Author Archives: nskam

Law Review Articles Worth Reading: A Legal Analysis of Jay-Z’s 99 Problems

Professor Caleb Mason wrote the Law Review article we’ve all been waiting for: a line-by-line analysis of Jay-Z’s 99 Problems. As every attorney who graduated since 2004 will recall, at some point during Criminal Procedure everyone left class thinking Jay-Z got it all wrong.  That day’s lesson on the 4th Amendment provides a powerful wake up call that, no, the cops do not need a warrant to get in your glovebox or trunk despite Jay-Z’s advice otherwise in 99 Problems.

Prof. Mason gets to the crux of the matter in his piece, writing:

The fact that the trunk and glove compartments are locked is completely irrelevant. Now, Jay-Z may have just altered the lyrics for dramatic effect, but that would be unfortunate insofar as the song is going to reach many more people than any criminal procedure lecture, and everyone should really know the outline of the law in this area. What the line should say is: “You’ll need some p.c. for that.”

Every Street Law teacher should review this article and spend a day with their students on this song.

Read the article here.

Abby and Brittany: “22nd Birthday Bash” and “Spring Break, Here We Come”

Abby & Brittany debuted this week on TLC with 1,731,000 million viewers tuning in to check out the conjoined lives of Abby and Brittany Hensel. The opening of the show does a good job setting the table for what the show will feature: the twins are seniors at Bethel University who will graduate sometime during the series, go abroad to Europe, and land a teaching position in the fall.

Watching the show, it’s immediately apparent the compromises the Hensel twins make in their everyday lives in their clothes, food, and social lives. But most interesting is the way Abby and Brittany talk about themselves. They wander in and out of the singular and plural, referring to themselves both as “we” and as an “I.” They are quick to draw distinctions between their personalities as Abby is the homebody while Brittany is the bossy, sassy type.

According to one of their roommates, the twins paid 1 1/2 tuitions to attend Bethel University and pursued the same majors: elementary education with a math emphasis. It seems that as far as Bethel University is concerned, the Hensels present two legal entities.

Episode 2 featured the twins preparing for a job interview at a Houston Elementary School. Though they both seek teaching position, because they are doing the job of one person the twins stated they would only ask for one salary. With some hard bargaining, maybe they could kick that up to 1 1/2 salaries.

Watch episodes 1 and 2 here.

TLC Presents: Abby & Brittany

TLC’s giving Abigail and Brittany Hensel a reality TV show this fall which is sure to present a parade of sticky legal situations. Take the photograph above depicting Abby and Brittany on a moped. What happens if they get popped for speeding? Who gets the infraction? In the past, one set of conjoined twins famously escaped a ticket for causing an accident when the befuddled police officer couldn’t figure out who to ticket. A previous documentary on the  Hensel twins revealed that while both Hensel twins had to pass the written portion of the driving test separately, because each controls half the body one twin steers while the other works the pedals. No doubt, they’ve got to share steering duties on a moped while only one works the throttle.

Join the Hensels this fall for what’s sure to be a tangled dose of reality televsion.

Via TLC.

That is a Lewis Vatawn

Last week, a Federal District Judge Andrew Carter ruled that this joke does not infringe Louis Vuitton’s trademark as it enjoys protection under the doctrine of fair use. Louis Vuitton brought its lawsuit last year contending that Warner Brothers impermissibly used a third-party’s knock-off bag that allegedly infringes on the LVM Marks, seeking monetary damages. You can tell the Court had fun with this one from this bit of analysis of the offending joke.

Warner Bros.’ use of the Diophy bag meets this low threshold. Alan’s terse remark to Teddy to “[be] [c]areful” because his bag “is a Lewis Vuitton” comes across as snobbish only because the public signifies Louis Vuitton—to which the Diophy bag looks confusingly similar—with luxury and a high society lifestyle. (See Compl. ¶ 20.) His remark also comes across as funny because he mispronounces the French “Louis” like the English “Lewis,” and ironic because he cannot correctly pronounce the brand name of one of his expensive possessions, adding to the image of Alan as a socially inept and comically misinformed character. (fn 10)

(fn 10) For example, while at the wedding rehearsal dinner in Thailand, Alan unexpectedly decides to give a toast to Stu, ostensibly to restore his buddy’s good image after the bride’s father relentlessly mocked Stu in front of all the guests by likening him to, among other things, “soft white rice in lukewarm water.” In a complete non sequitur, Alan begins his toast by offering a few “fun facts” about the population and chief exports of Thailand, which he naturally pronounces as “Thigh-land.”

It’s a safe bet that the Court enjoyed the movie.

Read the opinion here.

Appellate Court Affirms: Sidewalk a Deadly Weapon

“[W]hether the pitcher hits the stone or the stone hits the pitcher, it will be bad for the pitcher.” Cervantes, Don Quixote

The Second Appellate District upheld the conviction of J.L., a 14-year-old boy charged with assault with a deadly weapon after he stomped on another boy laying on the sidewalk. J.L. appealed his trial court conviction on the grounds that just as hands and feet cannot be deadly weapons (the California Supreme Court has said a deadly weapon must be extrinsic of the body), because he did not “use” the sidewalk to assault his victim, the court could not convict him of assault with a deadly weapon.

“Not so!” affirmed the Appellate court. As in People v. Russell, where the Defendant was convicted of assault with a deadly weapon when he pushed his victim in front of a moving car, a defendant need not wield the deadly weapon in order to use it. The key is that the assailant takes advantage of a stationary object’s intrinsic qualities in way to cause a victim great bodily harm.

Via FindLaw.

Read the opinion.

The Oft-Cited Wikipedia

Recently, the Wall Street Journal took note of a 2007 NYTimes article which found that from 2004-2007 there were more than 100 citations to Wikipedia (the scholarly source) articles in judicial opinions. Not to be outdone, editors at the WSJ’s Law Blog did a little research and found that the Seventh Circuit cited Wikipedia 36 times, the most of any of the federal circuits. The Ninth Circuit came in a close second with 17 citations while the Tenth Circuit finished out in third place with eight cites.

The open-access nature of Wikipedia would seem to lend itself easily to revisionist history. The dangers of citing Wikipedia in court opinions are obvious, though perhaps overblown. The opinions citing Wikipedia sought authority on Blazing Saddles, the definition of “happy hour,” and Elvis’ status as “the King.” But Wikipedia purports to have a  safeguard from such scribal monkey business in its editors and secondary sources only policy.

Talk of the Nation interviewed Professor Timothy Messer-Kruse regarding his experience with the Wikipedia policy of disregarding primary sources for the preponderance of secondary sources. Professor Messer-Kruse stated that he was rebuffed by Wikipedia editors for trying to change the article on the 1886 Haymarket Riots to reflect details expressed in new-found primary sources. Knowing that his forthcoming book on the subject would be published shortly, Professor Messer-Kruse  bided his time to offer his contrary account, a seemingly solid secondary source. However, even after the publication Professor Messer-Kruse was denied again.

USC Professor Andrew Lih opined that though Professor Messer-Kruse’s’ 2011 book  represents a secondary source, because its conclusions run contrary to the majority opinion Wikipedia will not accept his account until academia agrees with him. Professor Lih defended Wikipedia’s policy on the grounds that once Professor Messer-Kruse’s take on the most iconic event in American labor history has “been steeped in the community to bubble up into the majority view,” his account will be accepted as “verifiable” or as Neal Conan put it,  once enough scholars cite Professor Messer-Kruse’s book, it will be Wikipedia fact.

California Evidence code section 452 allows courts to take judicial notice of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.” Courts need not wait for a motion from a party but may, on its own accord, take a fact as judicial notice. Once noticed, a civil jury must accept the fact as conclusive, whereas a criminal jury may take it or leave it. So as far as the civil jury is concerned, once the Court uses Wikipedia to source a fact, the jury is stuck with it barring a showing that some meddling attorney tampered with the Wikipedia entry or that the secondary source relied upon was really just a high school kid with little understanding of string theory.

As long as judicial officers limit their use of Wikipedia to novelty and trivia, litigants are unlikely to be prejudiced by Wikipedia vandals. However, reliance on Wikipedia for “majority views”  on unsettled legal issues could lead to problems down the road.

Listen to the Talk of the Nation story here.

Via the Wall Street Journal Law Blog.

See also Jonathan Stepanian’s article, “Judicial Notice .net” in the Spring 2012 issue of ABA Litigation News.

Ask Maxim

If you turn to the page 22 of the May issue of Maxim magazine, you’d find a published abstract of Half Guilty in the form of an answer to the reader-submitted Ask Maxim question “If a conjoined twin commits a homicide, is his other half also convicted of the crime?” While it’s no footnote to a 9th Circuit opinion, it’s got about as much authority as a law review article. Here’s the full submission, excerpted  for the column:

1) If a conjoined twin commits a homicide, is their other half also convicted of the crime?
Probably not. Though there has never been an American court ruling on the legal personhood of conjoined twins, a court would likely consider them distinct individuals. To convict someone of a crime in this country, the state must show that she committed a guilty act with a guilty mind. Unless a prosecutor can prove that both twins committed the guilty act (murder) with the guilty mind (intent to commit murder), the state could not convict them both.

2) Can they be considered a witness for testimony?
Yes, the court could compel one twin to testify against the other. While many states recognize a privilege from compelling spouses to testify against each other, there are few, if any, that recognize such a privilege between siblings. However, there are very rare cases of conjoined twins with fused brains; if a court viewed such twins as one person in the eyes of the law, that person could not be compelled to testify against herself under the Fifth Amendment.

3) Are there any known cases of this ever happening?
The 17th century Italian conjoined twins Lazarus and Joannes Baptista Colloredo purportedly skirted a murder conviction thanks to their conjoinment. Authorities arrested Lazarus after he stabbed a man to death for teasing him and his parasitic twin brother. Though he was sentenced to death the court granted him a reprieve, finding that they could not execute Lazarus without killing his innocent conjoined twin.