Pokemon Go Players: Beware of Binding Arbitration!

Unless you've been living under a rock or avoiding the outdoors for the past several weeks, you have probably heard of Pokemon Go, a smartphone app developed by Niantic. Pokemon Go compels 20-somethings to wander through my neighborhood at night, collide with trees, and enslave small creatures for the purpose of battling other players' small creatures. Players meander along sidewalks, streets, and beaches until they come across a Pokemon, which is superimposed on the surrounding environment through a phone's camera. For example, here is an Onix in my apartment perched on a (signed) copy of Justice Antonin Scalia and Bryan Garner's Reading Law:

What a time to be alive!

Players cavort through neighborhoods collecting items at "Poke Stops" and battling other Pokemon at Gyms. Sometimes they are mugged. The New York Times has this discussion of the history of Pokemon and the future of augmented reality games and the Wall Street Journal notes that the game is turning people into injury-prone zombies.

Legal commentary as varied as the creatures themselves is emerging as the game gains momentum. Commentators note interesting questions of property the game raises, the potential for players to injure themselves, and the risk of criminals stealing phones.

In this post, I'll focus on another line of commentary noting that those who sign up to play Pokemon Go forfeit their right to trial, agreeing instead to submit any claims to binding arbitration. Commentators note, and criticize, this portion of Niantic's Terms of Service here, here, here, and here.

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.

Court Convicts Dead Man of Stealing Electricity

Kevin Underhill at Lowering the Bar comments on an unusual case where a Greek court convicted a defendant in absentia for stealing electricity. Despite the defense attorney's request that the trial be continued pending the provision of a death certificate, the court refused.

The court imposed a suspended sentence of six months in jail. As Underhill notes, that jail term wouldn't be imposed unless the defendant violated the law in some other way, so the defendant is "effectively off the hook."

The case raises several interesting questions. For instance, what if the charge were more severe, and this case took place in China? Would a Chinese court impose a suspended death sentence on a deceased defendant? And if a defendant were to fail to report to prison (due to his or her being dead) would the court then impose the suspended death sentence? If so, how?

Moreover, this case touches on a particular interest of mine regarding the law governing the dead and undead. As I have argued in both prior posts and published scholarship, criminal law (unlike tax law) is a particularly effective means of combating the undead in the eventual zombie apocalypse. 

Even if defendants are dead, courts in Greece and Russia will still move forward with prosecution. If When the zombie apocalypse occurs, one can only hope that more courts will follow this trend so that the undead may be effectively tried and prosecuted for the numerous crimes they will inevitably commit.

Obama Teams Up With Zombies, Torts Ensue

Geoffrey Rapp has the scoop over at PrawfsBlawg.

Lawfare Podcast on the Law of War . . . Against Zombies

I highly recommend the most recent Lawfare Podcast which is entitled, "Bone-Crushing Zombie Action."




Shane Harris moderates the podcast in which Benjamin Wittes, Robert Chesney, and Jennifer Daskal discuss issues that would arise in the event of a military conflict between the United States and zombies.

The panelists discuss numerous issues, including whether the President would have the authority to order military force against zombies, whether zombies can truly considered to be engaging in "armed" conflict against the united states, and whether military action would potentially violate the zombies' due process rights or international laws. Important considerations throughout the discussion include whether the zombies are human or not and whether non-lethal actions against zombies are feasible.

My favorite line in the podcast is from Benjamin Wittes. A portion of the podcast addresses the issue of how much government surveillance should be permitted in light of the zombie threat. Wittes points out that privacy is an important consideration, but that "I prefer to be not eaten on camera than to be lunch in private." There was also some pretty good discussion about the case, In re Neagle.

If you are looking for both laughs and some good insight into an alternate perspective on laws of war, I highly recommend that you listen to the whole thing.

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

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

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

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

Save the pomp let's pass some bills!! I respect all my fellow Senators, but Floridians are in need of action on real issues.
— Dwight Bullard (@DwightBullard) April 28, 2014

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

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

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

The Miami Herald reports:

Under a bill backed by the National Rifle Association and other gun groups, riots could be the newest safe haven for those carrying firearms without a permit. 

HB 209, which is expected to be voted on Friday by the Florida House, would allow people with clean criminal backgrounds to conceal firearms without a permit during emergencies — including riots and civil unrest like the 1996 racial disturbances that rocked south St. Petersburg — declared by the governor or local officials.

Read more here: http://www.miamiherald.com/2014/04/10/4049956/florida-house-bill-would-allow.html#storylink=cpy

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

(a) A person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor pursuant to chapter 252 or declared by a local authority pursuant to chapter 870.

The bill is not without its critics. From the Herald:

“To allow people to go into a riot while concealing a gun without a permit is the definition of insanity,” said Pinellas County Sheriff Bob Gualtieri. “The bill is crazy. It’s absurd.”

But as The Daily Beast's title indicates, the drafters of this bill have the long game in mind. Much like the insightful lawmakers who drafted the United States' broad federal criminal laws, Florida's lawmakers have clearly introduced this bill so that people are not deterred from taking up arms in the event of the zombie apocalypse.

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

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

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

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

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

There is hope for those 14,000 people the SSA wrongfully declares dead each year. First, they will need to find a copy of their death certificate and have it amended to make them not dead. They then need to take the amended death certificate and a photo ID to their Social Security office. After the SSA declares you revived, you can then go to your bank and work with them to re-open your accounts. While this process will likely take months, it is probably a better option than dying to save time on the paperwork.

Hopefully the SSA can solve this problem soon. While only a small percentage of SSA beneficiaries become "undead," the consequences of this designation are extremely inconvenient for those unlucky few.

Baude's Reply on Zombie Federalism

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

Baude responded to my argument here. He writes:

First, Smith’s essay automatically assumes that all zombies will be evil enemies of the human race. Maybe that is true, but what if it is not? And given that most of us do not believe in zombies in the first place, how much confidence should we give to our beliefs about what nonexistent zombies would be like if they did exist? 

Second, if Smith is right that all zombies would be an inherent threat to humanity, there is nothing to fear from federalism. No U.S. state would want to enable the decimation of the human race, and so no state would grant rights to evil zombies. 

Third, that means that zombie federalism matters if, and only if, there is disagreement, at the state level, about whether the newly discovered zombies really are evil. And in the case of disagreement on such a fundamental, existential question, why should we be so sure that we — or really, Congress, the president and the Supreme Court — know the right answer ex ante? Surely the federal government needs and has the power to manage spillovers, but that does not automatically imply a top-down answer to the hard fundamental questions. 

The one serious point is that much of the above applies, mutatis mutandis, to other cases of disagreement over fundamental questions.

The ZombieLaw Blog covers this discussion and adds some points on the matter here. I am proud to point out that a "zombified" image of me appears in that post as well. My colleague, Seth Fortin, points out that this debate has some interesting implications for government policies addressing race.

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

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

Baude on "Zombie Federalism"

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

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

What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.

As readers of my own work should know, I am inclined to disagree with Baude. As I explain in my essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, battling the armies of the undead will require the living to present a unified front, and a federal standard of zombie personhood will prevent the fragmentation of this front. Leaving states to define whether zombies are persons would lead to uneven legal treatment of the undead, which could undermine the uniform prosecution of these zombies under the federal criminal law.

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

Courtroom Cages

An interesting article in today's New York Times discusses the surprisingly common practice of putting defendants in cages during courtroom proceedings:

Long eschewed as prejudicial by American courts and by the International Criminal Court in The Hague, locked docks, either metal cells or enclosures made of glass or wood, are still common, not just in countries like Russia and Egypt where the judicial systems often face international criticism, but also in many Western democracies, including Britain and France.

The article reports that this practice is drawing international criticism -- largely because placing the defendant in a cage portrays the defendant as violent and dangerous despite the law's presumption of innocence.

Based on some of my previous scholarship, however, I think it would be remiss to obliterate the practice of caging defendants entirely, however. As I point out in my essay, this particular aspect of courtroom procedure may be fitting for a certain class of defendants who pose a particular danger to those around them.

Working as a Zombie Law Research Assistant

From the Zombie Law blog, I learned about this post over at Nerdophiles where Sam Wildman gushes about his experience working as a "Zombie Law Research Assistant" for Adam Chodorow on Chodorow's article, Death and Taxes and Zombies, 98 Iowa L. Rev. 1207 (2013).  Wildman describes the work that he did and summarizes Chodorow's article (though to get the full experience, you really need to check out the whole thing.  Here is a version that might be easier to access than the one at the SSRN link).

Reading this made me realize that I'd found another opportunity to shamelessly plug my recent essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA Law Rev. Discourse 44 (2013).  It also made me wonder whether anybody can claim to have also been employed as a zombie law research assistant as a result of my essay.  It looks like I thanked a number of people in the first footnote, from people who were required to help me, people who volunteered suggestions, and people who gave me beer during the writing process.  I think all of these people have a feasible claim that they were zombie law research assistants.  I would certainly vouch for this if asked by a prospective employer.

From a textual perspective, however, it looks like Daniel Smith is the only person mentioned in the footnote who can claim with certainty to have been a zombie law research assistant because I thank him for "assisting in the research for this Essay."  If that isn't being a zombie law research assistant, I don't know what is.  This is an important bit of information to keep in mind, especially when applying for schools in the not-so-distant future.

Responding to the Zombie Apocalypse: Yet Another Step in the Right Direction

Fredrick Vars posts at PrawfBlawg about the "Crisis in Federal Criminal Defense."  Citing the Huffington Post and the New York Times Editorial Board, Vars notes that sequestration is undermining numerous federal public defender offices to the point of causing irreversible damage.

This is yet another of many wise steps our government is taking to proactively mitigate the damage that will be caused by the inevitable zombie apocalypse.  As I wrote in my recent essay (about which I post here), federal criminal laws are one of America's strongest safeguards against zombies.  The broad scope, strict liability, and mandatory restitution of many of these laws will ensure that zombies are effectively prosecuted and fined -- with their wealth transferred to the living.

The evisceration of federal public defender offices will further protect the United States from the zombie horde by ensuring that zombies prosecuted for violation of federal criminal laws will not be defended.  Removing federal public defenders will both ensure efficient prosecution of zombies and prevent the zombies from infecting the attorneys who attempt to defend them.  In light of these many benefits, it is unclear why commentators are lamenting the devastation of federal public defender offices.

Admittedly, a few non-zombie defendants will suffer because of the sequestration due to the inability of their resource-starved attorneys to mount an effective defense.  This is the small price society must pay to ensure the continued survival of the living over the undead.

Prosecuting the Undead: Federal Criminal Law in a World of Zombies

Following up on yesterday’s post about the value of online law review supplements, I am pleased to announce that Discourse, the online supplement for the UCLA Law Review, has published my essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies.  The essay can be downloaded from the UCLA Law Review website here or from my SSRN page here.  Here is the abstract:

Adam Chodorow’s recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the looming zombie apocalypse. Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the undead outnumber the taxpaying living. In this Essay, I argue that while tax law may be ill suited to address the zombie apocalypse, federal criminal law offers an alternative approach to solving the problems that Chodorow identifies. In fact, the only plausible explanation for the existence of seemingly pointless features of federal criminal law is that these features are precautions for this imminent disaster. The extensive scope of the federal criminal law, its frequent use of low or nonexistent mens rea requirements, and federal laws concerning mandatory victim restitution create a legal structure that can effectively transfer resources from the undead to the living. Until the zombies arrive, these features will remain largely ineffective.

This satire on the scope of federal criminal law is only one of many areas of law where I think the use of zombies is informative.  Do not be surprised if you see more future blog posts (or if I’m lucky, publications) on other areas of zombie law.