Tuesday, November 23, 2010

"I have a life to live."

One of my most vivid memories of our contracts class was our professor joking on one occasion that whenever he signed a car rental agreement he wondered what he was agreeing to in the car rental company's contract. He also joked that he envisioned headlines like "Contracts Professor Doesn't Read Contract" if it turned out that the car rental contract contained some outlandish provision.

He is not alone in not reading the contracts he signs. Josh Blackman reports that two of the country's most famous appellate court judges, Frank Easterbrook and Richard Posner, have fessed up to not reading contracts that they have signed. Judge Easterbrook's quote is particularly memorable. In discussing the RESPA documents he signed as part of his recent home purchase, Judge Easterbrook said "I didn't read one word. I have a life to live." Having recently bored myself silly on these documents as part of refinancing my home, I wish he would have said this a month ago so that I would have had some persuasive authority to rely on when I tried to get out of reading them.

Saturday, November 20, 2010

"And, now because he burned his junk, a faceless bureaucrat can see yours."

A case against the new airport security regime.

I have to admit that I don't have a strong emotional reaction against the body scanners, at least not from the "bureaucrats seeing my junk" perspective.  (The thought of bureaucrats seeing my junk just makes me feel sorry for them.)  Also, the reports of the alternative "grope downs" just remind me of the airport security methods I encountered in Amsterdam.  I survived.  Kind of fun, really.

But it does seem highly unlikely that any of this actually makes us any safer.  As Jeffrey Goldberg reports, this kind of airport security amounts to little more than a sham -- just "security theater" designed to make us feel safer while catching only the stupidest of terrorists.  On that basis alone, I oppose increasingly invasive security measures.

Wednesday, November 17, 2010

Mixed messages

Not too long ago, I noted here the backlash against "Four Loko" -- a malt beverage containing a lot of caffeine.  I lampooned the idea that this combination is particularly pernicious.  But today the Food and Drug Administration of the United States federal government saw fit to intervene in this space, basically banning the malt-beverage-energy-drink category.

As I read through the story of this administrative action in the New York Times online, I couldn't help thinking back to another story I read in the New York Times recently:  a story about coffee-based cocktails.  Although the author of that piece noted the controversy surrounding Four Loko (et al.), there was no sense of the moral panic that for some reason surrounds the spiked energy drinks. 

How to explain this discrepancy?  I'm sticking with that old standby:  hysteria.

Monday, November 15, 2010

"Driver in fatal crash sues victim's parents"

That's the headline of an article in today's Chicago Sun-Times.  I think it's a bit overwrought. 

Here's what happened.  A 14-year-old boy who was riding his bike was struck and killed by a car.  The driver of the car was charged with, and convicted of, manslaughter because he was found to be driving recklessly.  He was sentenced to ten years in prison.

In addition to the criminal case, the parents of the boy sued the driver seeking civil damages for negligence.  In a counter-claim, the driver is alleging that he is not liable because of the parents' contributory negligence--specifically, allowing their son to ride his bike without a helmet on. 

In response to the counter-claim, the mother is quoted as saying, "It drags the pain on.  It's a constant reminder.  Enough is enough.  Can you just leave us alone and serve your time?" 

I sympathize with the mother over her son's very sad death.  But it was she and her husband -- not the driver -- who filed the civil lawsuit.  They cannot get their son back in that lawsuit; all they can get is money.  And supposedly they are seeking only $15,000.  If closure is really what they are after, it can be easily had:  just drop the lawsuit.

Friday, November 12, 2010

An unusual reason to get out of jury duty? Maybe not.

One of the more difficult things for a new lawyer to figure out is jury selection (or at least it was for me). I think most people, i.e., non-lawyers, are aware that certain kinds of bias can automatically get you out of jury duty. This is called a "strike for cause." The way courts and lawyers find out about juror bias is through a process called voir dire. There is also a procedure called a peremptory challenge, but the peremptory challenge isn't relevant to this post.

Cartoonist John Backderf describes his recent experience being struck from a jury pool here (you have to scroll down to the November 1, entry as his blog doesn't seem to allow links to entries by date). According to Mr. Backderf, the questions he was asked and his responses went like this:

The judge started off with questions for each juror. First question: do you know anyone who has been convicted of a crime? Almost ALL the jurors and alternates raised their hands. So he goes down the line for details.

. . .

Then he gets to me.

"I had a friend who killed 17 people."

Stunned silence. All eyes turn. Asst. prosecutor's head snaps up from his notes. Judge stares at me open-mouthed. I tell them who. "Wow," says the judge.

Further questions. What do you do for a living? Your spouse? Do you have strong opinions about the police? When the queries are finished, here is my summary:

Once drew a cartoon of the county prosecutor in a diaper? check.

Married to a local newspaper columnist? check.

Anti-authoritarian paranoid and conspiracy theorist? check.

Gave Jeffrey Dahmer rides home from school? check.

Thank you, Mr. Backderf. You are dismissed

Anyway, Mr Backderf, and others who have mentioned the case, surmise that the reason Mr. Backderf was dismissed from jury duty was because of his friendship with infamous serial killer Jeffrey Dahmer. I am not sure this is correct. Mr. Backderf is in the jury pool for a criminal matter. He doesn't say, and perhaps doesn't know, what type of crime is being tried. He makes a reference to the "Common Pleas Court" which I interpret to mean the Cuyahoga Court of Common Pleas. So it appears the defendant has been charged with a felony.

In any event, given that he tells the court that he once drew a cartoon of county prosecutor wearing a diaper, and that he admits to being anti-authoritarian and a conspiracy theorist, it seems more likely to me that the answers to those two questions are what got Mr. Backderf struck from the jury. It can't be that being friends in high school with someone who later became a serial killer gets one an automatic out from jury duty? It seems more likely that the judge thought the cartoon and difficulties with authority would be enough to strike a member of the jury pool for cause in a criminal matter.

What do you think Mr. Torvik? If you were a judge would you remove friends of serial killers for cause from your jury pools?

Monday, November 8, 2010

Inflammatory stupidity is only a privilege on one's own time.

Michigan Attorney General Mike Cox has fired Andrew Shirvell. A discussion of the very odd blog Mr. Shirvell created is here. As Mr. Torvik noted at the time Mr. Shirvell's antics came to light, Mr. Shirvell couldn't be fired for what he wrote on his blog because that would violate the First Amendment. However, it would appear that Mr. Shirvell was writing his blog when he should have been working for the taxpayers of Michigan. Thus, Mr. Shirvell was not fired for something he said, he was fired for when he said it. As Nigel Tufnel once said, there is a fine line between clever and stupid.

Effective Advocacy Doesn't Require You to be a Jackass.

Jason Brown recently wrote a post for JDs Rising, a blog for new lawyers in Minnesota, setting out why it pays to be courteous. While I don't agree with his contention that being a rebel or an outsider is synonymous with being a jerk, I do agree that there is no reason to be unpleasant to opposing counsel, their staff, or court staff. The last of these three categories cannot be stressed enough. There is no upside to being unpleasant to the court's support staff. Sometimes, that will get you sanctioned.

Friday, November 5, 2010

Judicial Elections are Always a Bad Idea.

Back in August, Mr. Torvik predicted that the three Iowa Supreme Court justices facing retention election would win their respective elections. These retention elections were a big deal because of the Iowa Supreme Court's 7-0 decision finding a right to same sex marriage in the Iowa Constitution. As an aside, pages 17 and 18 of that decision give a brief history of civil rights in Iowa that should make every Iowan, or former Iowan, proud.

In any event, out-of-state special interest groups, such as the National Organization for Marriage, combined with failed Iowa gubernatorial candidate Bob Vander Plaats raised about $700,000 to support a campaign to convince Iowans that the three justices standing for retention election this year should lose. It worked. All three justices lost their retention bid. This is remarkable given that no judge had lost a retention bid in the 48 years that Iowa has had that system.

Thursday, November 4, 2010

What The Country Needs is 5,500 More Members of Congress.

Mr. Torvik asks what I think increasing the number of congressional districts from 435 to 6000. I think that is an excellent idea in the sense that more representatives means more direct democracy. That said, I don't think an increase in the number of representatives would have the affect Mr. Magliocca discusses in his post. He writes that increasing the size of the House of Representatives by doubling it would:

This would accomplish the goals of both campaign finance reformers and libertarians. First, the cost of each campaign would go down because House districts would be smaller. Second, special interest groups would find it much more expensive to wield clout within a legislature. They would have to donate twice as much, in effect, even though the demand for money from candidates would be lower. Third, the influence of any single member would be reduced in a larger legislature, due to the higher transaction costs for public action, and would thus make it harder for a member to make a credible promise of a benefit to a donor.
The problem is that his theory is I don't have any idea why it would cost twice as much to wield clout with Congress. If the cost of the elections goes down, the money the needed to fund the election goes down and the amount needed to "wield clout" with a particular candidate goes down. One might respond that the number of congresspeople is increasing so the amount a special interest needs to spend will increase. However, as the supply of congresspeople goes up, one assumes that the price for a congressperson will go down because the demand for any particular congressperson goes down. One might just as easily say that there will be no change in the price for the special interest. As for his suggestion that it would be harder for a member to make a credible promise to the donor, I am under the impression that often the donor is only seeking a vote. The congressperson would still be able to make that promise.

Finally, as for thirty-thousand.org's suggestion that we create four new federal cities to house the additional 5,500 members of congress, I don't think much of that idea. It seems to me that the representatives should just adopt the suggestion former Wisconsin governor Lee Dreyfus made over 30 years ago: they should legislate from their home district. With modern technology, there isn't a need to force all members of congress to one, or four, cities.

Wednesday, November 3, 2010

We don't want judges to be judicial activists until we want them to be activist judges.

I have been pondering a lawsuit, and the ensuing outrage, that our friend over at Minnesota Environmental Lawyer brought to my attention.

As initially reported in the New York Times, a trial court judge recently ruled that a four-year-old girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

As Professor Weissbrodt would say, the procedural posture of the issue for decision was that the court was ruling on a motion to dismiss. The undisputed facts are as follows. A four-year-old girl and a five-year-old boy were racing their bicycles, under the supervision of their mother, on the sidewalk of a building on in Manhattan. At some point in the race, they struck an 87-year-old woman, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes. As an aside, it has been my experiences that once an elderly person breaks hip, things tend to deteriorate rapidly.

In any event, the woman’s estate sued the children and their mothers, claiming they had acted negligently during the accident. The girl’s lawyer moved to dismiss, the boy’s lawyer did not. The girl’s lawyer apparently made three arguments in support of the motion: (1) the girl was not engaged in adult activity at the time of the accident; (2) the girl was under the supervision of her mother at the time; and (3) that the girl was too young to be held liable for negligence. The Court denied the motion. I assume the court did so because New York Civil Practice Law and Rules only require that, “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR § 3013. And that, “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” CPLR § 3014; see also Colon v. Bernabe, 2007 U.S. Dist LEXIS 51981, 2007 WL 2068093 [SD N.Y.2007] (finding that “[b]oth the C.P.L.R. and the Federal Rules require only a short and plain statement of the claim showing that the pleader is entitled to relief'); Brown v. Luk, Inc., 1996 U.S. Dist LEXIS 7173, *14, 1996 WL 280831 [ND N.Y.1996] (finding that “the pleading requirements of New York's Civil Practice Law and Rules ... are more lenient than the Federal Rules of Civil Procedure”).

As to the three specific arguments, the Times article doesn’t report as to how the first one was handled and I am unable to find a copy of the order. With respect to the second argument, the court said that a “parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street.” Moreover, any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable. Predictably, given the posture of the motion, there was nothing to suggest that the girl’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here.” he wrote. Moreover, there was no evidence demonstrating the girl’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.” Finally, as to the third argument, the court noted that in New York there is a presumption that a child under 4 is too young to be sued. Since the girl was almost five when the accident occurred, the Court noted there was no “bright-line rule” preventing the suit and declined to extend the existing precedent to children past the age of four.

The court’s ruling has caused several people’s head to explode. The New York Daily News said that the judge on the case was an “idiot”, whose ruling was “nutty”, and that he “needs a set of training wheels on his brain.” Jeff Vrabel, a columnist with the Gatehouse News Service, sarcastically says that the judge exercised “the stout-hearted, flame-broiled foresight,” in denying the motion.

Finally, the folks at the lawyersandsettlements.com, whom I presume are lawyers, really do not like the ruling calling it “silly” and implies that the judge is insane by referring to a “brief moment of sanity." The post goes on to offer three reasons why the suit should have been dismissed: (1) a four-year-old “may ‘get’—to some degree—that barreling into someone on a bike may not be a good thing; in fact, may cause harm—but they don’t understand the full extent of their actions and the subsequent harm;” (2) the parents are responsible, not the child; and, this is my favorite, “It’s 2010, not 1928.”

With regard to the third reason, the author writes:

My guess is that since a woman’s life expectancy in the 1920’s was about 56.4 years, a four-year-old would’ve already lived about seven percent of her little life and, therefore, must have been on a some serious maturity trajectory—vs. today, where women have a life expectancy of about 80 years (give or take) and a four-year-old would have logged only five percent of her years thus far. Let’s also add in things like the fact that most women were married off and managing their very own broods by the time they entered their 20’s in the ’20’s. Shall I even bring up child labor laws (or the non-existence of them) in the 1920’s?
Setting aside that the author does not understand that life expectancy was lower in 1928 because of infant mortality not because people who survived infancy died younger, can a lawyer seriously believe that an apparently binding precedent does not apply because a four-year-old in the 1920s was closer to death than a four-year-old in 2010. Does that make any sense?

People make a big deal about judges being “activist” and ignoring precedent. We are told they are bad judges. Indeed, at every Supreme Court confirmation hearing I can recall, the nominee was asked about the importance of following precedent. So what happened in this case? A judge declined to extend a rule of law beyond where it was set eighty years ago (and apparently left undisturbed by the New York legislature during that time), followed the precedent, and got excoriated for it. Sometimes one can’t win for losing.

Monday, November 1, 2010


Gallup speculates that there may be an unprecedented Republican rout in the House of Representatives:
[T]his year's 15-point gap in favor of the Republican candidates among likely voters is unprecedented in Gallup polling and could result in the largest Republican margin in House voting in several generations. This means that seat projections have moved into uncharted territory, in which past relationships between the national two-party vote and the number of seats won may not be maintained.