Myself, I am of opinion that had she brought the action she threatened, she would have had no case; but our chief was a man who had had experience of the law, and his principle was always to avoid it. I have heard him say:
“If a man stopped me in the street and demanded of me my watch, I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it. If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply.”
Jerome K. Jerome, Three Men on the Bummel, 1914.
April 5, 2015
February 18, 2015
At The Federalist, Leslie Loftis provides a bit of friendly (lawyerly) advice to men in the wake of the Fifty Shades of Grey bandwagon:
The Fifty Shades of Grey hype has started its saturation run-up to the movie release this week. I expected the music video releases, the Super Bowl commercials. I did not expect the branding promotions.
I am a lawyer. Ever since their first year of law school, lawyers see liability. And in this bondage-for-amateurs fandom that is 50SOG (hat tip to Tracinski for the abbreviation) liability lurks everywhere.
We live in an era of “yes means yes” and “always believe the woman.” Fun or not, consent or not, signed document or not — no man should ever engage in bondage sex behavior. The best of the law doesn’t allow contracts for bodily harm, no matter the parties’ intent. Some of the worst law throws out the constitutional standard of innocent until proven guilty. If a woman regrets and later reports consensual acts as rape and it comes down to her word against his, then he will lose.
In this legal environment, this sort of sex play is high-risk. So I was shocked to learn that mainstream chain Target was selling 50SOG-branded toys. I saw the 50SOG display and my mind immediately went to the McDonalds’ coffee-burn case. They are selling candles … for bedrooms … next to blindfolds. No potential problems here.
January 31, 2015
This is a rather amazing little scene that was played out in San Francisco:
Published on 28 Jan 2015
Public Defender Jami Tillotson was unlawfully arrested at the San Francisco Hall of Justice on Tuesday, January 27, 2015 by officers of the San Francisco Police Department
Techdirt‘s Tim Cushing has the story:
As an American citizen, you can always refuse to answer questions, especially when you’re not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they’re free to go.
So, while Tillotson’s attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., “Talk to my lawyer.”)
But the police weren’t interested in speaking to a lawyer. They wanted to take pictures and ask questions without the “interference” of someone who knew how the system works. So, they arrested her for resisting arrest — which, as the video shows, she was very clearly NOT DOING BEFORE, AFTER OR DURING THE ARREST.
Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty — which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.
It’s a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.
November 2, 2014
We came in sight of Reading about eleven. The river is dirty and dismal here. One does not linger in the neighbourhood of Reading. The town itself is a famous old place, dating from the dim days of King Ethelred, when the Danes anchored their warships in the Kennet, and started from Reading to ravage all the land of Wessex; and here Ethelred and his brother Alfred fought and defeated them, Ethelred doing the praying and Alfred the fighting.
In later years, Reading seems to have been regarded as a handy place to run down to, when matters were becoming unpleasant in London. Parliament generally rushed off to Reading whenever there was a plague on at Westminster; and, in 1625, the Law followed suit, and all the courts were held at Reading. It must have been worth while having a mere ordinary plague now and then in London to get rid of both the lawyers and the Parliament.
Jerome K. Jerome, Three Men in a Boat (to say nothing of the dog), 1889.
May 5, 2014
The Toronto Star‘s Kenyon Wallace, Rachel Mendleson and Dale Brazao investigate the Law Society of Upper Canada (LSUC) and find it does not report members for criminal activity to the police:
They treat client trust accounts as their personal piggy banks, facilitate multi-million-dollar frauds and drain retirement savings of the elderly.
While most lawyers caught stealing from their clients are reprimanded, suspended or disbarred by the profession’s regulator, the vast majority avoid criminal charges, a Star investigation reveals.
The Star found that more than 230 lawyers sanctioned for criminal-like activity by the Law Society of Upper Canada in the last decade, stole, defrauded or diverted some $61 million held in trust funds for clients.
Fewer than one in five were charged criminally. Most avoided jail.
“I truly believe there are two laws — a set of rules and regulations for lawyers and a different set for everyone else,” said Richard Bikowski, who was fleeced out of $87,500 by now-disbarred Toronto lawyer Lawrence Burns.
Unlike the law societies in most other provinces, the Law Society of Upper Canada does not, as a rule, report suspected criminal acts by its members to police, no matter how much money lawyers steal.
Of the more than 1,000 discipline decisions made by the law society in the last 10 years, the Star identified 236 cases in which lawyers were sanctioned for offences that were characterized by our analysis as criminal, including theft, fraud, breach of trust, forgery and perjury.
The Star could find criminal charges for only 41 of these lawyers. In more than half of cases where criminal charges were laid, the law society sanction came after. Of those bad lawyers sentenced criminally, the punishments were generally lenient, ranging from house arrest to community service. The Star found that only 12 went to jail.
Why do so many lawyers who steal from their clients avoid criminal justice?
A big reason is that the law society in practice does not report alleged criminal offences by its members to police.
April 27, 2014
In a column about Mark Steyn’s legal battles with Michael Mann, Conrad Black takes time out to revisit the overall state of the US court system:
… American justice is in a shocking condition. Too many judges in the U.S. are elected; too many are ex-prosecutors; the battle over capital punishment has taken all the air out of the room in which the infamous severity of American sentences and the unspeakable lopsidedness of prosecutorial success should be debated. This is a country that inspired the world with a vision of freedom and democracy (though Great Britain, Switzerland, much of the Netherlands, and Scandinavia were just as democratic at the time of the American Revolution). Yet the entire legal apparatus has sat like a gigantic suet pudding and the Supreme Court, in between its four-month vacations, has drunk the Kool-Aid of its own bathwater. The Fifth, Sixth, and Eighth Amendment guaranties of due process, just compensation for seizure of property, grand jury deliberations as assurance against capricious prosecution, prompt justice, access to counsel (of choice), impartial jury, and reasonable bail have been put to the shredder. The United States has six to twelve times the number of incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, the nearest comparable countries. Even after removing from the totals all those with unstigmatizing records irrelevant to their hireability today (DUI or disorderly conduct decades ago, for example), about 15 percent of adult males are felons.
Prosecutors win 99.5 percent of their cases, 97 percent of them without trial, because of the plea bargain system, which has often been reduced to a sleazy extortion or subornation of confected and rehearsed inculpatory testimony in exchange for immunities, including from the perjury sponsored and approved by the prosecutors. This is far from what was intended by the authors of the Bill of Rights and the original propagators of the tenuous theory that American independence was a new order of the ages and the dawn of government of, by, and for the people, vested with inalienable rights, according to self-evident truths.
Beyond all that, the American legal profession is a suffocating cartel that saps 10 percent of American GDP and through its members in legislatures and regulatory authorities adds 4,000 statutes and regulations a year to the law books, steadily tightening its strangulation of American life, all and always in the name of a society of laws and the ever more equitable refinement of civilization. It would have been impossible and unreasonable to anticipate that so perceptive and spontaneous and fearless an observer as Steyn would not steadily broaden his range of fire, as he has. At one point Steyn began filing motions on his own behalf—the best written court documents you may ever read—that drip with disdain for the judicial process. He quotes Lady MacBeth and describes various pieces of the case using phrases such as “multi-car pileup,” “zombie-like,” “Potemkin hearing” and “meretricious folderol.” It would have been equally unreasonable not to foresee that the authorities upon whom his withering fire descended would not resent this deserved if unaccustomed hostility, and whatever one may think of Mann, he cannot be faulted tactically for trying to tuck himself under the wing of an affronted legal establishment. That does not justify Mann’s infliction of the hockey stick upon the world (like the great Montreal Canadiens point-man Bernard “Boom Boom” Geoffrion lowering — with considerable but probably not sufficient provocation — the real article onto the cranium of a New York Ranger forward sixty years ago) any more than it whitewashes Mann’s own insults. He has dismissed the immensely respected Danish scientist and intellectual Bjorn Lomborg as “a career fossil fuel industry apologist”; Judith Curry, co-editor of the Encyclopedia of Atmospheric Sciences and an honored member of the National Research Council’s climate research committee, as a “serial climate disinformer”; Australian journalist Andrew Bolt as a “villainous” threat to the planet who is paid by Rupert Murdoch “to lie to the public” (Mann apologized for this one after Bolt—in solidarity with Steyn—threatened a lawsuit); and the rest of us as mere “climate change deniers.”
February 10, 2014
I am not a lawyer, but it seems to me that this “parody” of a Starbucks shop is too similar to the real thing and that it would be easy for someone to think they were buying “the real thing” at this store:
A store labeled as “Dumb Starbucks,” using the Starbucks corporate logo and bearing an almost identical look to an actual Starbucks, opened up in Los Feliz on Friday, according to employees.
It was open until about 6 p.m. Saturday and drinks were free as part of what a barista called a “grand opening.”
The coffee shop reopened again Sunday morning and coffee was again free. Dozens of people could be seen waiting in line to get in.
Messages left with people associated with “Dumb Starbucks” seeking comment have not been returned. Messages left with Starbucks Corporation have also not been returned.
The menu was limited.
On Sunday, there still was no business license or health code rating posted in the establishment. The baristas said they were hired from Craigslist.
Despite the popularity, customers seemed confused about what exactly was going on.
“I saw online that there was a Dumb Starbucks sign. One of my friends posted about it, and I live across the street, so I just walked over,” Jonathan Brown told KPCC. He described it as “weirdly off-kilter,” with everything looking like a regular Starbucks except for the word “dumb” in front of it.
Their “FAQ” posting shows that they’re aware that this ploy may not be lawyer-proof:
Update, 11 February: The prank is revealed to be the work of Nathan Fielder.
Mr Fielder appeared in person at the store to make the announcement, where he said there are plans to open a second outlet in Brooklyn, New York.
There had been widespread speculation that the store, which uses Starbucks’ trademarks, was a publicity stunt.
Starbucks said they were aware of the store but denied any affiliation.
“We are evaluating next steps and while we appreciate the humour, they cannot use our name, which is a protected trademark,” a Starbucks spokesperson said in a statement.
February 4, 2014
Megan McArdle says that the meme about fast-rising tuition costs at university being driven primarily by the increase in administration staff isn’t the whole story:
Tim Burke, a Swarthmore professor who is also a top-notch (if insufficiently prolific) blogger, has penned a long post that is a very useful corrective to this complaint. It isn’t that the professors are wrong, exactly — administration has grown fantastically over the last 50 years. And empire building is undoubtedly some of the reason for this, because all organizations accumulate unnecessary mid-managerial retinues unless the leadership makes a regular effort to scrape off the supernumerary barnacles.
However, most of those administrators have been hired for two much simpler reasons: The faculty wanted to outsource their administrative responsibilities to professionals so they could focus more on teaching and research; and the demands placed on a university are much greater than they used to be.
I am not going to excerpt Burke’s piece because it is too multifaceted, and too good; you’ll just have to read the whole thing. He elaborates the many new things that administrators now do, from monitoring diversity to tending the mental health of the students. He touches on the legal changes that have made much of this administrative bloat into an expensive necessity, a sort of institutional immune system that defends against lawsuits. He also mentions the new regulations, like Title IX, that imply a whole new staff of people certifying that you have complied with their requirements.
November 5, 2013
Coyote Blog on the problem with the latest anti-discrimination law:
In reality, this is how it works: Suddenly, as owner of the company, one finds a lawsuit or EEOC complain in his lap, generally with absolutely no warning. In the few cases we have seen in our company, the employee never told anyone in the company about the alleged harassment, never gave me or management a chance to fix it, despite very clear policies in our employee’s manuals that we don’t tolerate such behavior and outlining methods for getting help. There is nothing in EEO law that requires an employee to try to get the problem fixed via internal processes.
As a result, our company can be financially liable for allowing a discriminatory situation to exist that we could not have known about, because it happened in a one-on-one conversations and the alleged victim never reported it.
What I want is a reasonable chance to fix problems, get rid of bad supervisors, etc. A reasonable anti-discrimination law would say that companies have to have a grievance process with such and such specifications, and that no one may sue until they have exhausted the grievance process or when there is no conforming grievance process. If I don’t fix the problem and give the employee a safe work environment, then a suit is appropriate. The difference between this reasonable goal and the system we actually have is lawyers. Lawyers do not want the problem to be fixed. Lawyers want the problem to be as bad as possible and completely hidden from management so there is no chance it can be fixed before they can file a lucrative lawsuit.
November 4, 2013
Sir Humphrey debunks a recent story in the Telegraph which makes a big deal about the British military hiring more lawyers at the same time as they are disbanding front-line units:
The Forces have always needed effective legal support, and arguably the tiny number of military lawyers provides an utterly vital capability. Its not just about the provision of support to people who understand the arcane intricacies of a military law system which is very complex, and very different to our normal law — though this is extremely important. It’s about the provision of people who bring a vital advisory role to Commanders on the ground, and the wider MOD.
Similarly, once the direct fighting is over, UK troops often find themselves operating in a very strange environment — one only has to look at Iraq in the aftermath of the initial war fighting phase to realise that its not a clear cut place to operate. The advice offered by in theatre legal personnel can often make a huge difference in helping commanders understand their freedom to operate, and what genuine constraints may affect them. For instance, on a single tour in Iraq, units may have found themselves conducting everything from searches, checking for IEDS, detaining known individuals through deliberate operations, and then engaging in combat — quite possibly in the same day. The requirement for modern troops to adapt very quickly to all manner of situations places a huge burden on them — it is important that they get the best possible guidance to know they are acting correctly. Certainly in this authors experience on both TELIC and HERRICK, the LEGAD advice was often one of the most critical parts of any potential operation.
The same lawyers provide vital services back home — in the Royal Navy for instance, there are a range of in house experts on the Law of the Sea, international maritime disputes and territorial waters and the like. This may sound questionable, but when the RN is daily conducting counter piracy and counter narcotics operations across the globe, or sailing in possible maritime flashpoints where different nations have very different interpretations of maritime boundaries, having a good legal understanding on hand of the art of the possible is absolutely vital.
September 25, 2013
The Register‘s headline perfectly encapsulates the dispute between Oracle/American Express and a high-end strip club:
A San Francisco strip club is suing Oracle after the tech goliath refused to pay a $33,540 bill allegedly racked up on the company credit card.
Larkin Street’s New Century Theater has filed a lawsuit claiming a man — named in the legal paperwork as Jose Manuel Gomez Sanchez — slid into the sexy flesh-pit last year and partied through the night.
It’s alleged he used an Oracle-issued American Express card between 1am and 5am to pay for $16,490 of undisclosed services on 2 October — right in the middle of Oracle’s OpenWorld 2012 conference in the city — and then returned two days later to splurge $17,050.
According to the San Fran Chronicle, Oracle was not willing to settle the subsequent bill. The database giant, easing itself into the software-as-a-service market, declined to comment on the lawsuit, which was submitted earlier this month to the Superior Court of California in San Francisco. The next hearing will take place in February. Sanchez is named as a defendant along with Oracle.
I’m not a lawyer, but it strikes me as a bad idea for Oracle to dispute the charges on the Amex card unless there are strong indications of “creative” billing on the part of the strip club. Just because they disapprove of how their employee racked up the charges doesn’t mean they can stiff the vendor.
September 18, 2013
The more we discover about the process of memory formation and recall, the more we discover that our memories are more fallible and plastic than we believed. Elizabeth Loftus talks to Alison George about the problem of false memories:
AG: How does this happen? What exactly is going on when we retrieve a memory?
EL: When we remember something, we’re taking bits and pieces of experience — sometimes from different times and places — and bringing it all together to construct what might feel like a recollection but is actually a construction. The process of calling it into conscious awareness can change it, and now you’re storing something that’s different. We all do this, for example, by inadvertently adopting a story we’ve heard — like Romney did.
AG: How did you end up studying false memories?
EL: Early in my career, I had done some very theoretical studies of memory, and after that I wanted to [do] work that had more obvious practical uses. The memory of witnesses to crimes and accidents was a natural place to go. In particular I looked at what happens when people are questioned about their experiences. I would ultimately see those questions as a means by which the memories got contaminated.
AG: You’re known for debunking the idea of repressed memories. Why focus on them?
EL: In the 1990s we began to see these recovered-memory cases. In the first big one, a man called George Franklin was on trial. His daughter claimed she had witnessed her father kill her best friend when she was 8 years old — but had only remembered this 20 years later. And that she had been raped by him and repressed that memory too. Franklin was convicted of the murder, and that started this repressed-memory ball rolling through the legal system. We began to see hundreds of cases where people were accusing others based on claims of repressed memory. That’s what first got me interested.
AG: How did you study the process of creating false memories?
EL: We needed a different paradigm for studying these types of recollections. I developed a method for creating “rich false memories” by using strong suggestion. The first such memory was about getting lost in a shopping mall as a child.
AG: How susceptible are people to having these types of memories implanted?
EL: Depending on the study, you might get as many as 50 percent of people falling for the suggestion and developing a complete or partial false memory.
As I’ve mentioned before, the more we learn about memory, the less comfortable I am with the belief that eyewitness testimony in criminal cases is as dependable as our legal system assumes. There are definitely large numbers of people in prison based on eyewitness accounts … some of which are almost certainly false memories (but believed by the witness to be accurate).
AG: Is there any way to distinguish a false memory from a real one?
EL: Without independent corroboration, little can be done to tell a false memory from a true one.
AG: Could brain imaging one day be used to do this?
EL: I collaborated on a brain imaging study in 2010, and the overwhelming conclusion we reached is that the neural patterns were very similar for true and false memories. We are a long way away from being able to look at somebody’s brain activity and reliably classify an authentic memory versus one that arose through some other process.
AG: Do you think it’s important for people to realize how malleable their memory is?
EL: My work has made me tolerant of memory mistakes by family and friends. You don’t have to call them lies. I think we could be generous and say maybe this is a false memory.
July 20, 2013
“A man walks down the street in that hat, people know he’s not afraid of anything” – except copyright lawyers
At TechHive, Leah Yamshon talks about the fuzzy edge of law in the fan community:
Undying devotion to your favorite TV show can lead to much worse than a sedentary life parked on the couch. For Stephanie Lucas, it threw her right in the middle of an intellectual-property lawsuit: In March she was hit with a cease-and-desist order from 20th Century Fox Television.
Her actionable offense? She was selling a knitted hat inspired by a Fox TV show on Etsy.
Lucas is a member of the Firefly fan community, a group dedicated to Joss Whedon’s short-lived “space western” series that originally aired on Fox. “I’m absolutely in love with this show and its characters,” Lucas says. And thus her shop features one special item dedicated to her fellow Browncoats (a nickname for the Independence fighters in Firefly, and now for the fans themselves).
Fans who had been knitting these hats for years were now screwed, thanks to Fox’s claim that they broke the law after the official version debuted. But which law?
“Merchandising rights is a monster that has grown without any proper legal backing,” says Madhavi Sunder, a professor of law currently at University of California, Berkeley, with a specialty in intellectual property and culture. “Under traditional copyright law, the exclusive right to make these goods is not there,” she says. The U.S. Supreme Court has made no rulings in regard to merchandising rights, so intellectual-property violations have to be considered on a case-by-case basis.
Intellectual property is protected under both trademark and copyright, but the two concepts are different: Trademark protects names, terms, and symbols used to identify an original work or brand, and copyright protects the creative work itself. According to U.S. copyright law, the only groups with the right to distribute works based on an original creation are copyright holders. So, technically, only the original story creators are allowed to make pieces featuring images and concepts for which they hold the copyright.
July 16, 2013
The defining characteristic of English law is its distribution of power between prosecutor, judge, and jury. This delicate balance has been utterly corrupted in the United States to the point where today at the federal level there is a conviction rate of over 90 percent — which would impress Mubarak and the House of Saud, if not quite, yet, Kim Jong Un. American prosecutors have an unhealthy and disreputable addiction to what I called, at the conclusion of the trial of my old boss Conrad Black six years ago, “countless counts.” In Conrad’s case, he was charged originally with 17 crimes, three of which were dropped by the opening of the trial and another halfway through, leaving 13 for the jury, nine of which they found the defendant not guilty of, bringing it down to four, one of which the Supreme Court ruled unconstitutional and the remaining three of which they vacated, only to have two of them reinstated by the lower appeals court. In other words, the prosecution lost 88 percent of the case, but the 12 percent they won was enough to destroy Conrad Black’s life.
Multiple charges tend, through sheer weight of numbers, to favor a result in which the jury convict on some and acquit on others and then tell themselves that they’ve reached a “moderate” “compromise” as befits the reasonable persons they assuredly are. It is, of course, not reasonable. Indeed, the notion of a “compromise” between conviction and acquittal is a dagger at the heart of justice. It’s the repugnant “plea bargain” in reverse, but this time to bargain with the jury: Okay, we threw the book at him and it went nowhere, so why don’t we all agree to settle? In Sanford, the state’s second closing “argument” to the strange, shrunken semi-jury of strikingly unrepresentative peers — facts, shmacts, who really knows? vote with your hearts — brilliantly dispenses with the need for a “case” at all.
Mark Steyn, “A Dagger at the Heart of Justice”, National Review, 2013-07-15
June 7, 2013
In The New Yorker, Tim Wu suggests some lines of counter-attack to use against patent trolls:
There are good laws in place that could fight trolls, but they sit largely unused. First are the consumer-protection laws, which bar “unfair or deceptive acts and practices.” Some patent trolls, to better coerce settlement, purposely misrepresent matters such as the strength of their patents, the extent of other settlements, and their actual willingness to litigate. Second, there are plenty of remedies available under the unfair-competition laws. Some trolls work by aggregating an enormous number of patents, and then present the threat that one of their thousands of patents might actually be valid. The creation of these portfolios for trolling may be “agreements in restraint of trade” under Section 1 of the Sherman Antitrust Act, or they may “substantially lessen competition” under the Clayton Antitrust Act. More generally, the methods of the trolls are hardly what you would call ordinary methods of competition; they should be considered, rather, what the Federal Trade Commission calls “unfair methods of competition” under Section 5 of the F.T.C. Act. The Commission has the power to define and punish methods of business that are inherently harmful with few or no redeeming benefits, and that’s what trolling is. Finally, it is possible that the criminal laws barring larceny and schemes to defraud may cover the conduct of some trolls.
Unfortunately, other than in Vermont, these laws remain largely unenforced, for reasons that aren’t particularly good. Trolls, to switch metaphors, are like cancer cells: they mimic ordinary activity, namely the assertion of patent rights. A war on trolls could become a war on patent holders in general. Since the line between the two can be fuzzy, the argument is that war might deter some real invention. It might, for example, lump universities in with the extortion artists.
But that justifies caution, not inaction. All law enforcement involves this problem of sorting. There is a narrow line between the legitimate trader who knows the stock market well and the criminal inside trader, yet that doesn’t mean securities laws should be left unenforced.