Author Archives: nskam

A Few More Conjoined Twin Hypotheticals

“Two-headed Janus — diprosopic parapagus conjoined twins”

These hypotheticals are additional thought experiments pushing on the law’s assumption that an actor is an individual. Each case considers how the law would treat dicephalic parapagus conjoined twins (like the Hensel twins) as presented in the earlier piece, Half Guilty.

Q: The twins birth a child: who is the mother?

A: Identical monozygotic twins (twins born from the same, divided egg) have the same DNA, although expressed differently. Because of this it can be hard to tell identical twins apart based on DNA. However, identical twins have distinct fingerprints and can be distinguished in this manner. Similarly, conjoined twins are formed through the partial splitting of an egg and have identical DNA. In this case, because they share genitalia and one set of reproductive organs, they are arguably both the mother. Furthermore, a DNA test to determine the mother would prove inclusive as each shares the offspring’s DNA.

Q: The twins become pregnant: what happens if one wants an abortion and wants to carry the fetus to term?

A: In In re Marriage of Witten, a case of frozen embryos, the former wife wanted to fertilize the embryos to make babies. Her former husband waned them destroyed. The court ruled that the embryos were to be kept frozen until an agreement was reached, putting the burden of the upkeep on the embryos on the party who didn’t want them defrosted, the husband. However,  in the case of the twins there is the issue of terminating potential life, beyond that of unfertilized embryos. Likely the court would enjoin an abortion to protect the rights of one twin and the potential life of the fetus. There are major due process concerns here.

Q: The twins want to marry (not each other): do they marry the same man or separate men?

A: These women are arguably two separate persons. Because of their individuality it would make sense to prohibit them from marrying the same man, as bigamy is illegal in all 50 states. However with shared genitalia, their physiology makes the bounds of traditional marriage an issue.  Note that Chang and Eng Bunker married separate women, sisters in fact, and sired nearly two dozen children between them. They were connected by a band of flesh at the abdomen and did not share genitalia. Obviously, genitalia has less to do with getting a marriage license and more to do with the wedding night.

Q: The twins are driving and are pulled over for speeding: who gets the ticket?

A: Because they have separate consciousnesses and each controls half the body, one twin controls the pedals and the other controls the turn signal while they both control the steering to drive a car. Arguably because it takes two of them to operate the automobile, both should be held liable for any traffic infractions.

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.

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).

Improper Grounds for Seeking Default Judgment

The plaintiff in this suit sought an entry of a default judgment against the defendant for having failed to plead or otherwise defend the action. However, the fact of the matter was that the defendant had answered the plaintiff’s complaint in the following manner:

Not only do I deny all of the allegation in the above styled suit, I contend, with all due respect, that the plaintiff must be suffering from a condition of brown eyeballs since he is full of so much bullshit.

The court on review held, “While the form and language of the appellant’s response are less than desirable and more frank than customary, the appellant did state in short and plain terms his general denial of appellees’ claims.”

Wheat v. Eakin, 491 So. 2d 523 (1986).

A Joke

In a May 2006 speech, then-Judge Sotomayor told the following joke about the difference between supreme court, circuit court, and district court judging:

It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn’t shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck’s flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

From the National Review.

Names Applied to Actors/Concepts in Law by Academia

Legal academia loves to utilize names as signifiers and placeholders. Aimed at facilitating material to law students, each subject has developed its own set of names and phrases sometimes used as placeholders other times for complex phrases. A few instances below.

Property: Blackacre, Whiteacre, Greenacre, Brownacre.

Dukeminier traces the theories of the use of these terms in his textbook, Property:

One of the earliest law treatises written in English, Coke on Littleton (1628), refers to Blackacre and Whiteacre. The OED suggests the terms indicate lands growing different crops (peas and beans are black, corn and potatoes are white, hay is green). Or ther terms might originally have referred to lands receiving different rents (black rents are payable in produce, white rents in silver).

Community Property & Family Law: Henry and Wilma//Herb and Wanda//Howard and Wendy

As you can imagine these take the place of husband and wife, although it’s not uncommon to see same-sex name pairings come up when studying community property law in California.

Real Estate Law: “The deed is done” and “Bite the dust.”

Apparently, both of these phrases come from old real estate common law. The deed is done means that the obligation securing the piece property has been completed and so the deed of trust will be disposed of.

Evidence: Hearsay

Rather than saying “an out-of-court statement offered for the truth of the matter asserted” lawyers and law students and anyone really can just say heresay. It’s a simple word for a very complex doctrine.

Generally: Paul and Dwayne//Phil and Duke//Peter and David//Pauline and Dawn

As Plaintiff and Defendant make up most law problems students face, they will inevitably encounter some variation on “P” and “D” names.

Arguments only a Lawyer Could Make with a Straight Face: A Burrito is a Sandwich

When Panera Bakery signed a lease agreement with the White City Mall of Massachusetts in 2001, they included an exclusivity clause that both parties agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches.

Easy right? Fast forward 5 years and White City Mall signs a lease agreement with Qdoba Mexican Grill to lease space in the same food court.

Panera went bananas. They started threatening litigation, demanding recission of the Qdoba lease agreement, and rolling around red-faced on the floor. Panera believed and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Qdoba under the Lease. “Au contraire my little baker friend,” replied the opposing counsel and the court. Superior Court Judge Jeffery Locke opined in a seven page opinion:

The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.

This has got to be the first time that a court had to delineate the characteristics of the sandwich in a judicial opinion. And if that wasn’t enough, the Court put a final nail in Panera’s burrito-is-a-sandwich coffin: “Even though Panera vigorously argued for a broad definition of ‘sandwiches’ under the lease agreement to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean ‘sandwiches.'”

Prof. Marjorie Florestal of McGeorge finds the fact that Judge Locke leaned so heavily on common sense in this case troubling. In the introduction to her law review article she writes, “In short, a judge’s common sense or gut-level intuitive reactions– while permissible and useful–must undergo a second layer of logical, deliberative reasoning if she is to arrive at a truly holistic and fully-formed assessment of the case.”

While the Professor is correct that law requires such analysis, things like “Is a burrito a sandwich?” “Is waterboarding torture?” and “Is a horse a bird?” ostracize the layman and offend our notions of reality when lawyers try to justify the absurd conclusion.

White City v. PR Restaurants (2006).

Journalists Using Law to Pull for Government Transparency

While newsrooms are finding their budgets lighter and lighter, some news outlets including Hearst Corp. and the Associated Press are still spending more money on lawyers by bringing the fight for information in-house. Most often, news outlets outsource their legal battles to big law firms who handle each issue on retainer. However, as the New York Times reports, companies like Hearst and AP have taken to hiring in-house counsel to tackle the issue of government transparency.

According to the article, last year the AP appealed more than 40 denied Freedom of Information Act Requests (FOIA) and 24 of those were resolved successfully. The NYTimes parent company Hearst, filed 18 FOIA lawsuits last year, the most ever for the news company. Upon the resolution of a successful FOIA request or litigation, Hearst and AP make the information available either through reporting on specific stories or releasing the thousands of pages of documents they received online. The EFF pursues a similar route with its FOIA Litigation for Accountable Government.

Mired in the paranoia and fear of the Cold War, Congress passed the FOIA (5 U.S.C. 552)in 1966 reaffirming the concept of government transparency and a well informed citizenry. However, the Act contained nine exemptions to protect things like “national defense,” “trade secrets,” and “data concerning wells.” The Act was later strengthened by the Privacy Act of 1974 (5 U.S.C. 552a) which gave a citizen the right to view any report kept by the government on oneself, subject to some restrictions.

One of the most compelling things about the FOIA is that “any person” can fill one out. This includes citizens of the U.S., foreign nationals, corporations, and organizations. Furthermore, a one’s motivation for completing the FOIA request never has to be disclosed to the government agency.

However, the Act has been criticized for its scope and the government’s ease of further restriction the legislation. The Bush Administration took numerous efforts to hinder citizens’ access to FOIA through legislation and executive orders. Most notably, Bush’s Executive Order 13233 restricted access to his presidential records for twelve months after the end of his presidency, likely in anticipation of any litigation against his administration for war crimes. This order was later revoked by Obama’s Executive Order 13489.

The use of FOIA by news agencies illustrates the effectiveness of a well-equipped, well-organized citizenry fighting for information. And while big outlets like Hearst and the AP have the cash to pay the attorneys, smaller newspapers across the country are finding it hard to justify the expense. As the New York Times reported, community papers aren’t able to commit the time and resources to FOIA: “They are all saying access litigation is really struggling,” said Ms. Dalglish. “I think we’re in trouble. I know we’re in trouble.”

What does this mean for the media bar? More solicited pro bono work from newspapers.

Make your own information request using the FOIA Request Generator from RCFP.org.