Thursday, December 27, 2012

Programming note

My access to the Internet is going to be spotty until 2013 so the posting about hanging may be my last one of the year.  Happy New Year to our Reader(s)™!

Wednesday, December 26, 2012

My Christmas Present

I promise a review by next Christmas.

It was 150 years ago today. . .

that the largest mass-execution (or just plain execution, I assume) in United States history took place.  38 men were hanged in downtown Mankato, Minnesota of all places.  It was a mass hanging, so all 38 men were placed on a giant scaffold and hung at the same time.  Some reports say that the men held hands before the gallows dropped.

Tuesday, December 25, 2012

Monday, December 24, 2012

Friday, December 21, 2012

Famous criminal gangs

It used to be that there were a lot of famous criminal gangs.  Ones that easily leap to mind are: (1) the Dalton Gang; (2) the James-Younger Gang; (3) the Wild Bunch; (4) the Dillinger Gang; and (5) the Barrow Gang. Note that all of those gangs come from the Nineteenth and Twentieth Centuries.  We need a Twenty-First Century Gang.  I bring you-courtesy of the New York Times-the Maple Syrup Gang.  They really like pancakes or maybe waffles.

Thursday, December 20, 2012

Torvik on Gillette on Posner on Punishment

Great post, Mr. Gillette. I find it cosmically amusing that you started out your post talking about the first case we read in law school, because I read about this Posner concurrence earlier today and it reminded me of the first thing I remember reading about in Crim Law—a case that involved whether to impose sentences that keep people imprisoned into the senescence. For whatever reason, the case always stuck with me. With the issue in the news I thought, "I should look into that and do a post about it."

Well, I just pulled out my old Criminal Law textbook and found the case (with the help of my Crim Law "outline," which, yes I still have). The case is U.S. v. Jackson, 835 F.2d 1195 (7th Cir. 1987). Incredibly, the memorable part of that case is a concurrence by—you guessed it!—none other than Judge Posner:

Posner on punishment

Mr. Torvik may have a different memory but I am pretty sure that the very first Torts class we had went like this.  We were assigned to read the Case of the Thorns (or Hulle v. Orynge 1466. Y.B.M. 6 Edw. IV, folio 7, placitum 18 for citation freaks). After taking roll,  our professor asked us to identify the "procedural posture of the issue for decision."  He simply went around the room asking that over and over.  It was like the Paper Chase.   People were eventually reduced to blurting out random words and someone, probably Mr. Torvik, finally said a demurrer.  Sometimes, maybe often, the procedural posture is not the most interesting thing about a decision. 

Wednesday, December 19, 2012

A failure of the bureaucracy might result in some justice.

We continue our coverage of the trial of Major Nidal Hasan.  You might recall that Major Hasan's trial for murder in connection to a shooting at Fort Hood has been delayed while the issue of whether Major Hasan should be forced to shave for his trial was appealed.  The end result of the appeals was that the judge who ordered Major Hasan be shaved was removed from the case.  Yesterday, Major Hasan appeared in front of his new judge for the first time.  Let's see how that went.

Tuesday, December 18, 2012

Monday, December 17, 2012

You can't quit, you're fired.

Although I am still feeling pretty unsettled about the shooting in Newtown Connecticut on Friday, I assume that our Reader(s)™ want a diversion from the bad news.  Perhaps something from the judges do the darndest things file.

Saturday, December 15, 2012

The grim satisfaction of being correct.

I emailed Mr. Torvik yesterday that I expected to see some fool on TV arguing that the problem with massacres like yesterday is that the adults at the school were unarmed.  TV did not disappoint.

Late yesterday I got a bellicose email from another attorney about a case.  This struck me as wildly inappropriate given the events of the day.  I am pretty sure the Minnesota legal community shut down on September 11, 2001, and it seemed like legal wrangling could have waited until Monday.  But then it occurred to me that if the lawyer had held off on his email, it would requires engaging in some sort of macabre calculus over how many people have to die in a senseless tragedy.

What do you think Mr. Torvik, should lawyers go about business as usual on days like yesterday?

Wednesday, December 12, 2012

A bad day for organized labor.

One sometimes hears-or reads-people complain that there is not any real differences between the two major political parties and so it does not matter which party wins elections.   We have discussed this fallacy on several occassions.  To add another example to our list, it is hard to see how anyone could look at the news coming out of Michigan and say to themselves there it does not matter who wins an election. 

The Commeowrce Clause

Descendants of Ernest Hemmingway's six-toed cats are subject to regulation by the USDA because they substantially affect interstate commerce.

Reductio cat absurdum.

Tuesday, December 11, 2012

The range of negotiations.

The Associated Press and the ABA Law Journal have the story of an unusual order to mediate.  Judge Stephen Dunn, an Idaho state court judge, has ordered that the prosecution and the defendant to mediate a death penalty case.

When pettifogger is not good enough

Next time you are looking for a pejorative for lawyer, you might try one of these:

Bowyer: or

How did I learn of these words?  A world famous lawyer was once called them.  Specifically, Charles Schulz used them in a Peanuts comic strip on this date in 1981.  You can read the strip here.  A snaffler is one who purloins by devious means.  A nigmenog is a silly or incompetent person.  I am not sure tell why a bowyer-evidently a maker of bows-is an insult for lawyers but I assume that Mr. Schulz knew what he was talking about.

Sunday, December 9, 2012

Rooting for laundry

The university I received my undergraduate degree from beat the university where Mr. Torvik earned his at men's basketball yesterday.  Other (possible) Gillette-Torvik grudge matches were discussed here and here.  This might be more satisfying if I actually cared about basketball.  Mr. Torvik's twitter account is strangely silent about this news.  Perhaps he cannot tweet through the pain.

Saturday, December 8, 2012

Some people just can't stay out of trouble.

Michigan judge Wade "no shame in my game" McCree is back in the news.  We have previously covered the exploits of Judge McCree here and here.  

Friday, December 7, 2012

Life Imitates Art

Rob McCuen, one of the finest musicians and songwriters I know, has a great song called Life Imitates Art.  You can watch it below.  The song was called to mind because of a recent criminal law case imitating art. 

Wednesday, December 5, 2012

Uber Car Service Faces Serious Challenges in Chicago

Uber is a service that allows people to use their smartphones to order—and pay for—a "black car" (limo) or (in some places) a cab. I have never used it, but it gets a lot of good press and seems like a good idea. Uber is essentially an electronic dispatch service between passengers and licensed car or cab drivers. When you need a car, you press a button in the Uber app on your phone (which knows where you are because of GPS) and then Uber gets one of its participating drivers to come get you. When the ride is over, your credit card gets charged by Uber, and Uber pays the driver.

But the service has run into significant legal and regulatory blowback. The taxicab business is a highly regulated cartel in most American cities, so it is governed by rather exacting regulations. It also consists of people and companies who have generally paid good money to get a stake in the cartel. They are not so keen about technology startups that disrupt their money-making processes. So they pressure local authorities to change regulations to make the Uber service illegal. Or they sue Uber directly. Or (as in Chicago) both.

Although Uber is fighting back these challenges in some places—Washington D.C., notably—it faces the full gamut of challenges here  in Chicago: regulatory, legal, and the plaintiffs' bar.

First, Chicago's Department of Business Affairs and Consumer Protection recently proposed regulatory changes that would essentially shut down Uber's limo service in Chicago by preventing it from using a "device" (such as GPS in a smarthpone) to charge by distance traveled or time spent in the car. The regulations seem tailored specifically at Uber, and only Uber.

Uber has responded by urging its users to pressure the powers to be, and to sign a petition. Similar tactics were successful in DC, so there is some hope.

Second, the cab and livery services in Chicago have sued Uber in the Northern District of Illinois claiming that the service violates the unfair competition protections of Lanham Act and Illinois state law. Something notable about the complaint is that it is the first complaint I've ever seen that features embedded tweets. (See paragraphs 7, 32, and 43.)

Uber has retained the Quinn Emanuel firm and moved to dismiss the complaint for lack of standing and failure to state a claim. (The motion was presented today.) The standing argument is that Uber is not a direct competitor of any of the plaintiffs because it is a licensed radio dispatch service and plaintiffs are "taxi licensees, taxi affiliations, and a livery service." The idea, apparently, is that a dispatch service does not directly compete with the actual providers of transportation services, and the plaintiffs therefore cannot possibly prove the direct competitive harm required to have standing in unfair competition cases.

As long as we're talking about Twitter, Uber's lawyers might want to take a look at Uber's Chicago twitter feed, because it currently hails Uber service's as "'Everybody's Private Driver,' an on-demand transportation service." Thus, at the very least, Uber seems to be holding itself out as a provider of transportation services, even if it doesn't actually own any vehicles or employ any drivers.

Third, Uber has been sued in a putative class action in Cook County. That lawsuit alleges that Uber misrepresents the nature of the 20% "gratuity" for the driver added to every taxi bill because, in fact, Uber takes a cut of this gratuity. Uber denies any wrongdoing. Based on the cryptic online docket, it appears that Uber has moved to dismiss or strike the complaint, and a hearing is scheduled for February 15th.

Lawyers: keeping things interesting.

Anyhow, this is all just a dry run for the day when robot cars take over.

Tuesday, December 4, 2012

Even delays come to an end.

Back in October, we did a post on how Nidal Hasan, the man charged with killing thirteen people and wounding more than two dozen more in a shooting rampage at Fort Hood, had his trial indefinitely delayed by not agreeing to shave his beard.  That delay tactic may not work much longer.