OK silly reporters, Mr. Robinson does NOT own the house on which he's attempting adverse possession.

The story of Mr. Robinson paying $16 for a mansion is making the rounds on the internet. The reason I am writing about it is that even Gizmodo has the piece. The normally thoughtful blog is caught up by reading headlines.

Mr. Robinson has filed a petition for adverse possession in Texas, cost $16, that would permit him to claim ownership of the house in several years if nobody sues to get him out. The mortgage company foreclosed on the house and went bust so the successor to the company's interests can oust Mr. Robinson and I imagine it will. So the headline should have read: Area Man Pays $16 to Squat. Might Win Jackpot in a Few Years.

Seriously, adverse possession is a holdover in American law. It is possible that 1-2 properties a year convert ownership under this method, but it takes years (around 10 in most places) to complete a claim of adverse possession, so it is rarely successful.

Incidentally, adverse possession has one of the better legal standards. The squatter's possession of the land must be 'open and notorious.' That is, you cannot conceal your possession and - to the contrary - there must be clear signs of your possession. Mr. Robinson certainly has the notorious part down.

If you are going to be a polygamist, just get one civil marriage. Right on.

The stars of "Sister Wives" are suing Utah (I believe) to challenge its polygamy law. (http://www.nytimes.com/2011/07/12/us/12polygamy.html?hp&gwh=D5C4EEAD2836F3E56DFAE7434FE6AB56). The family (families? Honestly, I have no idea.) were said to be under investigation in Utah for violating the law.

First off, that's odd given that the Utah attorney general's office explicitly states that law enforcement has no intention of focusing on enforcing those laws. (http://attorneygeneral.utah.gov/polygamy.html). I guess when you are flaunting it...

Second, the 'Utah Polygamy Law' is not merely a law, it article 3 of that state's constitution, included as a condition of statehood: (http://le.utah.gov/~code/const/htm/00I03_000100.htm)

First: -- Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited. .

Third, I happen to come down on the polygamist's side on this one. Here's how:

A. The Brown families have between them 1 civil marriage. The rest are religious marriages only.

B. While I admit that the intent of the Utah Constitution Article must have been to foreclose this loophole, I am not sure it can. Even if you say that the article prohibits religious polygamous marriage in addition to civil polygamous marriage, nothing prevents a man from simply taking up with several women, siring children with them and cohabiting. No stated marriage of any kind. There is no prohibition against "practical polygamy" or what I guess we'd consider polyamory.

C. As is clear from the paragraph above, the only thing the state must be targeting is religious polygamous marriage as it already makes bigamy illegal in the civil context. That raises some serious freedom of religion issues.

D. And yet, none of that forms the center of the current legal challenge, which relies on Lawrence v. Texas, in which two gay men were targeted by a neighbor who phoned in a fake weapons charge to get the two caught in flagrante delicto (don't you just love that phrase?). The Supreme Court held that laws targeting the sexual proclivities of consenting adults violate the due process and equal protection clauses of the U.S. Constitution.

Nice choice. Seems pretty clear cut that if you cannot make a threesome illegal for a man, married or not,you shouldn't be able to make the same act illegal just because the man claims a spiritual relationship with both women. (That would, for example, invalidate a lot of the early 1970s).

But, I can hear the nabobs nattering, this isn't about sex, it is about the rest of the relationship - the holding out oneself as head of many households. For that we go back to religion. How, forsooth, is being the head of multiple households of unmarried women different from a man who has multiple children out of wedlock and visits them all? Indeed, if that man were as involved as this man, we'd applaud him. Which means what we really don't like is the religion. See Article 1.

E. And a postscript: There are many things to dislike about polygamous communities in the U.S. as it pertains to individual rights, child abuse, and so on. The thing is, much of that is not a function of polygamy per se, but of the oppressive communal norms that attend it. Utah and other states focus on those violations as they should. Look, we don't outlaw rap or first round NFL draft pick-ed-ness or NASCAR or islam or fundamentalist christianity or ultra orthodox judaism or first generation immigrants because the incidence of domestic violence is higher in those communities. I admit there are efforts on that last one. We target the action itself and lay down a rule of law. The communities in question learn to respect that law and come to prize it. That is what makes America great.

Iran to permit victim of acid burning to blind her assailant. What is the ethical thing to do?

http://www.guardian.co.uk/world/2011/may/13/iran-blind-criminal-acid

[First off, the latest I have is that this has been postponed.] The facts are pretty simple: Woman spurns her lover. He stops her on her way home and throws acid in her face, disfiguring and blinding her. It is part of a rash of such attacks in Iran.

The court awards her monetary damages and considers a physical penalty. She rejects the money and asks that he be blinded with acid - a literal 'eye for an eye' under Sharia law. The court allows it if the assailant is rendered unconscious and the victim uses droppers to drop the acid into his eyes. Gross, I fully admit.

But...what is the ethical thing to do here?

Progressive ethics says, "This is barbaric. Don't." I can't count current American ethics as progressive. Killing a person permits one to be killed; that's the granddaddy of them all, so arguing that lesser punishments for lesser crimes are somehow worse than the death penalty is illogical. American's wouldn't abide by disfigurement as a punishment owing to some mix of the Scarlet Letter and the Eighth Amendment. Still, I think an honest look concludes the position is inconsistent.

And what of the rash of such attacks? The death penalty does not deter murder, but could disfigurement deter disfigurement? I guess that's where the Scarlet Letter does make a difference. A murderer doesn't have to live the death penalty. If the American position that disfigurement is potentially worse than death is credible, then perhaps it could have real deterrent power. So, again, is such a punishment ethical?

I'll put in my opinion: Don't do it and work on the rule of law. Punishment to prevent injury was effective when policing could not deter crime as effectively as it does today. If a man who throws acid knows that he has a better than even chance of rotting in prison, he doesn't do it. I understand that achieving strong rule of law takes time, but the only way to have it succeed is for everyone to act as if it exists until it does. Acts like this erode it.

NYC Considering A Smoking Ban in Public Parks

NYC is a small city, which means that Central Park is crowded - very crowded. Sheep's meadow at the base of the green rectangle looks more like Waikiki beach on summer weekends than it does its pastoral namesake.

In that context, I understand the proposed ban on smoking. Having someone light up 3 feet away there is not much different from having someone light up at the next table in a restaurant. It'd ruin the whole experience for me.

That said, Sheep's meadow is one place at one time. There are a few more select spots with this type of outdoor population density: Screen on the Green...the north (and now south) sections of the Great Lawn on Shabbat afternoon. In any other context, a smoking ban seems, well, needlessly paternalistic. Times Square is more crowded on a regular basis. Shouldn't we ban smoking there first? Same goes for most NY city streets at commuting hours and at lunch. Same deal? If the reasoning can't be applied consistently in city ordinances, I say drop it. Heck,the expense of putting up no smoking signs in all the parks is enough to sully the notion in my mind.

People of Walmart - legal.

www.PeopleOfWalmart.com is the latest addition to the embarrassing reflections of modern life segment of the blogosphere already populated by www.cakewrecks.com, www.thisiswhyyourefat.com, and, most famously, www.failblog.org. Indeed, it appears that the authors have decided that instead of focusing on the product of our ineptitude, they'd point the camera at the inept themselves.

Why is this here? Because the upsurge in interest has caused people to ask whether the site is legal. Specifically, they ask if including these people's photos is defamatory. First, truth is a complete defense to a claim of defamation. Done. That said, the question was not asked by a lawyer, so lets look at "defamation" claims in the vernacular sense, including portrayal in a false light, public disclosure of private facts, and privacy. These photos are not flattering, but they don't seem to take anything out of context. Scratch false light. To be liable for outing private facts those facts need to be private. I imagine the decision to wear some of these outfits in public does away with the expectation of privacy. Finally, there is the right to privacy. Generally, it was created for public figures, not regular people. It is meant to defend against reporting of fact that is nonetheless private. It doesn't really apply to the average person. Moreover, it generally doesn't apply to photos taken in public - you were out in public. You can't expect that to remain private.

Let's get one thing straight - the law protects you from embarrassment from that which is untrue or which you make an attempt to conceal. If you're embarrassed by seeing what you do in public reflected on the screen and it makes you unhappy, isn't that why we humans developed the emotion in the first place? The law has done nothing to change that.

Gimme Some of that Ole' Time Law-Talk

I was researching the satire/parody distinction in copyright today. (A quick primer: Copyright permits others' "fair use" of the material so that (c) does not inhibit communication in the same way patent can stymie innovation. Fair use includes newsworthy content, etc. Parody is permitted as a fair use because criticism of a thing often requires creating a likeness of the thing itself. Satire, which is using something to criticize something else, is generally not permitted.) Not surprisingly, the distinction is eroding because it is hard to demarcate. In the mean time, lawyers have to rationalize their client's work as parody as best they can. Witness this beauty of a parenthetical explanation:

Abilene Music, Inc. v. Sony Music Entm’t, Inc., 320 F. Supp. 2d 84,

89–92 (S.D.N.Y. 2003) (commenting first that the relevant inquiry

was not whether rapper Ghostface Killah intended his song as a

parody of Wonderful World but whether the song differs from the

original in a way that may reasonably be perceived as commenting

on what a viewer might reasonably think is the unrealistically

uplifting message of Wonderful World, and consequently holding

that Ghostface Killah’s song could be perceived as commenting on

the innocence reflected in the lyrics of the original, in order to

drive home its hard-knock life message more effectively);

- http://www.abanet.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

Sotomayor

Pundits are making a lot of the fact that the Supreme Court this morning overturned the decision of a judicial panel that included Supreme Court nominee Sotomayor. The decision was Ricci v. DeStefano - an 'odd' civil rights case in that it was brought by white folk, specifically firefighters. A more detailed description appears in the link.

The pundits have it backwards. The fact that Sotomayor was overruled shows just how right she is for this spot on the Court. She has been nominated to replace Souter, who took the same side Sotomayor did . . . and lost today. If the conservative Court had upheld the ruling, perhaps we'd have something about which to talk.

Whores of the Court

No, not the Kagan snoozer about abuses in expert testimony. This is about a client suing her attorney (this is London, so he's a Barrister) for fraudulent billing practices. She had reason to suspect he wasn't working at his desk for some of that time because she happened to splayed out on it with him in flagrante delicto. So Ms. Anal Sheik sued. I know, I know. Personally, I don't stray any lower on the fashion scale than Shabby Chic, but there's no accounting for taste.

I couldn't help it. Ask yourself: Could you?

So Then We Acted Unethically...And It Worked!

Covington and Burling, a big law shop, hosted a panel on congressional investigations. This is one of those events to which everyone goes more because it is like a Michael Lewis book come to life and less because you might ever need to apply the knowledge. I mean really, representing clients before Congress is about as common as appearing before the Supreme Court...with a similarly inverse proportion of people who would love to do it - in the abstract.

Fmr. Congressman Mike Barnes shared this tidbit: My client didn't want to produce a document, but we couldn't withhold it, so instead we produced thousands of pages in the hopes this one wouldn't be noticed. If ethics is ends justifying means, he is a saint. If ethics means avoiding needless waste, particularly with Congress - the party of which Mr. Barnes was formerly a member and which oversees the public fisc - this is, at best, abusive. I get it, it works. Lawyers do it all the time in discovery. But lawyers tend to produce everything first and review later (except for privileged items). If you review first and you know which documents are relevant, and then go out of your way to pile on additional documents just to obfuscate, is that (we'll use a lighter term here) ethical?

I Couldn't Do It If You Paid Me.

A CA court has ruled that Lifelock's practices violate fair business practices. This could sound the death knell for this company and any others like it.

The company, which famously lists its owner's social security number in its ads and dares people to try to steal his identity, places fraud watches for its clients every 90 days with various credit agencies. Fraud watches require anyone trying to open a credit line for the person in question to take additional steps to verify that the person knows and consents to the credit line. This, of course, costs financial services companies money, which led Experian to sue Lifelock. Experian claimed that Lifelock was placing Fraudwatches on accounts by posing as the consumer. I don't know more than is in the story, but it seems to me that anyone acting as my agent should be able to "pose" as me, particularly where I have given the credentials they need in order to do so.

We'll see how this plays out.

When Worlds Collide

I spend about 1/3 of my daily reading on professional (read: legal and financial) materials, 1/3 on news, and 1/3 on tech/miscellaneous. This blog represents stories from each of those slices, though the three remain largely distinct. So imagine my surprise when www.Gizmodo.com, my tech blog of choice, blogged a story out of Wisconsin about GPS and the Fourth Amendment.

Wisconsin cops wanted to track a suspected stalker, so they attached GPS to his car while it was parked in his driveway and recorded it for five weeks. Thing is, they didn't have a warrant. The defendant cried foul under the Fourth Amendment (search & seizure), but the court (and the court of appeals) thought otherwise. The 3-judge panel unanimously held that police didn't need a warrant to obtain what they could have otherwise obtained by public suveillance. You only need a warrant to enter a location where the suspect would have an expectation of privacy, such as a home or office. To their credit, the jurists were uncomfortable with this result and requested that lawmakers consider limiting the practice. After all, police can slap hundreds of these bugs on trains, planes, and automobiles and track them all at one terminal, greatly increasing their surveillance capacity. Sure, it makes catching bad guys a cinch, but it also has a bit of that detached, big-brother quality that makes us all a wee bit uncomfortable. (Not Justice Scalia, of course).

The ironies of this story are not lost on me. First, defendant here complained that the police should not be allowed to do to him what he was doing to the woman he was stalking, and, second, how is it illegal for a private citizen to track another's movements in public when police can do exactly the same thing without a warrant? (The second point is actually moot; stalking usually requires that the party have intent to cause alarm and does, in fact, cause alarm - from CT).

A Law School Final If Ever There Was One

It had to happen. Someone has tracked the legal misdeeds, including citations to the particular sections, in Ferris Beuller's Day Off. To you law professors out there: this is a great fact pattern. Just provide a summary and ask folks to spot it. Heck, you can include the breaking and entering by the principle and the dog bite tort for kicks.

Something for All (Well, Most) of My Neighbors

The DC City Council today voted to recognize gay marriages of other states. DC is odd because legalizing gay marriage outright may require Congressional approval, and I don't have to tell you how fun that would be.

I was going to put in a note that some states require you to be resident before you can get a same-sex marriage, but I just looked and nobody has one. MA dropped its requirement in July 2008. The new law in IA doesn't have one.

Whichever side of the debate you occupy, these sure are interesting times.

Steven Lofchie, We Salute You!

Steven Lofchie is the world's most boring man. A tax partner at a New York law firm. He does f0r perhaps fair compensation what nobody in their right mind would want to do, and he does it for about twice as many hours as they'd be able to do it. So imagine our shock (mine and the minds at http://www.abovethelaw.com/) when he wrote a piece lampooning Congress's recent efforts to tax the AIG bonuses. Then, imagine our shock when his firm, Cadwalader, a place not known for its sense of humor, actually published it: PDF HERE.

For lovers of Manny, Marbury, Movies, A-Rod, and the Pats, this is not to be missed.

Yor Doin It Wrong

Chuck Schumer is not happy about the AIG bonuses. Neither am I, but I don't command a bully pulpit and, perhaps if I did I wouldn't use it to make threats. On the senate floor today he invited AIG bonus recipients to return the money, adding, "If you don't return it on your own we will do it for you." How? Taxes:

Rep. Gary Peters (D-Michigan) submitted a bill yesterday which would implement a
60% tax rate on all bonuses about $10 thousand, targeting employees of firms in
which the U.S. government holds an equity stake greater than 79 percent. The
bill is clearly aimed at the excesses of AIG, but is believed to avoid rejection
as a “bill of attainder” since the bill covers any firm in which the government
may hold nearly 80 percent or more ownership stake. Given the current conditions
within the financial industry, it’s not a stretch to imagine other large banks
fitting similar conditions if their liquidity does not improve.

I mean, sure it covers *all* companies in which the government holds an over 80% stake. All one of them. Does that really get you around equal protection?

Think This'll Stop Them?

A DC Vaccine Court (special courts set up just to handle these cases - long story) ruled that vaccines don't cause Autsim. Of course, these cases were brought by people differently-intelligenced enough to think Autism was caused by vaccines - the medical community and its research notwithstanding. Now the government, in the form of a panel of sinewy, obscure "special masters," has conspired to strike down and suppress their claims. I'm sure, now that they've had their day in court, they're gonna let this issue lie -- and spread the good word to their like-minded friends.

[Ahem - got some bile stuck in my throat. ]

Your Honor, I'd Like to File a "Suggestion of Death"

Some things just aren't as good as their names imply. Wonderbread, Titicaca, The Grand Tetons, just to name a few. Still, the names are worth it.

A "Suggestion of Death," follows rather than encourages. Before the substitution of a party can occur (Fed. R. Civ. P 25 for you wonks out there), someone - usually counsel - must enter a statement on the record affirming the party's death. The filing doesn't make it so; rather, it suggests that the court notice the fact on the record.

Where was this in my CivPro class?

First Black President or First Woman President? How About Both?

I am a nerd and a lawyer, that alarming combination known in chemistry circles to spark the creation of eye-glaze, while simultaneously known in the medical community to prompt the seemingly contradictory involuntary eye-roll. Despite the potential for ocular disturbance, let us proceed to the nit-picking!

We dems had a choice. First Black POTUS or First Chick POTUS. For about a minute yesterday, we may have gotten both in the person of SECSTATE Condi Rice. [Spoiler alert: Condi was president after Bush and Cheney ceased to be POTUS and PUREEVIL (at least in office) at noon but before Biden was sworn in at 12:01. Here's the explanation: (HT City Paper)

(1) The 20th Amendment provides that “[t]he terms of the President and Vice
President shall end at noon on the 20th day of January. . . . ”
(2) Art II.,
Sec. 1 Cl. 8 provides that “[b]efore he enter on the Execution of his Office,
[The President] shall take the following oath. . . ”
(3) President Obama did
not take the Oath of Office until about 12:03 pm today, after Vice President
Biden took it at about 12:01 p.m. (Yo Yo Ma and Itzhak Perlman were still
fiddling at noon).
(4) Therefore, there was a brief window (just after noon)
when George Bush and Dick Cheney were no longer President and Vice President,
but Barack Obama and Joe Biden also were not yet qualified to enter on the
Execution of their offices.
(5) The Presidential Succession Act, 3 U.S.C.
sec. 19(a)(1), provides: “If, by reason of . . . failure to qualify, there is
neither a President nor Vice President to discharge the powers and duties of the
office of President, then the Speaker of the House of Representatives shall,
upon his resignation as Speaker and as Representative in Congress, act as
President.” Section 19(b) states that the President Pro Tempore of the Senate
shall act as President (under the same terms and conditions) if the Speaker of
the House fails to qualify.
(6) Neither Nancy Pelosi nor Robert Byrd actually
resigned their seats in the Congress. Thus, neither of them qualified to become
Acting President under the Presidential Succession Act. Plus, interbranch
appointments might be unconstitutional anyhow. See Akhil Reed Amar and Vikram
David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev.
113 (1995); but see Howard Wasserman, Structural Principles and Presidential
Succession, 90 Ky. L.J. 345 (2002).
(7) Section 19(d)(1) of the Presidential
Succession Act provides: “If, by reason of . . . failure to qualify, there is no
President pro tempore to act as President under subsection (b) of this section,
then the officer of the United States who is highest on the following list, and
who is not under disability to discharge the powers and duties of the office of
President shall act as President: Secretary of State . . . ”
(8) Notably,
Section 19(d)(1) does not condition the Secretary of State’s assumption of the
powers and duties of the office of President on resignation of her current
office, nor does elevation of the Secretary of State raise any constitutional
issue of interbranch appointment.
(9) The term of office of the Secretary of
State does not automatically terminate at noon on the 20th day of
January.
(10) On January 20, 2009, Condoleeza Rice was (and is) still the
Secretary of State.
(11) Accordingly, from 12:00 noon until 12:01 p.m. (when
Vice President Biden took the oath of office and became Vice President),
Condoleeza Rice was momentarily the Acting President of the United States, our
first African-American President.
I suppose the obvious counterargument is
that Secretary Rice *also* never took the Oath prescribed in Art. II, Sec. 1,
cl. 8, and thus was no more qualified than Barack Obama or Joe Biden to act as
President at 12:00 noon. But if Secretary Rice was not President from noon to
12:01, then who was?
–Ken KatkinProfessor of LawSalmon P. Chase College of
Law556 Nunn HallNorthern Kentucky UniversityHighland Heights, KY 41099

Clearly, this does not matter, but it is nonetheless interesting.

Mislabeling the Almighty

NY Gen. Business Law Sec. 349 is about Consumer Protection. Sec. 349-A is Observant consumer protection. To wit:

§ 349-a. Observant consumer protection
law. 1. No person selling or exposing for sale any
mezuzah or tefillin which, to the
seller's knowledge, does not satisfy orthodox Hebrew
ritual requirements shall represent, by direct or implied oral or
written statement, that such mezuzah or
tefillin is kosher or meets orthodox Hebrew
religious requirements.

2. No manufacturer, fabricator or importer of mezuzahs
or tefillin shall sell or transfer for
sale any mezuzah or tefillin unless the following truthful consumer
information is printed legibly upon the
article itself, upon its packaging, or upon a label securely
attached thereto: (a) the name and address of the
manufacturer, fabricator, or importer; (b) in the
case of any mezuzah or tefillin that,
in the form reasonably expected to be
sold at retail, is not in accordance with orthodox Hebrew ritual
requirements, the word "non-kosher."

Not too pluralistic, is it?

You're Getting So Bigot!

Shoprite refused to decorate a cake of a 3-y-o boy three days ago. To his mother, "That's sad." Of course, she and the father named the 'lil tyke Adolph Hitler Campbell. Boy, I wish I was making this stuff up.

From a purely academic point of view, can you refuse to put a name on a cake? Sure, you could refuse to put a 'bad word' on a cake citing decency, but here the refusal is based on an objection to the beliefs associated with the name. It is a service offered to the public, so Shoprite can't discriminate ... of course, whites - including white supremacists - aren't a protected class. Or perhaps they post somewhere that they reserve the right to refuse service to anyone. Maybe that's the easy out.

HT: Dan