Finally, Some Useful Scholarship on the "Smell" of Law

From Lawrence Solum's Legal Theory Blog, I learned about this article, What is the Smell of Law? First Assumptions for the Semiotics of Juridical 'Matter,' by Maria Francisca Carneiro, Eliseu Raphael Venturi, and Laércio A. Becker. Here is the abstract:

This article is a semiological approach to a possible smell of Law, considering that the area of semiotics may include any of the five senses. Based on the perception of Law being represented by the Latin expression "Fumus boni juris", we conjecture here if the smell of Law would be the smell of smoke, also describing its structures. From that point on, we discussed the structures of the juridical matter.

For good measure, here's a paragraph from page six of the article:

The aroma of law is smelled before the sentence. Just think of the “smoke of a good right”. Well, the smoke (“fumus”) is not a gas, but a colloid, solid particles (micelles) in the air (“undone”, cf. remarkable image created by Marshall Berman), in a Brownian movement that is only observable thanks to the Tyndall effect. The smoke is a dissipative structure, related to the chaos theory (Prigogine). The Brownian movement is usually chaotic, which apparently means that the semiotics of the “smell of law” would in fact allow for an approach using the theory of dissipative structures. The theory of dissipative structures and the Principle of order through fluctuation contributed to the creation of a new mindset. The following aspects stand out in this new perspective: history, unpredictability, interpretation, spontaneity, disorder, creativity, accident and self-organization. This theory also states that the thought is always in process. It is temporary, not stable or fixed. Similar to the temporary restraining order that is based on “fumus”: temporary, unstable, subject to procedural fluctuations (and the procedural path is not a straight one, but one filled with different circumstances, therefore, fractal, that is, chaotic) that may repeal it or suspend it. 

Chief Justice Roberts has denounced legal scholarship as being too esoteric and disconnected from the practice of law. It is good to see that scholarship like Carnerio, Venturi, and Becker's paper exists to prove him wrong.

Stone on the "Spurious" Rule Against Propensity Evidence

Want to read a law review article in which the author uses the word, "spurious" 90 times?

Then look no further than Julius Stone's 1938 article, The Rule of Exclusion of Similar Fact Evidence: America (51 Harv. L. Rev. 988). I am not aware of any publicly available version of the article, so I can only include the link to the HeinOnline version.

In the article, Stone criticizes the rule of evidence that states that, in general, evidence of a person's prior acts cannot be introduced to show that the person has a propensity to act in a certain way. This rule is codified at Federal Rule of Evidence 404(b)(1), which states: "Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character."

Stone argues that a broad rule excluding prior act evidence is "spurious," and contends that, historically, judges only excluded evidence of prior acts when they were irrelevant. In the absence of a broad rule against prior act evidence, judges had broad discretion to admit prior act evidence. But in the early 1800s, English courts began applying a far broader restriction on prior act evidence. American courts followed suit, and cited the broad rule as though it was the historic approach to this type of evidence.

Stone's article is one of several that I draw upon in an upcoming article on propensity evidence. The article is partially based on the questions I began to explore in this post on exceptions to the propensity evidence ban and due process.

I am still in the process of revising the article, but I hope to post it to SSRN soon. As a preview/spoiler, however, I admit that the current draft of the paper does not use the term "spurious" as liberally as Professor Stone.

Patel on Cross-Cultural Competency Training for Law Students

Serena Patel, a former classmate of mine from UCLA Law, has recently published this essay in UCLA Law Review Discourse. The title is Cultural Competency Training: Preparing Law Students for Practice in Our Multicultural World. Here is the abstract:

This Article advocates for increased cross-cultural competency training for lawyers. With increasing diversity in society and among future lawyers, it is necessary for lawyers to be able to effectively communicate and create trusting relationships with clients from a variety of cultures and backgrounds. This Article recommends that a seminar be offered in law schools to develop and practice cross-cultural skills in line with The Five Habits: Building Cross-Cultural Competence in Lawyers, developed by Professors Susan Bryant and Jean Koh Peters. Implementation of the proposed seminar would help prepare law students to be culturally competent, successful lawyers.

Patel discusses techniques for developing cross-cultural competency in a clear and concise manner. She discusses how these techniques could be integrated into the law school environment, and advocates seminars that would teach cultural competency. Ideally, students would take these seminars before or alongside clinical coursework.

Patel's essay discusses an important skill that law schools should do more to emphasize, and that students should take more initiative to develop. Even if schools do not offer a cultural competency seminar, students should try to put themselves in situations where they interact in a cross-cultural environment. Volunteer clinics during the year, or nonprofit internships during summers can give students opportunities to have interact with clients of different cultures and backgrounds.

But these cross-cultural legal interactions would be more beneficial for students and clients if the law student has a foundation for approaching these situations. The seminar Patel proposes would be one way of building this foundation for students. The seminar would give direction to students' cultural competency development, and this benefit would be passed on to the clients with whom students would interact.

Arbitration by Combat and Game of Thrones

I am happy to announce that I will be coauthoring an article with my former UCLA Law classmate, Raj Shah, in an upcoming special issue of the Media and Arts Law Review. The issue will contain articles on "Law and Law Breaking in Game of Thrones." Prior posts on the call for papers can be found here and here.

Our article currently has the title, Arbitration by Combat. Here is the article proposal that we submitted:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. The trials of Tyrion Lannister and Sandor Clegane stand as some of the most defining moments of the series. However, as the series vividly illustrates through Oberyn Martell’s duel with Gregor Clegane, trial by combat can pose mortal dangers for combatants not endowed with the protection of the god R’hllor. Furthermore, as Tyrion Lannister’s prosecution by the Iron Throne demonstrates, trial by combat can often lead to unjust results.

Trial by combat was also a common method for resolving disputes in medieval Europe. Trials by combat were subject to numerous procedural rules and were often (but not always) less violent than the disputes in Game of Thrones. But trial by combat has since been rejected as an unjust and barbaric ritual. 

The concerns surrounding trial by combat as a means of dispute resolution raise several interesting questions: can agreements to arbitrate disputes by means of a trial by combat be enforced in the United States? And if these “arbitration by combat” provisions are enforceable, what form of combat would be permitted under existing law? The more restrained historic form of trial by combat or the Game of Thrones variety?

In this article, we seek to answer these questions by examining how arbitration by combat agreements might implicate state and federal laws in the United States. First, we explore whether such agreements would run afoul of state laws barring contracts that are unconscionable or against public policy. We argue that savvy drafters of arbitration by combat provisions should avoid the gory proceedings in the Game of Thrones universe. But arbitration by combat based on historic practices may survive judicial review.

Second, we examine whether state regulation of arbitration by combat provisions would be preempted by the Federal Arbitration Act’s protections for arbitration agreements. In particular, we analyze whether the Act would protect an arbitration by combat agreement against state interference, given the U.S. Supreme Court’s recent expansion of the Act’s reach in AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).

We argue that while Game of Thrones–style arbitration by combat may violate state contract laws, arbitration by combat that conforms to historic practices may find more success. We also conclude that there is a strong argument that an arbitration by combat procedure falls under the protection of the Federal Arbitration Act, provided it satisfies certain “fundamental attributes of arbitration” identified in Concepcion. That is, the combat would have to be informal, speedily resolved, and relatively inexpensive to conduct. Hence, state safety regulations of combat proceedings – while permissible – would be preempted to the extent they interfere with such characteristics.

The topic of this paper should not be too much of a surprise to regular readers of this blog. Trial by combat has always fascinated me, and you can find my previous posts on the subject here and here.

I must confess, however, that I am not well-versed in the Game of Thrones literature. Fortunately, my coauthor, Raj Shah, has extensive expertise in that area (as well as in the area of researching and writing about the Federal Arbitration Act). While Raj, like myself, has not published on the subject of Game of Thrones before, he has published a critical race perspective on U.S. standing doctrine in the UCLA Law Review, which you can find here.

As is the case with any post or paper I have announced on this blog, comments and criticism from readers are welcome. Our deadline for completing the full paper is December 19.

Pennsylvania Supreme Court Votes to Suspend Justice McCaffery

Dave Hoffman at Concurring Opinions writes that the Pennsylvania Supreme Court has voted to suspend Justice Seamus McCaffery. At How Appealing, Howard Bashman has links to further coverage. The per curiam opinion of the court cites numerous scandals -- including allegations that Justice McCaffery improperly contacted a traffic court judge over a traffic citation issued to Justice McCaffery's wife, claims that Justice McCaffery and his wife improperly gathered referral fees through Justice McCaffery's official capacity, and a recent scandal involving a vast exchange of sexually explicit emails between Justice McCaffery and people at the office of the Pennsylvania Office of the Attorney General.

Meanwhile, an ethics investigation of Justice McCaffery will move forward. Justice Todd dissented from the Court taking an active role in the matter.

The bottom of the per curiam opinion indicates that Chief Justice Castille wrote a concurring opinion. That opinion is available here, and it is merciless and unlike any opinion I have ever read. I cannot do justice to the opinion with descriptive terms, so I conclude this post with the parts of the opinion that I found particularly noteworthy (though I recommend you read the entire thing):

Justice McCaffery blames me for a series of egregious acts of misconduct on his part. However, it was not I who caused his wife to be cited for driving the wrong way on Market Street. It was not I who caused Justice McCaffery to meet with the main Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket which was then dismissed by a Traffic Court judge who later pled guilty to federal crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file which was then officially brought to my attention as part of the review of Philadelphia Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme Court employee, permission to run a law practice out of a Supreme Court chambers, earning millions of dollars. It was not I who referred that matter to the US Attorney’s Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for his services to the Philadelphia Court system for his professional work. 

. . . 

Justice McCaffery is correct in one of his allegations against me. I have been attempting to remove Justice McCaffery from this Court. In my two decades of experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done as much to bring the Supreme Court into disrepute. No other Justice has failed to live up to the high ethical demands required of a Justice of this Court or has been the constant focus of ethical lapses to the degree of Justice McCaffery. 

. . .  

As a prosecutor in the Philadelphia District Attorney’s Office, I often had the occasion to review pre-sentence psychiatric reports, although I do not claim to be an expert in the field. One pathology that I do recall, and as confirmed in a review of a prominent medical journal, describes the pathology of an individual who has the personality traits of not caring about others, thinking he or she can do whatever is in that person’s own self-interest and having little or no sympathy for others. The most telling pathology is that when that person is caught, or called out for his transgressions, that person does not accept blame but instead blames others for his or her own misconduct. Those pathological symptoms describe a sociopath. So far in the blame game, Justice McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police Department, Chadwick Associates, the US Attorney and the FBI, Attorney General Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising from actions all initiated by him, but thought by him to be of little consequence: just a few “cooked up controversies” by his perceived tormentors. 

Parents' Liability for Their Children's Online Conduct

The Wall Street Journal Law Blog has this interesting post about Boston v. Athearn, a recent case from the Court of Appeals of Georgia. From the Law Blog:

The Georgia Court of Appeals ruled that the parents of a seventh-grade student may be negligent for failing to get their son to delete a fake Facebook profile that allegedly defamed a female classmate. 

The trouble started in 2011 when, with the help of another student, the boy constructed a Facebook profile pretending to be the girl. He used a “Fat Face” app to make her look obese and posted profane and sexually explicit comments on the page depicting her as racist and promiscuous, according to court documents. 

When the girl found out about it, she told her parents who then complained to the school’s principal. The school punished the boy with two days of in-school suspension and alerted his parents, who grounded him for a week. 

But for the next 11 months, according to the appeals court opinion, the page stayed up. It wasn’t deleted until Facebook deactivated the account at the urging of the girl’s parents, the opinion said. The girl’s lawyer says the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit for confidentiality reasons.

The full opinion of the court is available here.

The court emphasized that the parents had been notified of their child's online conduct, and pointed out that the nature of online defamation created an ongoing harm to the plaintiffs. From the opinion:

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part. (footnotes omitted).

Critics have spoken out against this ruling, arguing that it is undesirable or that the negligence lawsuit should have been barred by section 230 of the Communications Decency Act (CDA). I think that this ruling is far less problematic than the critics have argued, and I explain my reasoning after the break.

Stand-Your-Ground, Castle Doctrine, and Domestic Violence

From the ABA Journal, I learned about an interesting self-defense case in South Carolina that is causing some controversy. From the ABA Journal:

Prosecutors in Charleston, South Carolina, contend the state’s stand-your-ground law doesn’t apply to domestic disputes in the home. 

Prosecutors say they will make that argument when they appeal a judge’s finding in an immunity hearing that Whitlee Jones of North Charleston was justified in fatally stabbing her boyfriend, Eric Lee, the Charleston Post and Courier reports. 

. . .

Jones stabbed Lee in November 2012 in an incident that began in an argument over a cellphone. Lee had given Jones the phone, but he wanted it back, the Post and Courier says, citing court documents. Jones says she refused, leading Lee to punch her and, when she got out through the back door, to pull her by the hair down the street. A neighbor called 911 and Jones tried to do so too, but the phone went dead. She gave up the cellphone, ending the initial confrontation, and ran down the street. 

When police arrived, Lee said Jones had smashed his phone and there had been no assault. Jones later returned home to gather her belongings and leave for good. She says Lee became agitated and when she saw a knife, she tucked it into her bra. Jones claims Lee tried to block her as he was leaving, shook her, and was getting ready to hit her when she retrieved the knife and stabbed Lee in the heart. 

Kidd points to the wording of the state’s stand-your-ground law, which creates a presumption that a person has a reasonable fear of death when an intruder is trying to forcefully enter a home, but not when a person against whom deadly force is used has the right to be in the dwelling.

The Charleston Post and Courier has the full story on the case here.

The story has caused quite a bit of backlash, with news outlets and commentators reporting everywhere that this case stands for the proposition that domestic violence victims cannot take advantage of "stand-your-ground" self-defense laws. Examples of these critical stories can be found here, here, here, here, and here.

This criticism (along with the ABA Journal's reporting) is mistaken, however, because it incorrectly claims that this case turns on questions of "stand-your-ground." More importantly, while the prosecution's argument in this case leads to what many may see as an unpleasant result, it is completely in line with the language of South Carolina's self-defense law. And most importantly, while this particular case may seem to have an unfortunate result, the defendant can still raise and successfully argue self-defense, and reading the law more broadly could have extremely negative consequences.