Michael Newdow, the plaintiff in the "under God" fiasco that had been in the Ninth Circuit and U.S. Supreme Court in the last few years, is back at it. Not phased at all by the Supreme Court's decision that he did not have standing to litigate his interests as a parent of a school-age child to protect her from religious references, Newdow will now file suit to challenge the words "In God We Trust" on currency.

This is an extremely premature analysis, but my best guess is that this suit will go down in flames in the Supreme Court if it makes it that far and is heard on the merits; there are probably six justices that will feel that this wording is a historical exercise permitted under the Constitution.

These posters have been all over the New York City subways and buses for quite a while now, in both English and Spanish (Si ve algo, dice algo).

But soon, if the application goes through, the Metropolitan Transit Authority will have a trademark in the phrase. The MTA is pretty aggressive on intellectual property, especially considering that they are a municipal organization. I can't help but wonder if trademark attorneys' fees aren't 50 cents of every $2 fare.

Via the Washington Post:

The Kansas Supreme Court yesterday struck down a state law that penalized same-sex statutory rapes by 18-year-olds much more harshly than heterosexual cases, ruling that the law unconstitutionally discriminated against gays.

Of course, when prosecuted (rarely), women charged with statutory rape of a minor male generally face a much lighter sentence than hetersexual male statutory rapists. Wouldn't precedent like this eventually lead us to a view that all males convicted of statutory rape (of either sex) are punished harsher than females thus also sentenced in violation of the Equal Protection Clause. I'm not sure that's a result many people at all really want.

Pennoyer says that U of Rhode Island's "so-called 'double jeopardy' problem is more vexing" than the dorm search and questions whether jeopardy has even attached, as the actions are administrative in nature. A valid point, and I had initially raised concerns, but I wonder if we aren't missing the issue: its an "administrative" action because its a state actor, but really all they're enforcing is a private (contractual) remedy, essentially outside of a traditional legal context (court or administrative), save the fact that they happen to also be a state agency. A public school would likely provide for the same proceeding, and I'm not sure it's different for the state actor — i.e., I'm not sure that asking about jeopardy is the right thing to ask in the first place.

Thinking about a private school scenario, the proceedings would be to decide if the student would be allowed to stay on the campus, determined by school administrators (and maybe student panelists), based on the consented-to rules of the campus. Although we're talking about underlying actions that may be illegal, there's certainly no real jeopardy - at least in the criminal sense - attached because there's (at least at this stage) no crime charged. And there's not even a civil penalty on the line (yet), because we're not in court yet.

Now, the real question is does this intragroup procedure change in some way when the state is the head of the group and, if so, how. I'm not sure that it does, as a matter of law, and even less sure that it should. Yes, we're talking about an administrative body of government, but its not really involved in an administrative procedure in the usual sense. The proceedings aren't occurring because the state agency has a coercive power to compel it, but because it has the "private" right to do this to members of the group because they consented to the rules of the campus. It's certainly comparable to the private school scenario, and probably rightly comparable to something like a homeowners' association proceeding to enforce rules, too. The mere fact that it occurs in the state need not necessarily transubstantiate a private, non-legal remedy — an enforcement of internal and agreed-upon rules (although it could eventually be brought in court, on contractual terms).

Pennoyer says that U of Rhode Island's "so-called 'double jeopardy' problem is more vexing" than the dorm search and questions whether jeopardy has even attached, as the actions are administrative in nature. A valid point, and I had initially raised concerns, but I wonder if we aren't missing the issue: its an "administrative" action because its a state actor, but really all they're enforcing is a private (contractual) remedy, essentially outside of a traditional legal context (court or administrative), save the fact that they happen to also be a state agency. A public school would likely provide for the same proceeding, and I'm not sure it's different for the state actor — i.e., I'm not sure that asking about jeopardy is the right thing to ask in the first place.

Thinking about a private school scenario, the proceedings would be to decide if the student would be allowed to stay on the campus, determined by school administrators (and maybe student panelists), based on the consented-to rules of the campus. Although we're talking about underlying actions that may be illegal, there's certainly no real jeopardy - at least in the criminal sense - attached because there's (at least at this stage) no crime charged. And there's not even a civil penalty on the line (yet), because we're not in court yet.

Now, the real question is does this intragroup procedure change in some way when the state is the head of the group and, if so, how. I'm not sure that it does, as a matter of law, and even less sure that it should. Yes, we're talking about an administrative body of government, but its not really involved in an administrative procedure in the usual sense. The proceedings aren't occurring because the state agency has a coercive power to compel it, but because it has the "private" right to do this to members of the group because they consented to the rules of the campus. It's certainly comparable to the private school scenario, and probably rightly comparable to something like a homeowners' association proceeding to enforce rules, too. The mere fact that it occurs in the state need not necessarily transubstantiate a private, non-legal remedy — an enforcement of internal and agreed-upon rules (although it could eventually be brought in court, on contractual terms).

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

The Chronicle of Higher Education reports (subscription req'd) a student protest of a new campus housing policy:

Students at the University of Rhode Island gathered on Monday outside the office of the university's president to protest new disciplinary policies that, they say, violate their civil liberties.

The new policies, which were approved last week by the president, Robert L. Carothers, give university officials more power to investigate and punish students for both on- and off-campus offenses. In particular, they permit administrators to search dormitory rooms without students' consent and, in campus disciplinary proceedings, to charge a student with the same offense more than once if new evidence is reported within a week of an acquittal.

The policy changes were adopted to curb student disciplinary problems, particularly those associated with alcohol and drugs.

But protesters on Monday called the new policies "draconian and egregious."

The dorm room search doesn't strike me as so egregious. My apartment lease expressly allows for the building owner and management to enter "at any reasonable hour." Most do. Sure, searching would be a little different, but universities are more often being held liable for suicides and drug and alcohol related deaths, so I think it's a reasonable response to their growing liability. Ideally, if I were a student Rhode Island, I would want to see that there were at least minimal procedural safeguards (e.g., that there has to be some cause), but the search itself isn't overly concerning to me, even considering the (public) school's status as a "state actor."

The latter part, however, does smack of double jeopardy. And we are talking about a state school. A better solution might be to adjust procedures so that disciplinary proceedings lasted a little longer, to cover (partially or entirely) this one week window which the university apparently feels may be important, at least in some cases, to obtain all evidence.

Still, even with some concerns, I can't help but think a protest is an overreaction. Students are fabulous at overreacting, and especially when it involves protesting. They might, after all, find much better success trying a respectful letter and student government action. I suspect all they've achieved by protesting is making Dr. Carothers all the more dogged.

The Chronicle of Higher Education reports (subscription req'd) a student protest of a new campus housing policy:

Students at the University of Rhode Island gathered on Monday outside the office of the university's president to protest new disciplinary policies that, they say, violate their civil liberties.

The new policies, which were approved last week by the president, Robert L. Carothers, give university officials more power to investigate and punish students for both on- and off-campus offenses. In particular, they permit administrators to search dormitory rooms without students' consent and, in campus disciplinary proceedings, to charge a student with the same offense more than once if new evidence is reported within a week of an acquittal.

The policy changes were adopted to curb student disciplinary problems, particularly those associated with alcohol and drugs.

But protesters on Monday called the new policies "draconian and egregious."

The dorm room search doesn't strike me as so egregious. My apartment lease expressly allows for the building owner and management to enter "at any reasonable hour." Most do. Sure, searching would be a little different, but universities are more often being held liable for suicides and drug and alcohol related deaths, so I think it's a reasonable response to their growing liability. Ideally, if I were a student Rhode Island, I would want to see that there were at least minimal procedural safeguards (e.g., that there has to be some cause), but the search itself isn't overly concerning to me, even considering the (public) school's status as a "state actor."

The latter part, however, does smack of double jeopardy. And we are talking about a state school. A better solution might be to adjust procedures so that disciplinary proceedings lasted a little longer, to cover (partially or entirely) this one week window which the university apparently feels may be important, at least in some cases, to obtain all evidence.

Still, even with some concerns, I can't help but think a protest is an overreaction. Students are fabulous at overreacting, and especially when it involves protesting. They might, after all, find much better success trying a respectful letter and student government action. I suspect all they've achieved by protesting is making Dr. Carothers all the more dogged.

The first comment to this Juan Non-Volokh post (inviting comments on the usefulness of the third year of law school) sums up the problem:

However, as a practicing attorney, I'm embarrassed to admit that I like the fact that there are so many barriers to entry into the legal services market, like expensive tuition and a difficult first year. If an extra year at $15K or $20K keeps a lot of poor but smart people out of the profession, so much the better.

Back in January, I posted on the lack of respect (particularly titular) afforded the JD, and (only half-jokingly) insisted that JDs should be commonly addressed as "Doctor" (at least as much as PhDs). I think that the JD serves a distinct academic purpose, yet one not fully realized by most students, who fetishize lucrative jobs that (statistically) most will loathe within a few months actual employment. The effects BIGLAW fetish manifests, curricularly, in students as an obsession with taking the "right" and "practical" courses. While these can prove useful, their actual value is sorely limited.

There's an extremely high utility to each class in the first year, where one truly learns to "think like a lawyer". But, once assimilated into the lawyering culture, additional coursework in "substantive" areas is necessarily artificial and, as far too many 3Ls can attest to, extremely banal. One is probably better served by taking non-doctrinal courses, such as seminars, that can actually shape and develop the way one thinks about the law, instead of spoon-feeding tiny slivers of the vast amount of "black letter" law a practicing attorney should know in their field. Practice admission ought to have the most minimal, if any, formal education requirements. (I hesitate to say insist on none because there's also ample reason to doubt that current bar exams are a proper barrier to entry as well, and I think that some minimum competency should be demonstrated through a formal institution, be it educational or by examination.)

Again, I think the JD serves a useful purpose, but not as an appropriate minimal qualification to enter into the practice of law. A modified business school approach to law degree-granting would be a vast improvement (the MBA as a graduate professional degree, the longer and curricularly different PhD as the academic degree; two different law degrees doesn't seem unreasonable). A several-tiered hierarchy of law school degrees seems especially promising to me, perhaps to award the LLB after the first year (and allow admission to the bar; people often seem to forget the, in the U.S., the LLB was generally a second degree, even though baccalaureate), the LLM after the second (in specific concentrations), the JD after the third, perhaps even with the addition of a dissertation requirement. Of course, this plan would lead to the elimination of SJDs/JSDs, but they're quite uncommon among U.S.-trained lawyers as it is. And my plan would also eliminate the exceedingly silly master's degree beyond the doctorate.

Hanno Kaiser has a nice post over at Law & Society about today's filing of suit by the NYCLU. Kaiser asks if people (especially New Yorkers) are really docile enough blindly go along? Well... yes. They don't mean to be, but they're influenced by the world around them and think that such a minor imposition as a bag search isn't such a bad idea. And certainly nobody thinks of the consequences.

So what are the consequences? Kaiser says:

The subway search program is yet another step towards a culture of permission, a culture in which basic rights (such as the right to travel freely within a city) are conditioned upon obtaining prior approval from whatever authority claims to have such powers of pre-approval.

Exactly right. The small transition made in the last few weeks is that instead of paying customers having a right to travel on city transport, they now have the right only subject to NYPD approval. In a sense, we no longer have a right to ride the subway, but merely a license to. Certainly plenty of people in days past have been detained before a subway ride, but not without some cause. But this isn't the case any longer. Rights give way to licensing, licensing to tougher licensing, tougher licensing to prohibition.

Of course, I'm not one to begrudge "reasonable" searches; the Forth Amendment only protects against "unreasonable searches". I would even be willing to consider as (at least potentially) reasonable searches based on profiling that includes some consideration of race. But how can the current searches possibly be characterized as reasonable? They can easily be avoided - there is ample warning and, if selected, one is allowed to walk away. The only way these searches could logically be rationally related to the security interest is if those with illicit materials are presumed to be irrational, i.e., to assume that they would be so stupid as to knowingly walk right into their own capture.

I generally walk everywhere in NY, including between home and Cardozo, but tonight I rode the subway to avoid the light rain. It was the first time I rode since the searching began and, had I remembered it, I probably would've decided to get home a little wet instead. Luckily, I neither saw nor experienced a search on the subway to serfdom.

Where to begin... such a bad movie. Lots of bad things, especially the fact that the writer plays three characters, including and old man and an old woman. I've never understood the humor in not having old people play old people, but whatever. I also have issues about to how we're supposed to see the "mad black woman"'s "strength" in physically abusing, including nearly drowning, her husband that is at the time quadriplegic. That takes a whole lot of courage, no?

Anyway, the most disturbing part of all - running throughout the film - is the gross misrepresentation of family law. The whole premise is that her lawyer (and huge jerk of a) husband made her sign a prenuptial agreement, thus is able to kick her out of the house with no place to go, stop paying for her mother's care, and give her no money. Not even her own lawyer (and cousin) tells her that this is not an open and shut case.

Prenuptial agreements of the kind she has aren't worth the paper they're written on. There's every reason to believe that she didn't have any legal representation when entering the agreement, or if she did it was clearly inadequate. Especially with her husband being an attorney, any court would be highly suspect of her waiving all rights to the property. And many states specifically prohibit the designation of who gets to live in the marital home upon separation.

Her husband would be required to help her maintain the quality of life she had become accustomed to over 18 years of marriage, especially considering that she has no skills with which to earn a living beyond entry-level unskilled labor positions. The fact that they were married for 18 years is also of great importance. Good prenuptials frequently escalate the amount of property retained by the poorer spouse based on the length of the marriage. Among other reasons, this is done to increase the probability of the agreement being upheld.

So there are plenty of reasons to dislike Diary of a Mad Black Woman, and especially its depiction of law. Other misrepresentations in movies present a more complex question, such as Dodgeball, a fine flick... until you get to the terrible ending.

Maybe so. Christine Hurt makes the case for decriminalizing prostitution. (N.B. - Conglomerate's header says "Business, law, economics, and society ... from Wall Street to Main Street"; the post in question would seem to fit rather squarely on the latter side.)

The heart of the matter: "pornography is legal although Person A is paying Person B and Person C to have sex, but prostitution is still illegal because it is a bilateral contract with only two parties".

And let's not the safety of legalized prostitution - it's substantially safer for all parties involved, as is true of any open market compared to it's black market shadow. Ostensibly, prostitution criminalization can be defended on public health grounds, but a regulated service industry would protect the public's health much better. After all, prostitution could certainly be characterized as "affec[tion] with a public interest" (and, yes, you're a huge dork if you get that joke).

Two clarifications: (1) I don't think it would take any substantial additional regulation aimed specifically at prostitution, just application of existing regs AND (2) it's a policy argument, not a legal one, as the means need not be closely tailored to the objective of this law.

This is just plain scary.

A Canadian court issued a John Doe order to enjoin individuals that obtained copies of the Half-Blood Prince (from a retailer that jumped the gun) from reading their copies. From IPKat:

Author JK Rowling’s literary agent said

“Copyright holders are entitled to protect their work. If the content of the book is confidential until July 16, which it is, why shouldn’t someone who has the physical book be prevented from reading it and thereby obtaining the confidential information? How they came to have access to the book is immaterial.”

It’s at times like this that the IPKat wishes that he wasn’t such a blackletter lawyer. While strictly the contents of the book may constitute confidential information, the idea of injuncting innocent purchasers in the interests of having a showy launch leave the IPKat frankly horrified.

It seems that it is actually very material how they came to have access to the books. They purchased from an authorized retailer; they are (although not a copyright term) holders in due course, or a bona fide purchaser, as it were. Rowling has a beef, that's for sure, but it ought to be with the Canadian publisher and store, who allowed it to happen.

Let's twist this around a bit and think of what would happen if a similar rule were applied to broadcast regulation, a related legal regime. Would it make sense that you could be allowed to keep a TiVo'd copy of Janet Jackson's wardrobe malfunction, yet be enjoined from watching it ("time-shifting")? Of course not, that's absurd.

Finally, I'm embarrassingly unfamiliar with Canadian copyright law, but I suspect that this next little bit is substantially the same there. Copyright law (at least in the U.S.) isn't about protecting confidential information from disclosure in the first place, it's about retaining control over subsequent use and dissemination. Again, Rowling, etc. have definitely been done wrong, but not by the readers. Enjoining your fans from reading your book can't be such a good idea.

The WSJ reports that (the fictional Plaza Hotel resident) Eloise is being evicted for two-year renovations. Poor Eloise! But don't worry, there's an intellectual property (para-trademark?) dispute brewing for entertainment in the interim!

Patrick Meehan, who owns the film, TV and merchandising rights to Eloise, wants the Plaza to pay him for using her name and likeness. That's something the hotel has never done. Meanwhile, Simon & Schuster, which holds publishing rights to the character, is miffed at being left out of the talks and is threatening to strike a promotional alliance with another hotel.

... But Eloise's return is not guaranteed. The Plaza has never had a legal claim to the character. Mr. Naftali is now negotiating with Mr. Meehan over compensation issues. Mr. Meehan says he expects the talks to be "protracted."

... Meanwhile, Simon & Schuster, which receives a percentage of movie, TV and product sales, was left out of the negotiations between Mr. Meehan and the Plaza.

The book publisher, which is an adviser to the estate, is threatening to recommend moving Eloise to another hotel if Mr. Meehan doesn't fulfill certain contractual obligations....

Simon & Schuster is not currently considering moving Eloise to another hotel in future books, Mr. Richter says, but he doesn't rule that out, either. Ultimately, Ms. Thompson's estate has final say over story lines for future books, but Simon & Schuster has always worked closely with her heirs. Mike Rudell, a lawyer for the estate, declined to comment.

Likely, the parties will work something out on their own. If it does go to court, it'll likely turn more on contractual provisions between Meehan and Simon & Schuster. But, this does raise the question of what - if any - rights an appropriated owner has to the assets of people/entities that appropriate. That is, Eloise's author didn't just pick the Plaza because it sounded fun, but rather very specifically for what the name conveys. Does the Plaza then have any right to the author's profits? (Obviously, the best case is always to bargain in advance, but this rarely happens, and virtually never with the first work.)

In lots of other contexts, appropriation of value in a name gets a pretty tough look (e.g. metatags, advertising keywords). I often don't agree with those decisions, but it seems to me like allowing broad protection from appropriation in those contexts could only lead to recognizing interests for parties like the Plaza.