Nick Kam


Conjoined twins and legal conundrums

Prop 8 and the 9th Circuit

Orin Kerr of the Volokh Conspiracy has penned a novel take on the Ninth Circuit review panel which includes Judge Stephen Reinhardt, “the most-reversed Court of Appeals judge in the land.” As Kerr points out, Reinhardt’s liberal leanings are good for Prop 8 opponents at the appellate level but bad in the end game:

But the word “Reinhardt” is radioactive at 1 First Street. Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run.

While it would be nice to imagine that a losing track record plays as big a role as Kerr suggests, it’s absurd. The idea that because Justices “love” to reverse Reinhardt will have any impact on the decision of whether to acknowledge civil rights held by millions of Americans is reaching at best. To suggest that a grudge (if it is that at all) would affect the most important ruling of the 21st century is asinine.

Via the Volokh Conspiracy.

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Updates in the Interim

A few goings on that occurred during bar trips:

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Munich Oktoberfest Sees Rise in Assaults with Beer Glasses

So far this year there have been 32 injuries resulting from beer stein assaults, said Munich police spokeswoman Claudia Haas, up from 19 at the same time during last year’s festival. She said she expects the stiff sentences the perpetrators face will serve as a deterrent in future.

This is not unlike the “glassing” sprees going on in the UK. As Drew Breunig points out, the efforts to reduce such attacks by introducing plastic, unbreakable pint glasses don’t address the problem at all.  “The problem here is rooted in culture, not in an easily breakable pint glass.”

Consider also the introduction of the anti-rape condom as a device that fails to only address the symptoms of an epidemic and not the problem.

On the plus side, Der Spiegel reported that rapes and assaults at the 2ooth Oktoberfest are down. Kudos to you Münchners!

Via Der Spiegel.

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When You Can’t Even Work for Free

Here’s something the Class of 2010 had been discussing at length before the NYTimes picked up on it: deferred law firm associates take stipends and jobs at public interest groups only to later decide to forgo their big law paychecks for a more rewarding career in public interest.

The legal job market has been inundated by recent graduates who secured law firm jobs, were subsequently deferred with pay and ultimately ended up in public interest jobs. Some work the requisite year and then return to their firms. Others, are choosing to stay in public interest.

The NYTimes puts their own spin on the state of the market: “But it could be that nonprofits would have few, if any jobs, for entry-level lawyers because of the economic climate, and deferred associates are picking up the work for public interest groups that would otherwise be slashing services because of budget cuts.” Under this view, yes, this is a good thing.

This view ignores the fact that you’ve got graduates who have made two positions unavailable through the good fortune that their law firms don’t have enough work to do. While they work for free at the local courthouse, landlord-tenant call in line, or the consumer foreclosure resource office they receive a monthly stipend from their law firm.

The outcome? Not only are those firm jobs unavailable, but the public interest groups are finding it easier to justify not paying employees. If there are deferred associates receiving a stipend, there’s no need to find money in the budget to pay them. It’s terrifying to think that public interest groups might get used to not paying fledgling attorneys for this work, especially when you’ve got recent graduates who have decided to dedicate themselves to that field, not just fortunate deferees who need to fill the day with some practical experience.

While it’s unclear whether the employers realize what’s going on, it’s clear the academics and administrators do:

“I think it is hard for those wholly committed to public interest to see their deferred friends getting jobs at great public interest organizations while they struggle to land their dream jobs,” said Ms. Shabecoff, the assistant dean at Harvard.

via the NYTimes.

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Mehserle Convicted of Involuntary Manslaughter (Probation or 5-14 Years Possible)

Interesting to note:

The case marked the first murder prosecution of an on-duty Bay Area police officer. Prosecutors rarely file charges against police for shootings. A Chronicle review of police use-of-force cases around the country found just six cases in the past 15 years – not including the BART shooting – in which murder charges had been filed.

This either means police (and BART cops) in the Bay Area are (were) extremely careful about using lethal force or they’re in bed the the D.A.’s office.
From the Chron.

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The Fightin’ Effers’ Cindy Cohn on the Colbert Report

If the EFF forms like Voltron, Cindy Cohn is the GZA. Cohn, a brilliant attorney and defender of your civil rights, appeared last night on the Colbert Report. See her tackle net neutrality, hitler memes, and the right to bear arms (on the Internet).

More Beer Cat in 2010 please.

From the Colbert Report.

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Bending the Law

In all this preparation for the California Bar, one can’t help but find absurd iterations of common law torts and crimes:

Assault: an intentional act creating a reasonable apprehension (knowledge) in the plaintiff of immediate harmful or offensive contact to the plaintiff’s person

  • Flashing a gun to intimidate someone (which they are aware of)
  • Trying to punch someone in the face (which they are aware of)

Battery: an intentional, harmful or offensive touching on the person of another

  • Beating someone with one’s fists
  • Knowingly giving someone an STD
  • Poking a hole in a condom to get someone pregnant

Burglary: felonious entry with the intent to commit a felony therein

  • Statutory rape

entry with intent to do some other crime

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Mutants are People Too

In the mid-1990’s, Toy Biz, a subsidary of Marvel comics (purveoyers of all things X-Men, Spiderman, and Hulk, to name a few), brought a lawsuit against the U.S. Customs Office trying to save money on their action figure imports from China. At the time, there were tariffs in place which put higher import costs on “dolls” than on “toys.” Dolls were deemed to be any human-like figurine and received an import tariff of 12%, while toys were depictions of monsters and robots which were subject to a import tariff of 6.8%. Both tariffs have since been repealed

It seemed Customs was of the mind that the X-Men and other superhero action figures that Toy Biz sought to import from China were human and therefore dolls. According to Customs each X-Men hero had a “distinctive individual personality.” Some mutants were Russians, Japanese, black, white, women, even handicapped. Wolverine, the government insisted, was simply “a man with prosthetic hands.”

Not so, parried Toy Biz. The figures “stand as potent witnesses for their status as nonhuman creatures,” the company argued. How could they be humans, Toy Biz said, if they possessed “tentacles, claws, wings or robotic limbs?”

Ultimately, the judge ruled that the X-Men figurines were “nonhuman creatures.” They are mutants, she declared, who “use their extraordinary and unnatural … powers on the side of good or evil.” The judge observed how the character Storm, with her flowing white hair and dark skin, “can summon storms at will,” while Pyro has a “mutant ability to control and shape flames.” Thus the X-Men are “something other than human.” End of story.

But that’s not the biggest fallout from the story — fans went ballastic. Since the X-Men’s inception in 1963, the argument whether mutants are human has played a major role in the plot of X-Men comics. Brian Wilkinson, editor of the online site X-Fan , said Marvel’s argument is appalling. “This is almost unthinkable,” he said. “Marvel’s superheroes are supposed to be as human as you or I. They live in New York. They have families and go to work. And now they’re no longer human?”

Chuck Austen, former author of Marvel’s “Uncanny X-Men” comic-book series, is also incredulous. He has worked hard for a year, he says, to emphasize the X-Men’s humanity, to show “that they’re just another strand in the evolutionary chain.” As everyone knows, X-Men derive their power from a gene that normal humans lack, the X-Gene. Through the use of this device, writers have been explicating on antisemitism, prejudice, bigotry, and civil rights for years.

In the face of all the fanboy protests, Marvel issued this statement: “Don’t fret, Marvel fans, our heroes are living, breathing human beings — but humans who have extraordinary abilities…. A decision that the X-Men figures indeed do have ‘nonhuman’ characteristics further proves our characters have special, out-of-this world powers.” Taking with one hand a giving back with another — now that’s good PR.

Toy Biz, Inc. v. US, 248 F. Supp. 2d 1234 (2003).

From the Wall Street Journal.

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Defamation Per Se

The word “motherfucker” is a dead metaphor: a metaphor which has lost its original meaning and gained another over time. While it is possible that the word once meant someone who fornicates with mothers, the last time anyone used motherfucker with that definition was in Shaun of the Dead and even that was for comedic effect. Here now, a recent attempt at stretching the word to allege a tort.

The Lovings first argue that Thomas’s comments to Michael, “[s]omething to the effect of you mother fuckers and you can go fuck yourself,” were defamatory per se. The Lovings contend that these comments impute criminal or sexual misconduct, including incest. We disagree.

The term “mother fucker” is defined as: “n. Vulgar Slang 1. A person regarded as thoroughly despicable. 2. Something regarded as thoroughly unpleasant, frustrating, or despicable.” The American Heritage Dictionary Of The English Language. This term does not impute criminal or sexual misconduct. Rather, the term imputes that the person is “thoroughly despicable.”

Lovings v. Thomas, 805 NE 2d 442 (2004).

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Repeal the Nth Amendment

What do the people want? Repealing amendments of course!

One blogger did a comprehensive google search of each of the 27 amendments to find out what the internet wants wiped from the Constitution. The blogger accomplished this by googling the search string repeal “seventeenth amendment” OR “17th amendment” for each amendment. And what do you know, the first and second are second and first (Update: in fact the second and seventeenth are first and second respectively)!

From Michi’s Blog via BoingBoing.

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Dicephalic Parapagus Conjoined Twins

Dicephalic Parapagus Conjoined Twins

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