I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes [...]]]> By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in [...]]]>

Beatty Chadwick, Post Release

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.

“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”

Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts.  As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.

But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large.  His conduct (as alleged) created a social harm which his ultimate freedom only made worse.  As the  attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”

NBC’s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”

“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”

Kolodziej did it, though some quick driving, and he now wants his million dollar reward, under a theory of a breach of a unilateral contract.

The case isn’t frivolous per se, but it is unlikely that Kolodziej will make it past summary judgment.  This seems like a textbook example of [...]]]> Contract professors are excited by this lawsuit out of Texas, in which law student Dustin Kolodziej sued Orlando attorney Cheney Mason for failing to pay up on a boast he made while being interviewed on Dateline.

NBC’s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”

“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”

Kolodziej did it, though some quick driving, and he now wants his million dollar reward, under a theory of a breach of a unilateral contract.

The case isn’t frivolous per se, but it is unlikely that Kolodziej will make it past summary judgment.  This seems like a textbook example of a boastful puff which no reasonable person in Kolodziej’s shoes would believe constituted an offer.  As in the new casebook classic Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999), a judge will likely note that the setting (directed at the world, not to a particular person), the offeror’s role (hyperbolic advocacy), the nature of the communication (a  “challenge”), and the amount involved (disproportionate to any gain to the offeror) all combine together to destroy the requisite seriousness & formality that distinguish offers from puffs.

Throwing the case out is the right result.  Ordinarily courts rely puffery doctrine too often – harming  consumers who have relied to their detriment on sellers’ optimism.  But here, as in Pepsico, Kolodziej seeks to force a contract on Mason, or at least a settlement.  Gotchya contracts like this don’t fit well in any theory justifying enforcement.  As an extra weight on the scale here, contractual enforcement would chill a defense lawyer’s efforts on behalf of his client.

This isn’t to say that all publicized rewards are unenforceable.  Kodak has just offered $5,000 to some poor kid who failed to meet Megan Fox.  Unlike Kolodziej’s case, there is only one potential offeree, the offer is accompanied by a way to communicate acceptance, the amount is reasonable, and Kodak’s goal (to document how a “photograph can connect and change the lives of two complete strangers”) is commercial and understandable.

In the event that you do disagree with me, either about the specifics of the post or about puffery more generally, you are on notice that the title of this post is a joke.

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property [...]]]> Wow.   A pharmacist accused of murder decided to pay his lawyer with his firearm collection.  When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.  Quick: which amendment gets play?  (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store.  You can see the video here.  And as for the constitutional right to withhold information about Ersland’s gun collection?  That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter.  And never, ever, take the instruments of the crime.

Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:

The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) [...]]]> Was thinking about the Macy’s Thanksgiving Day Parade a little earlier, and made me realize that there has yet to be a treatise on the law of parades. One of my colleagues once wrote her torts exam about large balloons escaping and causing property damage. Or, perhaps more widespread, there is that oft-cited and always chilling “Parade of Horribles.” (makes me shudder just to think about it).

Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:

The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) (no longer good for at least one point of law), which raises issues of prosecutorial misconduct based on the following statements made by a prosecutor during closing arguments:

“Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. It’s not. It’s not only the same burden that’s used in this case, it’s the same burden or standard of proof that’s used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden.

“It’s built into the system that we have … and as such, it’s always used as a defense. Crime wasn’t proven to you beyond a reasonable doubt. That’s always a defense to any criminal case. It’s kind of like you make the analogy: you can’t have Thanksgiving without turkey. Well, you can’t have a criminal trial without the defense being reasonable doubt. That’s just the way it is. It’s built right into the system. [emphasis added] * * *

“Ladies and gentlemen, reasonable doubt is there for a reason. It’s there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when you’re discussing reasonable doubt.”

Happy T-Day everyone. Cheers!

While many find these particular modifications to bodily form grotesque, opposition to unfortunate [...]]]> Corpus 2.0, a recent design project on potential human bodily evolution, has been spreading around the web. One model with a shoulder bump finds it much easier to keep her handbag steady. Other forms of “progress” include a “ridge in the nose developed for wearing glasses, ears moulded to accommodate earphones, a thumb with an extra joint for sending SMS messages more efficiently and a foot adapted to create the same posture as wearing high heels.” This work struck me as a less critical version of the “future farms” and other body modifications both proposed and ridiculed at the “Design and the Elastic Mind” show at MOMA earlier this year.

While many find these particular modifications to bodily form grotesque, opposition to unfortunate evolutionary pressures on attitudes and mental habits strikes me as much less developed. That’s one reason I cautioned against runaway “cognitive enhancements” in an article last year. The founder of Better Living Through Chemistry predicts that we should be happy to choose “average hedonic set point[s] of our children. . . . [so that] allelic combinations . . . .that leave their bearers predisposed to unpleasant states of consciousness . . . will be weeded out of the gene pool. . . [leading to] some form of paradise-engineering.” Following Walker Percy, I think such people are actually quite useful to a world too prone to “irrational exuberance”–even if introversion is maladaptive for the introvert himself.

After trying the phone book and making some calls without much success, Bearden ordered Lane County sheriff’s deputies to go out on a downtown Eugene street and summon citizens to immediate jury service. . .

Bearden said the jury pool may have been smaller than normal because people who have experienced domestic violence, sex abuse and child abuse personally or in their families often declare that they are unable to sit on such a case. In any event, Bearden found herself using Oregon Revised Statute [...]]]> What does a judge do when too few people show up for jury duty? Well, one judge sends bailiffs out into the streets to round up random passers-by and conscript them into service. Really! From the Seattle Times:

After trying the phone book and making some calls without much success, Bearden ordered Lane County sheriff’s deputies to go out on a downtown Eugene street and summon citizens to immediate jury service. . .

Bearden said the jury pool may have been smaller than normal because people who have experienced domestic violence, sex abuse and child abuse personally or in their families often declare that they are unable to sit on such a case. In any event, Bearden found herself using Oregon Revised Statute 10.235(4) for the first time since becoming presiding judge six years ago.

Jury supervisor Tana Tracewell, a 25-year court employee, said she believed that it had been 20 years or more since a Lane County judge had to order on-the-spot summonses. Bearden said she looked up the statute to make sure it was still in effect.

And another snippet, from the local news:

Sgt. Doug Osborne said the potential jurors were nice about their surprise summons but not entirely convinced it was real. “I said, really you’re not on camera, they’re looking around to see if they’re on camera and it was a joke,” he said.

(Hat tip: Marc B)

Yep, it’s a real news article. And I really can’t add anything that the article’s title doesn’t already convey, can I?

Given reader interest in Supreme Court bobble-head dolls, and other artistic representations of pressing legal problems, it might [...]]]> Via Chris Colin comes a report of a recently graduated lawyer/artist from HLS, José Klein. As Colin relates the story, Jose decided to transfer magic marker depictions of cases that engaged him to dinner ware (through Make-A-Plate). He felt that “[t]hese cases become vehicles for rules to be established. But we lose sight of what’s profoundly human in them, and they ultimately become abstractions . . . I think the plates are an attempt to engage the drama or the humanity, not just the rule. It’s more soulful than the study of these rules.” The plate to the right, for example, depicts BMW v. Gore.

Given reader interest in Supreme Court bobble-head dolls, and other artistic representations of pressing legal problems, it might be worth checking out the whole collection.

CORRECTION: This submission misstates that one Dalai Lama admitted to having sex with hundreds of men and women while knowing that he had AIDS. Additionally, the submission misstates that many monks participated in the dismemberment of female bodies. In fact, there is no factual evidence to substantiate either of these claims. Spectator regrets the error.

Wow. I guess the philosophy is, when misstating facts, misstate big.

A set of recent NYT articles discusses a lawsuit filed to stop the (possible) end of the world. Apparently, there is a very, very remote chance that the newest particle accelerator will create

a tiny black hole, which could eat the Earth. Or it could spit out something called a “strangelet” that would convert our planet to a shrunken dense dead lump of something called “strange matter.”

Yikes! And so there is a lawsuit seeking to enjoin use of the accelerator, at least until an environmental impact study (!) is completed. And with that, the fate of the universe suddenly rests in the hands of lawyers and judges. It sounds like [...]]]> How should the law deal with the end of the world?

A set of recent NYT articles discusses a lawsuit filed to stop the (possible) end of the world. Apparently, there is a very, very remote chance that the newest particle accelerator will create

a tiny black hole, which could eat the Earth. Or it could spit out something called a “strangelet” that would convert our planet to a shrunken dense dead lump of something called “strange matter.”

Yikes! And so there is a lawsuit seeking to enjoin use of the accelerator, at least until an environmental impact study (!) is completed. And with that, the fate of the universe suddenly rests in the hands of lawyers and judges. It sounds like a bad script that tries to marry Armageddon with Law and Order:

“Will beautiful attorney Lisa and her trusty paralegal sidekick Jake get the papers filed in time? Will cranky judge Hornblatt grant the TRO that saves the world? Find out next Friday, right after the series premiere of Survivor: Law School Edition.”

And how exactly does the law analyze these sorts of claims, anyway? It strikes me that law is not particularly well-equipped to handle claims of infinite destruction. For instance:

-When can a party get a TRO to prevent an act that would cause the end of the universe?

Well, they’ve got to show irreparable harm. Presumably, the end of the universe is always irreparable harm.

-When does a company have to disclose the possibility of the end of the universe in its filings?

Well, if it’s future or speculative information, we apply Basic v. Levinson’s probability/magnitude test. The probability may be small, even infinitessimal. But the magnitude of the potential harm? Infinite. I guess you always disclose it.

(10-K’s everywhere will now include the line, “There is a very, very, very small chance that something the Board does will inadvertently cause the end of the universe.”)

-And how would a court apply the Hand formula, for instance, in assessing whether a party should have taken better precautions to prevent the universe from being destroyed?

Burden = Probability x Loss.

P may be low, but L is really, really high. Does this mean that parties always have a burden to take reasonable steps to prevent the end of the universe?

Probably.

But then, law typically gives damages, which are backward-looking. And if the universe has been destroyed . . . well, good luck finding a court in which to bring your claim.

Plus, all your evidence is probably destroyed.

(Image source: Wikicommons)

M.C. Hammer is on the charts as well. Here’s the full pool; I’m putting some Creative Commons licensed ones below the fold.

Billy Ocean’s Going Gets Tough:

Billy Joel’s heartrending Piano Man:

And, of course, The Cure.

Hat Tip: weather pattern.

When I saw these darkly fanciful ideas on display at the Museum of Modern Art’s show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, [...]]]> I’ve previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) “launches sound bombs into other people’s annoying conversations.” Authorities may outfit repeat offenders with SoMo1, which “delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking.” (Be sure to check out the online video. I wonder if they’ll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art’s show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players’ left hands suffer “heat, electric shocks, or a quick whipping” after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they’ll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese “gold farmers” (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the “future farms” that the spontaneous order of the market will inspire. I’ll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni’s Unique Forms of Continuity in Space.

Last year I submitted a manuscript to a number of journals, but not getting the sort of interest I had hoped for, ultimately decided to revise it and see if I could get it placed in a more speciality, peer-reviewed journal. Fast forward several months, and I get a very odd email from the editors of one journal. The email contained the edited and subcited version of my manuscript. Students had clearly [...]]]> Law review submission season is upon us, and accordingly, I have a bit of advice to law review editors: If you wish to make an offer of publication to an author, inform him or her of the fact. This makes things less awkward. Trust me, I speak from experience.

Last year I submitted a manuscript to a number of journals, but not getting the sort of interest I had hoped for, ultimately decided to revise it and see if I could get it placed in a more speciality, peer-reviewed journal. Fast forward several months, and I get a very odd email from the editors of one journal. The email contained the edited and subcited version of my manuscript. Students had clearly been busily at work on the piece. The odd thing, however, was that this was my first contact from the journal. I had no idea that they were even considering the manuscript, let alone that they wanted to publish it and were already well into the editing process. I had certainly never received an offer of publication, let alone accepted it. Some of my colleagues, with whom I discussed the situation, initially suggested that perhaps this was a new strategy on the part of law journals. Constructive acceptance they called it. Others wondered if perhaps the editors were setting themselves up for an unjust enrichment claim if I refused to publish with them. (I am pretty sure that I would be protected by the officious intermeddler doctrine.) Eventually, I got the situation hashed out with the current editor-in-chief of the journal. It seems that the previous editorial board had decided they wanted the manuscript, and had informed the incoming board that it had been accepted. They failed, however, to tell the new board that the author (me) had not actually been contacted with an offer. The new board set diligently to work, and then sent me the results of their labor. Alas, at this point my plans for this manuscript have moved on, and I refused the journal’s offer of publication (which is how I chose to construe the edited version of the manuscript that they sent me).

So, incoming boards, make sure that there aren’t any loose ends left dangling by your predecessors, and make sure that you always inform authors of your intent to publish before you start editing.

And for those obsessed with the imminent invasion of illegal immigrants in black helicopters, there’s a place for you as well!

For no human orifice was safe from the assaults of Victorian medical science, and vast ingenuity was expended in perfecting suitable instruments, or even mechanisms for storing them in serried ranks, ready for instant use, such as Reynolds Enema Rack, whose virtues were extolled in the Lancet in 1892.

from A.W.B. Simpson, “Quackery and Contract Law: The Case of the Carbolic Smoke Ball,” 14 J. Leg. Stud. 345 (1985). It is a testament to my current levels of stress and sleep deprivation that this sentence made my week.