Bull Shit Advertising

Today, the Federal Trade Commission (FTC) ordered Reebok to pay $25 million in consumer refunds for claiming its "toning shoes" would give wearers a better looking ass.

$25 Million? Wow, that's a lot.

The FTC claimed that Reebok’s advertising was false and deceptive in violation of sections 5 and 12 of the FTC Act, which states:

(a) Unlawfulness

It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement--

They claimed erroneously that by wearing the shoes you can gain 28% more strength than if you wear regular shoes.

I'm glad Reebok got busted for deceiving unwary consumers. That's not fair. In the end, Reebok will have to change the message, but hopefully not the picture :)

Life & Limb

What do you think about the following?

Life and limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose.

What if someone breaks into your home and is injured by some unforeseen trap? According this this, he can sue you for damages resulting from the injury.

Is that fair?

Is all life and limb worthy of protection?

The uber-reasonable, Reasonable Test

The reasonable standard is the common law standard (judge-made) that determines liability or guilt based on whether the conduct of the defendant was reasonable or not. If it was, no liability. If it wasn't, liability.

I think it's fair. People (and the law) expect you to act with reasonable due care with respect to the safety of others. You should expect the same. However, it's not the standard with which I take issue, it's how the standard is applied.

Who applies the standard? Hopefully the jury, but very often, well, the judge.

Therein lies my concern.

The standard of due care inferred by a judge will be a more rigid, arbitrary, and ultimately higher standard than the standard of due care inferred by a jury. Compare the mentality of the average citizen v. the mentality of a judge. The lens through which the two groups view the world is different. After all, most people are idiots and most judges aren't.

Therefore, at the end of the day, what we have is not a reasonable test, but an uber-reasonable, reasonable test.

Doesn't seem fair.

The Game

I could be off base here, but law school is such a game.

People pay all this money, sacrifice their health, and even don suits (gasp) in order to play this game. It's kinda ridiculous really. But what's the game you ask?

Well, the game is called "Pin the Fact on the Law."

To play, all you have to do is take some facts like, Tom hit Ben, and then pin it somewhere on the law (battery, assault etc.). You get a point for each correct pin. Sometimes you even get an extra point if you can manipulate the facts so that it appears to fit on the law tree.

For example, let's take the fact Tom hit Ben. I could pin that fact on battery because tom swung his arm, and the arm landed on Ben's face. Battery is when a person (1) intends to cause a (2) harmful or offensive contact. When Tom swung his arm that satisfies intent because arms don't just swing on their own. When Tom's arm hit Ben's face that was a harmful or offensive contact because harmful or offensive is defined by what a reasonable person would consider harmful or offensive, and let's be honest, who thinks getting hit in the face is not harmful or offensive? So we have ourselves a battery. One point.

Well what if Tom has epilepsy? Is that still a battery? No, because when Top swung his arm he was having an epileptic seizure and he didn't intent to swing his arm. No battery. So now you have to take Tom hits Ben off the law. Two Points.

That's the game. It's kinda fun, really.

What's sobering, however, is out in the real world it's not a game.

Duty to Rescue?

Question.

You're riding the escalator at the mall and the brat ahead of you gets his hand stuck in the escalator, are you required to help?

It's a tough question.

The law says that the nature of some relationships require that a person help another e.g., a mother must help her child; the driver of the vehicle must help the passengers. If your conduct, whether dangerous or innocent, injures a person, you're required to help.

Also, one state (Vermont), passed a "duty-to-rescue" statute that require individuals to rescue as long as they don't jeopardize their safety by doing so. It's only Vermont, but other states are getting on board. Some states have even passed Good Samaritan laws that exonerate botched rescue attempts.

So, what do you think now? Are you required to help?

Reflect on this case from a Montana court. After a boyfriend severely beats his girlfriend, she stabs him out of self-defense and leaves him for dead. Is she required to call attention to his wounds, even after she stabbed him out of self defense?

Indeed she is. And here's the kicker: Isn't it crazy that she is liable for failing to rescue this idiot after the self-defense doctrine allows her to kill him? She should have just finished the job. It would have saved her legal fees.

Anyway, the conclusion is the law usually doesn't compel you to rescue, which begs the question: Well, should it?

Common Sense & The Law

A lot of people think that lawyers are soooo smart.

It is true that lawyering requires some intelligence. After all, lawyers must juggle copious amounts of information, write some stuff, and read some stuff. Sure, that takes some brains.

But at the end of the day, lawyering requires common sense, not genius. Who are the parties? What do they want? How can they get it?

Law is low-down, dirty common sense.

What to Do?

One of the things that makes law school so challenging is the amount of non-classwork required. "Non-classwork" is the work that has nothing to do with class preparation. It's the stuff you work on after you are prepared for class.

The non-classwork includes mostly synthesis of class notes, reading notes, and supplemental text notes (for those who have time) into easily understandable and memorable outlines. In addition, some students create their own flashcards and/or study their professor's old exams.

So the question is always (at least for me): What should I do?

The answer is usually get some sleep.

Evidence and Standards Conflict

In criminal cases the prosecution is required to show beyond a reasonable doubt that the defendant was guilty. This means that a reasonable person would have little to no doubt whether the defendant was guilty after reviewing the evidence. The "beyond a reasonable doubt" is a standard under which the American criminal system works.

The civil system is different in that the plaintiff must prove preponderance of the evidence that the defendant was guilty (except in strict liability cases where the defendant can introduce evidence that he was not negligent). This standard means that the plaintiff must show evidence that is more than clear and convincing that the defendant is liable. Or in other words, it must be more than 51%.

Nothing too interesting about these concepts other than the surprising fact that criminal law has tried to avoid punishing innocent people by requiring a culpable state of mind to convict under most statutes (subjective standard), but the standard they use for evidence is an objective standard.

There seems to be a conflict when the prosecution must prove a subjective mindset to convict, but the evidence he can provide is analyzed objectively.

Compelled Drug Trafficking

In case you're wondering whether you'll be guilty of drug trafficking when two armed men threaten to kill you and your family if you refuse to smuggle drugs across the border, you will.

Amanda Knox Trial

It appears an American citizen will be spending some serious time in an Italian prison for the murder of her British flatmate.

Knox and two others were convicted for the murder, but from what I've read the evidence connecting Knox to the murder is tenuous at best. It also appears the Italian police engaged in unsatisfactory detective work. The most egregious and even comical misstep was alleging Knox acted out of rage from smoking marijuana.

The police statement said that Knox fell victim to "a rage caused by smoking marijuana." That was not the only evidence used to accuse Knox but is definitely the most retarded.

Just a Friendly Reminder

Nothing moves faster than the speed of light? Right?

Well, maybe not. I read an article this morning about some European scientists that claim they clocked a subatomic particle moving at speeds faster than the speed of light.

If this turns out to be true, it throws a wrench in Einstein's theory of relativity and the entire conception of modern physics. That's crazy.

Whether the claim is factual or not is yet to be determined, but the idea itself is groundbreaking.

It's just a startling reminder that everything isn't always as it seems.

It's also a reminder of the importance of questioning standard practices or beliefs as opposed to just following what is commonly accepted as true.

Because really at the end of the day, we don't know shit.

Who wears the Pants?

In case you're wondering whether service is binding when a dude gets served while hiding himself in his wife's coat (while she was wearing it) to avoid service, it is.

What a good-for-nothin yellow belly.

Math & Everything Else

For some time I've been enamored of the idea that animate and inanimate objects in our universe can be explained and perceived through math.

More specifically, I am convinced that math is at the heart of both literature and music. However, aside from a personal theory, I have no basis on which to prove my premise, but I am nevertheless convinced.

Tonight I stumbled upon a popular 20th century Dutch painter by the name of M.C. Escher. I have seen his paintings before but never knew the name of the painter or the inspiration behind is paintings.

Escher incorporates math and mathematical theories into many of his paintings in the form of shapes and illusions. His paintings are an example of math expressed through a medium that is not mere numbers or geometric shapes (although Escher does employ the use of geometric shapes routinely).

I look forward to reading more about this dude. Perhaps his ideas can help me mold a theory that could reasonably explain the relationship between math and literature or math and music.

Tree Posting

In case you're wondering whether posting your notice of summons on a tree is enough to satisfy the rules of proper service, it's not.

Freaking hippies

Criminal Law & Juries

The Jury plays an integral role in America's court system. As the judges' concomitant fact finder it carries upon it's shoulders the burden of judging fellow peers. A formidable task to say the least.

More specifically, juries play an important role in both tort law and criminal law but its responsibilities in the latter are far greater than in the former. This is because tort law and criminal law employ different standards by which to judge defendants.

The objective standard is the standard by which persons are convicted in tort law. The objective standard is a standard that judges a person based on how other reasonable people would behave under analogous circumstances. I've discussed this in previous posts. The reason courts use the objective test is because subjectivity is virtually impossible to prove. For example, if I asked you a question about what you are thinking, how do I know if you're telling me the truth? The courts confront this same problem. So instead of squandering time and resources to fetter truth from unscrupulous defendants the courts compare the defendant's conduct with social norms. If the conduct comports with societal norms no conviction, but if the conduct extends beyond societal norms, liability typically results.

The subjective standard, on the other hand, is the standard by which a person is convicted in criminal law. The subjective standard judges people based on what was going on in their minds (mens rea). Culpability in criminal law is based on the actor's intent. Criminal law uses the subjective standard because punishment thereunder treads upon fundamental human rights and before a government abridges basic rights of its citizens it better be damn sure the criminal was actually a criminal.

No different from the objective standard under tort law, the subjective standard is vulnerable to dishonest defendants. It's easy to be critical of a standard that wields enough power to impose death on a person based on subjective intent. But remember that courts rule on a multiplicity of facts, subjective intent being one of them.

And the rule is not without exceptions.

Exceptions exist under the subjective rule. Exceptions such as strict liability in public welfare offenses and other "violations" that carry nominal fines and punishment. Under these exceptions individuals can be liable without any evidence of subjective intent.

It is also true that like criminal law tort law has the power to tread on rights (e.g., forcing a party to pay damages to another party) but punishments arising from criminal law carry more social stigma and can incarcerate citizens and even put them to death. Consider the difference between an injunction to pay $10,000 in damages and capital punishment. Get the picture?

Well if you're a jury member you better because the court (and society) entrusts you to find the truth in criminal proceedings. That's a hard job when you have to unravel the facts and find the truth among a tangled mess. This important job carries immense responsibilities and shouldn't be taken lightly.

God Banners

In case you're wonder whether a public school math teacher can use his position as a teacher to preach his own views about god's role in American history, he can't.

Take that shit down.

Gay-Sayers

In case your high school friends are wondering whether participating in an anti gay protest in which you ditch class; congregate at the football stadium toting anti gay stickers and badges and chanting anti gay phrases such as "shoot them," will get you suspended, it will.

A Piece at a Time

Just finished the fourth week. It's getting busy. A lot of case reading, briefing, research projects, writing, outlines, synthesis, flashcards = Sleep deprived.

Remember: if you're going to attack something attack it piece by piece.

Heath Mandate

USD hosted a debate on whether Obama's heath mandate otherwise known as "Obamacare" is constitutional. Three constitutional law professors from the law school had it out in front of a decent crowd of maybe 100 people. Pizza was provided so of course I, always looking for a free ride, attended.

The debate centers around many issues including federalism, judicial restraint, and individual rights, but at the center of the debate is the notorious commerce and supremacy clauses of the constitution (Article I, § 9) that grants the federal government power to "regulate commerce."

The debate was not lively in any sense but for a couple jabs here and there. The panel consisted of two professors that were arguing for constitutionality and a third arguing against it. The professors arguing "for" were eloquent and spoke clearly and directly. The professor "against" struggled to make clear and direct points. Although his argument probably had strong points he struggled to make those points clear. I won't go into detail about each argument made, but I will say that I left the debate rest assured the mandate is constitutional.

I will say something about the issue, however. With respect to the sources cited supporting the constitutionality question of the health mandate, another clause in § 9 appears entirely, if not more, relevant than the commerce clause. I'm referring to the first paragraph of § 9 where it says that the federal government has the power to provide for the "general welfare" of the United States. This seems like a logical and reasonable basis for justifying the health mandate. I would argue that healthcare is included under "general welfare of the United States" especially considering the astronomical price of health care today. People can't afford it, and without it, people gonna die.

At the end of the day, I don't think the right question is whether the mandate is constitutional. In my mind it is unequivocally constitutional. I think the real question is: Just because we can mandate it—does it mean we should mandate it? In this case, yes, I think we should. You can disagree. But my reasons are based on social and political policy not on a question of constitutionality. Politicians are trying to turn a policy debate into a constitutional debate and thus throwing down in the wrong fora. This debate should be hammered out in congress, not before the Supreme Court of the United States. The justices are supposed to eat cake, and we're stuffing meatballs down their throat.

The Downfalls of Instrumentalism

Instrumentalism is exploitative, unethical, and unfair—not to mention useless. It, therefore, should be abandoned. Instrumentalism is one of many policies vying to control and explain the current trajectory of modern tort law in America. As its name reveals, the theory uses tort law as an instrument for attaining social goals such as eliminating dangerous and risky conduct to protect the physical safety of humans.

Instrumentalism is unfair. Instead of clear and forthright guidelines, the guidelines that drive the theory are ambiguous, which creates arbitrary practitioners who impose unfair and unethical sanctions. Also, instrumentalism is based not on rules of law or fundamental principles of proper conduct but instead on loose "tests" used to determine which conduct constitutes conviction leaving people confused about how to behave in order to escape punishment. This approach can only serve the individuals invested in its future and creates an unfair and ambiguous standard by which people ought to live. This approach is exploitative and unethical because it uses the punishment of actual people as test cases. You'll agree that any society is unethical that uses humans as test experiments like a scientist would use rats in her lab.

Lastly, instrumentalism will never succeed. Studies have proven that erecting social penal codes and imposing strict punishments in the form of incarceration, fines and even physical abuse doesn't deter people from imposing bodily harm on others. If the goal is to deter and dissuade people from harming others—instilling fear is useless. People are deterred from risky and dangerous activity not in least because the punishment of such behavior is severe. Deterrence then must come from another source i.e., if deterrence is possible at all.

But it's not, and government should not engage this theory because government can't deter society into peace. It will never happen. Disagreement, violence, and war is a natural part of our society and as my boy Steinbeck said in Grapes of Wrath (Chapter 14) what we need to fear most is not the bombs falling, but when the bombs stop falling. Yes, you read that right. What we need to fear is peace. Humans are not a peaceful people. And if we ever arrive at peace that means we evolved into another species. (That's why I am in law school, duh, I'm trying to capitalize on the brutal nature of humans :))

Therefore, instrumentalism should be abandoned as a viable theory of American tort law.

A Fleeting Sense of Security

Understanding is a fleeting sense of security. Just when an idea becomes transparent, a new idea opaques. So on and so forth.

Back to the drawing board.

Entropy v. Bonding

Totally random.

This incredibly broad theory came to mind: What if everything is not moving toward entropy? The theory was spawned in the bathroom after class when in the midst of relieving myself I watched beaded water molecules bond to each other and form a larger body of water. So what?

Well, my brain thinks extraordinarily well in terms of broad ideas and theories. Details? Not so much. Anyway, the bonding of water molecules is representative of pieces coming together to form a greater body. Nothing is too special about this idea until you compare it to the polar opposite theory of entropy.

Have I caught your attention yet? If you don't know what entropy is look up the details, I think you'll find it interesting. In short, it's the theory that everything is moving toward chaos. Okay, well if everything is moving toward chaos, isn't the chemical bond that allows water to coalesce an exception to the rule of entropy? Perhaps.

You could argue on the other hand that although water bonds together, water is soluble and therefore tends to dismantle bodies instead of bringing them together, which means that the bonding of water molecules instead of countering entropy, accelerates it. Erosion is an example of this. But to counter that argument you could say erosion is only a temporary separation of the pieces and that pieces displaced are eventually relocated and united with a greater body. So separating is only a temporary step along the way to greater unity.

And you would say, look idiot, the pieces may tend to greater unity, but the water has destroyed the composition of the original body, and that body will never again be the same. What is more, idiot, water will keep destroying bodies, displacing their separate pieces into new bodies, resulting in the destruction of all original, soluble bodies, and that sounds like chaos. Then I say, but you're missing the point, water molecules bond together. That's all I'm saying. The fundamental nature of the hydrogen bonding is significant.

I started brainstorming additional examples of exceptions to the theory of entropy some of which included

• People in Society (many examples of this), and
  
• Mercury (as well as innumerable other chemical bonds).
  

It appears clear that some natural forces are working to unite rather than disband. I considered relationships between men and woman but I'm afraid although the sexual attraction is strong, it's most likely evidence supporting entropy :) So is everything really moving toward entropy? I don't know.

But, at least it doesn't appear so. That makes me happy.

Law, Evolution and The Weak

Earlier I touched on how the law judges the culpability of your conduct based on how "reasonable" it was compared to the ordinary person's conduct under the same circumstances. If your conduct was more reasonable, you're good; if your conduct was less reasonable i.e., negligent, you're in trouble. To further the point I'll hand it over to my homeboy Oliver Wendell Holmes, Jr.,

The law is full of instances where a man's fate depends on his estimating rightly. If his judgement is wrong, not only may he incur a fine or a short imprisonment, he may incur the penalty of death...the criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.

Your criminal and tortuous liability may ultimately depend on how well you compare to everyone else. If your actions comport with the average, ordinary guy, which these days is just above retarded, a jury will most likely let you off. But if your reasonable standard is below society's standard, you lose. Doesn't that sound like natural selection? I guess it should not be a huge surprise that society is willing to kill the weak in order to protect itself.

"No society has ever admitted that it could not sacrifice individual welfare for its own existence"

With respect to the law, it pays to be smart. It pays to be reasonable. It pays to have good judgement i.e., a good lawyer :) It pays to have the mental capacity to foresee potential risks involved under certain conduct, and act accordingly.

Because if you don't, the people can kill you.

Guys with Guns

The law is whatever the guys with guns say it is :)

No, actually it's not. The world isn't Texas.

Ignorance v. Mistake of Fact

A mistake of law is when you do something illegal but you were ignorant of the fact that it was illegal. That doesn't necessarily mean you're stupid, it just means you don't know all the laws. Let's say you get busted selling crack to teenagers on a high school campus. Can you plead a defense? Well sure, you can be like, "but I didn't know it was illegal to sell crack to kids while they're at school." Even if you actually thought that, not only would you sound retarded, you'd still go to jail. That's because you made a mistake of law, and ignorance of the law is no excuse. But why?

There is some sense to this seemingly draconian policy. People lie. They do it all the time. How can a judge ever really know what you believed? They really can't unless you confess, which let's be honest, who's that stupid? You'd be surprised. The point is that proving a subjective fact is virtually impossible.

Okay, but what if you make a mistake of fact? What then? Mistake of fact is when you know something is illegal but nevertheless break the law albeit mistakenly. Like when a person is shopping and mistakenly forgets to pay for an item. You honestly didn't mean to steal, but did. Most likely you can raise your mistake of fact as your defense and escape liability, if it's a reasonable mistake.

If it's not, well, you're probably screwed.

Three New Languages

Trying to learn criminal law, civil procedure and tort law is like learning three different languages at the same time.

When you start studying a new language you must recalibrate your brain to think differently. That's why it's so hard. You're used to thinking a certain way, but the mechanics of a new language disrupt the brain's status quo. It's like throwing a wrench into a running engine. Think of the sound it makes!

So everyday I open my books and start reading cases and it seriously takes an hour for my brain to recalibrate to "criminal mode" or "tort mode." I can hear the clamor in my head.

Why? I don't know exactly, probably because each area of law has it's own vocabulary, rules and exceptions just like a language.

Or maybe I'm just an idiot :)

Games and Arthritis: Bad Match

You know that game when someone is about to sit down, and you pull the chair out from under them, and they fall to the floor?

Well, it's funny until you do it to a 75-year old arthritic blind lady and she falls and shatters her hip.

It's not a game anymore, it's actually called battery, which is when you touch someone in a way you're pretty damn sure they don't want to be touched.

Formalism v. Realism

Ok, imagine you're in a courtroom facing ten years in the slammer. Federal prison style. The judge addresses you and gives you the option to select one of two standards under which he may judge the facts of your case.

The first standard arises from legal formalism, a theory predicated upon concrete rules of law, otherwise know as "bright line" rules. Under this standard the facts of your case will be applied against a concrete rule. If your actions transgressed the rule, your sexual security as you know it is gone.

The second standard arises from legal realism, a theory predicated upon accompanying circumstances. Realists typically plug facts into a "test" that weighs and considers the totality of circumstances and renders judgements therefrom.

Be careful, the first rule appears stringent and cold, but at least you know where you stand. The Second seems more forgiving and fair, but provides for uncomfortable wiggle-room on which you don't want to gamble.

Well, what is it?

Does Burnham overturn Shaffer?

Personal jurisdiction is all about where you can sue, and where someone can sue you. It's about which courts can drag you thereto and declare binding judgements against you.

Would it be fair to defend yourself in the courts of a state in which you had no relation to the laws? No, of course not because you haven't availed yourself of their laws, so you're not liable under them. In this case, life is fair :)

Anyway, courts have jurisdiction over individuals and property that have "purposefully availed" themselves of laws within that state. No availment, no jurisdiction.

Unless of course you're Burnham and are served within the legal boundaries of that state, in which case the court has jurisdiction, and let's be honest, you're probably screwed.

Lesson: If you think someone in a state wants to summon you, stay the hell away.

The Herb Hospice

In case you're wondering whether converting your failed yoga studio into an incredibly successful medicinal marijuana collective will get you tossed in the slammer, it will.

Note to self: bad idea.

Citations and Bubblegum

Back in the library again for another day of endless research. Reporters, citations, search terms, key numbers, indices, encyclopedias, more citations, and how could I forget the pocket parts? Anyway, however intimidating legal research may be, and it's pretty damn intimidating, my concern this morning is bubblegum.

The girl across from me is obnoxiously chomping on her bubblegum, and from what I can gather it's cherry flavor. I wish gum were never invented. We have alternatives. And I seem to remember something about how chewing gum may result in TMJ or other unfriendly and painful jaw problems. On top of the bubblegum, the dude next to me smells of burnt coffee. I guess coffee has it's advantages. e.g., nervous shakes, stained teeth, coffee breath, and then the caffeine crash - hmmm I'll probably stick with green tea. But on a more positive note, all is not lost in the LRC...

I can't fail to notice the girl over there. There's nothing like a fresh distraction in the morning :) Eh, she probably has a boyfriend. Well, maybe not. Regardless, all the pretty girls on campus or even the amazing reggae show I saw last night cannot quiet the jarring call of unfinished work.