punished by six months in jail and/or a fine of one thousand dollars.

Of course, it is not likely that Mike and Jessica will be prosecuted. The crime would need to be reported, or an officer who is aware of this strange provision must be present and aware of the parties' research obligations and intentions to interfere. And a prosecutor who could potentially end up trying this case in front of twelve jurors would need to make a decision on whether to file this charge in the event of a report being filed.

Nevertheless, if you want to avoid breaking the law, make sure that your UC-affiliated friend or family member of yours is taking a break from research before you enter their property.

UPDATE: 8/8/2015

I found this record of the Assembly Bill that added section 602.12 to the Penal Code. It looks like the bill was enacted out of concern of threats against researchers who use animals. While 602.12 would probably criminalize some instances of interference with those researchers, the law's poor drafting extends its scope far beyond that limited purpose.

Concerns Over the California State Bar's Practical Training Proposal

Paul Caron has this post at TaxProf Blog quoting extensively from a (paywalled) article at The National Law Journal. From the quoted portion of the article:

The State Bar of California is pushing forward with a proposal to require candidates for admission to the profession to have completed 15 credit hours of practical training, over objections from deans around the country. 

The idea is to ensure that new lawyers are ready to practice law. But the Association of American Law Schools’ Deans Steering Committee warned the proposed rule would stifle curricular experimentation, limit the flexibility students now enjoy in choosing courses, and create a confusing patchwork of differing state requirements. 

Moreover, the repercussions would be felt well beyond the Golden State, since so may graduates want to practice there, the group said in a written statement.

“The intention comes from a good place, but it would make things difficult for the law schools and the students, operations-wise,” said University of Nebraska College of Law Dean Susan Poser, one of the 15 deans on the steering committee. “We already have an accreditor. It’s the [American Bar Association]. They tell us what we need to teach. To potentially have 50 state bars accrediting us is very complicated.”

The article goes on to note that deans are concerned about students who pursue joint degrees and students who are interested in subjects like tax law which focus more on doctrine than other areas of study.

Beyond these concerns, California's proposal may exacerbate a decline bar exam passage rates. Derek Muller has blogged extensively on the phenomenon of falling bar exam passage rates with examples of such posts here and here. In this December post, Muller highlights the National Counsel of Bar Examiners' (NCBE's) response to declining scores on the Multistate Bar Examination (MBE). The full NCBE report on falling scores is available here.

The NCBE notes that declining scores may be due in part to a rise in experiential learning. From the report:

The rise of experiential learning—a laudable objective—has also ushered in the greater use at some schools of pass/fail grading that may mask the needs of students at risk. Without grades for feedback, students may not realize they are at risk. In addition, the rise of experiential learning may have crowded out time for students to take additional “black-letter” courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year

I am of the opinion that experiential learning has value, but it should not take up a substantial amount of students' time in law school. As I have suggested in previous posts, law schools offer the unique opportunity for students to systematically learn the doctrine of particular legal practice areas. While this teaching may veer into overly theoretical realms at times, the knowledge base that students gain allows them to be more thorough and creative when they ultimately apply their knowledge in a practical context.

My opinions on doctrinal learning aside, the NCBE's report suggests that a shift in focus from doctrinal to experiential learning may indeed have a detrimental effect on students' abilities to pass the bar exam. Even if experiential learning teaches valuable skills, these skills are ultimately of little use if students do not become practicing lawyers.

I hope that the California Supreme Court and Legislature consider the problems the California State Bar's practical skills proposal may create. Several levels of review remain before the proposal becomes reality, and these issues will hopefully be noted as the proposal works its way through the process.

San Diego 'Zombie Walk' Cancelled as Criminal Case and Lawsuit Looms

So reports NBC San Diego and Fox 5. In previous years the "Zombie Walk," has been a popular attraction associated with Comic-Con. In the Zombie Walk, undead enthusiasts dress as zombies and march through the streets of San Diego.

Unfortunately, during last year's Zombie Walk, Matthew Pocci drove through a crowd of participants, injuring one of them. Pocci claims that he became scared by the crowd of zombie walkers around him and tried to speed away after they banged on his car and tried to get inside. Zombie Walk organizers counter that video of the incident did not show any participants near the vehicle before it sped into the crowd. In the aftermath of this incident, a fast-approaching criminal trial date for Pocci, and a lawsuit by the victim against Pocci and the City of San Diego, this year's Zombie Walk has been cancelled.

In the meantime, the OC Register reports that a "Walker Stalker Con" will take place at the same time as Comic-Con. Various stars of AMC's "The Walking Dead" will be present at this parallel event, which celebrates a series centered around the struggle for survival in a post-apocalyptic, zombie-infested world.

While the Comic-Con horde of zombies has been subdued by legal machinations, I suspect that there will be at least several participants at the Walker Stalker Con who don zombie garb in celebration of all things undead. So while the official Zombie Walk has been cancelled, I would not be surprised to see some form of a zombie walk take place during Comic-Con this year.

Baude on the Constitutionality of the Death Penalty

William Baude has this editorial in today's New York Times examining the Supreme Court's recent opinion in Glossip v. Gross. In Glossip, the Court evaluated whether Oklahoma's lethal injection protocol was constitutional and ultimately decided that it was. Baude notes that Glossip was unusual because it prompted four justices to announce their opinions aloud.

Baude contrasts Justice Scalia's opinion favoring the death penalty against Justice Breyer's opinion that the death penalty may well be unconstitutional. Baude warns against Justice Breyer's opinion that the flaws in the death penalty warrant its abandonment, noting that even with the evidence Justice Breyer provided, this claim is a broad proposal for a court to make, and instead may warrant changes to specific aspects of death penalty administration.

Baude's take on Justice Scalia's opinion is particularly worthy of attention. Baude writes:

Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.” 

But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights. 

Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.

Glossip will likely inspire a renewed wave of commentary on the constitutionality of the death penalty. While I suspect the split on the Supreme Court is too one-sided to promise any change in the death penalty's constitutionality in the near future, this discussion will nevertheless be worthy of consideration by state courts and legislatures.

Bail Decisions Based on Algorithms

The New York Times has this interesting report on using algorithms to make bail determinations. From the article:

Setting bail is a difficult task for judges. They must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out on the next court date.
Now comes help in a distinctly modern form: an algorithm. 

After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence. 

. . . 

The Arnold assessment has been met with some skepticism because it does not take into account characteristics that judges and prosecutors normally consider relevant: the defendant’s employment status, community ties or history of drug and alcohol abuse. Instead, after crunching data on one and a half million criminal cases, researchers found that fewer than 10 objective factors — basically age, the criminal record and previous failures to appear in court, with more recent offenses given greater weight — were the best predictors of a defendant’s behavior. Factoring in other considerations did not improve accuracy.

Bail determinations are an important, but often overlooked step of the trial process. If somebody is required to post bail, that person may be taken into custody if he or she cannot afford it. The result is that this person will face higher pressure to go to trial quickly or reach a hasty resolution of their case in order to get out of custody. Charlie Gerstein notes the pressure that a bail determination can induce on plea bargain in his article, Plea Bargaining and the Right to Counsel at Bail Determination.

Given the substantial impact that a bail determination may have on the pretrial and trial process, I am happy to see steps being taken to make decisions on bail more accurate. The article notes that in a jurisdiction where the Arnold assessment has been adopted, jail populations have decreased due to fewer instances of requiring bail, but crime has not increased.

It will be interesting to see if more jurisdictions adopt and apply formulas in deciding to require bail. If more jurisdictions turn to algorithms, hopefully the positive results reported by the Times will be reflected on a wider scale.

The Supreme Court's "Superspecial" Kimble Opinion

Today, the Supreme Court released several opinions, including Kimble v. Marvel Entertainment. Kimble involves the question of whether a party may contract for payment of patent royalties after the patent's expiration. The opinion has attracted a great deal of attention -- not due to its answering this question in the negative and adhering to the precedent set in Brulotte v. Thys Co., 379 U.S. 29 (1964) -- but instead because of its numerous references to Spider-Man and superheroes. The case, after all, includes Marvel Entertainment as a party, and concerns "a toy that allows children (and young-at-heart adults) to role-play as 'a spider person' by shooting webs—really, pressurized foam string—“from the palm of [the] hand.'"

For example, in the concluding paragraphs of the majority opinion, Justice Kagan notes;

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).

Coverage noting the references in Justice Kagan's majority opinion can be found here, here, here, and here.

Also of note is this paragraph:

As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here. If anything, they reinforce our unwillingness to do what he asks.

After a bit of searching, it appears that this is the first federal court opinion to use the word "superspecial." A few other opinions contain the hyphenated phrase, "super-special" -- often as part of a quotation -- but Kimble is the first to employ the single-word term. Kimble also appears to be the first Supreme Court opinion to use the term, "superpowered." Several opinions in the lower court have employed this phrase (see, e.g., Twentieth Century Fox Film Corporation v. Marvel Enterprises, Inc., 277 F.3d 253, 255 (2002) ("In 1963, Marvel began publishing a comic book series entitled 'X-Men,' featuring a group of young, superpowered mutants led by Professor X, an older, superintelligent leader who sought to train his students and to protect them from a hostile society.")). But Justice Kagan's majority opinion appears to be the first instance of the Supreme Court using this word.

Kimble concerns a technical subject. But due to Justice Kagan's marvelous writing and references, the opinion is a delight to read.

Google to Remove Revenge Porn Images from Search Results

From the BBC:

Victims of revenge porn will be able to put in requests to Google to take down content from search results. 

The images will still exist but won't come up on a list when people look for them.
In a blog post the company's Vice President Amit Singhal said it will apply to "nude or sexually explicit images". 

Google has, in the past, resisted attempts for it to take down online content from those search results. 

The update is expected to come in over the next couple of weeks.

Google's announcement regarding these requests can be found here.

Revenge porn occurs when people post nude photos of somebody else online without the pictured person's consent. It is one of many ways the Internet can be used to harass and attack people. Danielle Citron goes into great deal about revenge porn and other forms of online harassment in her excellent book, Hate Crimes in Cyberspace. And just yesterday, John Oliver's "Last Week Tonight" had this segment on online harassment and revenge porn:



I have blogged several times about state laws that prohibit revenge porn and whether they are constitutional. For example, I think that properly tailored laws can prohibit revenge porn without violating the First Amendment. But while laws prohibiting revenge porn may help combat the problem of revenge porn, laws alone are not enough without the involvement of companies like Google.

While images of revenge porn may still exist online, Google's promise to exclude them from search results upon request is a significant step towards lessening the impact of these images on victims' lives.

It is Legal to be Intoxicated on the Front Steps of a Private Residence in Iowa

So ruled the Iowa Supreme Court last week, holding that Iowa Code section 123.46(2), which prohibits a person from being "intoxicated in a public place," does not prohibit people from being intoxicated on the front steps or porch of a private residence. The full text of the opinion is here. Coverage of the opinion is available here, here, and here.

The Court held that the front steps of a private residence are not a "public place." The Court noted that if a private residence's porch or residence were to be deemed a public place, people could be punished for a wide range of behavior. From the opinion:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Additionally, holding the front steps of a single-family home are always a public place would mean any intoxicated person who responsibly secures a ride home from a sober designated driver could be arrested for and convicted of public intoxication because they traversed the stairs of their single-family house while intoxicated. Iowans “should not suffer a criminal penalty for taking . . . responsible action.” (citations and footnote omitted)

It is important to note, however, that this ruling is limited to private residences. The Court noted at the outset of its opinion that in State v. Booth 670 N.W.2d 209, 215-16 the Court held that the front steps and hallway of apartment buildings are public places.

One other interesting thing that I learned from this opinion was that Iowa Code section 123.46(3) states:

A person shall not simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor

I suppose I could see a few situations where this law might make sense. People are prohibited from attempting to fool officers into thinking they are intoxicated in violation of section 123.46(2). Although why anyone would ever want to do that is beyond me. Alternatively, this section may prevent sober friends from attempting to camouflage drunk companions by putting on a performance in which all the members of a group appear intoxicated and, in doing so, confound an officer's investigation (a tactic that I will call the Spartacus defense).

But ultimately, section 123.46(3) appears to be an overly strict prohibition, and I suspect that it may violate the First Amendment. If a storyteller or comedian is pretends to be intoxicated as part of an act or play, for instance, that person may be found guilty of simulating intoxication in a public place. Additionally, the law seems vague, since it is unclear how convincing the simulation of intoxication needs to be.

Perhaps the Supreme Court will address this intriguing subsection of the law on another occasion. Until then, those in Iowa who are sitting on their front porches or steps can raise a glass to the Iowa Supreme Court without fear of legal repercussion.

"Jennifer Mnookin Named New Dean of UCLA School of Law"

So reads the title of this UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, Executive Vice Chancellor and Provost Scott Waugh announced today.

. . . 

Mnookin joined the faculty in 2005, and she served as vice dean for faculty and research from 2007 to 2009 and as vice dean for external appointments and intellectual life from 2012 to 2013. She is founding faculty director of the law school’s Program on Understanding, Science and Evidence. 

“Chancellor Block and I are confident that UCLA Law will reach new heights under Jennifer’s leadership,” Waugh said in an announcement. 

The 2014 recipient of the law school’s Rutter Award for Excellence in Teaching, Mnookin regularly teaches courses on evidence and torts, as well as more specialized classes in areas such as expert and scientific evidence, wrongful convictions, and law and popular culture. 

“It is a tremendous honor to be selected as the next dean of UCLA School of Law,” Mnookin said. “Having served on the UCLA Law faculty for the past decade, I know firsthand what an exceptional institution it is. We have tremendously capable students, an extraordinarily talented and dedicated faculty and staff, and passionate and involved alumni and friends.

Further, concise, coverage is available at the EvidenceProf Blog. The National Law Journal has this report.

I had the privilege of taking Mnookin's course on evidence law about two years ago. Her approach of combining traditional law school reading and the Socratic Method with in-class exercises, media projects, and video clips made it one of the most interesting and engaging courses I took during my time at UCLA.

Mnookin is an excellent choice for dean. Under her guidance UCLA Law's future is extremely bright.

Supreme Court Narrowly Decides Online Threats Case, Elonis v. U.S.

At long last, the Supreme Court has issued an opinion in Elonis v. United States. I blogged about the opinion back when the Court granted certiorari in Elonis to answer this question presented:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

Yesterday, the Supreme Court held that the "reasonable person" test is insufficient to support a conviction under 18 U.S.C. § 875(c). The Court did not address what level of intent is required to support a conviction, and the Court did not decide whether the reasonable person test was unconstitutional under the First Amendment.

The Court's opinion is available here. Coverage from Lyle Denniston at SCOTUSBlog is available here.

This high-profile case was eagerly awaited by many legal commentators, but ultimately resulted in a very narrow decision. Eugene Volokh notes the narrowness of the case here, and Orin Kerr argues that this narrowness was a good call.

While the Elonis case involved arguments touching on constitutional law, it is important to note that the Court explicitly avoided addressing First Amendment issues. Accordingly, while coverage noting that the Elonis decision is a victory for free speech may involve technically accurate descriptions of the ruling, readers should keep in mind that the Court did not wade into the question of whether 18 U.S.C. § 875(c) violates the First Amendment -- even if the statute is applied in a manner that asks whether a reasonable person would feel threatened by the statement.

Moreover, while the Court did indeed conclude that a defendant prosecuted under 18 U.S.C. § 875(c) must have a level of intent greater than negligence, it is important to note that this does not mean that a defendant must "intend to threaten" somebody in the conventional sense of the word. Summaries of the opinion claiming that defendants now must truly intend to make a threat, while accurate, may be misleading, since this language suggests that an individual must make a statement with the purpose to threaten somebody.

But the Court did not decide that a statement must be made with the purpose to threaten -- the Court simply held that it is not sufficient that the prosecution prove that a defendant negligently made a statement that would cause a reasonable person to regard the statement as threatening. A defendant may possibly violate 18 U.S.C. § 875(c) if he or she knowingly or recklessly makes a statement that another may feel threatened by. For instance the prosecution may succeed if it proves that a defendant made a statement that he or she knew would cause another to feel threatened, or that the statement would create a substantial risk that somebody else would feel threatened. The Court did not hold that the prosecution must prove that a statement is made with the purpose to threaten another. Readers in the legal community should have no trouble noting that "intent" does not necessarily mean "purpose." But I fear that the wider audience who reads broadly-worded commentary on the decision will be left with an impression that the Court's ruling is far wider than it actually was.

Ultimately, Elonis is a narrow decision, and I suspect that there is a great deal of litigation still to come that will attempt to answer the questions that Elonis leaves open. In the meantime, I hope that commentators and the general public will recognize Elonis for its narrowness rather than criticizing it or praising it for what it is not. Elonis is not a landmark victory for the First Amendment. Nor does it give people carte blanche to threaten others online. Elonis simply prohibits one way of interpreting 18 U.S.C. § 875(c) and leaves questions of free speech and required levels of intent for another day.

Settlement in Examsoft "Barmaggedon" Lawsuit

So reports the National Law Journal:

Aspiring lawyers who sat for the July 2014 bar examination are eligible for $90 each from software company ExamSoft Worldwide Inc. under a class action settlement. 

ExamSoft has agreed to pay $2.1 million to bar takers who ran into technical problems while trying to upload their exam responses last year. Ten bar takers in numerous states filed five separate lawsuits following the exam, which became known on the Internet as “Barmaggedon.” 

The cases were consolidated into one class action in the U.S. District Court for the Southern District of Florida, and Judge Ursula Ungaro granted preliminary approval of the settlement on Tuesday. The parties reached the agreement through mediation. The settlement includes up to $600,000 in attorney fees for the plaintiffs lawyers. 

According to the agreement, ExamSoft’s technical problems affected bar takers in 43 states. They had paid between $100 and $150 to use the software, which blocks test takers from the Internet or class notes during the essay portion of the bar exam. 

But many takers faced long delays when trying to upload their answers, causing examiners in some jurisdictions to extend deadlines at the last minute. The situation was stressful, particularly because it occurred on the first day of the two-day exam, according to the agreement.

The website describing the settlement and giving information on filing a claim is here.

I described Examsoft's technical problems as I experienced them in this post I wrote after the first day of the bar exam, and this post which I wrote after the second day. I noted on the third day that the technical problems had subsided since few states other than California had three days of testing. Additionally, it is worth noting that the event's "Barghazi" label has apparently been upgraded to "Barmaggedon."