With a Rebel Yell

Confederate veterans sounding the rebel yell (circa 1930).

As today marks the 150 anniversary of Lincoln’s delivery of the Gettysburg address, here now a novel bit of American Civil War minutiae. The battle cry of Confederate soldiers was known as the rebel yell, a name more recently associated with Billy Idol’s single of the same name, released November 1983 (in fact the song title references a rot-gut spirit). Union soldiers would describe the call as a “rabbit’s scream,” a cross between an “Indian whoop and wolf-howl,” and “a foxhunt yip mixed up with sort of a banshee squall.”

The Confederate yell was intended to help control fear. As one soldier explained: “I always said if I ever went into a charge, I wouldn’t holler! But the very first time I fired off my gun I hollered as loud as I could and I hollered every breath till we stopped.” Jubal Early once told some troops who hesitated to charge because they were out of ammunition: “Damn it, holler them across.”  –Historian Grady McWhiney (1965)

As no audio recordings of the rebel yell exist from the Civil War, historians have used various onomatopoeiae to describe its sound including:

  • Yee-haw/yee-ha
  • Wa-woo-woohoo, wa-woo woohoo
  • Yay-hoo
  • Woh-who-ey! who-ey! who-ey! Woh-who-ey! who-ey!

Via Ken Burns’ The Civil War.

Medieval Satirists’ Take on Lawyers

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To begin with, a 12th century satirist’s distich, translated from Latin:

If you are looking for wealth, be a doctor or a lawyer
Grammarians and logicians stay poor and needy.

Next, a common comparison of the lawyer and the harlot:

Many study the law these days, not for justice,
But because avarice wishes to acquire more goods.
I beg Christ to confound the jurists;
They are no psalmists, but the harpists of Satan.
The lawyer, the doctor, and the whore are always alert;
If anyone offers them a higher fee, they slip away and follow him.

Examples of the oft-used motifs of the venal tongue and the simonist.

Nowadays no one is worth anything unless he knows how to litigate,
Unless he knows how to cavil carefully in courtrooms,
Unless he knows how to beguile the innocent with frauds,
Unless he knows how to collect heaps of money.

Advice to the new lawyer: “Let him not prostitute his tongue, not expose his speech for sale, not sell the gift of God, not set for hire the free favor of the Lord. Let him not lay out for sale what he has received solely as the gift of grace.” — Alain de Lille

What shall I say of the lawyers?
I will not lie about them for fear:
They have more disgrace among them
Than has a shameful, foolish woman.
Each of them trades on his instruments:
The woman rents her cul for pennies,
And the advocate sells his tongue.
The tongue is a more precious member
Than is the cul; of that I’m sure;
And the sale is thus the more shameful
As the tongue is the more precious.

–Lamentations, Matheolus, 13 cen. French satirist

Via the ABA Journal, March 1960.

Lawyer/Editor of Law and the Multiverse Takes on Bilbo’s Contract from The Hobbit

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In the wave of The Hobbit excitement overwhelming Comic-Con fanboys and cosplayers everywhere, James Daily, one half of the team over at Law and the Multiverse (a blog that shows that lawyering can be fun), conducted a deep reading of Bilbo’s contract from J.R.R. Tolkien’s book of the same name. Leave it to a lawyer who gets his jollies by considering Clark Kent’s tax liabilities to make the greatest fantasy franchise even better. Take this excerpt from his 6-part analysis:

There are some other details to notice in these clauses. One is the use of defined terms (e.g. “referred to hereinafter as Burglar”). The parties to a contract may define terms however they wish, even in ways that contradict the definition used in statutes or regulations.

This is important in this case because of the use of the defined term “Burglar.”  Contracts to do something illegal are ordinarily unenforceable (e.g. collecting on an illegal gambling debt). But here what matters is not that the parties used the word ‘burglar’ but rather what sort of meaning they assigned to that defined term. As we shall see, the contract doesn’t require Bilbo to do anything illegal (or at least not obviously illegal), and so the contract will probably not fail for use of a questionable term.

Read the whole piece over at Wired.

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.

Conversion & Nominalization

Some would call it the evolution of language. Others would refer to it as bastardization. Take note of two complimentary phenomena affecting the English vernacular.

The manipulation of nouns into verbs is known as “conversion” or “verbing” (which is itself an example of conversion).

  • “It takes a certain kind of teacher to turn a teenage student who regularly truanted PE lessons into a county athlete in a matter of months.” (Liz Ford, “New Teachers and Old, Excelling All Round.” The Guardian, July 3, 2007)
  • “For sports lovers, you can try to get a bat or a golf club personally signatured by one of their favorite sportspersons, which is bound to be a real treat.” (“Exotic Christmas Gift Ideas” at the website Christmas Gifts Guide, 2009)
  • “An amateur baseball powerhouse, Cuba joined the tournament in 1939 and immediately beat Nicaragua for the title. Since then, it has won 25 titles in 37 tournaments, and has medaled 29 times.” (Benjamin Hoffman, “U.S. in Contention at 2009 Baseball World Cup.” The New York Times, September 19, 2009)

Via about.com.

The manipulation of verbs into nouns is known as “nominalization.” These words are termed “hidden verbs,” “buried verbs,” or “smothered verbs.”

  • “My expectation was that counsel would make an objection,” could be simplified as “I expected counsel to object.”
  • “The defendant made a referral to Emily Graves, a financial planner, so Ms. Graves could provide the plaintiff with advice,” could be simplified as “The defendant referred the plaintiff to Emily Graves, a financial planner, so Ms. Graves could advise the plaintiff.”
Via UT Law.

 

Restaurant Law

Franklin Synder, a law professor in Fort Worth, weighs in on The Haggler’s predicament (if you have to ask, you probably can’t afford it):

You might be interested in letting your readers know that a restaurant meal is a ‘sale of goods’ under Article 2 of the Uniform Commercial Code. The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue. Thus a customer has no obligation to pay for anything more than the reasonable price of a pasta meal at a trendy restaurant.

In this circumstance, a customer should make a reasonable offer for the value of the meal, then walk out and wait to be sued for breach of contract. Be sure to leave the restaurant full contact information so they can’t claim that you’re trying to steal something.

Via the Haggler.

Drafting a Contract IS Practicing Law

There has been much debate and speculation as to whether a lay-person may draw up a contract to enforce rights between themselves and another party. While using fill-in-the-blank, lawyer approved drafts of wills, trusts, leases, contracts, and other legal instruments is not considered practicing law, drawing a legal document from scratch or modifying an existing one is under the following authorities.

Under California law, the practice of law includes the preparation of contracts and other documents that secure legal rights, whether the matter is pending in court or not. Preparation of stipulations and releases constitutes the practice of law.
(In re Garcia (9th Cir.BAP 2005) 335 B.R. 717, 728.)

As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.
(People v. Merchants Protective Corp. (1922) 189 Cal. 531,535, quoting Eley v. Miller (1893) 7 Ind.App. 529 [citations omitted].)

For much of the history of this country, shambling rogues known as country lawyers became attorneys by “reading law,” with little to no formal training or schooling. There was no bar exam stopping anyone from practicing the law until the 20th century when lawyers figured out they needed to keep the poor out of power. The romantic notion of the country lawyer was a frontiersman, taking any case he could get and sticking up for the little guy. Famous country lawyers throughout history include Andrew Jackson, Abraham Lincoln, Clarence Darrow, and Robert H. Jackson, to name a few. These days, only seven states permit those who’ve read law to take the state bar exam for admission, while all other states require their lawyer-candidates to attend law school first. Getting popped for the unauthorized practice of law is a misdemeanor in California, possible jail time for up to a year.

So put your quill back in its inkwell and put your signet ring back upon your weathered finger. That document may not be enforceable and you’re going off to the pokey.

Via the Los Angeles County D.A. and the ABA.

Mucking up Causation with Identical Twins

Orlando Nembhard was charged with the February 12th shooting death of Sir Xavier Brooks, 19, outside a Phoenix nightclub called Leonardo’s Da Vincci Code. There were eyewitnesses claiming to have seen Orlando pull the gun and they had a description of the shooter which matched Orlando. Then the prosecution’s case went to hell when it was revealed that Orlando Nembhard has an identical twin brother, Brandon Nembhard, who was also at the nightclub the night of the shooting. Now with conflicting stories and suspicious behavior from Brandon, prosecutors are questioning whether they’ve charged the right man.

Barbara Jones, the victim’s grandmother, recently said in an interview, “They need to put them in a room and let them battle it out,” calling to light a pariah in evidence law — probabilistic evidence. Courts have never been comfortable with using statistics to convict defendants, permitting its use only in some employment law cases and tort cases. But with the stakes so high in a criminal murder case, the burden of proof of “beyond a reasonable doubt” cannot be quantified.

When studying the law of torts, students learn the case of Summers v. Tice: two hunters simultaneously shoot and injure a third hunter, though only one bullet causes the man’s injury. Because the guns are identical it is impossible to tell which gun fired the  round. Common law holds that the hunters will be held jointly and severally liable, each of them responsible for the entire amount of the man’s injuries. The idea is that the burden shifts to the negligent parties to prove that they were not the cause of the injury. The problem with the application of this case is 1) this is tort law (civil, not criminal) and 2) there was only one shooter. In the case in Phoenix, only one of the brothers allegedly shot the victim.

Judge Richard Posner has long been a proponent of the use of statistics in legal fact finding. In Posner’s Economic Analysis of Law (2007) he writes:

In the typical civil trial, there is no basis for supposing that Type I errors (false positives, such as convicting an innocent person, or in the civil context, erroneously finding the defendant liable) on average impose higher costs than Type II errors (false negatives, such as an erroneous acquittal or the denial of a meritorious claim). So it is enough in the usual civil case to justify a verdict for the plaintiff that the probability that his claim is meritorious exceeds, however slightly, the probability that it is not.

Why should a tie go to the defendant rather than to the plaintiff? The principle of diminishing marginal utility of income implies that the loss to the deserving plaintiff who loses is probably slightly smaller on average than the loss to the deserving defendant who loses…. In addition an erroneous judgment for the plaintiff imposes a cost that is avoided when the error goes the other way – the cost of collecting the judgment….

Type I errors in criminal cases involve additional cost because the cost of imprisonment is high, that costs is of course avoided when a guilty person is acquitted, though such an acquittal will reduce deterrence by reducing the probability of punishment for the crime. But the asymmetric effect of the cost of imprisonment on convictions and acquittals means that it probably takes several erroneous acquittals to impose a social cost equal to that of an erroneous conviction. This is one economic rationale for requiring proof beyond a reasonable doubt in a criminal as distinct from a civil case and another is the inherent advantage that the prosecution enjoys in a criminal case, compared to a private civil plaintiff…. In an inquisitorial system, where the search is conducted by a presumably disinterested judge, the need for a heavier burden of proof in a criminal than in a civil system is attenuated.

But an economic approach to causation has never been popular as few juries can sit comfortably with the idea that they have knowingly convicted an innocent person for the sake of easing the burden of proof. Because statistical probabilities will inevitably scoop up innocent people, their use in the criminal context is utterly impermissible. Perhaps it’s Posner’s economic theory of law that have kept him off the Supreme Court (or maybe it was that article characterized as Posner’s argument for selling children; why not verify that claim yourself here).

Via the NY Times (thanks Matt!).

TAL Takes on Patent Trolls

Hot on the heels of Lodsys threatening Apple’s app developers (and Apple threatening back), NPR’s All Things Considered Team tackles the latest scourge to take advantage of our outmoded legal system: patent trolls. Required listening for all app developers, IP attorneys, and law students who are thinking of jumping in bed with the devil.

As a bonus, Peter Detkin explains that when he popularized the term he was thinking of the mythical Norse monster, not the hunting term.

Via NPR.