Author: Jon Siegel

1

Farewell to CoOp

Today is my last day as a guest on Concurring Opinions.  Many thanks to Dan Solove and the rest of the CoOp crew.  It’s been a pleasure participating.

If you’ve enjoyed my posts here, you can continue to follow me on my regular blog, Law Prof on the Loose.

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Disturbances in the Blogosphere

The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse.  (See particularly section 255.5, Example 7.)  We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point.  The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.”  This venerable proscription should apply to new media as well as to old.  The Internet is new and cool, but deception over the Internet is still deception.  Deception on a blog is still deception. 

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on.  Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question.  I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions.  If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too.  So it’s ultimately a question of fact whether people assume bloggers get free stuff.  But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received.  Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me  join both trends at once.   I recently redid my kitchen, and got all-new KitchenAid appliances.  I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great.   (FTC-Recommended Full DisclosureI didn’t get a dime for saying that but I would be happy to accept an appropriate fee.  KitchenAid, call my agent.)

But the oven!  Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all?  Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it.  Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation.  And it stays on the whole time you’re cooking.  The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel.  There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go.  I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven.  But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up.  And they’re not rated for noise either.  There’s no way to tell whether an oven is noisy short of buying it and installing it.  After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter.  So that’s what I recommend.

And I didn’t get a dime for saying that either.

4

Fire — Good or Bad?

Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here

The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century.  In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire.  But few precautions were taken.

In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department.  On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords.  About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the  Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them.  But she did nothing. 

By 6 pm, the House of Lords was on fire.  Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings.  Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.

Obviously the fire was a terrible, devastating event.  But it did have consequences that some might regard as beneficial.  Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure,  were finally gone.

And there is something else too.  I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude.  The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea.  (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)

Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history.  But I couldn’t!  The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.

Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation.  But one thing is certain:  courts couldn’t use legislative history if the history were destroyed.  Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.

If you had the choice, would you put all legislative history to the fire?

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Curricular Reform Revisited

Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform.  Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

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At a Loss for Words

Nobel laureate Herta Mueller was “at a loss for words” when she learned that she’d won this year’s literature prize.

Not to be snarky or anything, but shouldn’t the literary prize winner be particularly good at finding the right words?

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Legal TV Review

I don’t watch much TV, but I will admit to enjoying “House.” “Polite Dissent,” an engaging blog by someone with medical knowledge, publishes a useful medical review of each House episode, which runs down the medicine in each show and notes the medical errors committed each week. But what House really needs is a legal review. Because really, whatever medical errors they commit, House and his team also commit almost unbelievable torts and crimes on a regular basis. 

CAUTION: Many spoilers ahead.

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First Monday

It’s the first Monday in October, the day when the Supreme Court begins its annual
Term.  You can enjoy previews from Adam Liptak of the NYT and Nina Totenberg on NPR.

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice.  “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts.  “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies!  Life must be tough when all you have is a lifetime appointment to the nation’s highest court.  I mean, a few times in your career, you have to put up with a new Justice!  Imagine that.  Maybe we should bring them tea and cookies and their favorite blanket.

The hottest case on the new docket (apart from the campaign finance case that was specially argued in September) is probably the Chicago gun case, which will test whether the recent ruling in District of Columbia v. Heller that the Second Amendment creates an individual right to bear arms applies to the states as well as the federal government. 

It will be interesting to see how this case plays out, because it tugs in the opposite direction from the usual ideological lines.  A ruling for the plaintiff would require holding that the Second Amendment, which originally applied only to the federal government, is “incorporated” into the Fourteenth Amendment and so applies against the states as well.  You would expect the conservatives, who normally believe in states rights, to be the ones most opposed to incorporation, and the liberals, who are more amenable to expansive federal power, to be for it.  But somehow I’m guessing that’s not how it will turn out.

As I observed in some previous posts on the Heller case, the same could be said of Heller itself.  Liberals are usually more amenable to ruling in favor of individual rights and conservatives more to ruling in favor of the government — but not when it comes to guns.  Instead, we see a drearily predictable ideological lineup, and not even based on general ideology, but on the ideology of the precise issue.  It will be interesting to see if even one of the Justices can vote against their ideological predilictions on this new case.

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Celebrity Legal Claim of the Week

Those celebrities just can’t stay away from strange legal theories.  After Roman Polanski claimed last week that his sex crime should be excused because he’s a great artist, Jon Gosselin, former star of “Jon & Kate Plus 8,” is now claiming the right to exclude television crews from the home he owns jointly with his wife.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children.  But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.”  Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house.  If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, if I were TLC’s general counsel, I would tell Jon, “ooh, we’re scared.”  How about some basic property law?  Every law student knows that joint owners of property (known in property law as “joint tenants” or “tenants in common”) each own an “undivided interest” in the whole property and each has a right to occupy the property without the consent of the other.  Heck, each of them has a right to lease the property without the consent of the other. 

In 1861, the California Supreme Court considered the case of a lessee who had leased property from a joint owner and was then asked to leave by the other joint owner.  The Court said, “We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit.”  Ord v. Chester, 18 Cal. 77 (1861).

More recently, a California court considered a case quite like the Gosselins':  an estranged husband and wife jointly owned a home, which the husband leased to a third party.  The wife showed up and tried to oust the lessee.  The court said:  “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.  . . . When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.”  Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123 (1957).

If one of the estranged spouses can lease the property without the consent, and indeed over the objection, of the other, then either can certainly invite guests onto the property without the consent and over the objection of the other.

So if I were TLC, I would tell Jon to get lost.  Kate’s permission is all they need.

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Polanski’s Ancient History

Much ado about the arrest of film director Roman Polanski on a 32-year-old charge of having sex with a minor.  French Culture Minister Frederic Mitterrand says that it doesn’t make any sense to “throw him to the lions” because of “ancient history.”  Some opinion writers go so far as to term his arrest “outrageous.”  Others think it was the right thing to do.

Let’s regain our bearings here.  Mr. Polanski, according to news accounts, gave champagne and drugs to a 13-year-old girl and then had sex with her.  This is no mere technical, statutory rape — it’s not a case of some 19-year-old boy having consensual sex with his 17-year-old girlfriend.  This was a bad act indeed.  He pled guilty to a reduced charge and then fled the country when it looked like a judge was not going to go along with a plea bargain that would have had Polanski serving just 42 days in jail.  Trying to pass this off as “ancient history” seems a bit much.  If we imagine that Polanski were not a famous film director, but some everyday, middle-aged lawyer who seduced a neighbor’s 13-year-old daughter with alcohol and drugs and then had sex with her, I can’t imagine that there would be a lot of sentiment on his side.

As far as I can make out, some people think Polanski should be let off because (a) he’s famous, (b) he’s a great artist, (c) he’s been through a lot in his life, (d) it’s been a long time since he committed the crime, (e) the victim has forgiven him and would rather the whole thing just went away, and (f) there was some governmental misconduct in the initial proceedings.

I would hope we could agree that (a) and (b) are irrelevant.  We’ve endured a spate of celebrity crimes.  Celebrities don’t have a license to break the laws that the rest of us have to live with.  The law should be enforced even-handedly.  Of course, the law is generally more lenient on first-time offenders than on habitual criminals, so Polanski is entitled to the same break that any first-time offender who is generally a good person would get.  But no break for being a famous artist.

(c) could be relevant — we have taken to considering a defendant’s harsh upbringing  when passing sentences — but it doesn’t get him wholly off the hook.  At most it gets him a reduction.

(d) is not wholly irrelevant, but it’s mostly Polanski’s own fault.  The matter could have been resolved 32 years ago if he hadn’t fled the jurisdiction, and he could have come back to face the music any time. 

(e) is also not wholly irrelevant, but it’s not just the victim who needs protection; it’s also other 13-year-olds who need protection from other adults, including other adult celebrities. 

(f) is relevant but the judge who engaged in the irregular proceedings has died and another judge will now be making the decisions about Polanski’s fate (assuming he gets extradited).  So this issue is reduced.

I conclude that Polanski should face the music.  Again, if some 40-something accountant you hadn’t heard of seduced a 13-year-old girl with alcohol and drugs and then had sex with her, and then skipped the country, I don’t think we’d be arguing about whether it’s unfair to catch up with him later and throw him in jail.

4

Senator Kirk

Governor Deval Patrick of Massachusetts has appointed former Ted Kennedy aide Paul Kirk to fill Kennedy’s Senate seat.  This action follows a change in Massachusetts law to permit such appointments — previously, Massachusetts Senate vacancies could be filled only by special election.

The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment.  But Massachusetts made the right move.  The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ laws, appointed to fill out the entire remaining term, or at least too much of the remaining term, of their predecessors.

The Massachusetts law represents an appropriate compromise.  It avoids leaving a Senate seat unfilled for months (which is unfair to the state involved and its citizens) and it also avoids allowing an appointed Senator to serve for a long time (which gives too much power to the state’s Governor at the expense of its people).  It allows the Governor to appoint a Senator to serve on an interim basis until an election can be had in just a few month’s time. 

It’s undoubtedly true that the Massachusetts legislature had political motives in denying the previous (Republican) Governor the power it just granted to the current (Democratic) Governor.  But in politics, sometimes you do the right thing for the wrong reasons.  The Massachusetts legislature acted appropriately in allowing Governor Patrick to fill Senator Kennedy’s seat.