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.

Jesús Malverde, Patron Saint of Drug Dealers


Depending on who you ask, Jesús Malverde was either a hero or a menace to the people of Sinaloa. Though details are murky, Malverde, “The King of Sinaloa,”  was killed by authorities who regarded him as a bandit. On the other hand, the people regarded him as a Robin Hood-type character who gave what he stole and fought against oppression. While the church refuses to recognize Malverde as a saint, since his death in 1909, he has been praised as a folk-hero and canonized as the narco-saint.

Malverde’s legacy is captured on several films, each one containing a long interlude of a narcocorrido (a type of Mexican music and song tradition which evolved out of the norteño folk corrido tradition, often depicting drug smuggling, murder, and extortion). In one episode of AMC’s Breaking Bad, DEA Agent Hank Schrader is shown with a bust of Malverde on his desk.

As a bonus, here now the narcocorrido from the second season of Breaking Bad, “Negro Y Azul:”

Via the Upcoming Breaking Bad Auction.

Urban Dictionary Finds Place in Official Court Opinions


What once was restricted to Wikipedia, the scholarly source, has now extended to a research tool with potentially less integrity. In a recent piece, the New York Times reports on the growing use of urbandictionary.com as a dictionary of slang and colloquialisms legitimate enough for reference in official court opinions. As official, print dictionaries like Websters and the OED lag behind the parlance of our times, Urban Dictionary maintains an up to date, peer-reviewed list of common words.

Uses of Urban Dictionary, started in 1999 by founder Aaron Peckham from his college dorm, include last month’s Wisconsin opinion where the court sought to determine what was meant by two suspected robbers who referred to themselves as the “jack boys.” A court in Tennessee sought to define what a manager accused of sexual harassment by an employee meant when using the phrase “to nut.”

Prior to the inception of Urban Dictionary, courts would hire linguists to conduct surveys of the population to determine what was meant by a slang term, not found in any traditional dictionary. Now, anyone can provide a definition for a word, whether original or not, which must be approved by five other site users before appearing on the site.

While Rutgers law professor Greg Lastowka anticipates that the use of Urban Dictionary will become more prevalent, Peckham points to the inherent problem with using his site as a traditional dictionary:

[P]rivate analyses the site has conducted show that “funny” is the No. 1 reason people give for voting for posts.

Whether courts will take into account the demographics of the users of the site or that anyone and four of their friends can skew results remains to be seen. YOLO.

Via NYTimes.

More Unilateral Contracts with Teeth


From Facebook to the Tonight Show, unilateral contracts abound. This latest high-profile case features the host of Real Time with Bill Maher, Mr. Bill Maher himself, and none other than Donald J. Trump (the J. stands for Just-how-much-money-will-I-waste-on-public-spectacle” [his grandmother’s maiden name]). Mr. Trump’s lawyer provides a synopsis of the unilateral contract at issue through his January 8, 2013 letter:

Dear Mr. Maher:

I represent Mr. Donald J. Trump.  I write on his behalf to accept your offer (made during the Jay Leno Show on January 7, 2013) that Mr. Trump prove he is not the “spawn of his mother having sex with an orangutan.”

Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan. Please remit the $5 million to Mr. Trump immediately and he will ensure that the money be donated to the following five charities in equal amounts: Hurricane Sandy Victims, The Police Athletic League, The American Cancer Society, The March of Dimes, and The Dana-Farber Cancer Institute.

As previously reported here, to enforce a contract the party seeking to enforce the contract must show a meeting of the minds. Said another way, each party must enter the contract in earnest. Neither pretense, jest, nor parody may create the foundation of a contract. An offer made through a joke is not an offer at all and cannot be the basis for a contract. Take this precedence from Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961):

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Mr. Maher said he would donate $5 million to the charity of Trump’s choice if the Mr. Trump could prove he is not the “spawn of his mother having sex with an orangutan.” Mr. Maher was mocking Trump’s much-publicized announcement in October that he would donate $5 million to charity if Obama would release his college records.

While the earnestness of the offer is a matter for the jury, the case will be kicked out as soon as the judge gets the chance, but not before wasting judicial resources on the already strained California Superior Court system.

In other news, attorneys for Mr. Maher have begun a search for an orangutan named Fred C. Trump.

Via Yahoo!.

Read the complaint here.


2nd Circuit Court of Appeals Holds Giving a Police Officer the Finger is Not Valid Basis for a Traffic Stop


Judge Jon O. Newman, writing for a unanimous panel, found that mild-mannered John Swartz did not provide a basis for a traffic stop when he flipped off New York cop Richard Insogna. A little backstory: John and his wife Judy Mayton-Swartz were driving down the highway when John spotted Officer Insogna using a radar gun to tag motorists. John, the passenger in this car, displeased with Officer Insogna’s speed trap, extended his arm out the window of the car and saluted Officer Insogna with one finger. The Court provides a nice little footnote to the history of the middle finger and even a nod to American University Professor of Law Ira Robbins’ article, Digitus Impudicus: The Middle Finger and the Law.

Officer Insogna gave chase and stopped John and Judy in front of their son’s house, ultimately arresting John for disorderly conduct because he may have heard John call himself “an asshole.” John’s criminal case was dismissed based on speedy trial grounds but John responded with a civil rights suit against Officer Insogna.

At deposition, Officer Insogna maintained that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and (3) “I was concerned for the female driver, if there was a domestic dispute.” With raised-eyebrows, Judge Newman disposed of Officer Insogna’s dubious testimony, offering this interpretation:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Even Aristophanes would have to be proud.

Read the opinion Swartz v. Insogna (2d Cir. Ct. of App. 2013) Docket No. 11-2846-CV.

Read Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008).

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


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.

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.

Justice Breyer Robbed at Machete-Point in the West Indies

Justice Breyer was robbed at machete-point over the weekend at his vacation home in the West Indies. The intruder made off with $1,000. Notably:

  • The Supreme Court Police (?!) are on the case as are the US Marshals, including Dept. Samuel Gerard no doubt.
  • In 2004, Souter was accosted by a gang of toughs while jogging.
  • In 1996, Ginsberg was the victim of a purse snatching.
Via AP News.