Supreme Court Nonsense

Every once in a while, it's fun to read nonsense online. Through the magic of the internet, one can explore the finer points of legal name fraud, follow Martin Shkreli's Twitter account, or peruse the ramblings of ignorant bloggers. Recently, I have seen more and more silly articles written or shared regarding the Supreme Court in light of a certain recent election. To make things worse, these articles are often written by attorneys! I generally try to keep my attorney-written nonsense confined to my workday, and it depresses me to see this material spill over into my leisure reading. 

Because misery loves company, here are some of the stranger things I have read regarding the Supreme Court recently. These articles are written by attorneys, which raises the concern that the legalistic bunk in them may be viewed as legitimate by the general public. I'm flagging them for this reason (and because every once in a while, it's relaxing to just lash out at something awful rather than destroying something beautiful).

First is an old article, but one that I have started seeing more often now that Trump won the election. Gregory Diskant wrote this article at the Washington Post back in April in which he claimed that the Senate, by refusing to hold hearings on Merrick Garland's appointment had waived its role in confirming Garland, and that Obama could therefore simply appoint Garland to the Supreme Court.

From the article:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” 

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right. 

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court. 

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

First, it is a massive and unsupported leap to contend that the Senate's refusal to act constitutes a waiver of its "right" to provide advice and consent. This power of the Senate is distinct from rights that individuals may waive in the context of, say the Fourth and Sixth Amendments. Moreover, the Senate is not waiving any right -- its refusal to hold hearings constitutes its refusal to consent and therefore is an instance of it exercising its power.

Also, I suspect that Diskant's denial of a constitutional crisis following Garland's appointment would hold up if an equally divided Court (Garland would be recused, after all) were unable to reach a decision, leaving the ultimate question of the Senates power or lack thereof up to a Court of Appeals. This is, admittedly, an unlikely outcome, because I suspect the Supreme Court would most likely dismiss Diskant's waiver theory faster than you can say "argle bargle."

For a more recent example of Supreme Court nonsense, look no further than this article at The Hill written by J. Stephen Clark, a law professor at Albany Law School. While Diskant's article at least contains some attempt at legal rigor akin to that in Facebook copyright disclaimers, Clark's suggestion is that lawyers to little more than put their fingers in their ears, shout "la la la," and ignore rulings of the Supreme Court. For those who think this characterization is unfair, here is part of the article:

Donald Trump will get to fill a Supreme Court vacancy that should not exist. It persists only because of outlandish ideological obstruction by Senate Republicans. That obstruction will now taint the eventual appointee, whom the legal community should shun after confirmation. 

. . .

The question is whether everyone should just roll over and capitulate as if the ideological grab never happened. The Trump appointee will be a member of the Court, with all the powers that come with the position. But ignoring the obstruction that preserved the vacancy for purely ideological reasons would validate that misbehavior as a new normal. 

An alternative is shunning. The Court's influence rests on its legitimacy as an impartial arbiter. But the Trump appointee will owe his or her position to an ideological scheme meant to keep the vacancy open for however many years it took to get a conservative. Such an appointee should be shunned as an illegitimate ideological plant.

Most importantly, the appointee’s illegitimate vote can be shunned. Because the appointee’s presence on the Court will be illegitimate, so too will be any 5-to-4 decision with the appointee in the majority. While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint. Commentators should carefully designate and quarantine them.

As Clark admits in the article, the Senate refused to hold hearings on Garland's nomination for political reasons. This is consistent with the Constitution, which sets up the Senate as a political check on the President's power of appointment. If people like Clark believe that the Senate should not have blocked President Obama's nomination, they should vote the Senate out. But as the most recent election reveals, this apparently is not a significant concern for most voters.

But the most egregious portion of Clark's article is the last paragraph quoted above in which Clark seems to suggest that practitioners should simply ignore any 5-4 decision in which the Justice appointed to Justice Scalia's seat is in the majority. To any non-lawyers out there who are wondering -- no, lawyers and judges cannot simply ignore the decisions of the Supreme Court because they do not think that one of the Justices should be on the Court. This is, for lack of a better phrase, pure applesauce.

Arguing with proponents of these articles' views is often an exercise in futility. But hopefully this post will flag a small fraction of the nonsense and perhaps keep a few readers from being drawn into the nonsense.

UPDATE (11/15/2016)

The Washington Times reports that no less of a legal juggernaut than Barbra Streisand recently espoused Diskant's waiver theory and urged the appointment of Merrick Garland. Nevertheless, I stand by my arguments above. I will not criticize Streisand's comments, as I am concerned that she might sue me or take some other action that would ultimately draw even more attention to her inaccurate views on how the judicial appointment system operates.

No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

How Not to Write a Petition for Certiorari

From Josh Blackman's Blog, I learned about the remarkably terrible petition for certiorari in Sigram Schindler Beteiligungsgesellschaft MPH v. Lee. Blackman notes that the Supreme Court has ordered the attorney for the petitioner to show cause why he should not be sanctioned. Will Baude points out that the petition's indecipherable nature may be due to inadequate supervision by the attorney on the case.

Both Blackman and Baude highlight the petition's mysterious question presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, 

• require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,

or does the US Constitution for such decisions 

• entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

Most commentators focus only on the first few pages. But the petition's first footnote hints that true incomprehensibility will soon follow:

This petition continues using terminology introduced by SSBG’s preceding petition, e.g. “classical technology / emerging technology claimed invention, CT / ET CI”, “∀…/….s =(for) any/all”. Most of the relevant information only referred to here is available on www.fstp-expert-system.com – often proof read or just with typos removed.

For several pages after that, the petition is awkward, yet mostly written without symbols and somewhat readable. Things don't get truly interesting until page seven:

121S.II/III] tell: “{∀SPL test}≡FSTP-Test”7.a). Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary˄sufficient and precise legal criteria6) for CI’s passing its SPL test.

For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTP-Test as to ∀ TT.0s of a CI – to iteratively identify ●)∀inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding 6).

ftn 8) is the FSTP-Test from [121 8.b)], fixed 7.c) by test. 9 to model Alice concisely.

What is this FSTP-Test? The petition claims that it's simple to implement ("vastly trivial" to intuitively grasp, according to footnote seven). Footnote eight provides the process for understanding and applying the test:

The FSTP-Test comprises the steps 1)-10):
1) The FSTP-Test prompts the user to input
(a) ∀TT.i ∧ 0≤i≤I=|RS| ∧ 1≤n≤N=N(TT.0): BADi-crCin;
(b) ∀TT.0∧1≤n≤N justof: BAD0-crC0n is definite;
(c) S0::={BED0-crC0nk|1≤k≤K0n, 1≤n≤N}:
BAD0-crC0n=∧1≤k≤K0nBED0-crC0nk ∧ K0::=∑1≤n≤NK0n;
(d) ∀1≤k≤K0n ∧ 1≤n≤N justof: BED0-crC0nk is definite;
2) ∧ ∀ ϵ S0 for justof: their lawful disclosure;
3) ∧ ∀ ϵ S0 for justof: their definiteness under § 112.6;
4) ∧ ∀ ϵ S0 for justof: their joint enablement of TT.0;
5) ∧ ∀ ϵ S0 for justof: their joint independence;
6) ∧ ∀ ϵ S0
for justof: their joint KSR-nonequivalence: BED0*-inCik ∷= N ∀ 1≤k≤K0n ∧ 0≤i≤I; BED0*-inC0k ∷= A if BED0-inC0k ϵKSR posc;BED0*-inCik ∷= A BED0-inCik=KSR BED0-inC0k, 1≤i≤I;
7) ∧ for justof: by NAIO*) S0 is not an abstract idea only;
8) ∧ for justof: S0 contains a patent-eligible BED0-crC0nk;
9) ∧ for justof: S0 is a patent-eligible combination;
10) ∧ for justof: by NANO**) S0 is patentable on S0pat-el ⊆ S0.
*) The "Not Abstract Idea Only, NAIO" test prompts the user
1) for input&justof: the CI specification discloses a problem, P, to be solved by TT.0 of CI;
2) for input&justof: S0 alias TT.0 solves P;
3) for input&justof: P is not solved, if in S0 a BED0-inC0k is relaxed (i.e. the truth set of a BED0 inC0k is enlarged);

If 1)-3) apply, then <CI,S0> is “not an abstract idea only”. 

**) The "Not Anticipated And Not Obvious, NANO" test checks
of RS all its “anticipation combinations, AC0s” as to S0 [5,6]: 

1) It starts from the ‘anticipation(A0)/non-anticipation(N0)” matrix of FSTP-test.6, any one of the I+1 lines of which shows, by its K0 column entries, for i = 1,2,...,I, which of the peer TT.0 entries is anticipated/non-anticipated by a former one, and for i=0 is anted/non-anted by posc. 

2) It automatically derives from the AN0 matrix the set of
all {AC0} with the minimal number, Qplcs/0, of “N” entries.

Of course! Although I'm still not quite sure what "FSTP" stands for.

It should be noted that all of this seems to be the petitioner's legal argument. This is not a description of the "method for transmitting data in a telecommunications network and switch for implementing said method" (page 4 of the opinion below) that is the subject matter of the patent dispute, but it is the petitioner's suggested process for reasoning through patent disputes. The petitioner thinks that this process is so noteworthy that the entire petition seems devoted to discussing the process and urging the Supreme Court to adopt it.

Bloomberg Businessweek Decides to Traumatize California Bar Examinees...

...by publishing this article, titled Why Did So Many People Flunk the Bar Exam This Year?

It begins:

The most recent bar exam test results are in, and they are ugly. In several states, people who took the bar in July were more likely to fail than those who took it last year, and scores on one portion of the test dropped to their lowest point in 10 years. 

Are America’s law graduates really getting dumber? The people who put together the bar exam seem to think so.

Thanks are due to Paul Caron of the TaxProf Blog for sharing this inspiring piece. It follows other depressing posts on the subject, including this one by Derek Muller on the surprisingly horrible performance of this year's examinees on the Multistate Bar Examination

Back in July, thousands of people took bar exams across the country. I (somehow) documented my own experiences in a series of posts here, here, here, and here. It's a good thing I did, because I have repressed almost all of my memories of those three days. Were it not for those posts, I might have doubts as to whether I even took the bar exam in the first place. By rereading my posts, I feel a little more confident that I am not lying to my coworkers when I tell them that I did indeed take the exam and that it was less than pleasant.

Since July, many state bar associations have already reported the results of their states' bar exams. I suspect that this is how the folks at Bloomberg Business Week are able to compile information on states' passage rates. I have not systematically studied which states have already released results, but based on a survey of status announcements of non-California people I know on Facebook, it seems to me that 49 states have notified students about whether they have passed the bar.

That leaves California, which announces bar exam results tomorrow.

California bar examinees have waited for almost four months to learn whether they have passed the bar exam. As they wait, outlets like Bloomberg Business Week publish articles on the woeful state of bar examination results following the July 2014 exam. Friends from other states joyfully announce their success, while those in the state with the most difficult bar exam anxiously watch the clock tick down.

Best of luck to those who have yet to learn of their bar exam results. And while these well wishes may seem a little self-serving, I give them anyway, since I want all the good luck I can get.

Richard Posner Gets Sassy; Scholars Bemused

Over at Slate, Judge Richard Posner writes about the Supreme Court's opinion in Riley v. California, where the Court held that police need a warrant before they can search a cell phone incident to arrest. Posner makes some interesting points about the history of the Fourth Amendment. But his discussion begins on an odd note:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

I noticed a citation in the court’s opinion to a case from my court, United States v. Lopez-Flores, the name of which rang a bell. It was an opinion of mine issued in 2012, and when I reread it I realized it is almost identical to the Supreme Court’s opinion.

Posner is laying on some pretty heavy snark in the first paragraph, and it only escalates as the second paragraph begins. Orin Kerr, the professor quoted by Adam Liptak in the article Posner references, seems to think that the commentary may be a bit off the mark. He notes on Twitter, ":) In the context of the conversation w/Liptak, there was an implied limitation of 'at the Supreme Court.'"

That's it for the cute part of this post. Now, I'd like to say a little bit more about the legal substance of Posner's commentary.

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.

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."

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.

I Have Some Concerns with Kaplan

It's that wonderful time of my life when I get to pay for a bar prep course. I'm going with Kaplan because they have an excellent deal for students who are interested in public interest work, and I am simply unable to afford BARBRI's outrageous cost. Following the link to Kaplan's website, I was confronted with this image:

While I am aware that Kaplan is not writing a brief or a law review article in presenting its website, I found its placement of the asterisk somewhat upsetting. After all, Rule 1.1(a) in the Bluebook states:

Citations to authorities that support (or contradict) a proposition made in the main text (as opposed to footnote text) are placed in footnotes. A footnote call number should appear at the end of a textual sentence if the cited authority supports (or contradicts) the entire sentence. In contrast, a call number should appear within the sentence next to the portion it supports if the cited authority supports (or contradicts) only that part of the sentence. The call number comes after any punctuation mark—such as a comma, semicolon, or period—with the exception of a dash or a colon. In addition to citation to authorities, a footnote may include textual sentences that are related to the main text to which the footnote is appended.

According to Rule 1.1(a), the asterisk should have appeared after the exclamation point rather than before it. Moreover, the footnote to which the asterisk led did not indicate when Kaplan had previously "beaten" BARBRI, nor did the footnote tell us what "beat" meant. The only footnote on the page simply stated:

*Test names and other trademarks are the property of the respective trademark holders. None of the trademark holders are affiliated with Kaplan or this website.

Sorry. I left the original formatting there. Here's another go:

*Test names and other trademarks are the property of the respective trademark holders. None of the trademark holders are affiliated with Kaplan or this website.

Oddly, since Kaplan's name appears in the same sentence that is footnoted, Kaplan seems to be indicating that it does not hold the trademark over the name "Kaplan." That seems to be a very strange thing for Kaplan to say. An alternate reading would be that Kaplan is trying to say that any trademark over BARBRI belongs to BARBRI and not Kaplan. So it would seem that putting the asterisk right after "BARBRI" would be a much more sensible placement for purposes of the trademark disclaimer. And this would be an excellent way for Kaplan to highlight the "surprising" part of Bluebook Rule 1.1(a), which states that the one exception to the rule that the call number for a footnote follow a punctuation mark is a dash.

Looking into the website a bit further indicates that the footnote actually indicates how Kaplan did indeed "beat" BARBRI, but to get to that footnote, one has to follow the link (containing the asterisk) to this page. This makes the overall website a little less upsetting, although it is odd to have one webpage containing an asterisk that refers to a footnote on a completely different webpage.

This post may seem a bit ornery, and it may be bad karma for me to criticize the company that will hopefully help me survive the bar exam. But when I logged into my "account" page (using a password-recovery tool activated by entering my email address, since I had not yet received a password), my account page greeted me with the heading, "Michael's Account," and then indicated that my name was "Michelle Smith," that I had an Iowa City zip code, and that my email address was something that began with the text: "dancergirl. This is extremely strange, since the email address I used to access the page in the first place was my own email address, which, last I checked, does not begin with the text, "dancergirl." Even more strangely, all of this incorrect information was accompanied by a correct listing of my phone number.

In light of this series of mishaps, I think that I am allowed to express some discontent with Kaplan's website. I can only hope that I won't need to Shepardize the materials that I eventually receive from them.

UPDATE

After calling Kaplan, I have sorted out my identity. There appeared to have been an error in my username, with the "50" on my written application for the course being translated into a "15" in their records. While my profile information is straightened out now, they are not sure how I ended up with Michelle's identity.

Also, several of my dear, sweet colleagues at UCLA Law have told me that my post contains incorrect facts. In particular, they assure me that my email address does, in fact, begin with the text, "dancergirl." I have done some investigation into these concerns, and I can confirm with certainty that my email address does not contain the phrase, "dancergirl."

News Agencies Cannot Clearly Cover Whether New York Bans Bottomless Brunches

The New York Post reports:

A little-known New York State law prohibits “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” according to the State Liquor Authority’s website.

The Post goes on to conclude that restaurants cannot give patrons unlimited alcoholic beverages. For example, "bottomless brunches," where restaurants offer unlimited mimosas for a certain fee with brunch food, are prohibited. Or so the Post claims:

Latin hot spot Calle Ocho on the Upper West Side offers a $15 special that keeps customers swimming in unlimited sangria as long as they have a plate of food sitting in front of them, which is illegal under the SLA law.

Town Hall laments that this is "big government at work." The New Republic tells us that this will prevent people from eating and drinking more than they should. Jezebel warns that serious enforcement is on the way and that "s**t's about to get real."

But wait! Before accepting these conclusions, it might be good to look at the law itself. Here is the relevant provision: N.Y. ABC. LAW § 117-a:

Breaking News: Justice Scalia Rules that Deep Dish Pizza Isn't Really Pizza

So reports NBC Chicago, Lawyerist, Outside the Beltway, and Chicagoist. New York Magazine reports on a separate incident.

Actually, this news isn't very breaking. The first four reports I link to concern one of Scalia's remarks in October 2011. The New York Magazine report covers a remark that Scalia made to California Lawyer in January 2011.

So for everybody who has gotten all worked up over Scalia's recent remarks on deep dish pizza, you are unfortunately a bit behind the times. I'm looking at you, Time, New York Daily News, and Politico.

Rand Paul Accused of "Stealing NSA Lawsuit"

The Washington Post reports:

Since December, the libertarian lawmaker, a tea party favorite, had been working with former Reagan administration lawyer Bruce Fein to draft a class-action suit seeking to have the National Security Agency’s surveillance of telephone data declared unconstitutional; the two men appeared together as early as last June to denounce the NSA’s activities.

But when Paul filed his suit at the U.S. District Court in Washington on Wednesday morning, Fein’s name had been replaced with that of Ken Cuccinelli, the failed Republican gubernatorial candidate in Virginia who until last month had been the state’s attorney general. Cuccinelli has never argued a case in that courthouse, and he isn’t even a member of the D.C. bar (he also filed a motion Wednesday seeking an exception to allow him to argue this case in D.C.). But he is, like Paul, a tea party darling.

. . .

The unceremonious jettisoning of a constitutional lawyer in favor of the man best known for his unsuccessful suit to have Obamacare declared unconstitutional suggests that Paul’s legal action has more to do with politics than the law. And there are other clues. In Fein’s version, Sen. Mark Udall (D-Colo.) was listed as a plaintiff along with Paul, but in the final complaint the Democrat was gone and the tea party group FreedomWorks was added in his place. Both suits list as defendants the director of national intelligence, the FBI director and the director of the NSA, but Fein’s version had named the defense secretary and the attorney general. Cuccinelli’s version dropped those two — but added President Obama as a defendant, an incendiary change. 

When a reporter at the courthouse news conference Wednesday mentioned Paul’s presidential aspirations, the senator shut him down. “We’re just going to stick with the court case and not politics today,” he said.

The rest of the article has in-depth discussion on the similarities between the complaint that Fein helped prepare and the complaint that was ultimately filed.

I have blogged previously on my annoyance at the use of lawsuits as a tool for political gain. This case is one such flagrant example, and Paul's insistence that reporters distinguish the court case from politics is hypocritical.

Paul's lawsuit is particularly infuriating because, as a politician, he could introduce legislative safeguards that could undo many of the harms he complains of. Legislation would arguably be a much more effective approach to take than filing a lawsuit. But the legislative process is not particularly exciting, and it does not give Paul very many opportunities to make broad, imprecise, nice-sounding comments on the unconstitutionality of the government's actions.

All of that said, it is nice to see that Paul has gone too far in politicizing this lawsuit. While the entire suit was political from the beginning, Paul's replacement of Fein with Cuccinelli makes the political nature of this case far more obvious. I hope that this issue continues to draw attention, and that this attention drives Paul to focus his efforts on more productive, legislative goals.

Another Entry in my Bad Title Collection: Iowa Edition

Early in the existence of this blog, I wrote a general post on bad titles of articles in law journals. I mentioned there that Bryan Garner, the editor-in-chief of Black's Law Journal, has suggested that law journals should impose a 20-word cap on the titles of articles they publish.

I have been getting back into doing a lot of research, which inevitably leads to two things: (1) the need to seek out distractions (a need often met by writing blog posts), and (2) a great deal of footnote-reading. Both of these factors have combined and have compelled me to add to the collection of titles I consider worth mentioning in this blog.

Today's entry comes from the Iowa Law Review -- the flagship journal of the University of Iowa College of Law. The full citation for the article is 81 Iowa L. Rev. 883 (1996). Here is the title:

A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment

This title clocks in at 45 words -- more than double the amount Bryan Garner recommends as a maximum.

I had the privilege of attending the University of Iowa as an undergraduate, and I know a number of students at the law school now. They are smart people with good judgment, and I doubt that they would slate a similarly-titled article.

Also, the last time I checked, group libel cases (a member of a group of people suing somebody who disparages that group of people) are almost certain to fail (except in very narrow circumstances) largely due to First Amendment protection. I am curious to see what the author says about that point -- although the rest of the title generally seems to make sense.

Apple's Equivocal National Security Order Press Release

Via the BBC, I learned that Apple is now reporting national security requests it receives for account information and the number of accounts affected. In a press release, Apple says:

Apple has been working closely with the White House, the U.S. Attorney General, congressional leaders, and the Department of Justice to advocate for greater transparency with regard to the national security orders we receive. We believe strongly that our customers have the right to understand how their personal information is being handled, and we are pleased the government has developed new rules that allow us to more accurately report law enforcement orders and national security orders in the U.S.

That sounds pretty good. And this very same press release reveals this crucial information: noting that Apple has received between zero and 249 National Security Orders and that these orders have affected between zero and 249 accounts.

Thank goodness. I had been worried that under the government's secret surveillance programs, we wouldn't be able to find out the extent of privacy intrusions. It's good that companies like Apple have these concerns in mind.

(Thanks go to Max Bryk for directing me to the portion of the BBC article that mentioned Apple's statement)

NSA Reportedly Infiltrated World of Warcraft and Second Life

I am a bit late to the game on this story, but my conflict of laws exam on Wednesday was a bigger priority for me.  But now that the exam is out of the way, I thought I would make a few remarks on points that I have not yet heard emphasized in the coverage I have read.

Earlier this week, a trio of news outlets broke the story that agents from the CIA, FBI, the Pentagon, and Great Britain had "infiltrated" the worlds of World of Warcraft and Second Life in an effort to gather intelligence on possible security threats.  The Guardian retrieved leaked NSA documents on this program from Edward Snowden, and shared these documents with ProPublica and the New York Times.  All of these outlets have reported on the story, and the names of each of the outlets link to their coverage.

The Times reports:

Fearing that terrorist or criminal networks could use the games to communicate secretly, move money or plot attacks, the documents show, intelligence operatives have entered terrain populated by digital avatars that include elves, gnomes and supermodels. 

The spies have created make-believe characters to snoop and to try to recruit informers, while also collecting data and contents of communications between players, according to the documents, disclosed by the former National Security Agency contractor Edward J. Snowden. Because militants often rely on features common to video games — fake identities, voice and text chats, a way to conduct financial transactions — American and British intelligence agencies worried that they might be operating there, according to the papers.

I posted earlier about why I thought that online information can generally be collected without Fourth Amendment problems.  The opinions I voiced in that post apply to the tactics the agents used here, although the characteristics of the fantasy worlds infiltrated in this case raise a few more interesting, and amusing, Fourth Amendment questions.

Upon reading this story, my first thought was whether government agents could "seize" an individual in an online game like World of Warcraft, or if every encounter in the game would be a consensual encounter.  In the real world, police are permitted to ask people various questions, such as their names and whether people are concealing contraband, without implicating the Fourth Amendment.  These are "consensual encounters" -- interactions where the individuals being asked questions by the officers feel reasonably free to terminate the encounter.  These consensual encounters may escalate to a "stop" or a full on arrest -- with the stop requiring reasonable suspicion that the suspect has committed a crime, and the arrest requiring the officer to have probable cause that the suspect has committed a crime.

Could a government agent "stop" another player in World of Warcraft or Second Life?  The players are not physically present next to one another, so the player would not have to worry about the agent following the player or using physical force on the player.  The government agent may tell a player that the agent is, in fact, working for the government and that failure to cooperate or terminating the encounter will result in legal repercussions.  While this might typically constitute a stop, or a full seizure, the online environment in which the encounter is taking place may lead the player to think that the agent is just another player who is lying, so the question of whether that player would feel reasonably able to terminate the encounter is a bit more complicated than an encounter that occurs in the real world.

Also, scholars like Devon Carbado have raised concerns that police tend to focus on racial minorities such as blacks and Latinos, and that this over-focus of law enforcement on racial minorities has led to the main Supreme Court cases that allow police to carry out consensual encounters (see, e.g., this excerpt from Carbado's (e)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002)).  Would an over-focus on specific groups in fantasy world encounters raise equal protection concerns?

Police officers' subjective intents in conducting consensual encounters are typically not relevant to whether any seizure is reasonable because courts have held that no seizure takes place in a consensual encounter.  This means that if agents' encounters in the World of Warcraft focus specifically on, say, Orcs (or, in the most recent version of the game, Pandas), there will not be any equal protection concerns (at least, none that the law would recognize).

The government may be right to infiltrate the World of Warcraft.  While the previously-mentioned reports note that the government has not found any terrorists as a result of this approach, it is good to know that the government has an eye on the fantasy world as well as the real world.  Terrorism and tragedies occur in fantasy worlds -- it has been just over a year since hackers figured out a way to kill players' characters and characters in the game and used this exploit to massacre entire virtual cities.

Lots of people are reacting smugly about the NSA's concern with these games.  But as somebody who has seen the harrowing photos of the skeleton-filled streets of Orgrimmar, I am happy that our virtual worlds are going to be a lot safer.

Rumblings About Klass and Zeiler's Critique of the Endowment Effect

The UCLA Law Review recently published its first issue of Volume 61, which contains an article by Gregory Klass and Kathryn Zeiler entitled, Against Endowment Theory: Experimental Economics and Legal Scholarship.  Here is the abstract:

Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation.  Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not affect willingness to trade or exchange. Many experimental economists no longer ascribe to endowment theory. Legal scholars, however, continue to rely on endowment theory to predict legal entitlements’ probable effects on expressed valuations. That reliance is no longer warranted. Endowment theory’s influence in legal scholarship provides important lessons about how legal scholars and policymakers should, and should not, use results from experimental economics.

Miriam Baer of PrawfsBlawg points out that the article "encapsulates quite succinctly the problems with relying on behavioral theories that have been successfully challenged or revised since their first introduction to legal scholars."  The Economist covers the earlier experiments by Charles Plott and Kathryn Zeiler that led to the conclusions discussed in the UCLA Law Review article.

In the PrawfsBlawg comments, Matt Bodie contends that the endowment theory has not been disproven and that Zeiler has a "conflict of interest" in speaking about social science research because she is one of the co-authors of the studies that the Klass and Zeiler article cites as disproving the endowment effect.

While it is difficult to know exactly what goes on in the minds of articles editors (I should know, since I am one -- and for the UCLA Law Review, no less!) I suspect that the articles editors of the UCLA Law Review were aware of Zeiler's co-authorship of the previous research, and did not find that a "conflict of interest" existed when she was stating a conclusion supported by previous studies that she had done.  Baer responds to Bodie's comment by pointing out that Zeiler is a law professor, and that it makes sense for her to re-iterate her social science findings in the context of legal scholarship.

I think that Baer makes a good point, and I will speculate that the UCLA Law Review's articles editors likely had the same consideration in mind.  They probably also thought that Klass and Zeiler's discussion of the endowment effect made a larger point about the danger of legal scholarship's tendency to miss developments in other disciplines -- and that these developments might have a substantial impact on foundational assumptions of legal theories.

For more criticism of Klass and Zeiler's argument, see Russell Korobkin's chapter, Wrestling with the Endowment Effect, or How to Do Law and Economics Without the Coase Theorem, which will appear in the Oxford Handbook of Behavioral Economics and the Law.

Reviews of Liptak's Review of Law Reviews (And a Brief Note on Immanuel Kant)

Today's New York Times has an article by Adam Liptak where he argues that Law Reviews are bad and that student editors of them are poor judges of what valuable scholarship is.

I don't have anything new to say to this that I haven't said before, mainly because Liptak's article doesn't say anything that hasn't been said before (for an older and far more delightful version, see my post on Fred Roddell here).  My main point on the article is to note that Liptak quotes Roddell, but apparently did not get the memo that if one's commentary is not novel, it should at least be fun to read.

I am not the first to point out that Liptak's article lacks novelty and charm. Matt Bodie calls the article "Lazy." Jeff Redding is a bit nicer and says that the article "was a bit surprising in its re-hashing of fairly unhelpful observations." Will Baude and Orin Kerr also have posts defending law reviews. Stephen Bainbridge approves of Liptak's argument, but notes that he is, at the moment, particularly irked by one law journal's failure to adhere to deadlines.  Above the Law seems to like the article, reprinting a source's quote in the article, and asking whether law reviews can get any worse, a question with an obvious answer (yes as an almost universal rule, things can always get worse) but the wrong question (right question: how can we make them better?).  Liptak, unsurprisingly and uncontroversially, mentions peer review as a possible answer (good call).

Finally, Liptak includes the oft-quoted line by Chief Justice John Roberts that “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A Westlaw search of the Journals and Law Reviews database (query: ti(kant & bulgar! & evid!)), leads to zero hits. Roberts said that you should "pick up" a copy of any law review, indicating that he was speaking of recent issues that would be in Westlaw's database. The terms in my search all relate to the core components of Robert's example, and the hypothetical observer's ability to see this subject immediately indicates that these terms are present in the title.  Moreover, widening the search by removing "bulgar!" still led to zero hits.

I would not be surprised if removing "evid!" instead of "bulgar!" would also lead to zero hits.

(Update: I checked.  I'm correct).

ACTUAL UPDATE: Posts kept coming in as the day went on, and I felt that this one by Jack Chin was too nice to leave unmentioned.

ADDITIONAL UPDATE: Daniel Solove at Concurring Opinions (unsurprisingly) concurs.

Strange Empirical Claims About Mass Shootings and Stock Prices

I have a few "alerts" set up on Google Scholar, with one of them set to notify me whenever something containing the phrase "Second Amendment" is published.  The system has a few kinks to work out (my "Second Amendment" alert emailed me the link to this robotics article this evening...) but the system is an interesting way to stumble across things I might otherwise miss.

This evening's alert clued me in on an article by Benjamin W. Cross and Stephen W. Pruitt entitled Dark Knights Rising: The Aurora Theater and Newtown School Massacres and Shareholder Wealth.  The Article appears in Volume 41 of the Journal of Criminal Justice.  Here is the abstract:

Purpose 

This study analyzes the stock price impact of the Aurora theater and Newtown (Sandy Hook) school massacres on both domestic (US) and foreign theater operators and US gun manufacturers in an effort to document the economic effects of these tragedies. 

Methods 

The well-established “event study” methodology from the fields of economics and finance is employed to assess the impact of the shootings on the affected companies after controlling for risk and overall market movements. 

Results 

The Aurora theater shooting resulted in striking declines for Cinemark (the targeted theater) as well as major US competitors, but had no impact on overseas theater chains. Smith & Wesson (maker of the gun used in Aurora) showed no response, whereas Ruger (a competitor) exhibited large gains. Both Smith & Wesson and Ruger plunged after the Newtown shooting, although neither made the weapons used in the shooting. 

Conclusions 

Contrary to prior research on workplace homicides, the results show that random mass shootings have profound effects on targeted companies. In addition, the results suggest the presence of a very strong “contagion effect” (where negative events affecting one company impact others in the same industry). The negative responses of both publicly-traded US firearms manufacturers to the Newtown shooting suggests a “sea-change” in the debate over gun ownership in the US.

Normally I would write off an article like this as involving subject matter that is typically outside of my area of expertise -- but the abstract's last claim about a "sea-change" in the gun ownership debate caught my eye.  I decided to read through the article to see what the authors had found.

As it turns out, the article is blatantly flawed and highly misleading.

Thirteen Members of Anonymous Indicted for DDoS Attack

The New York Times Reports:

Hackers took down the sites by inflicting a denial of service, or DDoS, attack, in which they fired Web traffic at a site until it collapsed under the load. Though the indictment mentions 13 hackers, thousands more participated in the attack by clicking on Web links that temporarily turned their computers into a digital fire hose aimed at each victim, in this case the Web sites.

According to the indictment, which was handed up at Federal District Court in Alexandria, Va., the hackers’ tool of choice was a simple open-source application known as Low Orbit Ion Cannon, which requires very little technical know-how.

Hackers simply posted a Web link online that allowed volunteers to download an application that turned their computer into a “botnet,” or network of computers, that flooded targets like Visa.com and MasterCard.com with traffic until they crashed.

The indictment is available here.

This attack was known as "Operation Payback" and seemed to have been launched as a way of protesting strict intellectual property laws and entities.  The attack targeted the U.S. Copyright Office, the Motion Pictures Association of America, and Mastercard, and others.

Mike Maznick at Techdirt uses this incident as an raise the argument that DDoS attacks should not be treated harshly because they are a modern equivalent of a sit-in (he has raised this argument before: see here and here).  I have strong doubts about the strength of this argument, namely because launching a DDoS attack does not carry with it the same expressive connotations as appearing in a certain place in protest.  Moreover, the information "communicated" through the attack is not expressive because it is not meant to be read by the recipient -- rather it is meant to override the recipient's capacity to read.

Maznick and other commentators also criticize the damage portion of the indictment that alleges that the attack caused over $5,000 in damage -- with Maznick wondering how DDoS attacks cause damage and with ARS Technica's Cyrus Farivar sniping that Mastercard makes millions in profits.

These arguments are also misguided.  DDoS attacks can certainly cause damages.  As this report indicates, lost productivity and reputation costs are ranked as the most significant costs of these attacks, though damage to property and equipment also made the list.  Moreover, these attacks can cost their victims anywhere from tens to hundreds of thousands of dollars, depending on the size of the attack.  The indictment lists damages of $5,000 because that is the minimum damage amount required by the criminal statute.

Finally, Maznick ponders how a DDoS attack can cause damage "without authorization," as any member of the public is free to send traffic to websites.  This concern is a little bit more interesting, but also mistaken.

Handing Down a Double Loss

This evening, I was talking with one friend about coaching and judging high school debate, and with another friend about parties who represent themselves pro per in court, and this combination of topics made me wonder if there are any reported cases where the court has managed to rule against both parties.  Back in the days when I was a high school debater, I had heard stories of debate judges giving the fabled “double loss” in exceptional circumstances, but when judging debates, I always managed to find one set of arguments I disliked more.  Maybe I’d be more flexible about the idea if I could get some precedent from actual judges.

After exhaustive research (well…one Westlaw terms and connectors search of “both parties lose”) I stumbled across the case of Gunther v. Tworek, 690 N.W.2d 885 (Wisc. Ct. App. 2004).  Overall, it is a fun little opinion that strongly conveys the court’s frustration with the parties.  The portion of this opinion that caught my eye was:

Finally, Tworek requests this court to grant him costs under WIS. STAT. RULE § 809.25(1). But while Gunther loses his appeal on whether interest was proven or calculable, all of Tworek's issues on cross-appeal are also dismissed. Because both parties lose their appeals, we will follow our standard practice and deny costs to both.

Unfortunately, this case is unpublished as well as uncitable, having been decided before 2009.  In making my argument for the double loss in a court of law, it would appear that I will need to press on without precedent.  I am not completely out of luck, however, as courts may still be swayed by the immortal words of Lord Mildew who once said “There is no precedent for anything until it is done for the first time” (quoted in Carrot & Co. v. Guano Assoc., A.P. Herbert’s Uncommon Law, p. 109, fn. 1).

Additionally, I doubt that the Wisconsin rules governing case citations apply in the debate judging context.  This is especially true for me, since I have never and probably will never judge at a competition in Wisconsin.  Gunther sounds far more convincing than secondhand anecdotes about rebellious coaches, so if debate judges are tempted to grant the double loss, I think that they should look to this case for inspiration and guidance.