Category: Weird


Apple does its part to battle terrorism

Today in my contracts call we were looking at boilerplate and the problems of contracts of adhesion.  After class one of my students pointed out to me that buried in the fine print of its iTunes Store Terms and Conditions is a clause where Apple is doing its bit to foster non-proliferation.  Clause 34(g) declares in part

You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

Notice, as I read this clause not only are terrorists — or at least those on terrorist watch lists — prohibited from using iTunes to manufacture WMD, they are also prohibited from even downloading and using iTunes.  So all the Al-Qaeda operatives holed up in the Northwest Frontier Provinces of Pakistan, dodging drone attacks while listening to Britney Spears songs downloaded with iTunes  are in violation of the terms and conditions, even if they paid for the music!

That’ll show ’em…

(Unless, of course, they can argue that the clause violates the reasonable expectations doctrine.  I mean, don’t we assume that when we download iTunes that we’ll be able to use it construct a nuclear missile?)


Movies Inspired By Law Review Articles

Gerard’s post about the worst movie about constitutional law inspires me to ask the following question: has there ever been a movie inspired by a law review article?  I can think of at least one book (by a law professor) that inspired a movie (on television).  But I can’t think of an article in a student-edited journal that inspired a wide-screen release. Can you?


Inbox Zero

Several months ago, I was persuaded by this post by Andrew Gelman to try a new productivity method: “I will never again read an email without immediately handling it.” (There’s a whole blog on this topic.  And  nifty video.)  The idea is to prevent bloat in your inbox by keeping it empty.

Here’s the short report on how it’s going.  Not terribly well.  I’m getting better at dealing with the easy emails, but the scholarship-related long term projects are just sitting there like lead balloons.  (e.g., “how would this revision look,” or “here’s are some R-scripts. check them out when you’ve time”.)  Moreover, I now have created tons of subfolders to shunt incoming mail to (e.g., “friends,” “enemies,” “colleagues who are neither friends nor enemies,” “students who need to learn courtesy”, “SSRN abstracts I wish I’d written”).  This reminds me of how I cleaned my room as a little boy: move everything on the floor to under the bed.

I nominate this thread as an open one to discuss ways lawyers and legal academics handle the daily deluge.


Shame on the Brits!

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! Read More


Burglars Like Facebook, Too

111px-Digitale-crimiFacebook offers much to law enforcement, perhaps more than many might think.  Last week, a Pennsylvania man was arraigned for felony burglary, having allegedly broken into a woman’s home and stolen jewelry.  The defendant seemingly played a big role in ensuring his capture: he checked his Facebook page during the burglary.  The victim noticed that the defendant’s Facebook account appeared on her computer after the burglary.  No joke.  This takes harming oneself through social networking to a new level.


Gaming, Depression, and the CDC: Thanks Ars Technica

Several news outlets are covering the hyped notion that gamers tend to be overweight, 35, and depressed. The first thing that crossed my mind was this fact: it was conducted in the the Seattle-Tacoma area. Wow, people in MSville which is known for no sunlight, coffe-compensation techniques, and a great era of rather depressing music (i.e., grunge for you youngsters) might not go outside and might exhibit depression? I poked around and Ars Technica has a nice article about the flaws in the study which apparently admits “The fact that the sample was drawn from a population concentrated in western Washington State and from an Internet-based panel may limit generalizability of the results.” The full study is here. I could go on, but the Ars article covers the oddity rather well. Score one for Ars and thanks for noting the nuances in the study.


The Law Gives Up on Beatty Chadwick

Beatty Chadwick, Post Release

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.”


I’ll Pay You $1,000,000 if this Blog Post is Wrong

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.


Practical Advice: Don’t Let Your Client Pay You in Guns

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.


The Law of Thanksgiving

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!