FAN 76.1 (First Amendment News) Chemerinsky & Volokh discuss the Roberts Court & The First Amendment (video posted)

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

UPDATE: Access to the video link below is now available to the public.   

It was a remarkable late-afternoon program last month as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

The video link to the discussion can be found here. (Circuit Judge Alex Kozinski was present and asked a question.)

A list of the topics covered can be found here.

 Again, thanks to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

NEXT SALON: November 2, 2015: Floyd Abrams and Robert Post will discuss the ramifications of Reed v. Town of Gilbert (2015) with Linda Greenhouse moderating.

EARLIER SALON: “Is the First Amendment Being Misused as a Deregulatory Tool?” — Professors Jack Balkin and Martin Redish with Floyd Abrams moderating. (video here)


Howard Stern’s Audience: One Group or Two?

11111Howard Stern is a wealthy man, but he sought to be some $300 million richer after his radio employer, Sirius, doubled his audience by acquiring rival XM. Stern thought his contract said as much but a court disagreed.  Businesspeople and lawyers alike can take a lesson from the deal, presented here in one of my three-part series this week on the unruliness of words–and numbers.  Following on my accounts of whether the attack 14 years ago today on the WTC was one occurrence or two and whether The Hobbit film trilogy released by New Line Cinema was one film or three, here’s the Stern story. 

The Howard Stern Show is a popular off-color program long aired on traditional radio. But in 2004, one of the leading satellite radio companies, Sirius Satellite Radio Inc., persuaded Stern to move his program to its service. Performance compensation under the resulting licensing agreement called for Sirius to pay Stern’s production company up to five separate awards of common stock in Sirius—each worth $75 million—if a series of ever-rising subscriber thresholds was met.

To implement this deal, the parties included in their formal written contract an exhibit setting out the company’s estimated number of subscribers as of year-end for each of the ensuing five years. The agreement then provided that the company would pay a stock bonus if at any year-end the actual number of subscribers exceeded the target by a specified amount: a first bonus for exceeding the target by two million; a second for exceeding it by four million; a third for exceeding by six million; a fourth for exceeding by eight million; and a fifth by ten million.

There was no dispute about what happened the first two years: at 2006, actual subscribers exceeded estimated subscribers by more than two million and Sirius promptly delivered $75 million worth of its stock to Stern; at 2007, actual subscribers did not exceed the target by more than four million, and therefore no bonus was due. A complication arose in 2008, however, because in that year Sirius acquired a rival, XM Radio, which had nearly ten million subscribers. So the parties disputed whether those subscribers counted as Sirius subscribers under the bonus provisions of the licensing agreement.

Resolution depended on determining the intended meaning of their contract in light of the specific terms of Sirius’s acquisition of XM. Before the acquisition, Sirius and XM were separate rivals of about equal size (Sirius had more than nine million subscribers)—and both had been wooing Stern to join them. After the acquisition, Sirius changed its name to Sirius XM, but the two continued to operate separately with their own subscribers, although subscribers could buy a premium package to add the other company’s offerings. About one million XM subscribers signed up for the Sirius package.

Counting only original Sirius subscribers, at year-end 2008, actual subscribers did not exceed target subscribers by more than four million contemplated for a second bonus award. Even adding the one million XM subscribers who bought access to Sirius, the target was not so surpassed. But if also counting the nearly ten million XM subscribers that Sirius acquired in the acquisition, then the target was exceeded by more than ten million, triggering all the bonuses and meaning Sirius owed Stern another $300 million worth of stock. Read More


Greatest Error: Was The Hobbit One Film or Three?

11111One of the greatest errors in contract history arose when Miramax sold the movie rights for “The Hobbit” to New Line Cinema.  Here’s the story which, in honor  of the trilogy fashioned from Tolkien’s fantasy work, is in an installment of three posts on lessons from such debacles (others consider whether the 9/11 attacks on the World Trade Center were one occurrence or two for applicable insurance contracts (see here for the answer) and  whether, when Sirius radio acquired another satellite radio service, it was obliged to pay Howard Stern $300 million because the deal doubled its subscriber base).   Each story has inherent interest, a bit of drama, and useful lessons for contract drafting.  These three stories will be in the upcoming second edition of my book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter.

The Hobbit: One Film or Three?

In 1998, the film company Miramax sold New Line Cinema the film rights to J.R.R. Tolkien’s four books: The Hobbit: Or There and Back Again (“The Hobbit”) and The Lord of the Rings Trilogy: The Fellowship of the Ring, The Two Towers, and The Return of the King. Miramax had spent $10 million developing screen adaptations of Tolkien’s classic fantasy works, which required considerable technological dexterity to produce. In exchange for the film rights, New Line paid $11.7 million and promised to pay royalties equal to five percent of the gross receipts of the “first motion picture” based on each book, excluding any “remakes.”

More technically, under a “Quitclaim Agreement,” New Line agreed to pay Miramax “Contingent Consideration,” defined as five percent of gross receipts, for “Original Pictures.” The Quitclaim Agreement defined “Original Pictures” to mean “the first motion picture . . .  based in whole or in part” upon The Hobbit Book and each of the three books in The Lord of the Rings Trilogy and “excluding remakes.” The Quitclaim Agreement further provided that a motion picture constituted a film based on The Hobbit book if “the main story line of the book is substantially the same as the main story line of the movie, certain of the book’s events and characters are featured in the movie, or the title or subtitle of the movie contains the words ‘The Hobbit’ or ‘Hobbit’.”

Between 2001 and 2003, New Line released three Original Pictures based in whole or in part on each of the three books in The Lord of the Rings Trilogy. Pursuant to the Quitclaim Agreement, New Line paid Miramax total Contingent Consideration exceeding $90 million in connection with those three movies.  In 2012, New Line released a new film based on The Hobbit book, called The Hobbit: An Unexpected Journey, as the first of another trilogy. It acknowledged an obligation to pay Miramax royalties on that film—and had paid $25 million—but not on the second or third in the planned series. Miramax objected, saying it was entitled to royalties on all three Hobbit-based movies. Read More


Teaching First Amendment Law in Reality-Friendly Ways — Thoughts on Ferguson & Free Speech

Let me start with some provocative panache: Too much First Amendment law is taught in ways divorced from reality. Obsessed with Supreme Court decisional law, First Amendment courses provide the average law student with little or nothing in the way of addressing issues prior to some free speech violation. I was reminded of this when I read a report recently issued by the U.S. Department of Justice. Yesterday I blogged about the questions raised in that report concerning the First Amendment and the police handling of demonstrations in Ferguson. Reading that report reminded me, yet again, of the great disconnect between how law is taught and how it might be taught in ways more consistent with the realities of law and life “on the ground.”

imagesTo illustrate my concern: Assume you are a city attorney who provides legal counsel to local officials and to the police. You have just read this Ferguson report and want to take some proactive steps to better ensure both public safety and faithful compliance with all laws (local, state and federal) designed to protect freedom of religion, speech, press, assembly and petition rights. And you hope to do so by way of proposed ordinances, official policies, training programs, and community outreach efforts.

Is there anything meaningful in our First Amendment casebooks and courses that would have helped this city attorney prepare for such a task? I wonder.

Let us say you want to do the following, among other things, and duly mindful of all pertinent federal and state laws and regulations:

  1. Establish police training programs more sensitive to First Amendment rights. (What would such programs look like?)
  2. Draft a police policy or guidelines to protect First Amendment rights to protest. (What would be the letter and scope of such guidelines?  How would they be enforced?)
  3. Draft police guidelines and/or a city ordinance to safeguard press and blogger rights during demonstrations. (This could be complicated.)
  4. Draft effective police protocols for reacting to protestors. (Where would you begin?)
  5. Draft police guidelines and/or a city ordinance to safeguard the right of the public to video record police activities. (Where would you draw the line?)
  6. Draft police guidelines and/or a city ordinance concerning the use and abuse of police body cameras. (What would the penalty be for noncompliance?)
  7. Draft a city ordinance to process and preserve citizen complaints against police. (Operationally and technologically, how would that work?)
  8. Draft a city ordinance to provide for the timely release of public information. (What would constitute good cause for not releasing such information?)
  9. Create a police-community outreach program designed to improve relations and preserve First Amendment rights. (Would you invite the ACLU and police union groups, among others?)

If a conscientious public official had read the Ferguson report, he or she would be sensitive to such concerns and others. He or she would want to take action. But how? How does he or she advisedraft, and communicate in ways intended to secure First Amendment rights? That is, how would such an official protect First Amendment rights before they were violated, before there was an Article III case or controversy, and before there was any appellate court ruling?

We need meaningful “skills learning” in how we teach First Amendment law. Instead of diverting such training to statutory drafting or to clinical courses, such education needs to be incorporated within our First Amendment casebooks and classroom teaching. Since it is now done in contracts classes, why not in First Amendment classes? Of course, that would mean teaching in ways not dependent entirely on the case method and on casebooks.

UnknownThere is another related point to consider, namely, teaching a segment of a First Amendment course attentive to the relationship between race and peaceful protests. Such a course (and/or course materials) could build on an idea Harry Kalven had a half-century ago in his seminal book The Negro and the First Amendment (1965). The only difference is that today we do not need a string of Supreme Court cases — we have, among other things, a major Department of Justice report.

Mind you, I am all for teaching decisional law and am also a big fan of teaching free-speech theory. But that is not enough if we are to take the First Amendment seriously. We need more realism in the educational mix. One way to begin to do that is to invite prominent civil rights litigators — the likes of William H. “Billy” Murphy, Jr., etcetera —  to speak at a conference of First Amendment law professors. In other words, bring the world of practicing lawyers into the world of legal academia.   

One final point: As the text of the First Amendment tells us (and as Justice Hans Linde has long emphasized), the main purpose of the guaranty was to safeguard such rights before they were violated by lawmakers and other government officials. My fear is that too many First Amendment professors and lawyers have lost sight of that great Madisonian insight.


Contracting with Unruly Words—and Numbers

11111Lawyers learn drafting lessons from previous cases involving disputes over the meaning of language. The result is often contracts with denser detail, attempting greater specificity to delineate intention using language. Yet words can be unruly and open to interpretation—well illustrated by a series of contemporary examples that also happened to involve numbers:

  • were the 9/11 attacks on the World Trade Center one occurrence or two for purposes of applicable insurance contracts? (Spoiler alert: both!)
  • was the blockbuster film trilogy The Hobbit three separate films or merely one film in three installments?
  • when Sirius radio acquired another satellite radio service, was it obliged to pay Howard Stern $300 million because it doubled its subscriber base–or not?

Each story has inherent interest, a bit of drama, and useful lessons for contract drafting.  These three stories will be in the upcoming second edition of my book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter.  So, what about that attack or attacks?

WTC and 9/11: One Occurrence or Two?

On September 11, 2001, terrorists hijacked commercial aircraft and flew two of them into the World Trade Center in New York—another hit the Pentagon in Washington and a fourth was overtaken by passengers, forcing it to nosedive into a Pennsylvania field. Beyond the loss of 3,000 lives and many personal injuries, the assaults in New York destroyed or damaged twenty buildings, including the total collapse of five of the buildings that comprised the World Trade Center (WTC).

The insurance industry incurred an unprecedented $40 billion in claims, all pursuant to thousands of contracts, including aviation, life insurance, workers’ compensation, and liability policies. While many claims were filed and paid without incident, some generated significant litigation. One issue was particularly vexing: how many occurrences were there on 9/11 at the WTC: one, encompassing the destruction of the entire unitary complex, or two, given that two planes struck separate towers?

Commercial property insurance policies typically address claims on a per occurrence basis, including in terms of overall policy limits (the maximum payable) and the applicable deductible (in effect, the minimum loss before any coverage applies). When losses are within limits, the question of occurrences relates only to the deductibles and insurers tend to classify events into multiple occurrences to generate multiple deductibles; but when losses exceed policy limits, the number of occurrences defines that cap and insurers generally prefer to classify events as involving a single occurrence to cap liability. In the case of the destruction of the WTC on 9/11, losses vastly exceeded policy limits, turning what may seem like a semantic question into a $3.5 billion disagreement.

The WTC was owned by the Port Authority of New York and New Jersey, which had recently leased it to Silverstein Properties, Inc. The lease agreement required Silverstein to insure the WTC, and on September 11 it was in the process of putting insurance in place. Given the WTC’s size and scope, the insurance was large and complex, involving more than thirty insurers, each offering varying layers of coverage that aggregated $3.5 billion—“per occurrence.” Silverstein claimed there had been two occurrences, meaning $7 billion in total coverage; the insurers said there had been but one occurrence, meaning $3.5 billion in total coverage.

Despite posing the same question—what is an occurrence?—the answer differed for different insurers because the insurers were bound by different contract policies using different contract language. One group had bound itself to a policy (called the Willis form) which defined “occurrence” to mean “all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes.” Other policies either did not define the term occurrence or defined it differently. Court proceedings followed accordingly.

Interpreting policies using the Willis form’s definition of occurrence was relatively easy for the judges, with both the trial and appellate courts finding that the 9/11 attacks amounted to one occurrence. The reasoning was closely tied to the specific definition:  “no finder of fact could reasonably fail to find that the intentional crashes into the WTC of two hijacked airplanes sixteen minutes apart as a result of a single, coordinated plan of attack, was, at the least, a ‘series of similar causes.’” The liability of such insurers was therefore limited to the respective policy cap. The conclusion was reached on summary judgment—meaning as a matter of law without need for any trial.

Such an easy interpretation was impossible under the other policies, however. For those that lacked a definition of occurrence, both courts concluded that the concept is sufficiently ambiguous to require considering extrinsic evidence to determine contractual intention. This requires studying context: meaning is to be interpreted given the specific policy and facts of the case, not broad generalities or legal principles. The issue was therefore a matter for a jury. After listening to competing evidence and views, the jury decided that the 9/11 assault on the WTC amounted to two occurrences for purposes of coverage under the policies.

The jury was apparently persuaded by evidence offered at trial by Silverstein’s expert witness on the insurance business. Concerning policies that did not define occurrence, he explained that insurers generally take occurrence to have a narrow meaning—giving rise to multiple occurrences from given scenarios—principally because that increases the number of deductibles that apply. Insurers only prefer a broad conception of occurrence—one-occurrence interpretations—in total loss situations such as this, which are rarer. For policies that defined occurrence differently than in the Willis form—such as any loss or series of losses arising out of one “event”—the expert explained that the word event should likewise be construed narrowly.

The policy language is the starting point for making a deal and interpreting it. Want a specific definition, then supply it, and courts will enforce it accordingly; absent a specific definition, courts must dig into context, get all the facts, and let the fact finder decide. The latter setting obviously entails greater uncertainty, subjectivity, and contingency. Indeed, while some courts urge juries to contemplate the dictionary definition of occurrence, others adopt a logical perspective, which can vary according to emphasizing the causes of a loss (where all damage from a single, proximate cause is a single occurrence) or the effects (each separate incident of loss is a separate occurrence).

Lawrence Cunningham is a professor at George Washington University whose forthcoming books include the second edition of Contracts in the Real World: Stories of Popular Contracts and Why They Matter, which includes this story and fifty more. 

Sources: Scott G. Johnson, Ten Years After 9/11, 46 Tort Trial & Insurance Practice Law Journal 685 (Spring-Summer 2011); World Trade Center Properties, L.L.C. v. Hartford Fire Insurance Co., 345 F.3d 154, 180 (2d Cir. 2003).


FAN 76 (First Amendment News) Federal Report on Ferguson Identifies First Amendment Concerns

53ee71fd731e9.imageIn a report recently issued by the U.S. Department of Justice (see press release here), questions were raised concerning the First Amendment and the police handling of demonstrations in Ferguson, Missouri. Among other things, the 162-page Report stated:

  1. [Discretionary application of sanctions]: “[A]s the ‘keep moving’ order was put into effect, protected First Amendment activity was swept up by prohibition of such activity and threat of (or actual) arrest. Discretionary application of sanctions by law enforcement is always a concern. The exposure to potential arrest for exercising one’s right to peacefully assemble and protest was problematic.”
  2. [“Keep Moving” Orders & Right to Assembly]: “Unified command created a vague and arbitrary derivative of the Missouri failure to disperse statute—the ‘keep moving’ order, or ‘five-second rule,’ which violated citizens’ right to assembly and free speech, as determined by a U.S. federal court injunction.”
  3. [Police Discouraged Protests]: “Unified command failed to establish a clearly marked First Amendment free speech zone until August 19, 2014. This delay, coupled with the ‘keep moving’ order, had an overall effect of discouraging protesters from exercising their First Amendment rights.”
  4. [Police Removal of Badges]: “During the law enforcement response to the protests, some officers removed their nameplates. This behavior defeated an essential level of on-scene accountability that is fundamental to the perception of procedural justice and legitimacy.”
  5. [Suspicious Lack of Citizen Complaints]: “[G]iven the size and scope of the protest and the findings outlined within this report, the limited number of filed complaints is misleading. Other factors that made it difficult or impossible to lodge complaints— or a lack of confidence in the complaint process— likely deterred citizens from filing complaints about police behavior.”
  6. [Press Arrests]: “Controversy over police tactics also heightened on August 13, when two news reporters from The Washington Post and The Huffington Post were arrested in a restaurant near the protests. The visibility of these arrests drew more negative attention toward police practices. Allegations of the police abusing their authority and violating citizens’ civil rights were common.”
  7. [The Need for Effective Protocols]: “[T]here were no effective protocols in place to handle an event like this; if such protocols had been in place, they would have identified the appropriate police resources and procedures for the event to accompany the mutual aid agreements.”
  8. [The Need for Planning]: “Even with the best planning for a police response to a protest, the nature and evolution of a protest, factors collaterally related to the protest, and the effectiveness of tactics and strategies must be constantly monitored and changed to reflect the changing protest management environment.”
  9. [Reasonable Accommodations for Protests]: “As a statement of principle to ensure procedural justice, law enforcement should provide all lawful and reasonable accommodation and support to facilitate the First Amendment expressive activity of citizens. Great restraint of police powers should be used to protect the rights of lawful demonstrators, while at the same time protecting the safety and rights of citizens whose persons and property are contiguous to the demonstration. In cases when the safety and rights of others are in jeopardy from the demonstration activities, law enforcement should propose alternate accommodations to protesters.”
  10. [Free Speech Zones] “A First Amendment free speech zone set up by authorities as an area where groups could congregate to demonstrate should be clearly established, allowing for reason- able accessibility to the media. Free speech zones such as the “protester assembly zone” (also called the “approved assembly area”) established by police in Ferguson pursuant to the Abdullah case are designated zones in public areas set aside by authorities in which people may exercise their First Amendment rights. Use of zones requires government to strike an appropriate balance between public safety concerns and First Amendment freedoms, because First Amendment activity is permitted only in the designated zone.”
  11. [Need for Constitutionally Sensitive Police Policies] “It is essential that law enforcement establish and apply procedures that comply with statutory and constitutional requirements. Legal counsel should be consulted and involved when establishing policies, procedures, and tactics that could infringe on or impact constitutional protections.”
  12. [Balancing Public Safety with Right to Protest]: “While law enforcement must meet its duty to protect people and property during mass demonstrations and protests, it can never do so at the expense of upholding the Constitution and First Amendment-protected rights.”
  13. [Need for Police Training: Lawful vs Unlawful Assembly]: “Officers should have been educated or reminded of the difference between a violation of Missouri’s unlawful assembly, riot, and failure to disperse laws versus lawful assembly and the protections of the First Amendment that could make an order to disperse to be in and of itself illegal. Law enforcement should have been more aware of how its response had a chilling effect on the protesters exercising their First Amendment rights.”
  14. [Need for Police Training: First Amendment Education]: “Agencies should train all officers on the nature of the First Amendment and the protections it affords, including what is a lawful protest, how law enforcement should deal with lawful protests, and what are best practices for policing crowds.”
  15. [Methods for Processing Citizen Complaints]: “Law enforcement agencies should establish multiple methods for submitting complaints/commendations (in person, by phone, online, etc.) that are easily accessible, efficient, effective, and not intimidating to the public to ensure that citizen complaints are received, fairly investigated, and adjudicated. Agencies should review these methods periodically to stay current with technology and generational changes.”
  16. [Communicating with Protestors]: “Law enforcement must reach out to protest leaders to understand the protesters’ issues and establish an understanding of police responsibilities for managing the safety and security of protesters and the community.”
  17. [Improving Lines of Communication]: “Lines of communication between law enforcement and protest leaders should remain open and consistent not only throughout the protest but also after the protest to ensure effective communications to prepare for future protests and to ensure a relevant ongoing dialogue between the protesters and the police occurs.”
  18. [Timely Release of Public Information]: “Law enforcement should establish a practice to release all information law- fully permitted as soon as possible and on a continuing basis, unless there is a compelling investigatory or public safety reason not to release the information. A ‘compelling reason’ should be narrowly defined and limited in scope. Had law enforcement released information on the officer-involved shooting in a timely manner and continued the information flow as it became available, community distrust and media skepticism would most likely have been lessened.”
  19. [Cell Phone Photography & Accountability] “Social media—from video streams to cell phone videos to photographs— can be a strong accountability tool when used to document the behavior of not only police officers but also demonstrators.”

In light of the above, tomorrow I will post a piece entitled “Teaching First Amendment Law in Reality-Friendly Ways.”

Bookstore Owner & Free-Speech Defender Joyce Meskis to be Honored Read More


Conscientious Objections to Following the Law

There is one aspect of the Kim Davis situation that is not getting enough attention.  Let’s suppose that you think that officials like her should be given an exemption from following a law that they think is very wrong on religious grounds. Wouldn’t that mean that religious people would be less likely to get elected or chosen for public office?

Under the exemption scenario, the public or the appointing official would have every right to inquire about the religious beliefs of the candidate or applicant.  Now, of course, a candidate could say “My religious views would not affect my public duties” or “I will always follow the law.”  But people might not believe these statements, or just may be less inclined to take a chance on openly religious people.  Thus, I would think that creating or extending such an exemption would actually harm religious folks who want to serve.



Affirmative Consent and Burden Shifting

Tamara Rice Lave has a thoughtful post at Prawfsblawg about affirmative consent standards in sexual assault cases. She contends that application of such standards amount to a burden shift to the defendant. From her post:

The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student. At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient. The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given. He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

After finding that the UTC Chancellor “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Although have my (policy) doubts about affirmative consent standards, I’m not persuaded by the argument that affirmative consent standards switch the burden of proof to the defendant.

Read More


No Questions Asked

GutmanCairoMaltFalc1941TrailerIn going through what happened to the original parchments of the Bill of Rights, I’ve come across another oddity that I’d like to share.

The Library of Congress and the New York Public Library both hold originals from 1789.  The LOC purchased its version from a manuscript dealer in 1943, and the New York Public Library acquired its copy somewhat earlier.

Where did they come from?  There were 14 copies made and signed by the relevant congressional officials (such as John Adams and the Speaker of the House).  The one now in the National Archives was the copy retained by the Federal Government, and one was sent to each state.  Some of those copies went missing or were destroyed.

Doesn’t this mean that the copies in the LOC and in the NY Library are two of those missing state versions?  Don’t they belong to the states to which they were originally sent?  Put another way, aren’t these copies stolen property?  Not so, they say.  The theory of both institutions is that the clerk in the First Congress made some “extra” copies and that these are what they have.

The trouble is that there is no evidence that any extra copies were made.  Indeed, when the Library of Congress bought its version in 1943, it was from a dealer who (like Peter Lorre in The Maltese Falcoln) went with the thought that “No questions will be asked” about its origins.  Perhaps there is no way of proving which state each copy came from, but an expert might be able to figure that out.


Handshakes and Smiles: Founder Feuds from Snapchat to Facebook

11111In 2011, Frank Reginald “Reggie” Brown, IV was an English major at Stanford University, living in the Kimball Hall dormitory. There Brown conceived of an idea for a mobile device application that would let people send pictures from one phone to another, but with a novel catch: the picture would self-destruct shortly after viewing, so the recipient could not save or forward it. The idea would become the lucrative Snapchat product, at one point valued at $15 billion (an astounding figure considering that customers do not pay for the service and a way to make profits had not yet been devised). But Brown, having failed to formalize a contract, had to fight for his share of the value.

          As spring blossomed in Palo Alto that year, Brown was hanging out in the dorm room of a friend, Thomas Spiegel, when he explained the app. Spiegel called it a “million-dollar idea.” After Spiegel asked Brown if they could work on it together, Brown said yes, and the two shook hands. That night, they began searching for a computer coder to help. After interviewing several candidates, they chose Robert Cornelius Murphy. Another Stanford student and friend of Spiegel’s, the three were all also Kappa Sigma fraternity brothers.

The trio then agreed orally to develop the app—which Brown initially called “Picaboo”, after the children’s game—and split profits among them equally. Control and management would likewise be shared, and each would have specific roles: Spiegel, chief executive officer; Brown, chief marketing officer; and Murphy, chief technology officer.

By early summer, the three were deep into the venture. They decamped to work and live together on the start-up at the home of Spiegel’s father, on Toyopa Street in Los Angeles, which Spiegel called the “start-up house.” Brown wrote the terms of use, designed the product logo (a cartoonish smiling ghost), and the promotional pages for social media sites. The three jointly designed the app’s features, including the camera button, screen layout, and colors. Votes were taken on important decisions. When they communicated with friends about the project, each author put all three names in the signature.

In July 2011, they launched the app, which instantly drew strong interest and repeat customers. Through August, the three continued to share the work, even as Brown and Murphy went to their respective family homes for the rest of the summer. That’s when things turned ugly.  Read More